### J - S51015 - 15

________________________ *Retired Senior Judge assigned to the Superior Court. NON - PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 RBS CITIZENS, N.A. S UCCESSOR IN INTEREST TO CCO MORT GAGE CORPORATION IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee
v. ERIC BRODIE AND ADIN A BRODIE Appellants No. 3316 EDA 2014 Appeal from the Judgment Entered October 21 , 2014 In the Court of Common Pleas of Bucks County Civil Division at No(s): 2013 - 01556
BEFORE: GANTMAN, P.J., LAZARUS, J., and PLATT, J.* MEMORANDUM BY GANTMAN, P.J.: FILED SE PTEMBER 14, 2015 Appellants, Eric Brodie and Adina Brodie (“the Brodies”), appeal from the summary judgment entered in the Bucks County Court of Common Pleas, in favor of Appellee, RBS Citizens, N.A. successor in interest to CCO Mortgage Corporation (“RBS Citizens”), in th is mortgage foreclosure action. We affirm. The trial court opinion fully sets forth the relevant facts and procedural history of this case. Therefore, we have no reason to restate them. 1

____________________________________________ 1 

### The court gr anted summary judgment in favor of RBS Citizens by order dated October 20, 2014, entered on the docket on October 21, 2014, with notice sent on October 28, 2014. The Brodies timely filed a notice of appeal (Footnote Continued Next Page)

### J - S51015 - 15

- 2 -

The Brodies raise the following issues for our review: DID THE TRIAL COURT COMMIT A N ERROR OF LAW IN IT S GRANT OF SUMMARY JUD GMENT WHEN THERE DID NOT EXIST A NOTE TRANSFE R BY NEGOTIATION THR OUGH THE CHAIN OF LOAN TITLE IN FAVOR OF [RBS CIT IZENS] BELOW AND THERE WAS NO ASSIGNMENT OF MORTGAGE LIKEWISE? DID THE TRIAL C OURT COMMIT AN ERROR OF LAW IN ADMITTING THE OTHERW ISE INADMISSIBLE AFF IDAVIT IN SUPPORT OF...[RBS C ITIZENS’] MOTION FOR SUMMARY JUDGMENT AS WELL AS UPON THAT AFFIDAVIT’ S LIKEWISE INADMISSIBL E FOUNDATION? ( The Brodies’ Brief at 8). After a thorough review of the record, the briefs of the parties, the applicable law, and the comprehensive opinion of the Honorable Albert J. Cepparulo, we conclude the Brodies’ issues merit no relief. The trial court opinion discusses and properly disposes of the questions pr esented. ( See Trial Court Opinion, filed January 20, 2015, at 6
- 8; 12 - 15) (finding: (1) CCO Mortgage Corporation is original mortgagee and lender; when court granted summary judgment, 15 Pa.C.S.A. § 1929 was controlling, 2 

### which provided that, upon merger, surviving or new corporation succeeds to rights and liabilities of merged corporation; RBS Citizens produced Certificate of Merger (Footnote Continued)

_______________________ 

### on November 20, 2014. On November 25, 2014, the court ordered the Brodies to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b), and the Brodies timely complied.
2 

### On October 22, 2014, the legislature repealed Section 1929, and re
codified the statute at 15 Pa.C.S. A. § 336 (effective July 1, 2015).

### J - S51015 - 15

- 3 -

with official seal by Comptroller of Currency of Treasury Department, signed September 18, 2007 (effective September 1, 2007 ); official certification evidences that CCO merged into RBS Citizens, such that RBS Citizens assumed all of CCO’s assets and liabilities, including Brodies’ mortgage and note; thus, RBS Citizens did not have to produce assignment of mortgage, where merger effectively resulted in RBS Citizens’ assumption of mortgage; (2) RBS Citizens’ loan history records, obtained in regular course of business, did not trigger Nanty- Glo 3 

### rule because such evidence is not oral testimony or dependent upon credibility and dem eanor of any witnesses; additionally, Brodies produced no evidence to refute computation of damages contained in affidavit by David Salley (officer and litigation manager of RBS Citizens) or accuracy of RBS Citizens’ loan history records, except to claim t hey are “indecipherable”; moreover, Brodies’ general denials to itemized list of amounts owed constituted admissions in mortgage foreclosure action). 4 

