White v. The Bank of New York Mellon

Filing 46

MEMORANDUM and ORDER granting 34 New York Mellon's Motion for Summary Judgment ; Clerk of court is directed to CLOSE caseSigned by Honorable James M. Munley on 7/27/11 (sm, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
SCOTT A. WHITE,
Plaintiff

:
No. 3:10cv1426
:
:
(Judge Munley)
:
v.
:
:
JP MORGAN CHASE BANK, N.A.,
:
as Indenture Trustee on behalf of the :
Noteholders and the Note Insurer of :
ABFS Mortgage Loan Trust 2000-4,
:
Mortgage Backed Notes,
:
Defendant
:
::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::
MEMORANDUM
Before the court is Trustee Bank of New York Mellon’s Motion for Summary
Judgment.
Background
This case arises out of a real-estate dispute over plaintiff’s home in Pottsville,
Pennsylvania. Plaintiff alleges that on January 24, 2008, Defendant J.P. Morgan
Chase Bank (“Morgan”) filed an action in the Court of Common Pleas of Schuylkill
County seeking foreclosure on the property in question. (See Complaint (hereinafter
“Complt.”), exh. 1 to Notice of Removal (Doc. 1) at ¶ 4). Defendant Morgan asserted
that the bank was the foreclosure trustee under the plaintiff’s mortgage, and thus the
proper party to assert rights under the mortgage against the plaintiff. (Id. at ¶ 5).
Plaintiff alleges that Morgan had no such right, and was so informed by a preliminary
objection. (Id. at ¶ 6). Despite this information, Morgan filed an amended complaint

which again asserted a right to foreclosure. (Id. at ¶ 7). Plaintiff again filed
objections, and Morgan filed a second amended complaint. (Id. at ¶ 8-9). Morgan’s
action again forced plaintiff to file objections. (Id. at ¶ 9). Defendant then
discontinued the foreclosure action, which plaintiff alleges was filed without probable
cause and in an effort to obtain money to which defendant was not entitled. (Id. at
¶¶ 10-11.
Plaintiff filed a complaint in the Schulykill Pennsylvania Court of Common
Pleas. The complaint alleged that defendant’s foreclosure action was the result of
gross negligence and sought damages in the form of attorney’s fees and emotional
distress. On July 9, 2010, Bank of New York Mellon (“Bank of New York” or “the
Bank”), representing itself as the successor in interest to Defendant Morgan, filed a
notice of removal in this court. (Doc. 1). The Bank alleged that there was diversity
between the parties and the amount in controversy exceeded $75,000, meaning that
this court had jurisdiction over the matter and removal was appropriate. On July 13,
2010, the Bank filed an answer to the complaint, as well as a counterclaim and a
third party complaint. (Doc. 3). The counterclaim seeks mortgage foreclosure and
assumpsit against the Whites.
On August 6, 2010, plaintiff filed a motion to remand the case to the Common
Pleas Court in Schulykill County. The court denied this motion. (See Doc. 10). The
parties then engaged in discovery.
Discovery revealed that on September 19, 2000, Plaintiff Scott A. White and

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his wife Deborah L. White (collectively “the Whites”) signed and executed a
promissory note payable to New Jersey Mortgage and Investment Corporation.
(Trustee’s Statement of Material Facts (Doc. 34) (hereinafter “Trustee’s Statement”)
at ¶ 1). The note had a principal sum of $60,800.1 To secure this note, the Whites
executed and delivered a mortgage to New Jersey Mortgage and Investment
Corporation. (Id. at ¶ 2). This mortgage was secured by real property located at 618
Mahantongo Street, Pottsville, Pennsylvania. (Id.). The mortgage was recorded on
September 26, 2000. (Id. at ¶ 3). Trustee is the current owner and holder of the
note and the mortgage, and the holder-in-due-course of the note. (Id. at ¶¶ 4-5).
The Whites failed to make a payment on their loan due on July 5, 2007 and have not
made any payments since. (Id. at ¶ 6). They are in default and have not cured that
default. (Id. at ¶ 7). The trustee has elected to accelerate the loan and demand the
entire amount due. (Id. at ¶ 8). As of February 16, 2011, plaintiffs owed $60,618.02
on the loan principal, plus $23,971.07 in interest, escrow charges of $4,600.16, and
late charges and fees of $12,101.89. (Id. at ¶ 9). Their indebtedness totaled
$101,291.14. (Id.). Plaintiff also owed interest fo $18.68 per diem plus any escrow
advances after February 15, 2011. (Id.).
In September 2010 plaintiff and movant reached a settlement agreement. (Id.
at ¶ 10). Plaintiff agreed to dismiss his claims in the instant matter as part of that

