J - A31029 - 16

NON - PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 PENNY MAC CORP. IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee
v. HAQNAWAZ CHUGHTAI AND SALEEMA CHUGHTAI Appellants No. 857 EDA 2016

Appeal from the Order Entered March 9 , 2016 In the Court of Common Pleas of Bucks County Civil Division at No(s): 2013 - 06809 BEFORE: BENDER, P.J.E., MOULTON, J., and FITZGERALD, J. * MEMORANDUM BY MOULTON, J.: FILED MAY 03, 2017 Haqnawaz Chughtai and Saleema Chughtai (“the Chughtais”) appeal from the March 9, 2016 order of the Bucks County Court of Common Pleas granting Penny Mac Corporation’s (“Penny Mac”) motion for summary judg ment. 1 We affirm. The well
- reasoned opinion of the Honorable Brian T. McGuffin set forth the detailed factual and procedural history underlying this appeal, which we adopt and incorporate herein. See Opinion, 5/5/16, at 1
- 3 (“1925(a) Op.”).

____________________________________________

* Former Justice specially assigned to the Superior Court.
1 The Chughtais initially appealed a February 18, 2016 order, which the tr ial court amended on March 9, 2016 at the request of Penny Mac to reflect an error in calculation.J - A31029 - 16

- 2 -

On appeal, the Chughtais raise the following issue: “Did the trial court commit an error of law in granting foreclosing lender’s Motion for Summary Judgment when [Penny Mac]’s motion was founded upon an inadmissible testimonial affidavit?” Chughtais’ Br. at 8. It is well
- established that “ summary 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.” Truax v. Roulhac , 126 A.3d 991, 996 (Pa.Super.) (quoting Atcovitz v. Gulph Mills Tennis Club, Inc. , 812 A.2d 1218, 1221 (Pa. 2002)), app. denied , 129 A.3d 1244 (Pa. 2015). The moving party bears the burden of proving that no genuine issue of material fact exists

. Stimmler v. Chestnut Hill Hosp. , 981 A.2d 145, 159 (Pa. 2009). “[T]he 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 th e existence of a genuine issue of material fact against the moving party . . . .” Truax, 126 A.3d at 996 (internal citation omitted). We have explained our standard of review as follows: [A]n appellate court may reverse a grant of summary judgment if th ere 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 de fer to the determinations made by the lower tribunals.J - A31029 - 16

- 3 -

Id. (quoting Weaver v. Lancaster Newspapers, Inc. , 926 A.2d 899, 902
– 03 (Pa. 2007)). The Chughtais claim that the trial court should have denied Penny Mac’s motion for summary judgment because the mot ion was solely supported by an inadmissible affidavit, and because their general denials to the complaint should not have been treated as a deemed admission that a properly negotiated note existed through the chain of loan title. 2 In its opinion, the tri al court set forth the relevant law, addressed the Chughtais’ claim, and properly determined that summary judgment was appropriate. See 1925(a) Op. at 4
- 8. In their answer to the complaint, the Chughtais made general denials, which constitute admissions. See Bank of Am., N.A. v. Gibson , 102 A.3d 462, 466 (Pa.Super. 2014). This fact, coupled with the affidavit provided by Penny Mac, the Act 6 notice, 3 and proof of the mortgage assignments, shows that there was no genuine issue

____________________________________________

2 The Chughtais waived their further contention that Penny Mac failed to establish a properly endorsed note through the chain of loan title by not raising it in their response to Penny Mac’s motion for summary judgment. See Devine v. Hutt , 863 A.2d 1160, 1169 (Pa.Super. 2004) (“[A]rguments not raised initially before the trial court in opposition to summary judgment cannot be raised for the first time on appeal[.]”).

3 See 41 P.S. § 403 (providing that a residential mortgage lender must give the residential mortgage debtor notice of its intention to “accelerate the maturity of any residential mortgage obligation, commence any legal action including mortgage foreclosure to recover under such obligation, or take possession of any security of the residential mortgage debtor for such residential mortgage obligation” at least 30 days in advance).J - A31029 - 16

- 4 -

of material fact and that P enny Mac was entitled to judgment as a matter of law. After reviewing the briefs, the record, and the relevant law, we affirm based on the trial court’s cogent reasoning. See 1925(a) Op. at 4
- 8. Because the Chughtais failed to set forth a genuine issue o f material fact, we conclude that the trial court did not abuse its discretion or commit an error of law in granting Penny Mac’s motion for summary judgment. Order affirmed. Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 5/3/2017the Motion 

### as Exhibit G. -,

Judgment The Mortgage was also recor d ed on June 12, 2006. (Appellee'$ Mot. for Summ, 

### J.; Ex. E.) Appellants further s igned and deljvered an accompanying Adjustable Rate Rider, attached to 1, 2006. (Compl. 

