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NON
- PRECEDENTIAL DECISION
- SEE SUPERIOR COURT I.O.P. 65.37

LSF9 MASTER PARTICIPATION TRUST

v.

JEANNIE BEATTY NKA JEANNIE PASTERNAK AND LUKE PASTERNAK

Appellants : : : : : : : : : : IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 801 WDA 2019

Appeal from the Order Entered April 9, 2019 In the Court of Common Pleas of Allegheny County Civil Division at No(s): MG

- 17

- 000443
BEFORE: BENDER, P.J.E., KUNSELMAN, J., and PELLEGRINI, J. *
MEMORANDUM BY PELLEGRINI, J.: FILED JANUARY 2, 2020

Jeannie Beatty n/k/a Jeannie Pasternak and Luke Pasternak (the
Pasternaks) appeal from the order of the Court of Common Pleas of Allegheny
County (trial court) granting summary judgment in favor of LSF9 Master
Participation Trust ( Lender ) in this mortgage foreclosure action. We affirm.

I.
In 2007, the Pasternaks executed a mortgage and promissory note in
the amount of $118,560.94, which was secured by real property loc ated at

Brooklawn Drive in Baldwin Borough, Allegheny County . The mortgage was

executed in favor of Lender’s predecessor

- in

- interest, Wells Fargo Financial

_________________ __________ ______ ____ _______

* Retired Senior Judge assigned to the Superior Court.J

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Pennsylvania, Inc. (Wells Fargo) , and recorded in the Office of the Recorder
of Deeds of Allegheny County.

In April 2011 , the Pasternaks filed a voluntary petition for relief under
Chapter 13 of the Bankruptcy Code in the United States Bankruptcy Court for

the Western Dist rict of Pennsylvania. Under their Chapter 13 plan, the

Pas ternaks would continue to make their monthly mortgage payment s of
$1,167.51 to Wells Fargo . The Pasternaks were eventually discharged from
bankruptcy in December 2015. Relevant to this appeal, the bankruptcy

trustee ’s final report and accounting showed a total of $58,765.70 being

disbursed to Wells Fargo as a secured creditor

. That following year, in August
2016, Wells Fargo assigned the mortgage to Lender.
In April 2017, Lender filed this mortgage foreclosur e action against the
Pasternaks, averring that the y had defaulted on their mortgage payments and
owed the following :

Principal $69,237.03 Interest thru 04/04/2017 $ 8,838.15 Escrow Balance $ 4,217.96 Tax Balance $ 469.15 Inspections $ 105.00 TOTAL $82,867.29
Complaint in M ortgage Foreclosure, 4/12/17, at ¶ 10.
After the denial of preliminary objections, the Pasternaks filed an answer
and new matter admitting default but disputing t he amount owed

. They first
challenged the principal owed by claiming that Lender failed to pr operly

account for the ir payments to Wells Fargo during bankruptcy , which theyJ

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claimed were “principal payments.” 1 They also disputed owing any escrow
because , according to them, they had paid all taxes and insurance on the
property

. Lender replied that the $58,765.70 disbursed through bankruptcy

was not applied solely to the principal because the lender determines how

those payments are applied , and that the escrow balance were funds that
were advanced on behalf of the Pasternaks by either Lender o r its
predecessor

- in

- interest.
On September 20, 2018, Lender file d a motion for s ummary judgment,
alleging that the Pasternaks now owed $92,988.24, including an escrow
balance of $3,679.45. The Pasternaks responded that there were still material

issue s of fact raised about what they owed. On April 9, 2019, the trial court

entered a n order granting the motion for summary judgment and entering
judgment in rem in favor of the Lender. A few days later, the Pasternaks fil ed
a motion for reconsideration, which the trial court denied.
The Pasternaks timely appealed and raise three issues for our review:

A. W hether the Trial Court erred by asserting that there were no genuine issues of material fact when it was well

- pleaded that the balance of the mortgage was incorrect on the Plaintiff’s Complaint?