1

Because the plaintiffs did not oppose the motion, the court accepts all facts alleged
by the trustee as true.
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agreement. (Id.). He has not done so, nor has he complied with another provision in
the agreement that required the Whites to deed Bank of New York Mellon
the property in question with clear title. (Id. at ¶ 12). That agreement provided that
failure to deliver clear title to the Bank would place the Whites in default, allowing the
Bank to take appropriate action. (Id.). The Whites failed to provide this deed to the
Bank, and are in violation of the settlement agreement. (Id. at ¶ 13).
At the close of discovery the Bank filed the instant motion. The motion seeks
summary judgment on plaintiff’s claim and on the Bank’s counterclaim. Plaintiff did
not respond to the motion, despite being warned to do so by the court. This inaction
brought the case to its present posture.
Jurisdiction
Plaintiff is a Pennsylvania citizen. Defendant is a New York resident with its
principal place of business in New York. The amount in controversy exceeds
$75,000. The court therefore has jurisdiction pursuant to 28 U.S.C. § 1332. The
court is sitting in diversity, and the substantive law of Pennsylvania shall apply.
Chamberlain v. Giampapa, 210 F.3d 154, 158 (3d Cir. 2000) (citing Erie R.R. v.
Tompkins, 304 U.S. 64, 78 (1938)).
Legal Standard
The case is before the court on defendant’s’ motion for summary judgment.
Granting summary judgment is proper if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show that

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there is no genuine issue as to any material fact and that the moving party is entitled
to judgment as a matter of law. See Knabe v. Boury, 114 F.3d 407, 410 n.4 (3d Cir.
1997) (citing F ED. R. C IV. P. 56(c)). “[T]his standard provides that the mere existence
of some alleged factual dispute between the parties will not defeat an otherwise
properly supported motion for summary judgment; the requirement is that there be
no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
247-48 (1986) (emphasis in original).
In considering a motion for summary judgment, the court must examine the
facts in the light most favorable to the party opposing the motion. International Raw
Materials, Ltd. v. Stauffer Chemical Co., 898 F.2d 946, 949 (3d Cir. 1990). The
burden is on the moving party to demonstrate that the evidence is such that a
reasonable jury could not return a verdict for the non-moving party. Anderson, 477
U.S. at 248 (1986). A fact is material when it might affect the outcome of the suit
under the governing law. Id. Where the non-moving party will bear the burden of
proof at trial, the party moving for summary judgment may meet its burden by
showing that the evidentiary materials of record, if reduced to admissible evidence,
would be insufficient to carry the non-movant's burden of proof at trial. Celotex v.
Catrett, 477 U.S. 317, 322 (1986).
In this case, the trustee filed a motion for summary judgment and
statements of material facts, but the plaintiffs did not file a brief in opposition or a
counterstatement of material facts. The court ordered the plaintiffs to file their

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materials in opposition to summary judgment, but they failed to do so. When a party
fails to oppose a motion for summary judgment, the court, “before granting summary
judgment . . . must first determine whether summary judgment is appropriate–that is,
whether the moving party has shown itself to be entitled to judgment as a matter of
law.” Anchorage Assocs. v. V.I. Bd. Of Tax Review, 922 F.2d 168, 175 (3d Cir.
1990). In making that determination, the court accepts “‘as true all material facts set
forth by the moving party with appropriate record support.’” Id. If the burden of proof
on a relevant issue lies with the moving party, “this means that the district court must
determine that the facts specified in or in connection with the motion entitle the
moving party to judgment as a matter of law.” Id. If the burden of proof lies with the
non-moving party, “the district court must determine that the deficiencies in the
opponent’s evidence designated in or in connection with the motion entitle the
moving party to judgment as a matter of law.” Id.
Discussion
The Bank seeks summary judgment on plaintiff’s claim and on the Bank’s
counterclaims. The court will address each in turn, as appropriate.
i. The Bank’s Counterclaim
The Bank’s counterclaim against the defendant is for foreclosure. In
Pennsylvania, a mortgage foreclosure complaint must provide “(1) the parties to and
date of the mortgages; (2) a description of the property subject to the mortgages; (3)
the names, addresses, and interests in the properties of the defendants in the action;