### Accordingly, we affirm on the basis of the trial court’s opinion. Judgment affirmed.

____________________________________________ 3 

### Borough of Nanty- Glo v. American Surety Co. of New York , 309 Pa. 236, 163 A. 523 (1932).
4 

### The correct citation for LTV Steel Company, Inc. v. W.C.A.B. (Mozena) is 562 Pa. 205, 754 A.2d 666 ( 2000 ).

### J - S51015 - 15

- 4 -

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 9/14/2015

# ® Page 

### 1 of 15 Property was attached to the complaint. The requisite Notice of Intention to Foreclose and Department of Treasury to their Motion. Motion Exh. A. A legal description of the Subject Merger which was recorded in the Office of the Comptroller of Currency , United States Motion for Summary Judgment ("Motion") at']{ 3, Exh. A. Plaintiff attached a Certificate of Plaintiff is the successor in interest to the original Mortgage holder- CCO Mortgage Corp. a Promissory Note in consideration of the loan on June 19, 2007. Compl. at 'I[ 4, Exh. B. Mortgage Book 5465, Page 1194. Compl. at TJ[ 3, 5, Exh. A. Additionally, Defendants executed was recorded in the Office of the Recorder of Deeds in Bucks County on July 19, 2007 in Exh. A. The Mortgage applied to 41 Carol Lane, Richboro, PA 18954 ("Subject Property") and delivered a Mortgage to CCO Mortgage Corp. in the amount of $360,000.00. Complaint at']{ 3 , On June 19, 2007, Eric Brodie and Adina Brodi e ("Defendants") made, executed and 

### II. FACTUAL AND PROCEDURAL BACKGROUND (Pa.R.A.P.) 1925(a). Judgment. We file this Opinion pursuant to Pennsylvania Rule of Appellate Procedure Pennsylvania from this Court's grant of Appellee/Plaintiff RBS Citizens' Motion for Summary Appellants/Defendants Eric Brodie and Adina Brodie appeal to the Superior Court of 

### I. INTRODUCTION Co de 5 2 14 Judge :30 P a trici a L. B a c h tl e , B u c ks C ounty P r ot ho nota ry Rcpt Z 1239909 112 0/2 015 1 :5 3 : 56 PM 

## OPINION 

## 1111 

# J:f 

# 1Wt1~,III Ill
ca s e# : 20 1 3

. 0 1 55 6 809 1 077 0949 ERIC BRODIE AND ADINA BRODIE vs. No. 2013

- 01556 3316 EDA 2014 RBS CITIZENS, N.A., SUCCESSOR IN INTEREST TOCCO MORTGAGE CORP. IN THE COURT OF COMMON PLEAS OF BUCKS COUNTY, PENNSYLVANIA CIVIL DIVISION Circulated 09/03/2015 01:32 PMPage 2 of 15 1 The principal balance owed was $339,663.83 with accrued but unpaid interest at $22,736.26 and fees and co s ts including accumulate d late charges, property inspection fee s , appraisal fees, hazard insurance, school tax, cost of suit , and attorney's fees totaling $ 7 ,928.67. See Compl. at 7 for an itemized list offees. 2 Plaintiff complied with this Order and filed a Certificate of Service on July 5, 2013. Defendants were the Record Owners of the Subject Property. Answer 

### at 16. However, On August 12, 2013 Defendants filed an Answer and New Matter. 

### It was admitted that reinstated on June 13, 2013. Defendants' last known address- 41 Carol Lane, Richboro, PA 18954. 2 The Complaint was Defendants with their complaint by posting the premises and via regular and certified mail to Procedure 430, which we granted on May 30, 2013. Our Order permitted Plaintiff to serve 2013 Plaintiff filed a Motion for Alternative Service Pursuant to Pennsylvania Rule of Civil response, left notices, and thereafter found the notices were removed. Therefore, on May 

### 9 , attempted to serve Defendants with Plaintiffs Complaint five (5) separate times and received no A Sheriff's Return filed on March 19 , 2013 indicated that the Bucks County Sheriff Comp I. at 1 7. complaint i n mortgage foreclosure seeking $370,328.76 as of March 1, 2013 plus interest. 1 itself ... " as "[t]he Mortgage is now in default. .. " Compl. at 113 , 7. Therefore, Plaintiff filed a the Complaint, " Plaintiff brings this action to foreclose on the mortgage between Defendants and thereafter. Compl. at, 7, Motion for Summary Judgment ( " Motion") at 7, Exh. B. Pursuant to make payments of p rincipal and interest due on April 1, 2012 and any monthly payments The Complaint alleged that the Mortgage was in default because Defendants failed to 91 "). Compl. at 1 10. Exh. C. Homeowner's Emergency Mortgage Assistance Act of 1983, 35 P.S. §§ 1680.401c et seq. ("Act pursuant to the Loan Interest and Protection Law 41 P.S. §§ 101 et seq. ( " Act 6") and the Notice of Homeowners' Emergency Assistance was sent to both Defendants individually Circulated 09/03/2015 01:32 PMP age 3 o f 

### 15

Defendants denied that they were in default under the terms of the Mortgage, and additi o nally alleged th at " ' appraisal fe e s, ' 'property inspection ' and p o st
- acce l eration inte re s t i s eith er not chargeable and/or not incurred upon i nformation and bel i ef." An s. at 

