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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 CITI MORTGAGE, INC. IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v. RANDY ROCCO Appellant No. 857 EDA 2014

Appeal from the Order February 18, 2014 In the Court of Common Pleas of Bucks County Civil Division at No(s): 2009 13417
BEFORE: PANELLA, J., LAZARUS, J., and WECHT, J. JUDGMENT ORDER BY PANELLA, J. FILED APRIL 07, 2015 Appellant, Randy Rocco, appeals pro se from the order entered February 18, 2014, by the Honorable Wallace H. Bateman, Court of Common Pleas of Bucks County, which entered summary judgment in favor of Appellee, CitiMortgage, Inc., in the underlying mortgage foreclosure action. We affirm. We briefly set forth the uncontested facts of this case as follows. On January 7, 2003, Rocco executed a mortgage on property located at 224 Creekwood Drive, Feasterville Trevose, Pennsylvania 19053. In 2007, the mortgagee, ABN AMRO Mortgage Group merged with CitiMortgage. Rocco defaulted on the mortgage in 2009. On December 21, 2009, CitiMortgage moved to foreclose on the property as successor by merger. In his Answer to the Complaint, Rocco generally denied the averments of default.J
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Citi Mortgage filed a Motion for Summary Judgment. Rocco filed a response, as well as a Cross

-Motion for Summary Judgment in which he raised several allegations of fraud. The trial court entered an order granting CitiMortgage’s motion for summary judgment. This timely pro se appeal followed. We review a challenge to the entry of summary judgment as follows: [We] 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. See Pa.R.C.P., Rule 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 nonmoving 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 he bears the burden of proof establishes the entitlement of the moving party to judgment as a matter of law. Lastly, we will review 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. E.R. Linde Const. Corp. v. Goodwin, 68 A.3d 346, 349 (Pa. Super. 2013) (citation omitted). In 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 payments due and fails to sustain a cognizable defense to the plaintiff’s claim. See Gateway Towers Condo. Ass’n v. Krohn, 845 A.2dJ
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855, 858 (Pa. Super. 2005); First Wis. Trust. Co. v. Strausser, 653 A.2d 688, 694 (Pa. Super. 1995). On appeal, Rocco has distilled the 13 issues raised in his Rule 1925(b) statement into five claims. Rocco’s pro se brief is at times difficult to decipher, and often makes sweeping claims that are ultimately unsubstantiated. The trial court, in its May 12, 2014 opinion, has done an admirable job of parsing Rocco’s claims and disposing of the arguments on the merits. We have reviewed Rocco’s brief, the relevant law, the certified record, and the well

-written opinion of Judge Bateman. Having determined that the trial court’s opinion ably and comprehensively disposes of Rocco’s issues on appeal, with appropriate reference to the record and without legal error, we will affirm based on that opinion. Order affirmed. Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 4/7/2015judgment to Appellee, we provide a brief background of the Motion to Strike filed by Appellee

While not relevant to this appeal of our February 18, 2014 Order granting summary 10 of Appellee's Complaint. matter. Appellant merely provided "Denied" to the averments contained inparagraphs 3 through paragraphs 

### I and 

### 2 of the Complaint regarding the names and addresses of the parties to this 

### May 12, 20I0, Appellant filed an Answer to the Complaint wherein Appellant "Admitted" principal and interest were due and unpaid for August 1, 2009 and each month thereafter. On Mortgage Foreclosure alleging the mortgage 

### was in default because monthly payments of,



# . Pennsylvania 19053 (the "Property"), On December 21, 2009, Appellee filed its Complaint in stun of$220,000.00 for the property located at 224 Creekwood Drive, Feasterville Trevose, On January 7, 2003, Appellant executed amortgage andpromissory note in the principal· Il. PROCEDURAL AND FACTUAL BACKGROUND 

### Procedure 1925(a), we file 

### this Opinion 

### in supportof this Court's ruling. judgment in this mortgage foreclosure action. 

### Pursuantto Pennsylvania Rule of Appellate on February 18, 2014, granting PlaintiffCiti Mortgage, Inc. (herein "Appellee") summary Randy Rocco,