B. W hether the Trial Court incorrectly determined the amount due to the Plaintiff because, in addition to the incorrect amount of mortgage due, Defendants have also been paying t he taxes and insurance for the Property?

_________________ __________ ______ ____ _______

1 Based on this contention , the Pasternaks also contended that Lender’s interest calculation was incorrect

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C. W hether the Trial Court erred when it did not allow for reconsideration of the Motion due to inconsistent pleadings and issues of material fact that would otherwise prevent summary judgment to be granted?

II.

T he Pasternaks ’ first two issues challenge the trial court’s grant of

summar y judgment in favor of Lender. 2 Regarding mortgage foreclosure

_________________ __________ ______ ____ _______

2 This Court ’ s scope and standard of review of a trial court’s order granting summary judgment is well

- settled:
In reviewing an order granting summary judgment, our scope of review is plenary, and our standard of review is the same as that applied by the trial court. Our Supreme Court has stated the applicable standard of review as follow s: [A]n appellate court may reverse the entry of a summary judgment only where it finds that the lower court erred in concluding that the matter presented no genuine issue as to any material fact and that it is clear that the moving party was entitled to a judgment as a matter of law. In making this assessment, we view the record in the light most favorable to the nonmoving party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party. As our inqu iry involves solely questions of law, our review is de novo.
Thus, our responsibility as an appellate court is to determine whether the record either establishes that the material facts are undisputed or contains insufficient evidence of facts to make out a prima facie cause of action, such that there is no issue to be decided by the fact

- finder. If there is evidence that would allow a fact

- finder to render a verdict in favor of the non

- moving party, then summary judgment should be denied.

Gerber v. Pier

grossi , 142 A.3d 854, 858 (Pa. Super. 2016) (citation omitted). Summary judgment in mortgage foreclosure actions is subject to the same rules as other civil actions. See Pa.R.C.P. 1141(b).J

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proceedings, we have stated that “[i]n actions for in rem foreclosure due to

the defendant ’ s failure to pay a debt , summary judgment is proper where the
defendant admits that he had failed to make the payments due and fails to
sustain a cognizable defense to the plaintiff's claim.” Gateway Towers

Condo. Ass ’

n v. Krohn , 845 A.2d 855, 858 (Pa. Super. 2004)

. In addition,
our Supreme Court has stated that in mortgage foreclosure cases , the entry

of summary judgment is proper where it is admitted that the mortgage is in
default, the mortgagors have failed to pay interest on the obligation, and that
the recorded mortgage is in the specified amount, even though the defendant
never admits the amount of the indebtedness in their p leadings. Landau v.

Western Pennsylvania National Bank , 282 A.2d 335, 340 (Pa. 1971)

.
T he Pas ternaks contend that t here was a genuine issue of material fact

to the principal owed

. According to them , all of their payments during
bankruptcy were “principa l payments” because the trustee listed the
$58,765.50 under the “ principal paid ” column in her final report and account

.
See Pasternaks’ Brief at 7. 3 Lender counters that because the mortgage was

a long

- term continuing debt, it was the lender and not the trustee who

_________________ __________ ______ ____ _______

3 The Pasternaks did not attach or include the trustee’s final r eport and accounting with their February 7, 2018 answer and new matter. However, the report was included in their May 23, 2017 preliminary objections to the complaint in mortgage foreclosure.J

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determined how the borrowers’ payments were applied to the mortgage

. See

Lender’ s Brief at 7.
We agree with Lender. A Chapter 13 bankruptcy plan does not alter
how the debtor’s payments will be applied by the lender because Section
1322( b)(2) of the Bankruptcy Code precludes debtors from modifying the
rights of home lenders. See In re deLone , 205 Fed.Appx. 964, 967 (3rd.
Cir. 2006). 4 W hen the Pasternaks filed their voluntary bankruptcy petition in
2011, the terms of the note and mortgag e were not altered. As a result, Wells
Fargo, as Lender’s predecessor

- in

- interest, could apply the Pasternaks’
monthly mortgage payments to interest and principal in accordance with the
original note. Their mortgage payments did not become interest

- free simply
because they paid them through a bankruptcy plan, and the Pasternaks cite
no case law to support such a proposition. That the trustee’ s report listed the
$58,765.50 under the column for “ principal paid ” cannot support the
Pasternaks’ argument that Lender miscalculated the principal . Accordingly , the trial court did not err in holding that there was no material issue of fact as
to the principal amount owed.