## ,r 7
. Defendants re sponded that both the M ortgage and th e Note "speaks for itse l f in its entirety " and also alleged that thi s C ourt is w itho u t juris d iction " for Plaintiff's n on-compliance " in terms of the Act 6/91 N o tices. Ans
. at 

## ,r,r 3, 4 , 10
. Furthermore , in terms of an itemization of amounts due in Paragraph 7 of Plai n tiff s C omplain t , Defen d ant s responde d that "
. .. after reasonab l e investigati o n, Defendants

are wi thout knowledge or information s u f ficient to form a b elief as to the tru th of the av erment and therefore, said averment i s e x p re ss l y de n ied
.. . " Ans
. at 

# ,r 7
. I n th eir New Matter , Defendants all ege that Pl aintiff is w itho u t s tanding , i s in v io l ation of Act 6/91 , i s " b arred by l ac h es , es t oppel , an d its own unc l ean h ands , " and is " barre d and/ or limited by it s violations of th e Truth-I n - L e n din g Act ("TILA ") and Real Estate Settl emen t Pr o cedure s Act 

### ( " RESPN ')
. New Matter at 

## ,r,r 3 , 4 , 6 , 7
. D efe nd ant s fu rther claim that Plaintif fs verific ation is d e fectiv e and th at Plainti ff i s in vio l ati on of th e Hom e Affo rdability Mod i fic ation Pro g ram ("HAMP ") as w ell as the Unfair Trad e Pr a c tice s and Con s umer Protection Law (' ' UTPCPL " ) and "suc h other and furth er governm e nt (federal or state) pr og rams rele v ant h erein. " New Matter at 

## ,r ,r 8, 10 , 1 1. F inally , Defendant s as s ert th at this C ourt is w ithout juri s dicti o n . N e w Matter at 

## ,r 5
. On August 1 6 , 2 0 1 3, Plaintiff filed a repl y t o Defe n dant ' s New Matter, r es pondin g

" Deni e d. D e fendants' allegation s are concl u s i on s of l aw de v oid of an y allegations o f fact; therefore , no re s po nse i s re quired under th e Penn sy l vania Rul e s o f Ci v il Pr oc edure " t o e ac h o f D e fendant ' s all e g ati o n s. P l ai nti ff' s R epl y to Ne w Matter at 

## ,r ,r 1- I 1
. Circulated 09/03/2015 01:32 PMPage 

### 4 of 15 On February 10, 2014 Plaintiff filed a Motion for Summary Judgm e nt ("Motion"). This Motion was praeciped under Bucks County Rule of Civil Procedure ("B.C.R.C
. P.") 208.3(b) and, thus , submitted fo r disposition. In its Motion, Plaintiff asserted that "[t]here is no genuine issue of material fact regarding the Defendants' default." Motion at 

# ,r 12. Attached to this Motion is the Mortgage and Note, both of which were signed by Defendants on June 19, 2007. See Motion Exh. A , B. Plaintiff also attached the Certificate of Merger recorded in the Office of th e Comptroller of Currency, United States Department of Treasury, reflecting Plaintiff as the record holder of both the Mortgage and Note. See Motion Exh. A. Furthermore, a redacted copy of Defendants' loan history and a letter sent to both Defendants individually noti fying them of their default and of Plaintiffs intent to foreclose are attached. See Motion Exh. B. Plaintiff attached an Affidavit to the Motion, authored by David 

### P
. Salley, an officer and litigation manager of RBS Citizens, N.A. Successor in Interest to CCO Mortgage Corp. See Motion Exh. B. Mr. Salley asserted that, based on his personal knowledge and review of business records kept in the normal course of business, payments are due and owing and as of October 22, 2013 the total amount due on the Mortgage wa s $390,059.55, including interest at $62.81 per day. Motion Exh. 

### B. The amount owed was itemized and listed with specificity in his affidavit. In terms of Defendants' Answer, Plaintiff asserted that Defendants offered only 

### a general denial in response to Plaintiffs averment of default and the amount due and owing on the mortgage, and, therefore, pursuant to relevant Pennsylvania caselaw, such a denial constitutes an admission in 

### a mortgage fo reclosure action. Motion at 

# ,r,r 12, 

### 13. Defendants filed a Response in Opposition to Plaintiffs Motion for Summary Judgment ("Response " ) on March 12, 2014. In this response, Defendants "expressly denied" that Circulated 09/03/2015 01:32 PMP a ge 

### 5 of 15

D ef endant s ever ex ecute d a mo rtga ge or n o te in favor o f Plaintiff. Re s p o ns e at 