### pro se (herein "Appellant") has appealed the Order entered by this Court I. INTRODUCTION 

## OPINION

... RANDY ROCCO, 

### v. No. 2009-13417 

## cmMORTGAGE, INC., IN THE COURT OF COMMON PLEAS OF BUCKS COUNTY, PENNSYLVANIA CIVILACTION 

## .,,
,. \ Circulated 03/31/2015 03:53 PMfailed to provide evidence to support his claims. On February 

### J 8, 20I4, we issued an Order

allegations therein, we determined that there 

### wasno genuine issue of material fact as Appellant Statement Various responsive pleadings followed thereafter. Upon review of the filings and the • allegations of fraud, which is also the basis for a nwnber of issues raised in Appellant's Concise Judgment and a Cross-Motion for Summary Judgment in which Appellant raised several existed. On September 9, 2013, AppeUant filed his Response to Appellee's Motion for Summary allegations of the Complaint were uncontroverted and therefore, no genuine issue of material fact On August 22, 2013, Appellee filed its Motion for Summary Judgment claiming that the inappropriate for B.9.~

.C.P. 208.3(b) disposition. Therefore, themotion 

### wasnot ripe for the Court's review and never decided by the Court. procedurally defective as itdid not contain a Praecipe for Determination and was therefore responded to Appellee's Reply on June 26, 2013. However, Appellant's Motion was 24, 2013, Appellee filed a Reply to Appellant's Motion on June 11, 2013, and Appellant Strike, and the parties filed various responses thereafter. We issued an Order on May 13, 2013 granting Appellee' s Motion to Strike. The docket notes that Appellant filed a Motion for Leave to File a Counterclaim on May Complaint and a Praecipe to Discontinue and End this action. On January 8, 2013, Appellee filed a Motion to Strike the foregoing praecipes, alleging 

### that they were filed erroneously due to

an inadvertent clerical error. On January 18, 2013, Appellant filed a Reply to the Motion to active status on June 28, 2012. On July 18, 2012, Appellee filed a Praecipe to Withdraw the of on Appeal. The docket reflects approximately two 

### years of inactivity, which resulted ina termination notice from this Court under B.C.R.J.A. 29. Appellee thereafter filed a certificate of as it 

### was addressed numerous times in Appellant's Concise Statement of the Matters Complained Circulated 03/31/2015 03:53 PM

### 7. Was it error to grant CITI's motion for 

### summaryjudgment when genuine issues of fact existregarding that: (a) All documents submitted by Plaintiff are forgeries or otherwise fraudulent. 

### 6. Whether the trial court 

### abusedhis discretion 

### and/ orerred 

### as a matter of law 

### in granting sununary judgment to appellee, without allowing plaintiff any discovery [?] 

### 5. Whether the trial court erred as a matter oflaw, abused its discretion and committed reversible error in excludingAppellants [sic] counteflaims of fraud and negligence against Appellees[?] 3. Did not the lower court abuse its discretion, err as amatter oflaw and violate appellant's rights to due process under the Federal and state constitutions by overruling appellant's objection because of fraud to said motion to strike in paragraph one[?] 

### 4. Whether the trial court erred 

### as amatter of

### law, abused its discretion 

### and committed reversible error granting summaryjudgment to 

## cmwho is purporting to be foreclosing onRocco's Property without standing to do so and whether the lowercourt furthered [sic] erred as amatter of law in permitting the Plaintiff, 

## cm MORTGAGE, INC., who after filing a Foreclosure Complaint In Rem on December 21, 2009 purported to change procedure into one of equity causingprejudice to Rocco, over 

### his objection[?] 2. Whether the Due Process Clauseof the US Constitution's Fourteenth Amendment requiresthat the Appellant be afforded 

### anopportunity to·be heard "orally" on the substance of the saidmotion to strike in paragraph one, and what, at a minimum, must that "hearing" entail? Appellant has raised thirteen matters on appeal. 

