Federal National Mortgage Association vs. Carranza No. 2013-00656

Civil Action – Mortgage Foreclosure – Motion for Summary Judgment – Nanty-Glo Rule – Testimonial Affidavit – Credibility Determination – Pa.R.C.P. No. 213.

 

1. Pennsylvania’s longstanding rule for oral testimony and summary judgment flows from the case Borough of Nanty-Glo v. American Surety Company of New York, 309 Pa. 236 (1932).

2. While the purpose of a motion for summary judgment is to avoid unnecessary litigation, such motion may not be used to provide for trial by affidavits or trial by depositions.  That such a so-called trial by testimonial affidavit is prohibited cannot be emphasized too strongly.

3. The purpose behind the Nanty-Glo rule is clear.  However true and indisputable the evidence may appear to be following the pleadings, testimony must be tested by cross-examination and a fact-finder must make a credibility determination regarding the statements.  Without this vital step, a grant of summary judgment would undermine the truth-seeking process by assuming the speaker is automatically accurate and honest.

4. Where admissions exist from the non-moving party to supplement the testimonial affidavits of the movant, summary judgment can be awarded. Similarly, summary judgment motions that are supported with documentary proof also can survive a Nanty-Glo challenge.

5. In the context of a mortgage foreclosure, Nanty-Glo precludes a Court from awarding summary judgment to a plaintiff whose only basis for standing is a testimonial affidavit from an employee—or an employee of one of its agents.  Requiring a mortgagor to refute a testamonial affidavit by which a bank claims ownership of the mortgage would be an impossible burden that the Nanty-Glo rule was created to preclude.

6. Rule 213 of the Pennsylvania Rules of Civil Procedure permits a Court to require a hearing on any issue pertinent to the ultimate resolution of the dispute at hand.

7. The Court denied Plaintiff’s Motion for Summary Judgment.  It held that a testamentary affidavit alone is insufficient to chronicle a series of assignments and/or mergers that are predicates to a plaintiff’s right of recovery in a mortgage foreclosure action.

8. In addition, the Court scheduled a hearing at which the Plaintiff will be required to present documentary and/or testimonial evidence in support if its claim that it is the proper party plaintiff. If the Court finds that Plaintiff is, in fact, the proper party entitled to relief, it will allow the above-referenced case to proceed with respect to the substantive question of whether the Defendant is in default and whether the Plaintiff is entitled to the relief requested.

9. Stating that the Defendant also will have to present his evidence at the Rule 213 hearing, the Court denied Defendant’s Motion for Summary Judgment..

Motions for Summary Judgment and Motion for Judgment on the Pleadings.  C.P. of Lebanon County, Civil Action-Law, No. 2013-00656.

IN THE COURT OF COMMON PLEAS OF LEBANON COUNTY

PENNSYLVANIA No.  2013-00656

CIVIL ACTION – LAW

FEDERAL NATIONAL MORTGAGE ASSOCIATION, Plaintiff

vs.

GONZALO CARRANZA, Defendant

ORDER OF COURT

AND NOW, to wit, this 11^th day of February, 2014, upon consideration of Plaintiff and Defendant’s Motions for Summary Judgment, and in consideration of Plaintiff’s Motion for Judgment on the Pleadings, the Order of this Court is as follows:

1. A factual Hearing will be conducted on May 6, 2014 commencing at 9:00 a.m. in Courtroom No. 3 to specifically address the issue of whether the Plaintiff has standing to pursue its claim.

2. All other issues will be stayed pending a determination of this issue.

APPEARANCES:

 Martha E. Von Rosenstiel, Esq. , For Federal National Mortgage Association

MARTHA E. VON ROSENSTIEL, P.C.