## fl 2

- 3
. Furthermore , i n term s o f the am o unt due , Defendants d e ny that th ey are liabl e fo r " app rais al fe es , " " prop erty in s pection " and po s t-ac c eleratio n intere s t. R es p o nse at 1 4. Defe n dan ts av er th at Mr. S alley ' s af

fidavit constitutes " inadmi s sible testimonial h e arsay p re dicate d upon an ind ec ipherable ' p ay ment hi s tory." ? Re s p o ns e at ~ 7. Defendant s also cl ai m th at this court lack s juri s diction relatin g to P l ai ntiff s " non- c ompl i an c e " w ith A ct 6/9 1. Re s p o nse at 19
. In Defendants' ac c ompan y ing Memorandum of L aw , Defendants fir s t c laim th at

" Plaintiff must be the ne go tiated transfere e of the subject note as well as re c o r d assi g n ee of th e
s ubject m o rt g age thr o ugh the chain of l o an title ( a s evidence d b y ne goti ati o n/all o ng e and

ass i g nment of m o rtgage , res pe c tivel y ) ." Defendants argue summ ary judgmen t was in ap pro priate

as the n o te was s till in the name of the o ri g inal l e nder and Plainti ff fail e d to att ac h an ass ignm e n t of mortg a g e . Furth erm o re, Defendants aver that Mr. Salle y' s affidav i t w a s in v i ol ation o f th e Nan ty- Glo rule
. On O c t o be r 20, 20 14 , up o n con si d er ation of th e fo rego in g, we i ss u e d an Or d er g ran ti n g
s umm ary j udgm en t for Pl aintiff s and en tering an 

### in re m j ud g m e n t ag ain st D efe ndant i n th e
am o unt o f $ 390 ,0 5 9.5 5 plus intere st in the am ount of $62. 81 p er day fr o m O c t o b er 23, 2 014. O n N ovemb er 20, 2014 , D e fend an t s fil e d a N o ti ce o f Ap p eal to the Su pe rior Court
. 

### III. MATTERS COMPLAINED OF ON APP E AL O n N o ve mb er 25, 2 014 , w e Orde re d D efe ndan ts t o fil e a co nci se s tate m e nt of m atte r s
c o mpl ain e d o f o n app e al pursuan t t o P a .R.A.P
. 1 9 25 ( b) w ithin twe n ty
- o n e ( 2 1 ) d ays . O n D ec embe r 1 6, 20 1 4 , D efe n dan t s filed hi s l 925( b ) s t atement r aisi n g the fo ll owi n g c lai ms, 

### verba tim: Circulated 09/03/2015 01:32 PMPage 6 of15



### 1) The Court Correctly Granted Summary Judgment in Favor of Plaintiff Summers v. Certainteed Corp., 997 A.2d 1152, 1159 (Pa. 2010). On appellate review, then, an appellate court may reverse a grant of summary judgment if there has been an error of law or an abuse of discretion. But the issue as to whether there are no genuine issues as to any material fact presents a question of law, and therefore, on that question our standard of review is de novo. This means we need not defer to the determinations made by the lower tribunals. To the extent that this Court must resolve a question of law, we shall review the grant of summary judgment in the context of the entire record. 

### [S]ummary judgment is appropriate only in those cases where the record clearly demonstrates that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law
. When considering a motion for summary judgment, the trial court must take all facts of record and reasonable inferences therefrom in a light most favorable to the non-moving party. In so doing, the trial court must resolve all doubts as to the existence of a genuine issue of material fact against the moving party , and, thus, may only grant summary judgment "where the right to such judgment is clear and free from all doubt. established: The Superior Court's standard of review of 

### a court's grant of summary judgment is well

### IV. ANALYSIS 5) Whether the trial court erred in admitting otherwise objected to as inadmissible claimed "evidence"? 3) Whether the trial court erred in finding Plaintiff has standing/authority to allow summary judgment? 

### 4) Whether the trial court erred in precluding requested discovery, oral argument, and evidentiary hearing? 2) Whether the trial court erred in finding Plainti ff was the pre-judgment record assigned mortgagee and recipient of the negotiated transferred note through the chain of loan title such as to allow summary judgment? 1) Whether the trial court erred in granting Plaintiff-Appellee's Motion for Summary Judgment per the arguments contrary thereto in Defendants-Appellants' response in opposition? Circulated 09/03/2015 01:32 PMP a ge 

### 7 of 

### 15 A ll the p ro perty, re al, per so n al and mi x e d, an d franc hi ses of eac h of th e co rp orati o n s p artie s t o th e m e r ger or c on so lid atio n , and 

### al l d ebt s du e o n w h atev er acco unt t o an y of th e m . . . sh all be dee me d to b e ve ste d in an d sh all bel o n g to th e surv i v in g o r n ew corporati on , as th e case m ay 

