JP Morgan Chase Bank, etc. v. Garrett, L. (memorandum)

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J-S26027-14 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 JP MORGAN CHASE BANK, N.A., s/b/m CHASE HOME FINANCE, LLC, s/b/m/t CHASE MANHATTAN MORTGAGE CORPORATION, Appellee v. LUNDES GARRETT, Appellant : : : : : : : : : : : : IN THE SUPERIOR COURT OF PENNSYLVANIA No. 2436 EDA 2013 Appeal from the Order Entered August 5, 2013, In the Court of Common Pleas of Monroe County, Civil Division, at No. 7192 CV 2010. BEFORE: BENDER, P.J.E., SHOGAN and FITZGERALD*, JJ. MEMORANDUM BY SHOGAN, J.: FILED JULY 15, 2014 pro se from the order entering summary judgment in favor of JP Morgan Chase Bank, N.A., s/b/m Chase Home Finance, LLC, s/b/m/t Chase Manhattan Mortgage Corporation Appellant executed a loan agreement on August 7, 2003, with Wachovia Mortgage Corporati granted a mortgage in favor of Mortgage Electronic Registration Systems ____________________ *Former Justice specially assigned to the Superior Court. J-S26027-14 that Appellant make interest only payments until September 1, 2010, after which the Note matured, and the entire principal became due. Chase acquired the Mortgage by an assignment of mortgage recorded in the Monroe County Recorder of Deeds on July 22, 2010. Although the record is unclear as to how, Chase came into possession of the Note, which was endorsed in blank. Appellant defaulted on the loan by failing to make a monthly payment on April 1, 2010, and each month thereafter. Consequently, Chase sent emergency mortgage assistance on May 29, 2010. Chase then filed a mortgage foreclosure action on August 2, 2010, demanding, inter alia, an in rem judgment against the property. Appellant filed an answer and affirmative defenses, along with twenty-nine counterclaims based on the Truth in Lending Act, 15 U.S.C. §§ 1601 1693r, the Real Estate Settlement Procedures Act, 12 U.S.C. §§ 2601 praecipe for argument, and a supporting memorandum of law. Appellant did -2- J-S26027-14 discharge, Chase filed a motion for summary judgment on July 7, 2013. The Appellant did not file a response to the motion for summary judgment; rather, he filed a motion for a continuance on July 25, 2013, which the trial summary judgment, and entered an in rem judgment in the amount of $222,090.62, together with interest and costs. Appellant filed a timely appeal and, along with the trial court, complied with Pa.R.A.P. 1925.1 On appeal, Appellant presents twenty-nine issues for our review. statement of questions presented with his Pa.R.A.P. 1925(b) statements of errors complained of on appeal, we observe that Appellant has waived many of his twenty-nine issues. See Greater Erie Indus. Development Corp. v. Presque Isle Downs, Inc., 88 A.3d 222, 224 (Pa. Super. 2014) 1 Appellant actually filed two notices of appeal: one related to the July 30, 2013 order denying his motion for a continuance (Superior Court Docket 2437 EDA 2013) and the other related to the August 5, 2013 order granting 2013). As directed by the trial court, Appellant filed two concise statements of errors complained of on appeal. By order dated September 25, 2013, this Court quashed the appeal at 2437 EDA 2013 as duplicative of the appeal at 2436 EDA 2013. -3- J-S26027-14 (instructing that failure to include issue in Rule 1925(b) statement results in waiver). Specifically, Appellant failed to include questions 5, 8, 13, 14, 16 20, and 24 29 in his Rule 1925(b) statements. Hence, we shall not address those issues. Greater Erie Indus. Development Corp., 88 A.3d at 224. questions fairly comprised within the issues raised in his Rule 1925(b) statements and reproduced verbatim, as follows: 1. Did the Court violate Appellant rights to Due Process, Right to be Heard, and Right to Present Evidences, when the Court held a hearing on March 8, 2011, without notice of date and time of hearing. 2. Does the Court Policy for delegating the safeguards of Due Process to the opposing attorney relieves the Court of its sole responsibility for safeguarding the rights of Appellant, and regards to the hearing held on March 8, 2011. 3. Did Due Process, Right to be Heard, and Right to present Evidences and Oral Argument when Appellee and his attorney caused to be sent a totally inadequate notice of a hearing on March 8, 2011. 4. Did the Appellee and his attorney intentionally manipulation of the inadequate notice of the hearing date and time caused a deprivation of Due Process in order to secure an in regard to hearing held on March 8, 2011. * * * 6. Did the Court abuse its discretion when it denied -4- J-S26027-14 7. Did the Court abuse its discretion and violate Due Continuance, which deprived him of additional time to seek Motion for Summary Judgment. * * * rights to Due Process, Right to be Heard, and Present Edvidences when Notice of the invoking the Court jurisdiction. 