### They are 

### as follows 

### verbatim: I. Did the Trial Court err 

### as a matter of law and abuse its discretion ingranting 

## cm MORTGAGE, INC.

### 's, (hereinafter "CITI''), Motion to Strike and Dismiss Praecipe To Withdraw The Complaint and Mark the Matter Discontinued And Ended WithoutPrejudice where Appellee's petition failed to state a claim upon which relief may be granted[?] 

# m. ISS~.§ granting Appellee's Motion for SummaryJudgment, which 

### is the basis of this appeal. Appellant filed his Notice of Appeal to the Superior Court on 

### March 17, 2014. Circulated 03/31/2015 03:53 PM12. The Affidavit submitted by CITI is hearsay and should have been stricken in its entirety(.] 11. Did the trial court err as a matter of law where, for the purpose of summary judgment, it failed to view all evidence in the light most favorable to Plaintiff and to consider objective circumstantial evidence showing that Defendants committed fraud[?] 10. Where the Counter-Complaint alleges fraudulent procedural actions by CITI may the trial court enter a summaryjudgment based upon documents before the fact finder determines the disputed factual i,sue of fraud inthe procurement[?] 9. The trial court erred when it entered summaryjudgment (in] 

## em's favor on its claims when there exists evidence of fraud because Loan officer Sharon Grove 

### as a notary cannot sign the mortgage docwnent for the mortgagee and 

### as a 

### witness to 

### her own purported sworn certification on the same page 

### an [sic]then notarize her own signature. 8. The trial court erred when it entered summaryjudgment [in] CITI's favor on itsclaims when there exists evidence of fraud because Loan officer Sharon Grove as a notary cannot sign the note document for the note and as a witness to her own purported sworn certification on the same page an [sic]then notarize her own signature.' · (b) The document purported to [be] the Mortgage is a forgery) a false and fraudulent document that is void and cannot support this 

### statutory foreclosure action as a matter of law. (c) The document purported to [be] the Note is a forgery, a false and fraudulent document that is void and cannot support this statutory foreclosure action 

### as a matter of1aw. (d) There is no "valid mortgage" brought with this complaint. Pa. R. Civ. P. 1147. (e) 

## cm is a servicer, not a mortgagee. (f) The original debt to mortgage the subject property was extinguished and the Lender was paid. (g) Rocco isthe true andrightful owner of the subject property 224 Creekwood Drive, Feasterville, PA 19053. (h) CITI is foreclosing onRocco's Property without standing to do so and on 'December 21, 2009 the Plaintiff, 

## cm MORTGAGE, INC. filed a Foreclosure Complaint InRem. (i) 

## cm failed toproperly authenticate documents according to the law, its agent'sAffidavit is Hearsay. Circulated 03/31/2015 03:53 PM

### Ins. Co

., 947 A.2d 206, 210 (Pa Super. 2008) (internal citations omitted). The Court is unable to

and writes an opinion pursuant to thatsupposition the issues [areJ still waived." Jlricko v. Geico Statement at all. Even if the trial court correctly guesses the issues Appellants raise on appeal a1Jow the Court to identify the issues raised on appeal is the functional equivalent to no Concise The Superior Courthas also explained that 11a Concise Statement which is too vague to Review, 494 A.2d 1081, 1086 (1985)). 

### .. Motors Corp., 567 A.2d 680, 682 (1989) (quoting Vann v. Com, Unemployment Comp. Bd; of 

## I risk that [her] lack of expertise and legal trainingwill prove [her] undoing."' O'Neill v. Checker choosing torepresent [herself] in a legal proceeding must, to somereasonable extent, assume the Id Furthermore, the Superior Court has stated that "while this court is willing to liberally
construe materials filed by aprose litigant, we note that appellant is not entitled to anyparticular advantage because she lacks legal training

. As our Supreme Court has explained, 'any layperson "Appellant has chosen to proceedpro.se and he cannot expect our court to act as his attorney." representation does not relieve appellant ofhis duty to properly raise and develop his appealable claims." First Union Mortgage Corp. v. Frempong, A.2d 327, 337 (Pa. Super. 1999). We are cognizant of the fact that Appellant is aprose party. However, "pro se Complained of on Appeal. attempt to address the numerous issues raised in Appellant's Concise Statement of the Matters We note that Appellant takes the opportunity to raise issues not relevant to an appeal of this Court's February 18, 2014 Order grantingAppelleesum.mary judgment. Nonetheless, we IV. ANALYSIS OF ISSUES 13. THE TRIAL·COURT ERRED BY GRANTING THE APPELLEE'S MOTION 