_________________ __________ ______ ____ _______

4 Section 1322(b)(2) of the Bankruptcy Code provides that a pl an may “ modify the rights of holders of secured claims, other than a claim secured only by a security interest in real property that is the debtor ’ s principal residence, or of holders of unsecured claims, or leave unaffected the rights of holders of any cl ass of claims[.]” 11 U.S.C. § 1322(b)(2).J

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The Pasternaks also contend that their pleadings created a genuine issue

of material fact ab out the escrow owed . First, their answer clearly did not do

this , having failed to plead any specific facts refuting any amount owed,
answering instead : “ Denied. It is strictly denied that Defendants owe the
balance as stated by the Plaintiff and strict proof is required at time of trial.”
Answer and New Matter, 2/7/18, at ¶ 10. This Court has observed that general
denials constitute admissions when a specific denial is required. See Bank
of America, N.A. v. Gibson , 102 A.3d 42, 466

- 67 (Pa. Super. 201 4) (citing
Pa.R.C.P. 1029(b)).
Moreover, the Pasternaks’ new matter did not create a genuine issue of
material fact. Rather than provide specific dates of payment of insurance and
taxes, the Pasternaks averred that they “have paid taxes and insurance for
the Property since the inception of the mortgage.” Answer and New Matter,
2/7/18, at ¶ 22. However, they did not include or attach any substantiating

documents corroborating their averment. In addition , responding to the
motion for summary judgment, the Pasternaks generally denied the amount
owed, stating that they had already given their reasons for disputing the

amount owed , not attaching any substantiating documents corroborating their

averment. See Response to Motion for Summary Judgment, 12/4/18, at ¶ 7.
When responding to a motion for summary judgment setting forth
evidence establishing the moving party ’ s right to relief, “the adverse party

may not rest upon mere allegations or denials of t he pleadings ,” Pa. R.C.P.J

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1035.3(a) , but must identify evidence controverting the evidence cited in
support of the motion or establishing facts essential to the defense that the
motion cites as not having been produced. Pa.R.C.P. 1035.3(a)(1)

- (2)

. “[P]arties seeking to avoid the entry of summary judgment against them ...
are required to show, by depositions, answers to interrogatories,
admissions[,] or affidavits, that there is a genuine issue for trial.” Wash.

Fed. Sav. & Loan Assn. v. Stein , 515 A.2d 980, 981 (Pa. Sup er. 1986)

. Here, the Pasternaks generally denied the amount owed in their answer

and then claimed in their new matter that they had paid all the insurance and
taxes without providing specifics or corroborating evidence beyond that.

W hen faced with summary judgment, rather specifically den ying that they
owed any escrow or that any funds were advanced to ensure the payment of
the property’s taxes or insurance , the Pasternaks instead chose to rely on their
previous pleadings in disputing the amount owed. Under Pa.R.C.P. 1035.3(a),
the Pasternaks needed to identify evidence controverting Lender’s factual
averment that they owed escrow. By failing to do that, the trial court did not
err in granting summary judgment.
In their final issue, the Pasternaks ar gue that the trial court should have
granted their motion for reconsideration of its order granting summary
judgment. However, an order denying reconsideration is unreviewable on
appeal. See Huntington Nat. Bank v. K - Cor, Inc. , 107 A.3d 783,787 (Pa.
Super. 2014 ) ( “Pennsylvania case law is absolutely clear that the refusal of aJ

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trial court to reconsider, rehear, or permit reargument of a final decree is not

reviewable on appeal.” ).

Order affirmed.
Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 1/2/2020