Jillian M. Copeland, Esquire, For Gonzalo Carranza

MIDPENN LEGAL SERVICES

Opinion, Charles, J., February 11, 2014

 With increasing frequency, mortgage foreclosure actions are being filed by financial institutions who are either successors in interest or assignees of the original mortgage.  Also with increasing frequency, mortgage foreclosure defendants are challenging the standing of the named plaintiff because documents substantiating the mortgage, note, assignment and/or merger of financial institutions are either omitted or admitted to be lost.  When the above scenario arises, one or both of the parties almost invariably asks us to resolve the issue via a Motion for Summary Judgment.  In the past, we usually issued relatively abbreviated Court Orders to address the Summary Judgment Motions.  Today, we issue this Opinion to explain that when a financial institution fails to cross its t’s and dot its i’s with respect to assignments, mergers, and retention of documents, we will not grant summary judgment. Rather, we send the dispute forward for a factual hearing at which the question of standing can be addressed and determined.

I. FACTUAL AND PROCEDURAL BACKGROUND

On March 24, 2005, Gonzalo Carranza (“DEFENDANT”) purchased real estate located at 524 West Queen Street, Annville, PA  17003  (hereafter “PREMISES”).  At the time of the purchase, DEFENDANT executed both a Mortgage and a Note to finance the purchase PREMISES.  The Mortgage was executed in favor of the Mortgage Electronic Registration Systems, Inc. (“MERS”) as Nominee for Philadelphia Financial Mortgage, and was recorded on April 1, 2005.  The Note was executed in favor of Philadelphia Financial Mortgage.

On April 12, 2013, Federal National Mortgage Association (hereafter “PLAINTIFF”) filed a Complaint in Mortgage Foreclosure, claiming that DEFENDANT defaulted on his monthly payments.  The Complaint alleges that DEFENDANT’s monthly installments of principal and interest had not been made in conformity with the terms of the Mortgage since December of 2012.  On June 11, 2013, DEFENDANT filed his Answer to Complaint and New Matter.  In his New Matter, he explained that PLAINTIFF does not possess the Note, and PLAINTIFF’s ability to bring an action in foreclosure rests upon its possession of the Note.  DEFENDANT posited that because PLAINTIFF does not possess the Note, it is not the real party in interest and the case should therefore be dismissed.  PLAINTIFF filed its Reply to DEFENDANT’s New Matter on August 9, 2013, alleging that it did, in fact, possess the Note.

Since possession of the Mortgage and Note are relevant in determining the real party in interest, we must trace the transfers of each to determine the current holder.  With respect to the Mortgage, it appears that the parties agree on the following timeline:

3/24/2005 Executed in favor of MERS, Inc., as Nominee for Philadelphia Financial Mortgage, a Division of Leesport Bank

4/1/2005 Mortgage recorded, Lebanon County Recorder of Deeds, Mortgage Book 2060, Page 4982

Unknown Assigned to Chase Home Finance, LLC

1/9/2007 Assignment recorded

Unknown Merger – Chase Home Finance, LLC, and JPMorgan Chase Bank.  JP Morgan Chase Bank is successor by merger

10/13/2011 Assigned to Federal National Mortgage Association (PLAINTIFF), assignment recorded

With respect to the Note, however, the parties dispute the timeline.  The following transactions are evidenced by the record:

3/24/2005 Executed in favor of Philadelphia Financial Mortgage, a Division of Leesport Bank

Unknown Assignment filed, transferring interest to JPMorgan Chase Bank, NA

Nothing was produced to us to document any transfer of the Note from JP Morgan Chase to PLAINTIFF.

On October 4, 2013, PLAINTIFF filed a Motion for Summary Judgment or, in the alternative, a Motion for Judgment on the Pleadings.  DEFENDANT filed his Cross-Motion for Summary Judgment on October 31, 2013.  The issues are now before us for review.

II. DISCUSSION

A. PLAINTIFF’s Motion for Summary Judgment

In support of its Motion for Summary Judgment, PLAINTIFF argues that the Pleadings reveal no genuine issues of material fact with respect to (a) DEFENDANT’s obligations to PLAINTIFF pursuant to a Note and Mortgage; (b) DEFENDANT’s default in his obligation to make payments pursuant to the aforementioned documents; (c) the amount of the indebtedness DEFENDANT owes to PLAINTIFF pursuant to the aforementioned documents; and (d) that PLAINTIFF is entitled to judgment as a matter of law.  PLAINTIFF relies upon the supporting Affidavit of Lisa Lubbess, an authorized representative of Seterus, Inc. (the mortgage servicing agent for PLAINTIFF), to prove the amount of indebtedness of DEFENDANT to PLAINTIFF.