### be , w i tho ut furthe r acti o n, an d the ti tl e t o any re al e state, o r an y intere st th ere in , ve ste d in an y of th e c o rpo r ati on s shall n ot rev ert o r b e in any way i mp ai re d b y reaso n of th e m e r g e r or co n so lid ati o n . The s u rviv in g o r n ew co rp oratio n sh al l the n cefo rth be re s p o n s ibl e fo r all th e l iabiliti e s of e a ch of th e co rpor ati o n s so m erge d o r co n s ol i d ated
. i s as fo ll ows : o f me rge r o r co n so lid ati o n " ) w as co ntr o llin g. T h ere fore , the effe c t of a m e r ger or co n so lidati o n th is c ase, T itle 

### 1 5 ( " Corp o r ati o n s an d U nin c orp o r ated A s sociatio n s" ) P a . C
. S .A. 

### § 1 929 ( " E ff ect i s the o ri g inal M o rtga gee an d L end er. How e ve r , at the ti m e s umm ary j ud g m e n t was g r ante d i n refere n c e an Ass i g nm e nt o f Mortg a ge. Additi o n al l y , we recognize that th e C CO Mo rt gage Corp
. m ortgag ee an d rec ipi e nt o f the N o te. Th ere is no di spu te that P lainti ff d i d no t p r odu c e o r D efe ndan t c laim s that thi s c ourt e rred in findin g Pl ain tiff 

### was th e reco rd assigned 

### 2) Plaintiff

was the Pr

e- Judgment Record

As s igned Mortgagee and R e cipi e nt of the N e gotiated Transferred Note b e l ow . of th ese ave rm e n ts are w holl y co nt ain e d in D e fendant s ' i ss ue s 

### 2 ) - 5), we w ill a d dress them th e Nanty

- G l o rul e, and 

### (3) th e mer ger do c ument s co n s titu te in a dmi ss ib l e he ars ay . Be c au s e al l fail ed t o att ac h or refe re n ce an A s s ignment of M ortga ge an d 

### ( 2 ) th e af fi dav it wa s in v i o l atio n of be summ arize d a s fo llo ws: (1) Plai n ti ff is n o t th e re cord hold er o f the Mo rt gag e an d
. No te an d Opp os ition to Plai ntiffs Moti o n fo r S umm ary Jud g ment are thre e- fo ld as set fo rth ab ov e an d can In regar d to Defendant s ' first claim , the ar g ument s mad e in D efe nd ants' R e s pon se i n Circulated 09/03/2015 01:32 PMPage 

### 8 of 15 3 We are aware that as of October 22, 2014 (two (2) days after our grant of Summary Judgment) the General As s embly repealed 15 Pa.C.S.A. 1929 in total. See 2014 Pa. Legis. Serv. Act2014- 172 (H.B. 2234 )
. 4 Defendants' executed the Mortgage and Note on June 19 , 2007. challenging our jurisdiction to entertain this particular lawsuit generally or Plaintiff's lack of allow summary judgment." We are uncertain and 

### it is unclear as to whether Defendants are Next, Defendants claim the trial court erred in "finding Plaintiff had standing/authority to 

### 3) The Trial Court had Jurisdiction to Adjudicate the Instant Litigation general statements that Plaintiff was not the reco r d holder of the Mortgage and Note. Furthermore, Defendants failed to present evidence to the contrary, and simply rested on their unnece s sary, as the merger effectively resulted in Plaintiffs assumption of the Mortgage. including the Mortgage and Note at issue here. As a result, an Assignment of Mortgage was resulted in RBS Citizens, 

### N.A.' s assumption of all CCO Mortgage Corp.' s assets and liabilities, based on the language of the relevant statute in addition to the directives of caselaw, the merge r Association." Motion 

### Exh. A. Th erefore, in granting summary judgment, we determined that merged into Citizens Bank, National Association "with the title RBS Citizens, National evidences that CCO Mortgage Corp. o f Glen Allen , VA (among other distinct corporations) was indicated that the merger was effective as of September 

### 1, 2007. This official certification Summary Judgment. Motion Exh. A. This Certificate was signed on September 18, 2007 4 and official seal by the Comptroller of the Currency with the Treasury Department to the Motion for corporati on"). Here, Plaintiff attached a Certificate of Merger that was signed and bore an merge the surv i ving corporation succeeds to both the rights and liabilities of the constituent (Pa. 2013) (holding 

### "It is well established law in the Commonwealth that when corporations 15 Pa.C.S.A. 

### § 1929(b). 3 Accord LTV Steel Co., Inc. v. W.C.A.B
. (Mozena). 754 A
. 2d 666. 677 Circulated 09/03/2015 01:32 PMPage 9 of 