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(4) a specific averment of default; (5) an intemized statement of the amount due; and
(6) a demand for judgment.” Mellon Bank, N.A. v. Pasqualis-Politi, 800 F. Supp.
1297, 1299-1300 (W.D. Pa. 1992) (quoting Pa. R. Civ. P. 1147); In re Randall, 358
B.R. 145, 156 (E.D. Pa. 2006) (same). “Summary judgment is properly granted in
mortgage foreclosure actions where the mortgagor admits that he is delinquent in
mortgage payments.” First Wis. Trust Co. v. Strausser, 653 A.2d 688, 694 (Pa.
Super. Ct. 1995); See also, Cunningham v. McWilliams, 714 A.2d 1054, (Pa. Super.
Ct. 1998) (“In an action for mortgage foreclosure, the entry of summary judgment is
proper if the mortgagors admit that the mortgage is in default, that they have failed to
pay interest on the obligation, and that the recorded mortgage is in the specified
amount.”).
As explained above, the Smiths have not filed any counterstatement of
material facts. The facts alleged by the Bank are therefore all admitted as true. The
facts establish that the Whites entered into a note for $60,800 in September 2000
with the New Jersey Mortgage and Investment Corporation, which was secured by a
mortgage on the property here in question. The Bank is now the holder in due
course of the note. Plaintiff has not made payments on the note since July 5, 2007,
and are thus in default. He owes more than $60,000 on the note, in addition to
various charges for interest, escrow and fees. As of the date the Bank filed the
instant motion, plaintiff owes $101,291.14, in addition to interest accrued since that
period. The Bank has thus proved each element of the foreclosure action and is

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entitled to summary judgment on that counterclaim. The court will therefore grant
the Bank summary judgment on the defendant’s counterclaim.
ii. Plaintiff’s Claim
The defendant also argues that the court should grant defendant summary
judgment on plaintiff’s claims. The parties reached a settlement agreement in 2010
which required plaintiff to dismiss the claims against the Bank in this matter. Plaintiff
has not done so, and the bank contends that plaintiff’s failure to dismiss the claim as
required by the agreement should lead to summary judgment on plaintiff’s claims.
An affidavit attached to the Bank’s brief in support of this matter indicates that this
agreement exists, but is covered by a confidentiality clause. (See Affidavit of Gina
Johnson, Ex. C. to Brief in Support (Doc. 34)).
The court will grant the Bank’s motion in this respect as well. Accepting all of
the facts alleged by the Bank as true, the court concludes that an agreement to
dismiss the complaint with prejudice exists. The plaintiff has offered no evidence to
refute the existence of the agreement, and the plaintiff’s failure, despite orders from
the court, to respond to the Bank’s motion indicates plaintiff’s lack of objection to the
motion. The court will therefore grant the motion for summary judgment
Conclusion
For the reasons stated above, the court will grant the Bank’s motion. An
appropriate order follows.

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IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
SCOTT A. WHITE
Plaintiff

:
No. 3:10cv1426
:
:
(Judge Munley)
:
v.
:
:
JP MORGAN CHASE BANK, N.A.,
:
as Indenture Trustee on behalf of the :
Noteholders and the Note Insurer of :
ABFS Mortgage Loan Trust 2000-4,
:
Mortgage Backed Notes,
:
Defendant
:
::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::
ORDER
AND NOW, to wit, this 27th day of July 2011, the Bank of New York Mellon’s motion
for summary judgment (Doc. 34) is hereby GRANTED. As such:
1. Summary judgment is granted to the defendant on plaintiff’s claims;
2. Judgment is entered in favor of the Bank and against Scott A. White on the
Bank’s counterclaim and in favor of the Bank on the Bank’s third-party claim against
Deborah L. White a/k/a Deborah L. White Spangler on the Bank’s claims in assumpsit and
in mortgage foreclosure;
3. Judgment is entered in favor of the Bank of New York Mellon and against Scott
A. White and Deborah L. White on the Bank’s Count in Assumpsit for a total of
$101,291.14, as follows:
a. Principal of $60,618.12;
b. Interest of $23,971.07;
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c. Escrow advances of $4600.16;
d. Late charges and fees of $12,101.89;
In addition, per diem interest of $18.68 and any escrow advances after February 15, 2011
plus any additional costs and fees shall be added to the judgment; and
4. Judgment is entered in favor of the Bank of New York Mellon and against Scott
A. White and Deborah L. White in rem in mortgage foreclosure of the sale of the property at
618 Mahantogo Street, Pottsville, Pennsylvania for a total of $101, 291.14, as follows:
a. Principal of $60,618.12;
b. Interest of $23,971.07;
c. Escrow advances of $4600.16;
d. Late charges and fees of $12,101.89;
5. The Clerk of Court is directed to CLOSE the case.

BY THE COURT:

s/ James M. Munley
JUDGE JAMES M. MUNLEY
United States District Court

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