### FOR SUMMARY JUDGMENT BECAUSE 

### GENUINE ISSUES 

### OF MATERIAL FACTS 

### EXIST. Circulated 03/31/2015 03:53 PMstate a claim upon which relief may be granted is not meritorious. At Concise Statement number

In Concise Statement number 1, Appellant's complaint that the Motion to Strike failed to entitled to 

### anyparticular advantage because he lacks legal training. the matter by written order. We again note that while Appellant is a

### pro se litigant, he is not Therefore, this Court was not required to provide oral arguments and was permitted to dispose of Motion, Appellant stated that he "requests that the case be dismissed and requests a hearing before any determination of his rights," Although Appellant may have desired oral arguments, Appellant's request failed to ~atish, the praecipe requirement ofB.C.R.C.P. 208.3(b)(6). subsection (2) hereof, the matter shall be disposed ofby written order

...• " Appellee did not request oral argument via praecipe when it filed its Motion to Strike. Inhis Response to the . . moving party in thepraecipe, or by any other party within the 10-day period specified in B.C.R.C.P. 208.3(b)(6) states that "[ujnless oral argument hasbeen requested by the rules. Amendment. However, neither party requested oral arguments via praecipe as required bylocal While notrelevant to this appeal of the grant of a Motion for Summary Judgment, we address the various issues Appellant raises withregard to the Motion to Strike filed by Appellee. Inhis Concise Statement number 2, Appellant questions his right to beheard orally with regard
to the Motion to Strike filed by Appellee pursuant 

### to the Due Process Clause of the Fourteenth A. Motion to Strike matters raised byAppellant Concise Statement, we do not offer aresponse. We attempt to specifically address all other determine the particular issues raised in Appellant's Concise Statement number 4 and 12. Pursuant to the legal authority cited above regarding

### prose litigants and vague issues in a Circulated 03/31/2015 03:53 PMtherefore inappropriate for B.C.R.C.P. 208.3(b) disposition. Therefore, the motion was not ripe

Motion 

### was procedurally defective 

### as it did not contain a Praecipe for Determination and 

### was 2013, and Appellant responded to Appellee's Reply on June 26, 2013. However, Appellant's File a Counterclaim on May 24, 2013, Appellee filed a Reply to Appellant's Motion on June 11, disposition pursuant to this rule," The docket notes that Appellant filed a Motion for Leave to B.C.R.C.P. 208.3(b)(2) requires that "when thematter is at issue and ready for decision, the moving party 

# 6n the application shall, by praecipe, order the same to be submitted for excluded and, in fact, never ruled upon Appellant's counterclaims. a matter of law, abused its discretion and committed reversible error in excluding Appellants [sic] counterclaims of fraud and negligence." Appellant misstates the facts as this Court never Counterclaim. 

### In Concise Statement number 5, Appellant questions whether this Court "erred as here we address Appellant's contentions with regard to his Motion for Leave to File a Although not relevant to this appeal of the grant of a Motion for Summary Judgment, B. Motion for Leave to FUe a Counterclaim mistakenly filed. Itwas within this Court's power andjurisdiction to grant the Motion to Strike. Further, we specifically address Appellant's contentions of fraudbelow 

### inthe section regarding

our grant of summary judgment as Appellant raised the same claims inhis responsive pleadings
to Appellee's Motion for SummaryJudgment. Inthis matter, Appellee utilized the Motion to Strike in order to strike praecipes it alleges were 3, Appellant also questions whether this Court abused its discretion, erred as a matter of 

### law, or violated his right to due process by "overruling appellant's objection because of fraud to said motion to strike .•. /' Appellant is misguided in his understanding of the Motion to Strike. A Motion to Strike is a procedural mechanism parties may file to remove part or all ofa pleading. Circulated 03/31/2015 03:53 PMI We note the high standard required for counterclaims in mortgage foreclosure actions. Pa.R.C.P. 1148 provides

that "[a] defendant may plead a counterclaim which arises from the same transaction or occurrence or series of transactions or occurrences from which the plaintiff's cause of action arose," (1) whenever there is no genuine issue of material fact as to a necessary element of the cause of action or defense which could be established by additional discovery or expert report; or rendered as a matter of law: Under Pennsylvania Rule of Civil Procedure 1035.2, summaryjudgment may be 2006);citing Harman v. 