### 15 5 Based on the foregoing and despite our efforts to address Defendants' claim, we are of the opinion that it is waived as vague pursuant to relevant law. Where a petitioner's Concise Statement pursuant to Pa.R.A.P. l 925(b) is not specific enough for a trial court to identify and address the issue the petitioner wishes to raise on appeal, the trial court may find waiver. Commonwealth v. Reeves, 907 A.2d 1, 2 (Pa. Super. 2006). When a court must guess what issues are being appealed, petitioner has not presented enough for meaningful review. Id. When a petitioner fails to identify the issues he pursues on appeal, the court is impeded in its preparation of a legal analysis pertinent to those issues. Id. "In other words, a Concise Statement which is too vague to allow the court to identify the issues raised on appeal is the functional equivalent ofno Concise Statement at all." Id. (citing Lineberger v. Wyeth, 894 A.2d 141, 148 (Pa. Super. 2006)). property was sold thereafter. Id. Mortgagor then filed a "Motion to Set Aside Judgment and pursuant to the settlement agreement and mortgagee filed a praecipe for writ of execution and the payments. Beneficial, 77 A.3d at 548. Thereafter, mortgagor defaulted on her obligations however, agreed not to execute on the judgment so long as mortgagor continued making regular in which mortgagee received judgment for the accelerated amount due on the mortgage, complaint in mortgage foreclosure against mortgagor, which resulted in a settlement agreement Consumer Discount Co. v. Vukman, 77 A.3d 547 (Pa. 2013). In this case, mortgagee filed a prerequisites has been previously adjudicated and decided by our Supreme Court in Beneficial Response at 

# ,r 9. This issue of whether the Act 91 notice requirements impose jurisdictional court lacked jurisdiction "relating to Plaintiffs 'non-compliance' with Act 6/91. Furthermore, in Defendants' Response to Plaintiffs Motion, Defendants claimed that this Bucks County, PA. land or a part of the land is located." There is no dispute that the Subject Property is located in states that a mortgage foreclosure action "may be brought in and only in a county in which the instant action is pursuant to Pennsylvania Rule of Civil Procedure ("Pa.R.C.P.") 1142, which Mortgage and Note. In addressing the former, we note that our jurisdiction to entertain the and, therefore, at the time summary judgment was granted Plaintiff was the holder of the have previously established that Plaintiff was the successor in interest to CCO Mortgage Corp. standing to bring the lawsuit for reasons set forth above. 5 Regardless, in terms of the latter, we Circulated 09/03/2015 01:32 PMPage 10 

### of 15 6 Although the Notices sent to D e fendants individually by Plaintiff are entitled "Act 91 Notice," the dictates of Act 91 (specifically 3 5 P.S. § 1680.403c(b)(l)) provide that a mortgagee shall prepare a notice pursuant to all of the information required by the statute in addition to that required by Act 6 (41 P.S. § 403). All of the information re quire d by both Act 6 and Act 91 are contained therein. See Comp!. Exh. C; Motion Exh. B. was first filed on March 

### 5, 2013 and Defendants had been in default under the terms of the of Plaintiffs affiant. First, it is important to note that the Complaint in Mortgage Foreclosure Opposition to Plaintiffs Motion for Summary Judgment, Defendants "demanded" the deposition further discovery. However , in their Memorandum of Law in support of their Response in disc retion and/or error as a m atter oflaw because they did not have an opportunity to engage in Defendants question whether this Court's grant of summary judgment was an abuse of 4) The Court Correctly Precluded Discovery, Oral Argument, and Evidentiary Hearings notice and, therefore, this claim is meritless. matter and, even so, Defendants do not point to any specific defect or omission in the combined Regardless, any failure to provide such notice in no way affects our jurisdiction to hear this regarding notice of default and their intention to foreclose. 6 See Compl. Exh. C, Motion E x h. B. Id. at 553. Here, we determined that Plaintiff provided adequate Act 6/91 Notice to Defendants The failure to pay the mortgage according to its terms gave [mortgagee] its cause of action. To act on that cause of action, it was required to give notice under Act 

### 91. As the notice it gave did not meet the requirements of the Act, it was defective and the procedural requirements for enforcement were n o t met; that defect, however, did not affect the jurisdiction of the court to hear the matter. [the] case." Id
. at 549. The court reasoned and concluded as follows: notice was deficient, this fact did not extinguish the trial court's subject matter jurisdiction over be waived
. " Id. Mortgagee filed 

### a timely notice of appeal, raising the issue that "even if the deficient as a result and concluding "this stripped it of subject matter jurisdiction, which cannot mortgago r of an option available to her as of 

### 2006. Id. The trial court found the notice was Sheriffs Sale" on the basis that the Act 91 Notice was deficie n t because it failed to inform Circulated 09/03/2015 01:32 PMPage 

### 11 of15



### 5) The Trial Court Correctly Considered Plainriff's Affidavit, Defendant's Loan History Documents, and the Merger Documents required to provide oral argument and was permitted to dispose of the matter by written order. satisfy the praecipe requirement of B.C.R.C.P. 208.3(b)(6). Therefore, this Court was not Response. Although Defendants may have desired oral argument, Defendants' request failed to written order
.... " Defendants did not request oral argument via praecipe when they filed their within the 

### IO-day period specified in subsection (2) hereof, the matter shall be disposed of by oral argument has been requested by the moving party in the praecipe, or by any other party required. Bucks County Rule of Civil Procedure ("B.C.R.C.P) 208.3(b)(6) states that "[ujnless Plaintiffs Motion for Summary Judgment, neither party requested oral argument via praecipe as in the ad damnum clause of their Memorandum of Law in Support of their Opposition to In the instant case, although Defendants demanded an evidentiary hearing/oral argument order for this Court to rule on Motions for Summary Judgment. See Pa.R.C.P. 