PLAINTIFF argues that DEFENDANT’s Answer containing New Matter does not dispute the legitimacy of PLAINTIFF’s standing.  In addition, PLAINTIFF points out that DEFENDANT has never challenged the contents of Ms. Lubbess’ Affidavit.  With respect to the pleadings, we note that DEFENDANT consistently challenged PLAINTIFF’s viability; the Answer and New Matter specifically alleges that PLAINTIFF is not “the real party in interest.”  With respect to Ms. Lubbess’ Affidavit, it is simply not sufficient to justify an award of Summary Judgment.

Pennsylvania’s longstanding rule for oral testimony and summary judgment flows from the case Borough of Nanty-Glo v. American Surety Company of New York, 309 Pa. 236 (1932).  While the purpose of a motion for summary judgment is to avoid unnecessary litigation, such motion may not “be used to provide for trial by affidavits or trial by depositions.”  Goodrich-Amram. 2d §1035.1, p.423.  That such a so-called trial by testimonial affidavit “is prohibited cannot be emphasized too strongly.” Curran v. Philadelphia Newspapers, Inc., 497 Pa. 163, 183 (1981).

In Nanty-Glo, the Pennsylvania Supreme Court ordered a new trial after the lower court granted plaintiff Nanty-Glo’s Motion for Binding Instruction and directed a verdict in their favor.  Plaintiff, a borough in Cambria County, Pennsylvania, relied on the testimony of two witnesses to prove that a shortage in tax collections was the type of loss insured against by defendant, American Surety.  This testimony, if true, was sufficient to establish Plaintiff’s case.  Even though defendant offered no evidence tending to contradict the testimony, the Supreme Court held that the “trial judge, in directing a verdict for plaintiff, took from the jury the opportunity of passing upon the truth of this oral testimony setting forth matters essential to plaintiff’s recovery.”  Nanty-Glo, 309 Pa. at 238.  Since 1932, Nanty-Glo has most often been cited in a summary judgment context:

[W]here the moving party relies exclusively on oral testimony, either through testimonial affidavits or deposition testimony, to establish the absence of a genuine issue of material fact except where the moving party supports the motion by using admissions of the opposing party or the opposing party’s own witnesses.

Lineberger v. Wyeth

, 894 A.2d 141, 149 (Pa.Super. 2006) (quoting First Philson Bank, N.A. v. Hartford Fire Ins. Co., 727 A.2d 584, 587 (Pa.Super. 1999), appeal denied, 747 A.2d 901 (Pa. 1999)).

Applying Nanty-Glo to the use of affidavits, the court in Harn v. Milwaukee Tool referred to the Nanty-Glo rule as the “demeanor evidence doctrine,” and found that “it forecloses entry of summary judgment when questions of credibility leave a genuine issue of material fact.”  Harn v. Milwaukee Tool & Machine Co., Inc., 33 Pa. D. & C. 3d 632, 634-35 (Com.Pl. Beaver Cnty. 1984).  This means that where the party moving for summary judgment “can prevail only by use of testimonial affidavit, the credibility of the affiant creates a genuine issue of fact so that summary judgment is not appropriate.” Id. at 635.

The purpose behind the Nanty-Glo rule is clear.  However true and indisputable the evidence may appear to be following the pleadings, testimony must be tested by cross examination and a fact-finder must make a credibility determination regarding the statements.  Without this vital step, a grant of summary judgment would undermine the truth-seeking process by assuming the speaker is automatically accurate and honest.

