J-A31019-17

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* Former Justice specially assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

CITIZENS BANK OF PENNSYLVANIA

v.

MICHAEL L. AND JESSIE PINCUS 

Appellants

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 21 EDA 2017

Appeal from the Order Entered November 29, 2016

In the Court of Common Pleas of Chester County Civil Division at No(s): 

2014-11643-RC

BEFORE: PANELLA, J., OLSON, J., and STEVENS*, P.J.E.

MEMORANDUM BY OLSON, J.: FILED MAY 09, 2018

Appellants, Michael L. and Jessie Pincus, appeal from an order entered 

on November 29, 2016 in which the Court of Common Pleas of Chester 

County granted summary judgment in favor of Citizens Bank of Pennsylvania 

(“Citizens”) on its mortgage foreclosure claims. We affirm.1

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1 Although counsel represented Appellants before the trial court, Michael L. 

Pincus, acting pro se, alone signed Appellants’ brief to this Court. In 

addition, Mr. Pincus appeared at oral argument seeking to present argument 

on behalf of both he and his wife. This practice is not permitted. See David 

R. Nicholson, Builder, LLC v. Jablonski, 163 A.3d 1048, 1054 (Pa. Super. 

2017) (“With very few exceptions, the general rule is that non-attorneys are 

unable to represent parties before Pennsylvania courts and most 

administrative agencies.”). Thus, while Mr. Pincus enjoyed the right to 

appear on his own behalf, he does not have the right to represent his wife 

before this Court. In light of our disposition of the merits of this appeal, 

however, we need not formulate a remedy for Mr. Pincus’s transgression. 
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The historical and procedural facts in this case are as follows. On 

December 30, 2003, Michael L. Pincus executed a home equity line of credit 

agreement with a principal amount of $250,000.00 in favor of Citizens. The 

agreement was secured by a mortgage that created a lien against 

Appellants’ residence in West Chester, Pennsylvania. The mortgage, which 

Appellants both signed, was recorded in the Chester County Office of the 

Recorder of Deeds on March 12, 2004. Appellants made payments toward 

their obligation with Citizens until February 2014, when the last payment 

was tendered. Citizens forwarded statutory notice of default to Appellants 

on July 9, 2014. On July 9, 2014, Appellants met with an agent of the 

Pennsylvania Housing Finance Agency (“PHFA”) and completed an 

application to participate in the Homeowners Emergency Assistance 

Program. PHFA, however, denied Appellants’ application for assistance on 

September 9, 2014.

Citizens filed its complaint in this mortgage foreclosure action on 

November 25, 2014. Appellants filed their answer, together with new 

matter, on December 29, 2014. Citizens replied to Appellants’ new matter 

on January 16, 2015.

Appellants applied to Citizens for a loan modification on April 6, 2015. 

On April 16, 2015, Citizens advised Appellants’ counsel by letter that 

Appellants’ application for loan modification was incomplete because it failed 

to include all requested documents. Citizens also advised Appellants that 

they needed to submit all required documents no later than May 30, 2015 to 
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avoid removal from the loss mitigation program. Citizens thereafter did not 

receive the necessary documents and, on May 20, 2015, sent a second letter

to Appellants’ counsel that the requested documents were needed on or 

before May 30, 2015. Because Appellants’ loss mitigation materials were not 

received in a timely manner, Citizens rejected Appellants from the loss 

mitigation program on June 4, 2015.

Citizens served Appellants with discovery requests on June 13, 2016, 

including requests for admissions, interrogatories, and document requests. 

Appellants served their responses on July 29, 2016. On August 24, 2016, 

Citizens filed its motion for summary judgment. Appellants filed their 

response to Citizens’ motion for summary judgment on September 20, 2016. 

The trial court granted Citizens’ motion on November 29, 2016.

On December 8, 2016, Appellants filed a petition asking the court to 

reconsider its order granting Citizens’ motion for summary judgment. The 

petition alleged that Appellants were denied equal protection under the 

United States and Pennsylvania Constitutions because Chester County did 

not adopt a foreclosure mediation program as other counties in Pennsylvania 

had done. The trial court denied Appellants’ petition on December 13, 2016.

On December 23, 2016, Appellants filed a notice of appeal from the 

order granting Citizens’ motion for summary judgment. Thereafter, on 

January 3, 2017, the trial court ordered Appellants to file a concise 

statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). 

On January 12, 2017, Appellants filed a notice of appeal from the court’s 
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December 23, 2016 order denying their motion for reconsideration. On 

January 18, 2017, Appellants filed a concise statement asserting that the 

affidavit and documents submitted by Citizens in support of its motion for 

summary judgment constituted inadmissible hearsay. No other issues were 

asserted. The trial court issued its Rule 1925(a) opinion on February 14, 

2017.

Appellants’ brief raises the following questions for our review.

[Did the trial court err in considering the affidavit and documents 

submitted by Citizens to establish Appellants’ payment history 

under their loan agreement?]

[Was Citizens obligated to set up a face-to-face meeting with 

Appellants to negotiate in good faith a payoff amount to avoid 

mortgage foreclosure litigation?]