### § 1035.2(1). additional discovery
.... " Pa.R.C.P. 1035.2. Thus, discovery does not need to be completed in fact as to a necessary element of the cause of action or defense which could be established by Moreover, summary judgment may be granted "whenever there is no genuine issue of material record as it stands before us is devoid of any notice of intention to take such an oral deposition. allegations. There is no evidence that Defendants attempted to depose Plaintiffs "affiant," as the opportunity to conduct discovery to negate Plaintiffs assertions or support any defenses to the Plaintiffs Motion for Summary Judgment. Defendants were afforded ample time and not receive it for review until May 6, 2014. It was not until October 20, 2014 that we granted August 12, 2013. This Motion was not praeciped for our disposal until April 7, 2014 and we did Mortgage and Note since April 1, 2012. Defendants filed their Answer and New Matter on Circulated 09/03/2015 01:32 PMPage 12 

### of 15 Three (3) factors determine the applicability of the Nanty-Glo Rule: DeArmitt v. New Yo rk Life Ins. Co., 73 A.3d 578, 595 (Pa. Super. 2013).

In determining the existence or non-existence of a genuine issue of a material fact, courts are bound to adhere to the rule of [Nanty-Glo] which holds that a court may not summarily enter a judgment where the evidence depends upon oral testimony. The function of the summary judgment proceedings is to avoid a useless trial but is not, and cannot, be used to provide for trial by affidavits or trial by depositions. That trial by testimonial affidavit is prohibited cannot be emphasized too strongly. In considering a motion for summary judgment, the lower court must examine the whole record, including the pleadings, any depositions, any answers to interrogatories, admissions of record, if any, and 

### any affidavits filed by the parties. From this thorough examination the lower court will determine the question of whether there is a genuine issue as to any material fact. On this critical question, the party who brought the motion has the burden of proving that no genuine issue of fact exists. All doubts as to the existence of a genuine issue of a material fact are to be resolved against the granting of summary judgment. added). The Rule, as explicated by the Pennsylvania Superior Court: issues of material fact." Dudley v. USX Corp., 606 A.2d 916, 918 (Pa. Super. 1992) (emphasis affidavits or depositions, or those of its witnesses, to establish the non-existence of genuine " ... the party moving for summary judgment may not rely solely upon its own testimonial depositions) to determine the outcome of a case in motions practice. The Rule dictates that The Nanty-Glo rule governs the use of oral testimony (either through affidavits or dictates of Nanty-Glo v. American Surety Co., 163 A. 523 (Pa. 1932). merger documents. We will address the admissibility of each in turn, but will first set forth the Memorandum of Law including the affidavit of Mr. Smalley, the payment history, and the evidence attached to Plaintiffs Motion for Summary Judgment as set forth in their responsive 'evidence.'?' In addressing this issue, we assume that Defendant is again relying on the specific Defendants finally claim that this court erred in "admit[ing]" inadmissible "claimed Circulated 09/03/2015 01:32 PMPage 

### 13 of 

### 15

Exh. A, Motion Exh. A. Furthermore, the Note, which was signed by Defendants, clearly states interest, these fees are specifically provided for in paragraph 14 of the Mortgage. See Compl. Plaintiffs Motion, including "appraisal fees," "property inspection" and post-acceleration Addressing the fees that Defendants deny they are liable for in their Response to "indecipherable." the accuracy of the loan history records, and only go so far as to conclude they are evidence to refute Mr. Smalley's computation of damages in the affidavit, nor have they refuted the amounts due and owing on the Mortgage. Furthermore, Defendants have not provided any provided any evidence to refute Plaintiffs accounting of damages. There is no discrepancy in Most importantly, in terms of the affidavit and loan history, Defendants have not demeanor of any witnesses. because this evidence is not oral testimony and is not dependent upon the credibility and Plaintiff in the regular course of business, do not trigger the applicability of the Nanty-Glo Rule that Defendants are in default of the Mortgage. Defendants' loan history records, obtained by by way of the pleadings and by way of Pa.R.C.P. 1029 ("Denials. Effect of Failure to Deny"), Applying the Nanty-Glo analysis to the instant case, Plaintiff has shown without doubt, genuine discrepancy or dispute as to a material fact. at 920. Therefore, in order for the Nanty

- Glo Rule to apply in the instant case, there must exist a DeAnnitt v. New York Life Ins. Co., 73 A.3d at 594-95 citing Dudley v. USX Corp., 606 A.2d Initially, it must be determined whether the plaintiff has alleged facts sufficient to establish a prima facie case. 