Of course, Nanty-Glo does not apply to every summary judgment motion.  For example, where admissions exist from the non-moving party to supplement the testimonial affidavits of the movant, summary judgment can be awarded.  In the recent case of DeArmitt v. New York Life Ins. Co., 73 A.3d 578 (Pa.Super. 2013), the Court stated:

Testimonial affidavits of the moving party or his witnesses, not documentary, even if uncontradicted, will not afford sufficient basis for the entry of summary judgment, since the credibility of the testimony is still a matter for the [fact-finder]… If, however, the moving party supports its motion for summary judgment with admissions by the opposing party, Nanty-Glo does not bar entry of summary judgment.

Id.

at 595, quoting in part Penn Center House v. Hoffman, 553 A.2d 900, 903 (Pa. 19889).  More pertinent to this dispute, summary judgment motions that are supported with documentary proof can survive a Nanty-Glo challenge.  In Pittsburgh Outdoor Advertising v. Surowski, 64 A.2d 854 (Pa.Super. 1949), the Court awarded judgment for the Plaintiff notwithstanding a Nanty-Glo argument.  The Court reasoned:

A directed verdict for the Plaintiff was proper…based upon the uncontradicted documentary evidence of the two surveys…If the oral testimony had all been omitted in the present case, there would remain sufficient documentary evidence to entitle the Plaintiff to binding instructions, thus distinguishing this action on its face from the Nanty-Glo case.

Id.

at 856.

In the context of a mortgage foreclosure, Nanty-Glo precludes us from awarding summary judgment to a plaintiff whose only basis for standing is a testimonial affidavit from an employee – or an employee of one of its “agents.”  In this era when financial institutions serially sell mortgages into “bundles” containing thousands of similar mortgages that are then leveraged for staggering amounts of money, it would be impractical and maybe even impossible to expect a private citizen to have the resources necessary to trace how, when and where a mortgage is transferred between financial entities.  Stated simply, requiring a mortgagor to refute a testamonial affidavit by which a bank claims ownership of the mortgage would be an impossible burden.  In our opinion, this is precisely the type of impossible burden that the Nanty-Glo rule was created to preclude.

In this case, we have not been provided with documents to establish the chain of assignments by which PLAINTIFF now claims a right to foreclosure.  Moreover, it is patently obvious that the DEFENDANT has not admitted that PLAINTIFF is in fact the correct holder of the Mortgage and Note he originally signed in 2005.  Thus Nanty-Glo prohibits us from awarding Summary Judgment to PLAINTIFF.

Rule 213 of the Pennsylvania Rules of Civil Procedure permits a Court to require a hearing on any issue pertinent to the ultimate resolution of the dispute at hand.  In this case, we will be scheduling a hearing at which the PLAINTIFF will be required to present documentary and/or testimonial evidence in support of its claim that it is the proper party plaintiff.  At a hearing, any such evidence will be subject to cross-examination.  Moreover, a contested hearing will permit this Court to render a factual finding with respect to whether PLAINTIFF is in fact entitled to proceed with this litigation.  If we find that PLAINTIFF is in fact the proper party entitled to relief, we will allow the above-referenced case to proceed with respect to the substantive question of whether the DEFENDANT is in default and whether the PLAINTIFF is entitled to relief requested.

For today, we will deny PLAINTIFF’s Motion for Summary Judgment.  We hold that a testamentary affidavit alone is insufficient to chronicle a series of assignments and/or mergers that are predicates to a plaintiff’s right of recovery.  In essence, we declare that the issue of standing will be determined at a factual hearing and not via a Motion for Summary Judgment.

B. DEFENDANT’s Motion for Summary Judgment

Although we are not now prepared to conclusively declare that PLAINTIFF is the proper party to pursue mortgage foreclosure against DEFENDANT, neither are we prepared to declare that PLAINTIFF is not the actual party which can pursue relief.  For reasons very similar to the ones articulated in the preceding section of this Opinion, we decline to enter any final decision via summary judgment.  Rather, the question of whether PLAINTIFF has standing to pursue relief will be addressed via factual hearing.  Thus, we will deny DEFENDANT’s Motion for Summary Judgment.  Like PLAINTIFF, the DEFENDANT will have to present his evidence and arguments at the time of the factual hearing that will be scheduled via a Court Order entered simultaneous with this Opinion.