### Borah, 756 A.2d 1116, 1123 (Pa. 2000). 

## I prejudice, bias, or ill will." Chaney v. Meadville Medical Center, 912 A.2d 300, 306 (Pa. Super. "An abuse of discretion exists when the trial court has rendered a judgment that is manifestly unreasonable, arbitrary, or capricious, has failed to apply the law, or

# was motivated by partiality, · its discretion." Universal Health Services, Inc. v. PIGA, 884 A.2d 889, 892 (Pa. Super. 2005). Super. 2005). The well-established standard of review demonstrates that "the trial court's order will be reversed only where it is established that the court committed an error of law or 'abused 

### Universal Teleservices, 

### Arizona, LLC v. Zurich American Ins. Co., 879 A.2d 230, 232 (Pa. The scope of review of an order granting or denying summary judgment is plenary. Here, we separately address the summaryjudgment issues raised by Appellant's Concise Statement of the Matters Complained of on Appeal numbers 6 through 1 I and 13. error as Appellant's motion never reached the Court for determination. C. ~ummarv Judgment waif.Appropriately Granted for the Court's review and never decided by the Court. Consequently, Appellant did not obtain leave to file the counterclaim and never attempted to re-file the motion 

### with the required praecipe.1 

### Thus, this Court did not err as amatter of law, abuse its discretion, nor commit reversible Circulated 03/31/2015 03:53 PMCercone, 386 A.2d 1, 4 (1978). Further, "in mortgage foreclosure actions, general denials by

[responding party] must know whether aparticular allegation is true or false," Cercone v. specific denial of factual allegations contained in a complaint when itis clear that the However, aresponding party "may not rely upon Rule 1029(c)(I) to excuse a failure to make a sufficient to form a belief as the 

### truth of an avennent shall have the effect of a denial." by aparty that after reasonable investigation the party is without knowledge or information by necessary implication." Pa.R.C.P. 1029(b). Pa.R.C.P. 1029(c)(l) provides that "[a] statement pleading to which a responsive pleading is required are admitted when not denied specifically or summary judgment in favor ofAppellee because no material facts are at issue. "Averments in a Here, this Court neither erred as amatter of

### Jawnor abused 

### its discretion ingranting Services ofC/earjie/d, Inc. v. Local 2665, 431 A.2d23, 27 (Pa. Super, 1981). material fact that would warrant submitting the case to the trier of fact Community Medical evidence, which would be admissible at

### trial, showing that there is a genuine issue 

### as to a summaryjudgment should be granted to the movant unless the opposing party offers competent party and accept 

### as true all well-pleaded facts 

### in thepleadings together with al1 reasonable inferences there from favoring the non-moving party. Ryan 

### v.Asbestos Corp. Ltd, 829 A.2d 686 (Pa. Super. 2003). The burden is on the moving party, but 

### ithas long been recognized that function of the Court is to examine the record in the light most favorable to the non-moving to relief as amatter of law. Summers v. Certainteed Corp., 997 A.2d 1152 (Pa. 2010). The clear of doubt, that there are no genuine issues of material fact, and the moving party is entitled Sununaryjudgment is appropriate when the moving party establishes that the case is free and (2) if after the completion of discovery relevant to the motion

... an adverse party who willbear the burden of proof attrial has failed to produce evidence of facts essential 

### tothe cause of action or defense which inajury trial would require the issues to be submitted to ajury. Circulated 03/31/2015 03:53 PMGrove's notarial seal. AppeJiee has pointed out that Sharon Grove was not notarizing her own 