### ?if 4-5.) Appellee attached the Mortgage as Exhibit E in its Motion for 

### Summary a Mortgage on the Property to Mortgage Electronic R e gistration Systems, Inc. ("MERS,,), as nominee for Home 

### Loan Center, Inc. dlb/ti Lending Tree Loans(''Jfome Loan Center"), on April 19006 (°Ptoperty ' ')

. In the Complaint, JPMorgan alleged that Appellants e x ecuted and delivered

- ~ ('Appellants"), for the.f o reclosure of 1765 Antumn.Leaf'Lane, Huntingdon Valley, Pennsylvania This mortgage foreclosure action was brought initially by JPMorgan Chase Bank, Natiqnal Association,' on September 4~ 2013, against Haqnawas Chughtai and Saleema 

### Chughtai S T ATEMENT OFFA C TS Corporation, in this mortgage foreclosure action. The Court files 

### this opinion 

### pursuan, to 

### Pennsylvania Rules of Appellate Proc e dure 19Z5(a). Appellants, Haqnawaz Chughtai and Saleema Chughtai, 

### appeal from the Court's 

### Order dated February 

### l8, 2016, granting 

### Motion for Summary Judgmen tin favo r of Appellee, Penny Mac OPINION 

# . 

# . Appellants. 

### HAQNAW AZ CHUOHTAl and SALEEMA CHUGHTAI, 

### v. I No
. : ~ 2 013~06 8 09 (JI



### ::..? :P •

~ 

# 1\11 

# Ill ~ f/111 ea..c~: 2013-06609 SOii H21l65<11 Appellee, . . IN THE COURT O F COM:MON PLEAS OF BUCKS COUNTY, PENNSYLVANIA

. . . . .._,.& ,--... CIVIL ACTION-~ILAW C,,.· ~-0 ::31: 0., :;:o ~ c:·0:C 

# n~:~ Y'e>·M Cft,z:- 

### no< o-1P-: 'C:)>0 ;t:;::., 

### ~ ... < '""- PENNYMAC 

### CORP., • ••. :· c r , . L
. · ' ,. t, Circulated 04/21/2017 08:43 AM2

co n trary. As to the rest of :the allegations found in the C ompiaint, Appe).lants e ither 

### admi t or provide general d e nials
. {See Answer, 

### Yi 4-10
. ) F or examp le, , JPMorgan 

### and Appellee 

### alleged that Appellants defau lted on the Mortgage as of January 1 , 2 012~ but Appellants only respo nd ed 

### with

a d enial
. and that they lacked know l edge or information sufficient to answer. I d
. at 

### fl

. 8-9. 

### More o ver, Appellee attached the A c t 6 Notice that 

### was sent- to Appellants as 

### Exhibit B 

### to its Motion for Summary

J u dgment an d Appellants did n o tptovide any 

### e xplanati o n or evidence to the

. 

### . On J une 9, 2015 , 

### Appellee filed
. f o r substitution and replaced JPMorgan as 

### the creditor in this action
. Appel l ee subsequently filed the 

### instant Motion for 

### summary Judgment on October 19, 2015, and the Court received Appellants' 

### Responseon November 18~ 2015 , Appellan ts in their Answer to th e 

### Comp l aint admitted to b eing the m o rtgagors o f th e 

### Property; (Compl. ~ 2-3
. ) Appellee in 

### its M o tion for Summary 

### Judgment als o attached the signed and notarized Mortgage. (Appellee's Mo t. fo r Summ
. J
. , 

### Ex
. E p . 2
. ) Whil~ AppeJhmts' d ~ ny signing a mortgage in fav o r of MERS, the fully 

### exe cuted Mortgage express l y 

### states under Definitio ns (C) that "MERS i s th e mortgagee under the Security Instrument," and that MER.$ is actii:l g solely as a n o minee for theLender, Id
. The 

