Rocket Mortgage, LLC, f/k/a Quicken Loans, LLC, f/k/a Quicken Loans Inc., v. John S. Hixenheiser

Rocket Mortgage, LLC, f/k/a Quicken Loans, LLC, f/k/a Quicken Loans Inc., v. John S. Hixenheiser

 

Civil Action-Law-Real Property-Mortgage Foreclosure-Death of Mortgagor-Motion to Amend Complaint-Name of Defendant-No Apparent Heirs-Discretion of the Court-Prejudice

 

Plaintiff was the real owner and mortgagor of property secured by a mortgage issued by Plaintiff.  Defendant passed away.  It is alleged that a default occurred with regard to payments upon the mortgage obligation.  Following the filing of a Complaint in mortgage foreclosure Complaint against Defendant, Plaintiff discovered by virtue of the Sheriff’s Return that Defendant had passed and an occupant of the property involved in a relationship with Defendant’s mother accepted service of the Complaint at the property.  Plaintiff filed a Motion to Amend Complaint seeking to amend the name of Defendant to “Unknown Heirs of John S. Hixenheiser, deceased.”

 

1. Pa.R.C.P. Rule 1033(a) provides that a party, either by consent or leave of court, may at any time change the form of an action, add a person as a party, correct the name of a party or otherwise amend a pleading.

 

2. Rule 1033(a) provides that the amended pleading may aver transactions or occurrences that happened before or after the filing of the original pleading even if they give rise to a new cause of action.

 

3. Pa.R.C.P. Rule 1144(a)(2) provides that a mortgage complaint shall identify as a defendant the personal representative, heir or devisee of a deceased mortgagor.

 

4. The trial court has discretion regarding whether to grant a motion to amend a pleading.

 

5. Amendments to pleadings should be allowed liberally in order to secure determinations of cases on their merits.

 

6. The court must grant leave to amend in the absence of a proper and compelling ground for refusing amendment of a pleading.

 

7. Where the defect in a pleading may be cured by amendment, the opportunity to do so will be provided as a general rule.

 

8. The court may disallow leave to amend a pleading only where surprise or prejudice to the other party would result or the proposed amendment is against a positive rule of law.

 

9. Prejudice must amount to something more than the removal of the procedural defect that the amendment is intended to cure.

 

10. Timeliness of a request to amend is a factor to be considered only insofar as it presents a question of prejudice to the opposing party such as loss of a witness or an eleventh hour surprise.

 

11. No proper or compelling ground exists for refusing to permit an amendment to the pleading where Plaintiff was unaware that Defendant passed away until notified by the Sheriff’s Return, there was not a long delay between the filing of the Sheriff’s Return and the Motion to Amend the Complaint, Plaintiff has unable to identify heirs of Defendant, the defect in the pleading can be cured by amendment and the record does not establish any surprise, prejudice or violation of law will occur as a result of the proposed amendment.

 

L.C.C.C.P. No. 2022-00181, Opinion by Charles T. Jones, Jr., Judge, December 1, 2022.

 

 

IN THE COURT OF COMMON PLEAS

OF LEBANON COUNTY, PENNSYLVANIA

 

CIVIL DIVISION

 

ROCKET MORTGAGE, LLC,                 :

f/k/a QUICKEN LOANS, LLC,                 :

f/k/a QUICKEN LOANS INC.,                  :

          Plaintiff,                                           :

                                                                   :                  Docket No.: 2022-00181

1. :

                                                                   :

JOHN S. HIXENHEISER,                         :

          Defendant.                                       :

 

ORDER OF COURT

AND NOW, this 1^st day of December, 2022, after careful consideration of the record, Plaintiff’s Motion to Amend Complaint is GRANTED.  Plaintiff may amend the named Defendant to Unknown Heirs of John S. Hixenheiser.

 

 

BY THE COURT:

 

_______________________, J.

CHARLES T. JONES, JR.

