Wells Fargo Delaware Trust Company, N.A., as Trustee for Vericrest Opportunity Loan Trust 2011-NPL1 v. Davis et al
MEMORANDUM (order to follow).Signed by Honorable Malachy E Mannion on 6/4/13. (bs)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA
WELLS FARGO TRUST COMPANY, :
N.A., as Trustee for VERICREST
OPPORTUNITY LOAN TRUST
MICHAEL DAVIS, Real Owner and
Mortgagor, and CHARLOTTE
CIVIL ACTION NO. 3:11-1484
Presently before the court is the plaintiff’s motion for summary judgment
(Doc. No. 14). Finding no issues of material fact remain with regard to this
foreclosure action, the court will grant the motion and enter judgment in
mortgage foreclosure on behalf of the plaintiff.
On or about February 7, 2007, the defendants borrowed $243,750.00
from Flagstar Bank, FSB as evidenced by a promissory note executed on the
same date (hereinafter the “Note”). (Doc. No. 14, Att. 3). To secure their
obligations the defendants executed a purchase money mortgage in favor of
Mortgage Electronic Registration Systems, Inc. (hereinafter “MERS”) as
For the convenience of the reader of this document in electronic
format, hyperlinks to the court’s record and to authority cited have been
inserted. No endorsement of any provider of electronic resources is intended
by the court’s practice of using hyperlinks.
nominee for Flagstar Bank, FSB and encumbering the real property located at
79 Spangenburg Avenue, East Stroudsburg, PA (hereinafter the “Mortgage”).
On July 18, 2011, MERS assigned the Mortgage to Vericrest Financial,
Inc. On August 12, 2011 a Corrective Assignment of Mortgage was executed
and the Mortgage was assigned to US Bank Trust National Association. On
August 22, 2011 the Mortgage was assigned to the plaintiff.
On June 1, 2010, the defendants defaulted under the Note and the
Mortgage by failing to make their monthly payment. The defendants have not
made a required payment since defaulting in June 2010.
On August 11, 2011, the plaintiff commenced the instant action to
foreclose on the mortgage. (Doc. No. 1). On November 22, 2011, Defendant
Michael Davis filed an answer to the complaint, generally stating that he was
without knowledge as to the amounts owed. (Doc. No. 9). Defendant Charlotte
Raybon-Davis was served with a copy of the complaint on August 11, 2011, but
has not responded in any manner in this action. (Doc. No. 8).
On July 17, 2012, the plaintiff filed the instant motion for summary
judgment, (Doc. No. 15), to which a statement of material facts was attached,
in addition to a brief in support, (Doc. No. 16). The plaintiff requests that the
court grant the motion for summary judgment and enter an in rem judgment in
mortgage foreclosure in favor of the plaintiff in the amount of $331,933.39,
representing the principal of the Mortgage, interest, late charges, appraisal and
inspection costs and escrow advances, and authorize the sale of the
encumbered property. In addition, the plaintiff requests further recovery for
additional interest charges still to be calculated as well as attorney’s fees and
On August 10, 2012, Defendant Michael Davis filed a brief in opposition,
(Doc. No. 17), and a brief in support, (Doc. No. 16). This brief voiced no legal
argument, but rather indicated that Defendant Michael Davis had been
attempting to restructure the mortgage obligations. The court afforded
Defendant Michael Davis a second opportunity to file a legal brief in opposition
and counter-statement of material fact. (Doc. No. 18). On April 23, 2013,
Defendant Michael Davis filed a counter-statement of material facts, (Doc. No.
19), and brief in opposition, (Doc. No. 20).
STANDARD OF REVIEW
Summary judgment is appropriate “if the pleadings, the discovery
[including, depositions, answers to interrogatories, and admissions on file] and
disclosure materials on file, and any affidavits show that there is no genuine
issue as to any material fact and that the movant is entitled to judgment as a
matter of law. Fed. R. Civ. P. 56©; see also Celotex Corp. v. Catrett, 477 U.S.
