EMC Mortgage, LLC v. Spennato, A. (memorandum)
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J-A33002-14 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 EMC MORTGAGE, LLC IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee v. ALESSANDRO AND CONCETTA SPENNATO Appellants No. 3286 EDA 2013 Appeal from the Order Entered October 28, 2013 In the Court of Common Pleas of Chester County Civil Division at No(s): 12-12365 BEFORE: LAZARUS, J., WECHT, J., and STRASSBURGER, J.* MEMORANDUM BY LAZARUS, J.: FILED JANUARY 16, 2015 Alessandro and Concetta Spennato (“the Spennatos”) appeal from the order entered in the Court of Common Pleas of Chester County, granting EMC Mortgage’s motion for summary judgment. Upon review, we affirm. This matter stems from a mortgage foreclosure resulting from the Spennatos failure to make the required monthly payments of principal and interest beginning June 1, 2008 and every month thereafter. On May 24, 2013, EMC Mortgage filed a motion for summary judgment, which the court granted on October 25, 2013. This timely appeal followed. On appeal, the Spennatos present the following issues for our review: ____________________________________________ * Retired Senior Judge assigned to the Superior Court. J-A33002-14 1. Did the trial court commit an error of law when it refused the Spennatos’ underlying request for discovery? 2. Did the trial court commit an error of law in its grant of summary judgment upon an inadmissible hearsay testimonial affidavit predicated upon an indecipherable hearsay “loan history?” Brief of Appellants, at 8. Our standard of review of an order granting summary judgment is well-settled: A reviewing court may disturb the order of the trial court only where it is established that the court committed an error of law or abused its discretion. As with all questions of law, our review is plenary. In evaluating the trial court’s decision to enter summary judgment, we focus on the legal standard articulated in the summary judgment rule. Pa.R.C.P. 1035.2. The rule states that where there is no genuine issue of material fact and the moving party is entitled to relief as a matter of law, summary judgment may be entered. Where the non-moving party bears the burden of proof on an issue, he may not merely rely on his pleadings or answers in order to survive summary judgment. Failure of a non-moving party to adduce sufficient evidence on an issue essential to his case and on which it bears the burden of proof establishes the entitlement of the moving party to judgment as a matter of law. Lastly, we will view the record in the light most favorable to the non-moving party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party. JP Morgan Chase Bank, N.A. v. Murray, 63 A.3d 1258, 1261-62 (Pa. Super. 2013) (case citation omitted). In an action for mortgage foreclosure, the entry of summary judgment is proper if the mortgagors admit that the mortgage is in default, that they have failed to pay interest on the obligation, and that the recorded mortgage is in the specified amount. This is so even if the mortgagors have not admitted the total amount of the indebtedness in their pleadings. -2- J-A33002-14 Cunningham v. McWilliams, 714 A.2d 1054, 1057 (Pa. Super. 1998) (citations omitted). After a thorough review of the record, the briefs of the parties, the applicable law, and the well-reasoned opinion of the Honorable Edward Griffith, we conclude the Spennatos’ issues merit no relief. Specifically, we agree with Judge Griffith’s finding that the trial court did not err when it denied the Spennatos request to depose EMC Mortgage’s affiant because the Nanty-Glo1 rule does not apply where the moving party supports the motion with admissions from the opposing party or the opposing party’s own testimony. See Lineberger v. Wyeth, 894 A.2d 141 (Pa. Super. 2006). We also note that the Spennatos fail to appropriately develop argument regarding their second issue on appeal. See Pa.R.A.P. 2119(b). Finally, we agree with the trial court’s finding that summary judgment is proper where, in an action for in rem foreclosure due to the defendant’s failure to pay a debt, the defendant admits that he failed to make payments and fails to state a cognizable defense to the plaintiff’s claim. See Gateway Towers Condominium Ass’n v. Krohn, 845 A.2d 855 (Pa. Super. 2004). Accordingly, we affirm based on the trial court’s opinion, which comprehensively discusses and properly disposes of the questions ____________________________________________ 1 Borough of Nanty-Glo v. American Surety Co. of New York, 163 A. 523 (Pa. 1932). The Nanty-Glo rule applies to cases where the party moving for summary judgment relies on the oral testimony of its own witnesses, regardless of whether such testimony remains unchallenged. -3- J-A33002-14 presented. See Trial Court Opinion, 1/23/14, at 2-3. We instruct the parties to attach a copy of that decision in the event of further proceedings in the matter. Order affirmed. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 1/16/2015 -4- Circulated 01/12/2015 11:28 AM Circulated 01/12/2015 11:28 AM Circulated 01/12/2015 11:28 AM
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