# . Motion, which appears to contain Appellant's signature, Sharon Grove's signature, and Sharon him and therefore a forgery. Appellant attached a copy of the mortgage instrument to his Crossalleged that thepurported mortgage instrument was not a true copy of any document executed by that Sharon Grove, an agent of Mortgagee, notarized her own signature. Furthermore, Appellant issue of material fact as Appellant failed to provide evidence to support his claims. Appellant alleged that the mortgage and note are fraudulent documents. Inparticular, Appellant claimed Concise Statement. Upon review of these allegations, we determined that there was no genuine several allegations of fraud, which is also the basis for a number of issues raised inAppellant's Appellant submitted a Cress-Motion for Summary Judgment inwhich Appellant raised denials essentially constituted admissions. See Strausser, 653 A.2d at 692. have sufficient knowledge on which to base a specific denial. Therefore, Appellant's general mortgage entered into by Appellant, default by Appellant, and amounts due an~ unpaid under the mortgage. Appellant merely provided "Denied" to these averments despite being in a position ·to Appellee's Foreclosure Complaint, which included averments regarding the existence of a Inhis Answer, Appellant generally denied paragraphs 

### three (3) through ten (10) of averments, general denials essentially constitute admissions. See Strausser, 653 A.2d at 

### 692. 524 A.2d 951, 952 (1987). Thus, in the absence of any evidence to refute the moving party's that apart from the moving party, "[mortgagors] are the onlyparties who would have sufficient knowledge on which to base a specific denial.0 New York Guardian Mortgage Corp. 'V, Dietzel, First Wisconsin Trust Co

.. v. Strausser, 653 A.2d 688, 692 (Pa. Super. 1995). The rationale is mortgagors that they are without information sufficient to form a belief as to the truth of
avennents 

### as to theprincipal and interest

### owingmustbe considered 

### an admission 

### of those 

### facts." Circulated 03/31/2015 03:53 PMsignature. Rather, she was notarizing the signature of Appellant, which is evident from the

statement contained prior to her notarial seal, Itstates that before her personally appeared Randy L.Rocco, the Appellant in this matter, "whose name is subscribed to the within instrument and acknowledged that he executed the same for the purposes therein contained. In witness whereof I hereunto set my hand and official 

### seal," Appellant has failed to offer any competent evidence, which would be admissible at 

### triaJ, to support his contentions of fraud and forgery. See Community Medical Services of Clearfield, Inc. v. Local 2665, 431 A.2d 23, 27 (Pa. Super. 1981). Appellant also argued that the "original debt to mortgage the subject property was extinguished and the Lender was paid." Again, Appellant failed to provide evidentiary support for this contention, and therefore, no genuine issue of material fact was established. Finally, Appellant also questions whether this Court's grant of summary judgment was an abuse ofdiscretion and/or error as a matter of Jawbecause he was not allowed any discovery. First, it is important to note that the Complaint in Mortgage Foreclosure was first filed on December 21, 2009, and AppeUant filed his Answer on May 12, 2010. 

### It was not until February 18, 2014 that we granted Appellee' s Motion for SummaryJudgment Appellant was afforded ample time and opportunity to conduct discovery to support his allegations of fraud, satisfaction of the mortgage, or any other claim. Moreover, summaryjudgment may be granted "whenever there is no genuine issue of material fact as to anecessary element of the cause of action or defense which could be established by additional discovery .. ,." Pa.R.C.P. 1035.2. Thus, discovery does not need to be completed in order for this Court to rule on Motions for Summary Judgment. 

### See Pa.R.C.P. § 1035.2(1). Nonetheless, Appellant's claim that additional discovery 

### is required is inadequate because Appellant has not provided this Court with explanation 

### as to what discovery is needed. Circulated 03/31/2015 03:53 PMDate:

# tJ!lq /'vf 

## WI'/ BYTIIECOURT:

V. CONCLUSION
For the foregoing reasons, this Court perceives that the issues of which Appellant has complained in this appeal are without merit, and that this Court's Order granting summary judgment to AppeJlee 

### was supported by both the lawand the record in this case. We respectfully request the Superior Court to affirm this Court's decision. Circulated 03/31/2015 03:53 PM