GLOVER v. WASHINGTON MUTUAL BANK, F.A. et al

Filing 692

ORDER re: Objections to Magistrate's Order denying Plaintiff's Motion to Strike. Signed by Judge Donetta W. Ambrose on 4/24/14. (ask)

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

MARYE. GLOVER,
Plaintiff,

v.
MARKJ. UDREN, UDREN LAW
OFFICES, P.c., WELLS FARGO
HOME MORTGAGE, GOLDMAN
SACHS MORTGAGE COMPANY
Defendants.

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Civil No. 08-990
District Judge Donetta W. Ambrose
Magistrate Judge Robert C. Mitchell

MEMORANDUM AND ORDER

DONETTA W. AMBROSE, United States District Judge.
On April 23, 2014, the magistrate judge entered an Order denying Plaintiffs motion to
strike a declaration by Defendant Wells Fargo's Vice President of Loan Documentation, Keaton
C. Stoneking. Memo. Order [ECF No. 690]. The motion was denied on the basis that it did not
seek to exclude any redundant, immaterial, impertinent or scandalous matter under Federal Rule
of Civil Procedure 12(f) and that the arguments raised therein were more appropriately
considered evidentiary issues. Plaintiff filed objections arguing that a motion to strike a Rule 56
affidavit and/or declaration was the proper procedure for bringing her motion. Obj. [ECF No.
691]. I find that the magistrate judge's order is neither clearly erroneous nor contrary to law.]

Plaintiffs use of In re Unisys Sav. Plan Litigation, 74 F.3d 420,437-438 (3d Cir. 1996)
is inapplicable as far as the party in that case argued that the court of appeals should not consider
an expert report it submitted to the trial court, and the court of appeals declined and held
generally that Rule 56 defects are waived when not raised in the district court. Additionally,
insofar as Plaintiff invokes an analysis under Rule 56(e), it was not substantively raised prior to
her objections and is therefore waived. See Bell v. City of Harrisburg, 457 Fed.App'x 164, 167
(3d Cir. 2012); Laborer '.'I Int'[ Union of North America v. Foster Wheeler Corp., 26 F.3d 375,
398 (3d Cir. 1994).

Additionally, I find that the declaration is properly considered in detennining
Defendant's motion for summary judgment. Federal Rule of Civil Procedure 56(c)(4) states that
"[a]n affidavit or declaration used to support or oppose a motion must be made on personal
knowledge, set out facts that would be admissible in evidence, and show that the affiant or
declarant is competent to testifY on the matters stated." Fed. R. Civ. P. 56(c)(4).
Stoneking'S declaration is supported by and cites to record evidence of Plaintiffs note,
mortgage, servicing agreements, loan payment history, loan modification agreement, escrow
account history, and escrow disclosure statements that are all attached to the declaration, and
have previously been submitted as evidence of record. Additionally, Stoneking declares that he
is
Vice President of Loan Documentation for Wells Fargo Bank,
N.A., successor by merger to Wells Fargo Home Mortgage, Inc.
The infonnation contained in this declaration is true and correct to
the best of my knowledge, infonnation and belief, and if called to
testify regarding the matters addressed herein, I could and would
competently do so based both on my personal knowledge and
based upon my review of the business records of Wells Fargo
Home Mortgage[,] ... including Plaintiff Mary Glover's loan file.
. .. In my capacity as Vice President of Loan Documentation, I
have come to know policies, practices, and procedures of Wells
Fargo concerning its role as a servicer of residential mortgage
loans, and am familiar with the policies and procedures regarding
the servicing of residential mortgage loans. In addition, I have
reviewed and I am familiar with Plaintiff Mary Glover's loan file.
Declaration of Keaton C. Stoneking ~f' 1-2. Therefore, he has personal knowledge of the facts he
declares, and is competent under Rule 56(c)(4) and his declaration may be properly considered in
detennining Defendant's motion for summary judgment. Accordingly, Plaintiffs objections are
overruled.

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ORDER

AND NOW, this rJ1U'J.ay of April, 2014, IT IS HEREBY ORDERED that Plaintiff's
objections [ECF No. 691] are OVERRULED as neither clearly erroneous nor contrary to law.

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The Honorable Donetta W. Ambrose
United States Senior District Judge

cc:

all counsel of record via CM/ECF electronic filing

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