12. Did the Court Err in grantin (Note) from MERS along with an assignment. * * * Summary Judgment when Appellee commenced this Complaint to the Complaint. * * * Summary Judgment when Appellee caused to be held a hearing in absent of Appellant, when Appellant could have provided Summary Judgment when Appellee totally refused to respond to -5- J-S26027-14 Discovery Requests, thereby refusing to release evidences in favor of Appellant. Summary Judgment when Appellee totally refused to respond to Qualified Written Requests, four (4) of them. 17. Quest preliminary objections; therefore, we address them together. Appellant argues that the hearing was improper because the trial court held it without Appellant being present. According to Appell responsible for providing notice of the hearing but did not do so; as a result, Appellant did not attend the hearing and, therefore, did not have an compla hearing, and intentionally submitted to Appellant a hearing notice with a two (2) months expanded date of Feb- Id. gful time BuyFigure.com, Inc. v. Autotrader.com, Inc., 76 A.3d 554, 559 (Pa. Super. 2013), appeal denied, 84 A.3d 1061 (Pa. 2014) (quoting Commonwealth v. Maldonado, 838 A.2d 710, 714 (Pa. d in the lower court are waived and claim of error is not properly preserved for review, an appellate court must -6- J-S26027-14 Benson v. Penn Central Transportation Company, 342 A.2d 393, 395 (Pa. 1975) (footnote citing cases omitted). mortgage foreclosure action, affirmative counterclaims on November 15, 2010. defenses, and twenty-nine In response to the counterclaims, Chase filed preliminary objections on December 7, 2010, a praecipe for argument on January 11, 2011, and a memorandum of law on January 21, praecipe for argument requested that the preliminary objections be Certified Record No. 24. Appellant professes he never received notice of the exact date for the argument, and nothing in the record indicates that he did. Notably, Chase did not address the notice issue in its appellate brief, and the 10/18/13, at 7. ck-of-notice claim, we conclude that no relief is due. The record confirms that Appellant received mail. Certified Record No. 25. Having received the order, Appellant did not b -7- J-S26027-14 thereby giving it an opportunity to address and correct the issue; rather, he raises this issue for the first time on appeal. Accordingly, we shall not address this issue because Appellant did not properly preserve it. Benson, 342 A.2d at 395. Next, we address Questions 6, 7, and 9, all of which concern the denial denial of a request for a continuance is an ab discretion. In re J.K. of discretion is more than just an error in judgment and, on appeal, the trial court will not be found to have abused its discretion unless the record discloses that the judgment exercised was manifestly unreasonable, or the results of partiality, prejudice, bias, or ill- Id. Commonwealth v. Coward, 414 A.2d 91, 95 (Pa. 1980) (citing In Re Road in McCandless Township, 1 A. 594 (Pa. 1885)); Commonwealth v. Renchenski, 52 A.3d 251, 256 (Pa. 2012). The record reveals that Chase filed a motion for summary judgment and a praecipe for argument on July 3, 2013, asking for an in rem judgment and placement on the August 5, 2013 argument list. The next docket entry is an order rescheduling the argument on August 5, 2013, from 9:30 a.m. to 11:00 a.m., with an affidavit of service to Appellant by regular mail. Order -8- J-S26027-14 of Court, 7/17/13; Affidavit of Service, 7/17/13. In response, Appellant requested a continuance: I am requesting a rescheduled hearing date due to the fact that I have not found an attorney for representation and need more time to find an attorney, and file a response. Attorney for Chase has agreed on a 30 days [sic] continuance. Your understanding and rescheduling of the hearing would be greatly appreciated. application by order entered July 31, 2013, and served by regular mail on August 1, 2013. Order of Court, 7/31/13; Affidavit of Service, 8/1/13. The trial court disposed of this issue with the following analysis: Appellant similarly raises two interrelated complaints regarding his Motion to Continue. Specifically, Appellant claims that this Court abused its discretion when Appellant requested a continuance, and that we discriminated against Appellant when he requested a continuance. . . . In the case at bar, Appellant sought a continuance eleven days prior to the scheduled Argument to afford him more time in which to seek counsel and respond to Appellees: Motion for Summary Judgment. We unduly prejudice Appellant because he has been on notice regarding the present mortgage foreclosure action since August of 2010 and has therefore had ample time in which to procure counsel. Trial Court Opinion, 10/18/13, at 6 7. cretion or confirms that Appellant was aware of the mortgage foreclosure since August 2010, almost three years before Chase filed its motion for summary -9- J-S26027-14 judgment. That was more than sufficient time to secure counsel, and Appellant does not explain his inability or failure to do so. Moreover, docket. Coward, denying his request for a continuance was untimely and, therefore, prejudicial to his due process rights: On July 30, 2013, the [trial court] denied my request, and filed an Order on July 31, 2013. The postage stamp on the envelope is August 2, 2013 (Exhibit 2). Appellant received the Order [of] Court on August 5, 2013, when he came home at night. The Court held the hearing on this same day, August 5, 2013. * * * Appellant was prejudiced by the Court [sic] lack of care for his rights to equal treatment of the law . . . 