### If so, the second step is to determine whether there is any discrepancy as to any facts material to the case. Finally, it must be determined whether, in granting summary judgment, the trial court has usurped improperly the role of the [fact-finder] by resolving any material issues of fact. 

### It is only when the third stage is reached that 

### Nanty

- Glo comes into play. Circulated 09/03/2015 01:32 PMPage 

### 14 of 15

that the interest rate is 6.750% annually upon the unpaid principal. The Note explicitly provides that this is the interest rate to be employed both before and after any default by Defendants. 

### It is obvious that Plaintiff calculated the interest and fees based upon the information provided in the Mortgage and the Note , both of which were contractually agreed to by Defendants. Based upon the clearly delineated interest rate, amount of the monthly payments, late charges (five percent (5.000%) of the overdue payment) and the amount of unpaid principal on the loan, Defendants were fully capable of determining the amount of interest and late charges that accrued from the date of default to the filing of the Complaint. Because these documents speak for themselves in terms of the calculation of the interest, principal, and fees owed, Plaintiff is not required to prov i de a step-by-step computation. Furthermore, in terms of an itemization of amounts due in Paragraph 7 of Plaintiffs Complaint, Defendants responded that "
... after reasonable investigation, Defendants are without knowledge or information sufficient to form a belief as to the truth of the averment and therefore , said averment is expressly denied
... " Ans. at 

# ,r 7. Defendants also provided that the Mortgage and the Note are documents that "speak for [themselves] in [their] entirety" or "expressly denied" their existence. Ans. at 

# ,r,r 3, 4; Response at 

## ilil 2-3. When it is clear that a party must know whether a particular allegation is true or false, reliance on Pennsylvania Rule of Civil Procedure 1029(c) does not excuse a party's failure to admit or deny the allegation. Cercone v. Cercone, 386 A.2d 1, 4 (Pa. Super. 1978); see also Pa.R.C.P 1029(c). Further, "in mortgage foreclosure actions, general denials by mortgagors that they are without information sufficient to form a belief as to the truth of averments as to the principal and interest owing must be considered an admission of those facts. " First Wisconsin Trust Co. v. Strausser, 653 A.2d 688, 692 (Pa. Super. Ct. 1995). Indeed, to date Defendant is Circulated 09/03/2015 01:32 PMPage 

### 15 of 15 RULO,JUDGE BY 

### THE COURT: Court's granting of Summary Judgment for Plaintiff. The foregoing represents this Court's opinion regarding Defendants' appeal from the 

### V. CONCLUSION entitled to judgment as a matter of law. Summary Judgment failed to create a genuine issue of material fact and, accordingly, Plaintiff is Ultimately, Defendants ' Answer and New Matter and Response to Plaintiffs Motion for Exh. A, Motion Exh. A. sealed Certificate from the Comptroller of the Currency evidencing the merger . See Compl. by a certificate that the officer has the custody" of the document. Here, Plaintiff attached a attested by the officer having the legal custody of the record, or 

### by his deputy, and accompanied admission of documents located outside the Commonwealth is that it be evidenced by a "copy pursuant to 42 Pa.C.S.A. 

### § 5328(a). Section 5328(a) provides that the prerequisite for the Finally, the Merger documents constitute an official record and are thus admissible Strausser, 653 A.2d at 692. associated with default of this Mortgage) contained in his Answer constitutes an admission. See general denials to Paragraph 7 o f Plaintiffs Complaint (setting forth an itemized list of costs 1987). Thus, in the absence of any evidence to refute Defendants ' averments, Defendants' denial." New York Guardian Mortgage Coq,
. v. Dietzel. 524 A.2d 951, 952 (Pa. Super. Ct. "the only part[y] who would have sufficient knowledge on which to base a specific Circulated 09/03/2015 01:32 PMBarbara A. Morris,

Law Library BUCKS COUNTY COURTHOUSE 55 East Court Street, 1st Floor Doylestown, PA 18901 Janette Livezey, Managing Editor LAW REPORTER Bucks County Bar Association 135 East State Street Doylestown, PA 18901 Sean P. Mays, Esqui re LAW OFFICES OF GREGORY JA V ARD IAN 1310 Industri al Boulevard, Suite 101 Southampton, PA 18966 

### Counsel for Appellee Matthew B. Weisberg, E squire WEISBERG LAW, PC 7 South Morton Avenue Morton , PA 19070-1707 

### Counsel for Appellant Copies Sent To: RBS CITIZENS VS. ERIC BRODIE No. 2013-01556 3316 EDA 2014 Circulated 09/03/2015 01:32 PM