### Mortgage further states that the 

### Lenderis Home Loan Center
. Id
. All 

### of this 

## was alleged .in JPM o rgan and Appellee ' s Complaint (See 

### Compl
. 1 4
. ) to PennyMac 

### Corporati o n ("Appe ll ee''). ~ 

### -at p . 5
. On April 2 5, 2 0 12 , the 

### mo rtgage was assigned
. to JPMorgan. (Compl. 

## ,r 6.) 

### The assignment


### was record ed on May ts. 

### 2012. (Appellee ~ s Mot

. 

### for Summ , J. , 

### Ex. F
. )Then 

### on January 9, 2014, 

### the Mortg a g e was 

### so l d by 

### JFM o rgan; and all rights to the 

### Property were transferred and assigned

. I ··- - - · ~ . ..!- ~ .... _ JS;..... ~ .J.

. llL L
.3

On 

### April 1, 2016, Appellants submitted 

### a Concise Statement of Matters 

### Complained of on Appeal, raising the following for review: 1. Whether the Court of Common Pleas erred 

### in entering summary judgment?

STATEMENT OF MATTERS COMPLAINED OF ON APPEAL Appellants now appeal from this Court's Order dated February 18, 2016,. alleging that the Court improperly granted summary judgment. After a teview of the case, including all filings and exhibits, the Court 

### granted 

### summary judgment 

### in favor of Appellee
. on February 18, 2016> entering an in rem judgment against Appellants in the amount of $465,921.83, 

### together with 

### interest and other 

### costs and charges collectible under the mortgage. Th e Court amended the Order dated February. It 2016, on March 9, 2016, at Appellee's request to lower the judgment amount to $46l,903.83 to reflect the true debt, as the original proposed order provided· b y Appellee included an error in calculation. 

### In Appellants' Response to Appellee~s Motion, they included only a one page 

### memorandum of law. (Docket No. 

### 29.) Appellants merely asserted that Appellee 

### had failed to 

### meet its burden of proof. Id. Appellants also incorrectly asserted that the 

### only evidence that 

### was provided was in the form on an inadmissible testimonial hearsay, the Affidavit, and that the Affidavit could not 

### be considered under ij"anty--Olo· 

# v. American Sux e ty Co., 

### 163 A. 523 (Pa 1932). Id. In addition, Ap p ellee attached an· "Affidavit in Support of Plaintiff' s Motion for Summary Judgment,' with its Motion. In the Affidavit, an employee with authority to make representations
on 

### behalf of Pe~yMac Corporation attested thats based on business records, 

### PennyMac Corporation purchased Appellants' Mortgage from JPMorgan and that the Mortgage had been in default since January 1,2012. ~
~ '
..... . •• .o..(. ...r.. ........ •... -· ·· i,-_ , ~- . ~4 

### D I S CU S SI ON The Court was 

### well within its 

### authority in 

### granting summaryj udgmen ;

### in favor of 

### Appellee in this mortgage foreclosure lawsui t. " A party 

### bearing the burden
. of proof at trial is entitled to summary judgment 'whenever there is no genuine Issue· of any material 

### fact as to a necessary element of the cause of action O l" 

### defense which could be established by additional discovery or expert report ? " 

### Bankof Alp,., 

### N.A
. v. Gibs on.1 0 2 A.3d 462,464 (Pa. Super. Ct. 2014) (quoting Pa.RC.P
. No. 1035
. 2(1))~ appeal den i ed. l 12 A.3d 648 (Pa. 2015). In considering the merits o f a motion fu r summary judgment, a co urt views the record i n 