317, 322-23 (1986); Turner v. Schering-Plough Corp., 901 F.2d 335, 340 (3d
Cir. 1990). A factual dispute is genuine if a reasonable jury could find for the
non-moving party, and is material if it will affect the outcome of the trial under
governing substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986); Aetna Cas. & Sur. Co. v. Ericksen, 903 F. Supp. 836, 838 (M.D. Pa.
1995). At the summary judgment stage, “the judge's function is not himself to
weigh the evidence and determine the truth of the matter but to determine
whether there is a genuine issue for trial.” Anderson, 477 U.S. at 249; see also
Marino v. Indus. Crating Co., 358 F.3d 241, 247 (3d Cir. 2004) (a court may not
weigh the evidence or make credibility determinations). Rather, the court must
consider all evidence and inferences drawn therefrom in the light most
favorable to the non-moving party. See Andreoli v. Gates, 482 F.3d 641, 647
(3d Cir. 2007).
To prevail on summary judgment, the moving party must affirmatively
identify those portions of the record which demonstrate the absence of a
genuine issue of material fact. Celotex, 477 U.S. at 323-24. The moving party
can discharge the burden by showing that “on all the essential elements of its
case on which it bears the burden of proof at trial, no reasonable jury could find
for the non-moving party.” In re Bressman, 327 F.3d 229, 238 (3d Cir.2003);
see also Celotex, 477 U.S. at 325. If the moving party meets this initial burden,
the non-moving party “must do more than simply show that there is some
metaphysical doubt as to material facts,” but must show sufficient evidence to
support a jury verdict in its favor. Boyle v. County of Allegheny, 139 F.3d 386,
393 (3d Cir. 1998) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 586 (1986)). However, if the non-moving party “fails to make a
showing sufficient to establish the existence of an element essential to [the
non- movant's] case, and on which [the non-movant] will bear the burden of
proof at trial,” Rule 56 mandates the entry of summary judgment because such
a failure “necessarily renders all other facts immaterial.” Celotex, 477 U.S. at
322-23; see also Jakimas v. Hoffman-La Roche, Inc., 485 F.3d 770, 777 (3d
Defendant Michael Davis “admits that he is obligated to the Bank and that
he is behind on the mortgage, but does not think the Bank has provided a
proper accounting.” (Doc. No. 20 at 2). Moreover, Defendant Michael Davis
“agrees with the Operative Facts in the Plaintiff’s Memorandum of Law with the
exception of the total amount still due.” (Id.). In fact, the only cognizable
arguments raised in Defendant Michael Davis’s brief in opposition are that he
contests the amount owed and that he should be entitled to proceed under the
Residential Mortgage Foreclosure Diversion Program instituted in Monroe
County, Pennsylvania. The court finds both of these arguments to be
With respect to the defendant’s challenge of the amount due, the
defendant offers no substantive evidence that the plaintiff’s calculation is in
error. At this stage, a party cannot rely solely on allegations but must point to
evidence that would support a jury finding in its favor. The plaintiff has provided
an itemized accounting of the amounts owed under the Note and Mortgage to
which the defendant has merely stated that he does not agree. Specifically, the
plaintiff asserts the following break down of the requested judgment amount:
principal debt due in the amount of $269,848.09; interest in the amount of
$35,093.37; late charges in the amount of $516.67; FCL Appraisal or BPO in
the amount of $320.00; PP-Inspections Collections in the amount of $75.25,
and; escrow advances in the amount of $26,080.01. In response to this detailed
explanation of the sum due, a generalized and unsupported allegation that it
is incorrect cannot survive at this stage of the proceeding.
With respect to the defendant’s claim that he should be allowed to
proceed under the Monroe County foreclosure diversion program, unfortunately
for the defendant, the federal courts do not proceed under local county
programs. This federal jurisdiction has been established pursuant to 28 U.S.C.
§1332, programs, rules and/or orders of the local Pennsylvania Courts are not
part of the relief available to a party.
Therefore, the court finds that no issues of material fact remain and will
enter judgment in mortgage foreclosure in favor of the plaintiff and against
Defendant Michael Davis. An appropriate order will follow.
s/ Malachy E. Mannion
MALACHY E. MANNION
United States District Judge
Dated: June 4, 2013
O:\Mannion\shared\MEMORANDA - DJ\2011 MEMORANDA\11-1484-01.wpd
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