[Should the trial court have denied Citizens’ motion for summary 

judgment because the lender ignored Appellants’ efforts to pay

off the outstanding amount owed under the loan?]

[Were Appellants denied equal protection of the law under the 

United States and Pennsylvania Constitutions because Chester 

County did not adopt a mortgage foreclosure mediation 

program?]

Appellants’ Brief at 3-4.2

Appellants assert that the trial court erred in granting Citizens’ motion 

for summary judgment.

We review an order granting summary judgment for an abuse of 

discretion. Indalex, Inc. v. Nat'l Union Fire Ins. Co. of 

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2 We have re-ordered Appellants’ claims to facilitate our review.
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Pittsburgh, PA, 83 A.3d 418, 420 (Pa. Super. 2013). Our 

scope of review is plenary, and we view the record in the light 

most favorable to the nonmoving party. Id. 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 or defense which could 

be established by additional discovery or expert report[.]” 

Pa.R.C.P. 1035.2(1). In response to a summary judgment 

motion, the nonmoving party cannot rest upon the pleadings, 

but rather must set forth specific facts demonstrating a genuine 

issue of material fact. Pa.R.C.P. 1035.3.

Bank of America, N.A. v. Gibson, 102 A.3d 462, 464 (Pa. Super. 2014).

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). Summary judgment is proper in mortgage foreclosure 

litigation where the defendant admits the failure to make payment and fails 

to state a cognizable defense to the plaintiff’s claim. Gateway Towers 

Condominium Ass’n v. Krohn, 845 A.2d 855 (Pa. Super. 2004).

Although Appellants’ initial claim is undeveloped, they appear to argue 

that the trial court erred in granting summary judgment because evidence of 

their payment history and default was established by the affidavit of a loan 

officer and supporting documentation. Appellants are correct that 

Pennsylvania law ordinarily prohibits the entry of summary judgment based 

on the moving party's oral testimony. See Sherman v. Franklin Regional 

Med. Ctr., 660 A.2d 1370, 1372 (Pa. Super. 1995); Nanty–Glo v. 

American Surety Co., 163 A. 523 (Pa. 1932). “An exception to this rule 

exists, however, where the moving party supports the motion by using 
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admissions of the opposing party....” Sherman, 660 A.2d at 1372. Such 

admissions include facts admitted in pleadings. Durkin v. Equine Clinics, 

Inc., 546 A.2d 665, 670 (Pa. Super. 1988).

Here, Appellants generally denied the material portions of Citizens’ 

complaint and their responses to discovery did not contradict Citizens’

factual averments surrounding Appellants’ payment history and default. 

General denials constitute admissions where specific denials are required. 

See Pa.R.C.P. 1029(b). Appellants’ admissions with respect to the material 

allegations of Citizens’ complaint permitted the trial court to enter summary 

judgment in this case. Moreover, the affidavit of Citizens’ loan officer 

referenced loan history documents, which are records of regularly conducted 

activity, or business records, and would be admissible at trial with proper 

foundation. See Pa.R.E. 803(6). In sum, the trial court did not abuse its 

discretion in considering the affidavit and documents proffered by Citizens.

Appellants’ next two claims assert that the trial court should have 

denied summary judgment because Citizens overlooked or ignored 

Appellants’ efforts to negotiate a payoff of their loan obligations and avoid 

foreclosure. These claims do not merit relief. As a preliminary matter, 

Appellants did not include these issues in a court-ordered concise statement; 

hence, they are waived. Even if they are not waived, these claims are 

unavailing. This Court has held that new regulations, entitled “Mortgage 

Servicing Rules under the Real Estate Settlement Procedures Act (Regulation 
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X),” codified at 12 C.F.R. §§ 1024.30 et seq., prohibit a loan servicer from 

foreclosing on a property if the borrower has submitted a completed loan 

modification, or loss mitigation, application. Bank of New York Mellon v. 

Brooks, 169 A.3d 667, 670 (Pa. Super. 2017). Here, however, the record 

establishes that Appellants never submitted a completed loan modification, 

or loss mitigation, application. Indeed, Appellants’ December 8, 2016 

petition for reconsideration asserts that they never filed a loan modification. 

See Petition for Reconsideration, 12/8/16, at 1. The record further reflects 

that Citizens twice informed Appellants that their application materials were 

incomplete and that the required documents needed to be submitted no 

later than May 30, 2015. Appellants were deemed ineligible for Citizens’ 

modification/mitigation program only after the deadline passed without the 

submission of a timely and complete application. Accordingly, Appellants’ 

second and third claims fail.

Appellants’ final claim asserts that they were denied equal protection 

of the law because Chester County did not adopt a mortgage foreclosure 

mediation program, as other Pennsylvania counties had done, at the urging 

of the Pennsylvania Supreme Court. Again, Appellants waived appellate 

review of this claim by failing to include it in a court-ordered concise 

statement. In addition, Chester County was not obligated to adopt such a 

program and Appellants cite no authority for the proposition that they were 
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entitled to rely on the adoption of such a program. Thus, this claim also 

fails.

Judgment affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 5/9/18