### the · tight most favorable to the non-moving party, an d all doubts as to the existence of a genuine issue
. 

### of material fact 

### must be resolved. 

### against the moving party. 

### Jones 

### v. SEPIA, 772 A.2d 435, 438 (P~ 2001). However, ''[i]n response 

### to a summary 

### judgment motion, the nonmoving party cannot I'C$t 

### upon the pleadings, 

### but.rather must : set 

### forth specific facts demons1rating a genuine issue of material fact. 

### Oibsoq, 102 

### A.3d at 464 ( ci ti ng Pa.R , C.P, No
. 1035.3)
. "It 

### is w e ll-settled that the 

### mere asserti on 

### that a 

### matmal issue of fact exists without producing 

### any evidence is insufficie n t to 

### defeat a 

### motfon for 

### s ummary judgment," L in g v . . Com
. , 2. Wheth~r the Court of Common P l eas 

### erred in 

### entering summary judgment 

### when there existed genuine issues of material fact and Plaintiff-Appelle e 

### was not entitled to judgment as a matter of law? 

### 3. Whether the trial 

### court erred in 

### failing to apply the appropriate swnmary judgment standard in its ~rant 

### ofsunnnary judgment? 4
. Whether the trial 

### court erred by 

### consideration and admission 

### of inadmissible evidence including but not 

### limited to Plaintiff-Appellee's m otion's attached testimonial hearsay affidavit?5

Dep't of Transp .• 79 A3d 1, 3 (Pa. Commw. 

### co, ru_,peal denied,,, 81 A.3d 79 (Pa. 2013). Also, general denials or demands for proof have the effect of admissions. Se~ Cercone v. Cercone, 386 A
. 2d 1, 7-9 (Pa. S u per. Ct 1978). Furthermore, "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 [ on the 

### mortgage] 

### must be considered an admission of those facts," 

### Gibson. 102 A.3d at 466 ( citations omitted). "The holder of a m o rtgage has the right, UJ)Oll default, to 

### bring a foreclosure action," Gibson.. 102 A3d at 464-65 (citation omitted). ''The holder of'a mortgage is entitled to summary judgment if the mortgagor admits 

### that the mortgage is in default the mortgagor has 

### failed to pay
on 

### the obligation, and the 

### recorded mortgage is in the specified 

### amount," 

### Iii. Appellants argue now on appeal that the Court impermissibly considered the supporting Affidavit as provided in Appellee's 

### Motion. The Superior Court 

### has already squarel y addresse d 

### this issue against Appellants. 'See Gibson, 102 A.3d at 466~67 (holdin g that 

### summary judgment
was proper where the trial 

### court relied on the 

### bank's affidavit 

### in addition to 

### the mortgagor's deemed admissions). In that case, the mortgagor argued on appeal that the· trial court erred .in granting summary judgmen t by relying on an 

### affidavit that was inadmissible hearsay. Id. "The Nanty-Glo decision directs that summary judgment may not b e entered where the moving party relies exclusively upon oral testimony, either through testimonial affidavits or deposition testimony, to establish th e absence of a genuine issue of material fact," Porterfield v. Trustees ofHoso
. of Univ. o!Pennsylvania. 657 A2d 1293, 1294-95 (Pa. Super. Ct. 1995) (citation omitted). However, "[ a]n exception to this rule exists where the moving party supports the motion by using admissions of the opposing party ':}t the opposing party's own witnes s es." Id, A ccord Lin eberger v. Wv~ 894 A.2d 141, 149 (Pa. Super. Ct. 2006). 'I.
. ..... ... .. ill,•;.. ~·- ,l::t..... •6

In 

### Gibson
. 102 A..3d at 4 6 6 ;. 6 7, the mortgagor had respo n ded to the 

### bank's complaint with
o nly g e n eral deni als, whic h were tre ated as deemed admi s sions. Under the Nanty-Glo excepti o n, the Superior Court 

### there 

### affirmed the trial court's re liance on the bank ' s supporting affidav i t 

### because o f the mortgagor's d ee med admissions i n gr anting summary judgment.~ id. The Superior Court in 

### Gibso n fiJrtMr stated that th e reference d l o an 

### history documents as · attached t o the affidavit, were reco rds of regul arly 

### conducted activity, o r business records , and

w o u l d be admis s ible attrial 

### wi th p roper foundation in any event. Id. (P a .R
. E
. 8 Q 3(6) ; 42 

### Pa
. C. S. § 61 0 8 )
. 

### Thi s Co urt, un d er 

### the analysis pf Gib so n, could 

### properl y consider not 

### j us t th e Affidavit itself, becaus e . Appellants 

### responde d with only general 

### denials t o the C omplaint as will be discussed in
. the following paragraphs,. but 

### als o the referenced 

### business rec o rd s attached as exhibits to 

### th e M otio n . More o ver , "[s]ummary judgmen t is 

### p roper when 

### the pleadings, 

### dep o sitions, answers to 

### interrogato ries , 

### and admissions ~n file, tog eth4' rwith 

### an y affidavits , sh o w that~ i sno genuin e iss ue as to an y material fact 

### and that the moving party 

### is entitled tojudgment as a matter of law
. " Kenney v. Jeane s Ho~ .• 76 9 A.2 d 492 , 495 (Pa
. Super . Ct. 2001) (emphasfa added)
. . I n the instant CMC , the exception to Nanty-Glo applies because Appellants 

