J. S40014/15

 

* Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

U.S. BANK TRUST NATIONAL 

ASSOCIATION, NOT IN ITS 

INDIVIDUAL CAPACITY BUT SOLELY AS 

TRUSTEE FOR SRMOF REO 2011-1 

TRUST

:

:

:

:

:

:

IN THE SUPERIOR COURT OF

PENNSYLVANIA

v. :

:

KENNETH G. GEESEY, WENDY A. 

GEESEY,

:

:

No. 1888 WDA 2014

:

 Appellants :

Appeal from the Order, October 14, 2014,

in the Court of Common Pleas of Blair County

Civil Division at No. 2012-GN-3788

BEFORE: FORD ELLIOTT, P.J.E., DONOHUE AND STRASSBURGER,* JJ. 

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED OCTOBER 15, 2015

Kenneth G. Geesey and Wendy A. Geesey appeal from the order 

entered October 14, 2014, granting plaintiff/appellee, U.S. Bank Trust, 

N.A.’s (“U.S. Bank”) second motion for summary judgment in this mortgage 

foreclosure action. Upon careful review, we affirm.

On April 9, 2007, appellants executed a Note to U.S. Bank’s 

predecessor-in-interest, PNC Bank, N.A., in the amount of $240,000. 

Shortly thereafter, the loan was assigned to CitiMortgage, Inc., a subsidiary 

of Citigroup, Inc., and subsequently to U.S. Bank. The Note was secured by 

a Mortgage on real property situated at 617 South Pine Street, Altoona. 
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Appellants were unable to meet their monthly payment obligations, and on 

May 26, 2011, they entered into a written Loan Modification Agreement 

(“the 2011 Loan Modification”) with U.S. Bank’s mortgage servicer, 

Selene Finance, LP. Appellants made monthly payments under the 

2011 Loan Modification for five consecutive months from June through 

October 2011. Appellants failed to make the monthly mortgage payment 

due November 1, 2011, and are currently in arrears. On or about January 6, 

2012, appellants received Notice of Intention to Foreclose on Mortgage 

pursuant to Act 6 of 1974; and a complaint in mortgage foreclosure was filed 

on November 29, 2012.

Appellants filed an answer and new matter on December 18, 2012, 

and a reply to new matter was filed on January 3, 2013. U.S. Bank filed a 

motion for summary judgment which was denied on March 7, 2014. 

Following additional discovery, U.S. Bank filed a second summary judgment 

motion which was granted on October 14, 2014, and an in rem judgment 

was entered in favor of U.S. Bank and against appellants for $297,176.21, 

plus costs and interest. This timely appeal followed. Appellants have 

complied with Pa.R.A.P., Rule 1925(b), 42 Pa.C.S.A., and the trial court has 

filed a Rule 1925(a) opinion. 

Appellants have raised the following issues for this court’s review:

1. WHETHER THE TRIAL COURT ERRED IN 

CONCLUDING THE GEESEYS WERE NOT 

UNDER ECONOMIC DURESS AT THE TIME THEY 
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SIGNED THE MORTGAGE NOTE WITH 

PLAINTIFFS?

2. WHETHER THE TRIAL COURT ERRED IN 

CONCLUDING THE LOAN MODIFICATION 

AGREEMENT WAS ENFORCEABLE?

3. WHETHER THE TRIAL COURT ERRED IN 

GRANTING U.S. BANK TRUST NATIONAL 

ASSOCIATION’S SECOND MOTION FOR 

SUMMARY JUDGMENT WHERE THE GEESEYS 

ARE CURRENTLY PLAINTIFFS IN AN ACTION 

AGAINST THE PREDECESSOR MORTGAGE 

COMPANY TO U.S. BANK TRUST NATIONAL 

ASSOCIATION?

Appellants’ brief at 4.

Summary judgment may be granted when the 

pleadings, depositions, answers to interrogatories, 

and admissions on file, together with the affidavits, if 

any, show that there is no genuine issue as to any 

material fact and that the moving party is entitled to 

judgment as a matter of law. Pa.R.C.P. 1035(b), 

42 Pa.C.S.A. When considering a motion for 

summary judgment, the trial court must examine the 

record in the light most favorable to the non-moving 

party, accept as true all well-pleaded facts in the 

non-moving party’s pleadings, and give him the 

benefit of all reasonable inferences drawn therefrom. 