30. Upon review, we acknowledge that Appellant may have received the was July 31, 2013, a Wednesday. The record does not indicate why the order was not mailed until Friday, August 2, 2013. The intervening weekend continuance. Nevertheless, Appellant chose not to attend the hearing as -10- J-S26027-14 scheduled, presumably on the assumption that the trial court granted his motion for a continuance but without actual knowledge of the trial court doing so. Given the lack of an order disposing of his motion, Appellant could have called the courthouse on the morning of August 5, 2013, to determine its status. His failure to do so does not amount to trial court error. 10, 11, 12, 15, 21, 22, and 23 challenge the entry of summary judgment in favor of Chase on various ma 72, 83. In response, Chase submits that Appellant waived any challenge to the entry of summary judgment by failing to file a response to its motion for judgment is well settled. We where it is established that the court committed an error of law or abused its Babb v. Ctr. Cmty. Hosp., 47 A.3d 1214, 1223 (Pa. Super. 2012) (citations omitted). Pa.R.C.P. 1035.3 provides, in relevant part, as follows: (a) Except as provided in subdivision (e), the adverse party may not rest upon the mere allegations or denials of the -11- J-S26027-14 pleadings but must file a response within thirty days after service of the motion identifying (1) one or more issues of fact arising from evidence in the record controverting the evidence cited in support of the motion or from a challenge to the credibility of one or more witnesses testifying in support of the motion, or (2) evidence in the record establishing the facts essential to the cause of action or defense which the motion cites as not having been produced. * * * (d) Summary judgment may be entered against a party who does not respond. (e)(1) Nothing in this rule is intended to prohibit a court, at any time prior to trial, from ruling upon a motion for summary judgment without written responses or briefs if no party is prejudiced. A party is prejudiced if he or she is not given a full and fair opportunity to supplement the record and to oppose the motion. (2) A court granting a motion under subdivision (e)(1) shall state the reasons for its decision in a written opinion or on the record. Pa.R.C.P. 1035.3(a), (d), and (e) (emphasis supplied). We have explained the impact of Rule 1035.3 as follows: In cases preceding the promulgation of Rules 1035.2 [regarding summary judgment motion] and 1035.3, . . . the premise established by former Rule 1035 was that the burden of persuasion on summary judgment remained with the moving party and that the non-moving party had no duty even to respond to a summary judgment motion. In the absence of a response, the Rule imposed a duty on the trial judge to conduct an independent review of the record to discern th entitlement to judgment as a matter of law. . . . -12- J-S26027-14 By contrast, under Rule 1035.2 and its corollary, Rule 1035.3, the non-moving party bears a clear duty to respond to a motion for summary judgment. See Pa.R.C.P. 1035.3(a)(1), (2) (requiring nonafter service of the motion identifying . . . one or more issues of fact arising from evidence in the record controverting the evidence cited [by the movant] in support of the motion or . . . evidence in the record establishing the facts essential to the -moving party does not respond, the trial court may grant summary judgment on that basis. See Pa.R.C.P. 1035.3(d). Harber Phil. Ctr. City Office, Ltd. v. LPCI Ltd., 764 A.2d 1100, 1104 (Pa. Super. 2000) (quotation marks and case citation omitted; emphasis in original). See also Payton v. Pennsylvania Sling Co., 710 A.2d 1221 (Pa. Super. 1998) (explaining that failure to respond appropriately to summary judgment motion permits entry of judgment in favor of moving party). Here, Appellant had a full and fair opportunity to supplement the failed to respond to it. Instead, Appellant requested a continuance. Moreover, the trial court stated its reasons for granting summary judgment in a written opinion as follows: In a mortgage foreclosure action, summary judgment is delinquent in mortgage payments. [First Wisconsin Trust Co. v.] Strausser, 653 A.2d [688,] at 694 [Pa. Super. 1995] (citing New York Guardian Mortg. Corp. v. Dietzel, 362 Pa. Super. 426, 429, 524 A.2d 951, 952 (Pa. Super. Ct. 1987). A mortgagor admits that he is delinquent in mortgage payments by failing to -13- J-S26027-14 Strausser, 653 A.2d at 692, Pa.R.C.P. 1029(b). In the case at bar, [Chase] alleged in paragraph seven of the aforesaid Mortgage and note for, inter alia, failure to pay the monthly installments of principal and interest when due. based upon the fact that no mort in the Complaint herein. (b) Denied based upon the fact that Plaintiff refused to accept the April 1, 2010 payment, because of allegation of manipulation rises to the level of denial. Like the Superior Court in Strausser alleged default. As such the purported denial is deemed an admission pursuant to Pennsylvania Rule of Civil Procedure supported by Pennsylvania Rule of Civil Procedure 1035.3(d) against a Trial Court Opinion, 10/18/13, at 4 5. Harber, 764 A.2d at 1104. Thus, Appellant is not entitled to relief. Order affirmed. -14- J-S26027-14 Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 7/15/2014 -15-

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