### hi their Answer· responded with 

### only general denials. Appellants admitted in their answer that they are the
m o rtg ag o r o wners o f the Property
. ( Co mpl. ,i, 1-3.) In their Response to.Appe l lee ' s .Moti o n; 

### the y denied e ver exec u ting or delivering 

### any Mortgage 

### to MERS as n o minee 

### fo r Home
. 

### Loan Center
. (Answer 

## ,r 4.) Howev e r, the attached Mortgage in Appellee's Motion clearl y indi c ates that it i s signed by Appellants , and that MERS acted as no min ee for 

### Home Loan 

### Center
. (App~ ll ee ' s ,Mot. fo r Summ. J
. , Ex
. E p . 2 .) .ii~

. . 1h:.
.- - - - --- - - - - ····· · - -···· 7



### ln addition, Appellee 

### in its Complaint alleged that 

### Appellants have been in default since January 1, 2012. 

### and incl u des a 

### detailed list of'the itemized charges 

### it believed Appellants owed. (Compl. 

### ff 8-9.) App e llee again provided only general denials, by impermissibly stating that after 

### reasonable investigation that they 

### were with o ut knowledge or information to 

### answer, (Answer '11'1 8-9). As stated previous l y, 

### in mortgage foreclosure 

### actions, general denials by. 

### mortgagors that 

### they are without information s ufficient 

### to form a belief as to the truth of av erm ents as to the principal and interest owing on the 

### mortgage must 

### be considered an admission. of those facts. Gibson, 102 A.3d at466~ Furthermere, there is no genuine 

### issue of material fact that Appellee's 

### are the mortgage 

### holder and 

### that the Act 6 Notice has 

### been provided. Appellee has provi d ed. with its Motion as part of Exhibits 

# a , E, and F, the Notice that was sentand proof of the mortgage assignments. Appellants 

### have provided no explanation or eviden ce to the contrary and 

### that their d enials shoul d be rejected. Moreover, the Affidavit 

### provided by Appellee in this case 

### i s not, as 

### Appellants argue, 

### impermissib letestimonial hearsay under Nanty-Glo. Just 

### like in Gibson. Appellants responded to the Complaint with only general denials end their responses ate deemed admission. Also, Appellee attached the signed Mortgage and Adjustable Rate Rider an.d evidence of the various assignments 

### that took place. Therefore; the Court could, an d did , consider the Affidavit as further evidence that Appellants had defaulted. and that Appellee 

### was e ntitl e d to judgment. In thiscase, Appellants have wholly failed to se t forth specific 

### facts demonstrating· a genuine issue of material fact Appellants had an obligation to make monthly payments pursuant 

### to the Mortgage and the Adjustable Rate 

### Rider. Appellee 

### has alleged that 

### Appellants defaulted on January 1, 2012, andthat no payments hav e b een made since then, Appellants failed to properly object 

### or provide 

### any evidence that paym en ts have been 

### tendered
. The Mortgage and 

### the . r . • , llL '

.This Court's O rder granting summary judgment in PennyMac 

### Corporatio n 's favo r should 

### be 

### affirmed
. C O NC L U S ION j I 

## i accompanying rider include an acceleration 

### clause, provisions fur 

### reasonable attorney ' s - fees and costs associated with 

### enforcement, including property inspections, ~ (Appellee Mot Summ, J ., 

### fat. E ,,i 14, 22, Md E x . G 

## ,r 7.) Therefore, based on all the availabl e evidence, and the Jack of any

_ genuine dispute of material fac t, we 

### did not 

### err by 

### granting summatyjudgmentinAppeUee;s-favor. - · - '
. t,. ~ :.t:..
. .. ~ ...... . . . · : . . L
. Ji..