Dibble v. Security of America Life Ins., 404 

Pa.Super. 205, 590 A.2d 352 (1991); Lower Lake 

Dock Co. v. Messinger Bearing Corp., 395 

Pa.Super. 456, 577 A.2d 631 (1990). Summary 

judgment should be granted only in cases that are 

free and clear of doubt. Marks v. Tasman, 527 Pa. 

132, 589 A.2d 205 (1991). We will overturn a trial 

court’s entry of summary judgment only if we find an 

error of law or clear abuse of discretion. Lower 

Lake Dock Co., supra.

DeWeese v. Anchor Hocking Consumer and Indus. Products Group, 

628 A.2d 421, 422-423 (Pa.Super. 1993).
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The holder of a mortgage has the right, upon default, 

to bring a foreclosure action. Cunningham v. 

McWilliams, 714 A.2d 1054, 1056–57 (Pa.Super. 

1998). 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. Id.

Bank of America, N.A. v. Gibson, 102 A.3d 462, 464, 465 (Pa.Super. 

2014), appeal denied, 112 A.3d 648 (Pa. 2015).

In their first argument on appeal, appellants claim that they signed the 

2011 Loan Modification under economic duress. Appellants complain that 

U.S. Bank failed to honor a prior loan modification agreement between 

appellants and U.S. Bank’s predecessor-in-interest, CitiMortgage, Inc.; that 

appellants were given a short amount of time to execute and return the 

agreement and did not have the opportunity to consult with counsel; and 

that appellants were not sophisticated in complex financial matters and were 

essentially given a Hobson’s choice of either signing the agreement with 

non-negotiable terms, without benefit of counsel and on short notice, or 

facing certain foreclosure on their home. (Appellants’ brief at 14-15.)

Our supreme court defined duress as follows:

The formation of a valid contract requires the mutual 

assent of the contracting parties. Mutual assent to a 

contract does not exist, however, when one of the 

contracting parties elicits the assent of the other 

contracting party by means of duress. Duress has 

been defined as:

That degree of restraint or danger, either 

actually inflicted or threatened and 
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impending, which is sufficient in severity 

or apprehension to overcome the mind of 

a person of ordinary firmness. . . . The 

quality of firmness is assumed to exist in 

every person competent to contract, 

unless it appears that by reason of old 

age or other sufficient cause he is weak 

or infirm. . . . Where persons deal with 

each other on equal terms and at arm’s 

length, there is a presumption that the 

person alleging duress possesses 

ordinary firmness. . . . Moreover, in the 

absence of threats of actual bodily harm 

there can be no duress where the 

contracting party is free to consult with 

counsel . . . .

McDonald v. Whitewater Challengers, Inc., 116 A.3d 99, 114 (Pa.Super. 

2015), quoting Degenhardt v. Dillon Co., 669 A.2d 946, 950 (Pa. 1996) 

(citations and punctuation omitted) (emphasis deleted).

Economic duress, i.e., business or economic 

compulsion, is a form of duress. [Tri–State 

Roofing Co. of Uniontown v. Simon, 142 A.2d 

333, 335 (1958)]. The Tri–State Court defined 

economic duress as follows:

To constitute duress or business 

compulsion there must be more than a 

mere threat which might possibly result 

in injury at some future time, such as a 

threat of injury to credit in the indefinite 

future. It must be such a threat that, in 

conjunction with other circumstances and 

business necessity, the party so coerced 

fears a loss of business unless he does so 

enter into the contract as demanded.

Id. at 20-21, 142 A.2d at 335 (citation and 

punctuation omitted).

Id. at 114-115.
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Here, appellants alleged in their brief in opposition to the motion for 

summary judgment that they received the 2011 Loan Modification on 

May 25, 2011, and the cover letter indicated it needed to be executed and 

returned to U.S. Bank by May 27, 2011. Therefore, appellants only had 

approximately 24 hours to look over the document, and there was no 

opportunity to have it reviewed by an attorney. However, according to 

U.S. Bank, appellants knew the terms of the Loan Modification Agreement 

offer three months prior, when they entered into a three-month trial 

Forbearance Agreement. 