 

 

 

CTJ/adj

cc:     Kenya D. Bates, Esquire

John S. Hixenheiser, Self-Represented Litigant

Court Administration

Anthony D. Juliani, Law Clerk

IN THE COURT OF COMMON PLEAS

OF LEBANON COUNTY, PENNSYLVANIA

 

CIVIL DIVISION

 

ROCKET MORTGAGE, LLC,                 :

f/k/a QUICKEN LOANS, LLC,                 :

f/k/a QUICKEN LOANS INC.,                  :

          Plaintiff,                                           :

                                                                   :                  Docket No.: 2022-00181

1.                              :

                                                                   :

JOHN S. HIXENHEISER,                         :

          Defendant.                                        :

 

APPEARANCES:

Kenya D. Bates, Esquire                                       For Plaintiff

John S. Hixenheiser                                             Self-Represented Litigant

 

OPINION BY JONES, JR., J.:

Before this Court is a Motion to Amend Complaint filed by Rocket Mortgage, LLC, f/k/a Quicken Loans, LLC, f/k/a Quicken Loans Inc. (“Plaintiff”).  After careful consideration of the record and for the reasons set forth herein, Plaintiff’s Motion to Amend Complaint is granted.

 

1. FACTUAL AND PROCEDURAL HISTORY

John S. Hixenheiser (“Defendant”) was the real owner and mortgagor of the mortgaged property at 358 North 4^th Street, Lebanon, PA 17046 (“Mortgaged Property”).  On September 7, 2019, Defendant entered into the promissory note and/or loan agreement, and Defendant executed and delivered the mortgage upon the Mortgaged Property.  The mortgage was recorded on September 13, 2019.

On May 18, 2021, Defendant passed away.  However, Plaintiff was unaware of Defendant’s death.  The August 1, 2021, payment and all payments thereafter are currently due.  The mortgage is in default because the payments due and secured by the mortgage have not been made.  On November 18, 2021, Plaintiff mailed a Notice of Intent to Foreclose to Defendant.

On February 17, 2022, Plaintiff filed a mortgage foreclosure complaint because of the default.  A Sheriff’s Return was filed on March 17, 2022.  The Sheriff’s Return explained to Plaintiff that Defendant died in 2021 and that Harold Franklin was served with a true and attested copy of the mortgage foreclosure complaint instead.  The Sheriff’s Return also explained Harold Franklin was the occupant and person in charge at the Mortgaged Property at the time of service and that Harold Franklin’s mother was in a relationship with Defendant.  Plaintiff then conducted research to discover whether Defendant had any heirs.  Plaintiff’s research failed to uncover any heirs of Defendant.

On July 8, 2022, Plaintiff filed a praecipe for disposition as well as Plaintiff’s Motion to Amend Complaint.  A memorandum of law in support was included together with Plaintiff’s Motion to Amend Complaint.  Plaintiff requested to amend the complaint by having the named Defendant be amended to “Unknown Heirs of John S. Hixenheiser, deceased,”.  Plaintiff also requested that Plaintiff’s complaint be amended to conform thereto in accordance with Pa.R.C.P. 1144(a)(2) and that Plaintiff be able to file the amended complaint within ninety days of the date of the attached Order.

On July 11, 2022, President Judge Tylwalk signed an Order of Court which directed the Prothonotary of Lebanon County to list the case for the next available Argument Court date and notify all parties of the briefing schedule.  This matter was listed for the September 2022 term of Argument Court, and the matter was to be decided on the briefs.  Plaintiff’s brief was due by August 5, 2022, and Defendant’s brief was due by August 19, 2022.  No brief was submitted on behalf of Defendant.  This matter is ripe for disposition.

 

1. STANDARD OF REVIEW

Amendments of pleadings are governed by Pa.R.C.P. 1033 which states in pertinent part:

(a)     A party, either by filed consent of the adverse party or by leave of court, may at any time change the form of action, add a person as a party, correct the name of a party, or otherwise amend the pleading.  The amended pleading may aver transactions or occurrences which have happened before or after the filing of the original pleading, even though they give rise to a new cause of action or defense.  An amendment may be made to conform the pleading to the evidence offered or admitted.

Pa.R.C.P. 1033(a); Pellegrine v. Home Insurance Company (“Pellegrine”), 186 A.2d 662, 664 (Pa. Super. 1962).   Furthermore, regarding an action of mortgage foreclosure, Pa.R.C.P. 1144 states in pertinent part:

(a)     The plaintiff shall name as defendants

(1)     the mortgagor;

(2)     the personal representative, heir or devisee of a deceased mortgagor, if known; and

(3)     the real owner of the property, or if the real owner is unknown, the grantee in the last recorded deed.

Pa.R.C.P. 1144(a).

