The United States of America v. Polashenski et al

Filing 19

MEMORANDUM (Order to follow as separate docket entry)Signed by Magistrate Judge Karoline Mehalchick on 2/9/18. (ep)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA
THE UNITED STATES OF AMERICA,
Plaintiff

CIVIL ACTION NO. 3:16-CV-2515

v.
(MEHALCHICK, M.J.)
ROBERT A. POLSHENSKI, et al,
Defendants
MEMORANDUM
Before the Court is a motion for summary judgment filed by the plaintiff in this matter,
the United States of America. The motion (Doc. 15), was filed on June 21, 2017, together with
a brief in support (Doc. 16), and an affidavit in support, with exhibits (Doc. 17). No brief in
opposition has been filed in this matter, despite the Court extending the deadline for filing the
same. (Doc. 18). Accordingly, this motion is ripe for disposition. For the following reasons, the
Court will grant the motion for summary judgment.
I.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY
On December 23, 2016, Plaintiff, the United States of America, on behalf of its agency,

the United States Department of Agriculture, Rural Housing Service, instituted this action to
foreclose a certain real property mortgage held by Defendants, Robert A. Polashenski and
Kathleen Polashenski. (Doc. 1). Defendants filed an Answer and Defenses on February 27,
2017. (Doc. 5). The parties consented to the jurisdiction of the undersigned magistrate judge on
April 20, 2017. (Doc. 10; Doc. 11). Following the issuance of a case management order (Doc.
14) and a brief period of discovery, Plaintiff filed the instant motion for summary judgment,
together with brief in support and affidavit and exhibits in support of the motion.

The undisputed facts in the record before this Court are as follows. 1 On September 15,
1986, Defendants entered into a mortgage with Plaintiff for a property located at 1147 Ridge
Street, Freeland, Pennsylvania. (Doc. 17-1, at 1). The mortgage was given as security for
payment of a Promissory Note in the amount of $35,090.00. (Doc. 17-1, at 5). On September
15, 1999, the Promissory Note was reamortized for the second time in the amount of
$42,147.26. (Doc. 17-1, at 14). Defendants have not made any payments to bring the Mortgage
current since January 15, 2014. (Doc. 17, at ¶¶ 9-10). On December 8, 2014, Plaintiff mailed
Defendants a “Notice of Acceleration of Your Mortgage Loan(s); Demand for Payment of That
Debt; Notice of Right to Cure Your Delinquency; Notice of Intent to Foreclose and Notice of
Your Opportunity to Have A Hearing Concerning This Action” to Defendants’ last known
address. (Doc. 17-1, at 16). As of the date of the filing of the instant motion for summary
judgment, the amounts due and owing on the mortgage totaled $33,514.98. (Doc. 17, at ¶ 16).
II.

LEGAL STANDARD
Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment should be

granted only if “there is no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(a). A fact is “material” only if it might affect

1

To comply with Local Rule 56.1, a nonmovant should (1) clearly and unequivocally
admit or deny whether each fact contained in movant’s statement of facts is undisputed and/or
material, (2) set forth the basis for any denial if any fact is not admitted in its entirety, and (3)
provide a citation to the record that supports any such denial. Occhipinti v. Bauer, No. 3:13-CV1875, 2016 WL 5844327, at *3 (M.D. Pa. Sept. 30, 2016) (emphasis added); Park v. Veasie, 2011
WL 1831708, *4 (M.D. Pa. 2011). Material facts set forth in the statement required to be served
by the moving party will be deemed to be admitted unless controverted by the statement
required to be served by the opposing party. Defendants have not filed any papers in opposition
to the Plaintiff’s motion for summary judgment; as such, the Court deems the statements of fact
submitted by Plaintiff to be admitted.
-2-

the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute of
material fact is “genuine” if the evidence “is such that a reasonable jury could return a verdict
for the non-moving party.” Anderson, 477 U.S. at 248. In deciding a summary judgment motion,
all inferences “should be drawn in the light most favorable to the non-moving party, and where
the non-moving party’s evidence contradicts the movant’s, then the non-movant’s must be
taken as true.” Pastore v. Bell Tel. Co. of Pa., 24 F.3d 508, 512 (3d Cir. 1994).
A federal court should grant summary judgment “if the pleadings, depositions, answers
to interrogatories, and admissions on file, together with the affidavits, if any, show that there is
no genuine issue as to any material fact and that the moving party is entitled to a judgment as a
matter of law.” Farrell v. Planters Lifesavers Co., 206 F.3d 271, 278 (3d Cir. 2000). In deciding a
motion for summary judgment, the court’s function is not to make credibility determinations,
weigh evidence, or draw inferences from the facts. Anderson, 477 U.S. at 249. Rather, the court
must simply “determine whether there is a genuine issue for trial.” Anderson, 477 U.S. at 249.
The party seeking summary judgment “bears the initial responsibility of informing the
district court of the basis for its motion,” and demonstrating the absence of a genuine dispute of
any material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the movant makes such a
showing, the non-movant must go beyond the pleadings with affidavits or declarations, answers
to interrogatories or the like in order to demonstrate specific material facts which give rise to a
genuine issue. Fed. R. Civ. P. 56(c); Celotex, 477 U.S. at 324. The non-movant must produce
evidence to show the existence of every element essential to its case, which it bears the burden
of proving at trial, because “a complete failure of proof concerning an essential element of the
nonmoving party's case necessarily renders all other facts immaterial.” Celotex, 477 U.S. at 323.
Furthermore, mere conclusory allegations and self-serving testimony, whether made in the