At any rate, as the trial court observes, it is not commonplace to have 

the advice of legal counsel for consideration of a loan modification 

agreement unless a lawsuit has already commenced. (Trial court opinion, 

12/12/14 at 4.) In this case, no mortgage foreclosure action had 

commenced at the time of the 2011 Loan Modification and the loss of 

appellants’ home was not imminent. (Id.) Certainly, an implied threat of a 

mortgage foreclosure action is not the sort of “duress” that would void an 

otherwise valid loan modification agreement. See Tri-State Roofing, 142 

A.2d at 335 (“The threat of a civil suit for a good cause of action does not 

constitute duress”) (citations omitted). In addition, we reject appellants’ 

characterization of themselves as unsophisticated mortgagors, where Mr. 

Geesey is a financial planner and they had admittedly engaged in loan 
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modification negotiations with U.S. Bank’s predecessor-in-interest, 

CitiMortgage. 

We also agree with the trial court that even if appellants were 

somehow coerced into executing the 2011 Loan Modification, they 

subsequently ratified the agreement by making payments for five months 

thereafter, without complaint.

A party who possesses a power of avoidance for 

business coercion loses it by electing to affirm the 

transaction. Ratification results if a party who 

executed a contract under duress accepts the 

benefits flowing from it, or remains silent, or 

acquiesces in the contract for any considerable 

length of time after the party has the opportunity to 

annul or avoid the contract.

National Auto Brokers Corp. v. Aleeda Development Corp., 364 A.2d 

470, 476 (Pa.Super. 1976) (citations omitted). Appellants made payments 

under the terms of the 2011 Loan Modification for five months during which 

they could have sought to void the contract or consult with counsel. (Trial 

court opinion, 12/12/14 at 5.) 

Regarding the alleged loan modification agreement between appellant 

and CitiMortgage in 2009, that has no bearing on this case.1 U.S. Bank is 

not a party to that litigation between appellants and CitiMortgage, and the 

2011 Loan Modification would supersede any prior agreement. The 2011 

 

1 Appellants concede that there was no written loan modification agreement 

in 2009, but contend that CitiMortgage’s cashing of their checks constituted 

an acceptance of their modification offer.
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Loan Modification is the controlling instrument. Any previous loan 

modification agreement between appellants and CitiMortgage is irrelevant to 

the question of whether the 2011 Loan Modification was entered into under 

economic duress, as appellants allege. For the foregoing reasons, we 

determine that it was not. 

In their second issue on appeal, appellants argue that the trial court 

erred in concluding the 2011 Loan Modification was enforceable. Appellants 

concede that the resolution of this issue depends upon issues one and three. 

(Appellants’ brief at 15.) We have already determined that the 2011 Loan 

Modification was not signed under duress and that appellants effectively 

ratified the agreement by making regular payments for five months 

thereafter. 

Third, appellants argue that summary judgment for U.S. Bank was 

inappropriate where they are still engaged in litigation against U.S. Bank’s 

predecessor-in-interest, CitiMortgage, regarding the alleged 2009 loan 

modification agreement. As the trial court states, “the ‘ongoing litigation’ 

Appellants refer to involves a different party and was filed late in the course 

of the current litigation.” (Trial court opinion, 12/12/14 at 5.) The litigation 

involving CitiMortgage is irrelevant to appellants’ admission of default in this 

case. Appellants have admitted that they entered into the 2011 Loan 

Modification; that they made payments for five consecutive months under 

the terms of the 2011 Loan Modification; that they failed to make the 
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November 2011 monthly mortgage payment; and that they have failed to 

tender monies sufficient to cure the full mortgage arrears on the delinquent 

account. (Appellants’ admissions, 7/25/14; docket #27.) Therefore, 

appellants have admitted all essential elements U.S. Bank needed to prove 

its case and summary judgment was appropriate. 

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/15/2015