A decision on whether to grant a motion to amend a pleading is a matter for the exercise of judicial discretion in the trial court.  Pilotti v. Mobil Oil Corporation (“Pilotti”), 565 A.2d 1227, 1229 (Pa. Super. 1989); Schroeder v. Accelleration Life Insurance Company of Pennsylvania (“Schroeder”), 547 A.2d 1184, 1185 (Pa. Super. 1988); Hughes v. Pron, 429 A.2d 9, 12 (Pa. Super. 1981); Puleo v. Broad Street Hospital (“Puleo”), 407 A.2d 394, 396 (Pa. Super. 1979); Pellegrine at 664.  However, that discretion is not unfettered.  Pilotti at 1229.  In the absence of a proper and compelling ground for refusing an amendment of a pleading, the court must grant leave to amend.  Pellegrine at 664.

The Supreme Court of Pennsylvania has held that the policy in Pennsylvania is to allow amendment where there is a reasonable possibility that an amendment can be accomplished successfully.  Pilotti at 1229.  Amendments to pleadings should be liberally allowed in order to secure a determination of cases on their merits.  Schroeder at 1185; Hughes v. Pron at 12; Puleo at 396.  Where a defect in the pleadings can be cured by amendment, the opportunity to do so will be provided as a general rule.  Puleo at 396.

A court may disallow leave to amend the pleadings only where surprise or prejudice to the other party would result or where the proposed amendment is against a positive rule of law.  Pilotti at 1229; Schroeder at 1185-86; Hughes v. Pron at 12; Puleo at 396.  Prejudice must amount to something more than the removal of the procedural defect that the amendment is intended to cure.  Pilotti at 1229.  Although not dispositive of the issue, long unexplained delay between the original pleading and the motion to amend will be considered as a factor in deciding whether to permit the amendment.  Schroeder at 1186.  The timeliness of the request to amend is a factor to be considered, but it is to be considered only insofar as it presents a question of prejudice to the opposing party, as by loss of witnesses or an eleventh-hour surprise.  Pilotti at 1229.

III.    DISCUSSION

On February 17, 2022, Plaintiff filed the complaint and only discovered afterwards that Defendant passed away on May 18, 2021.  Plaintiff is allowed to request leave to amend their complaint.  Pa.R.C.P. 1033(a).  Furthermore, the following are required to be named as defendants by Plaintiff: first, the mortgagor; second, the personal representative, heir or devisee of a deceased mortgagor, if known; and third, the real owner of the property, or if the real owner is unknown, the grantee in the last recorded deed.  Pa.R.C.P. 1144(a).  The mortgagor and real owner was Defendant.  However, the personal representative, heir or devisee of a deceased mortgagor, if known, was not named because Plaintiff was unaware of Defendant’s death at the time of the complaint.  Additionally, Plaintiff also failed to uncover any heirs of Defendant.  Naming the unknown heirs of Defendant as defendants here appears to best comply with Pa.R.C.P. 1144(a).

This Court does not find any proper or compelling ground for refusing to permit an amendment to this pleading.  Pellegrine at 664.  This Court finds there is a reasonable possibility that the proposed amendment can be accomplished successfully.  Pilotti at 1229.  This Court finds that the proposed amendment is more likely than not to secure a determination of this case on its merits.  Schroeder at 1185; Hughes v. Pron at 12; Puleo at 396.  This appears to be a defect in the pleadings that can be cured by amendment, so the opportunity to do so should be provided.  Puleo at 396.

This Court does not find that any surprise, prejudice of violation of law will occur as a result of this proposed amendment.  Pilotti at 1229; Schroeder at 1185-86; Hughes v. Pron at 12; Puleo at 396.  The unknown heirs of Defendant will have the opportunity to defend against Plaintiff’s claims after the filing of the amended complaint.  This appears to be simply the removal of a procedural defect that the amendment is intended to cure rather than any prejudice.  Pilotti at 1229.  Lastly, regarding timeliness, there was not a long delay nor any new filings between the Sheriff’s Return filed on March 17, 2022, and Plaintiff’s request to amend their complaint on July 8, 2022.  Pilotti at 1229; Schroeder at 1186; see also Pellegrine at 664.  This is not a case where Plaintiff has waited until trial and then sought to amend in order to gain some unfair advantage.  See Pellegrine at 664.  No prejudice is even suggested in this case.  See Pilotti at 1229.  Therefore, Plaintiff’s Motion to Amend Complaint is granted.

 

1. CONCLUSION

Therefore, after careful consideration of the record and for the aforementioned reasons set forth herein, Plaintiff’s Motion to Amend Complaint is granted.