-3-

complaint or a sworn statement, cannot be used to obtain or avoid summary judgment when
uncorroborated and contradicted by other evidence of record. See Lujan v. Nat’l Wildlife Fed’n,
497 U.S. 871, 888 (1990); see also Thomas v. Delaware State Univ., 626 F. App’x 384, 389 n.6 (3d
Cir. 2015) (not precedential) (“[U]nsupported deposition testimony, which is contradicted by
the record, is insufficient to defeat summary judgment.”); Nat’l Labor Rel. Bd. v. FES, 301 F.3d
83, 95 (3d Cir. 2002) (“[The plaintiff’s] testimony . . . amounts to an unsupported, conclusory
assertion, which we have held is inadequate to satisfy the movant’s burden of proof on
summary judgment.”).
III.

DISCUSSION
Plaintiff has moved for summary judgment, submitting that it is entitled to judgment as a

matter of law in this matter where the undisputed material facts reveal that the Defendants
defaulted on repayment of a promissory note secured by a mortgage pursuant to the provisions
of Title V of the Housing Act of 1949, as amended 42 U.S.C. § 1471, et seq.
“'In a mortgage foreclosure action, the plaintiff must show the existence of an obligation
secured by a mortgage, and a default of that obligation.”' United States v. Werner, 2015 WL
1014041, *4 (M.D. Pa. 2015) (quoting Chemical Bank v. Dippolito, 897 F. Supp. 221, 224 (E.D.
Pa. 1995)). '“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.”' Wilson v. Parisi, 549 F. Supp. 2d 637, 655 (M.D.
Pa. 2008) (quoting Landau v. W. Pa. Nat'l Bank, 445 Pa. 217 (Pa. 1971)); see Werner, 2015 WL
1014041 (quoting Wilson, 549 F. Supp. 2d at 655).
As recited above, the undisputed evidence before the Court establishes that on
September 15, 1986, Defendants entered into a mortgage with Plaintiff for a property located at

-4-

1147 Ridge Street, Freeland, Pennsylvania, which was given as security for payment of a
Promissory Note in the amount of $35,090.00. (Doc. 17-1, at 1, 5). The record also establishes
that on September 15, 1999, the Promissory Note was reamortized for the second time in the
amount of $42,147.26. (Doc. 17-1, at 14). The undisputed record also establishes that
Defendants are in default of their obligations by failing to make payments when due, that
Defendants have not made any payments to bring the Mortgage current since January 15, 2014,
that Defendants received notice of acceleration and intent to foreclose, and finally, that
Defendants have not cured the default. As of the date of the filing of the instant motion for
summary judgment, the amounts due and owing on the mortgage totaled $33,514.98. (Doc. 17,
at ¶¶ 9-10, 16; Doc. 17-1, at 16).
Defendants’ answer to the complaint (Doc. 5) contains denials or assertions that they
lack knowledge about the claims made in the complaint. Defendants admit that they executed
the promissory note and the mortgage, and to the legal description of the property secured by
the mortgage. (Doc. 5). Defendants deny that Plaintiff is the holder of the mortgage on the basis
that they lack knowledge. They also deny that they are in default, stating that they sought an
audit and transactional report to determine the nature of the alleged default and the amounts
due and owing as alleged in the complaint. (Doc. 5, ¶¶9-11).However, the payment history and
the amounts due and owing are established in the undisputed evidence before this Court (Doc.
17), and a non-moving party may not rest simply on the allegations in the pleadings to defeat a
motion for summary judgment. Belnick, Inc. v. TBB Glob. Logistics, Inc., 106 F. Supp. 3d 551, 558
(M.D. Pa. 2015); Berckeley Inv. Group. Ltd. v. Colkitt, 455 F.3d 195, 201 (3d Cir.2006); accord
Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

-5-

Defendants also assert a number of affirmative defenses (Doc. 5), including that Plaintiff
has failed to state a claim, failed to join indispensable parties, waiver and estoppel, statute of
limitations, failure to mitigate damages, and failure to act in good faith. Defendant has failed to
advance any of these affirmative defenses outside of her answer, and has not submitted any
evidence that would create a genuine issue of material fact regarding the default of her
obligation. Again, “mere assertions set out in a pleading are insufficient to defeat summary
judgment.” Werner, 2015 U.S. Dist. LEXIS 28290, at *13, 2015 WL 1014041 (citing Bhatla v.
U.S. Capital Corp., 990 F.2d 780, 787 (3d Cir. 1993)).
IV.

CONCLUSION
For the reasons set forth above, the undisputed material facts in the record establish that

Plaintiff is entitled to summary judgment. As such, Plaintiff’s motion will be granted, and
judgment will be entered in favor of Plaintiff and against the Defendants.
An appropriate Order follows.

BY THE COURT:

s/ Karoline Mehalchick

Dated: February 9, 2018

KAROLINE MEHALCHICK
United States Magistrate Judge

-6-