JP Morgan Chase v. Palumbo, G. ( 2016 )

J-S52044-16
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37
JP MORGAN CHASE BANK NA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
GREGORY PALUMBO AND LISA :
PALUMBO, :
: No. 2887 EDA 2015
Appellants
Appeal from the Judgment Entered August 28, 2015
in the Court of Common Pleas of Delaware County
Civil Division at No(s): 2012-001389
BEFORE: FORD ELLIOTT, P.J.E., STABILE, and STRASSBURGER,* JJ.
MEMORANDUM BY STRASSBURGER, J.: FILED SEPTEMBER 14, 2016
Gregory and Lisa Palumbo (the Palumbos, collectively) appeal from the
August 28, 2014 order that granted summary judgment against them and
on behalf of Appellee JP Morgan Chase Bank NA (JP Morgan). Also before us
are motions to strike portions of the Palumbos’ reproduced record and to file
an amended brief filed by JP Morgan, as well as two motions to amend filed
by the Palumbos. We deny all four motions and affirm the judgment.
JP Morgan filed a mortgage foreclosure action against the Palumbos in
2012. The case was consolidated with a quiet title and conversion action
filed by the Palumbos. JP Morgan moved for summary judgment in 2015 in
the foreclosure action; by order of August 28, 2015, the trial court granted
the motion and entered judgment. The trial court then unconsolidated the
*Retired Senior Judge assigned to the Superior Court.
J-S52044-16
actions. This timely-filed appeal followed. Both the Palumbos and the trial
court complied with Pa.R.A.P. 1925.
Addressing first the motions filed in this Court, it is axiomatic that this
Court will not consider documents that are not included in the certified
record. See, e.g., Roth Cash Register Co. v. Micro Sys., Inc., 868 A.2d
1222, 1223 (Pa. 2005) (“[T]his Court will only consider documents which are
part of the certified record.”). Accordingly, JP Morgan’s motion to strike
non-record documents the Palumbos included in their reproduced record is
denied as moot. Also, as our consideration of Appellee’s arguments has not
been hampered by the absence of citations to a reproduced record, we deny
JP Morgan’s motion to file a new, definitive brief. Further, this Court has
overlooked the grammatical and typographical errors in the Palumbos’ reply
brief; thus, their motions to file an amended reply brief to address those
stylistic errors are also denied as moot.
Turning to the substance of the appeal, the Palumbos state ten
verbose and repetitious questions for this Court’s review. See Palumbos’
Brief at 9-11. The questions boil down to the following issues: (1) whether it
was error to hold that JP Morgan was entitled to judgment as a matter of
law; (2) whether JP Morgan has standing as the real party in interest to
pursue foreclosure; (3) whether JP Morgan’s complaint is verified properly;
(4) whether the Palumbos were denied a meaningful opportunity to conduct
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J-S52044-16
discovery; and (5) whether the proper notice was given by JP Morgan prior
to pursuing its complaint.1
“Our scope of review of a trial court’s order granting or denying
summary judgment is plenary, and our standard of review is clear: the trial
court’s order will be reversed only where it is established that the court
committed an error of law or abused its discretion.” Hovis v. Sunoco, Inc.,
64 A.3d 1078, 1081 (Pa. Super. 2013) (quoting Cassel–Hess v. Hoffer, 44
A.3d 80, 84–85 (Pa. Super. 2012)).
Following a thorough review of the certified record, the briefs for the
parties, and the relevant law, we conclude that the opinion of the Honorable
Spiros E. Angelos thoroughly addresses Appellant’s issues and arguments
and applies the correct law to findings of fact that are supported by the
record. Therefore, we adopt the trial court’s opinion dated November 24,
2015,2 as our own and hold, based upon the reasons stated therein, that the
trial court committed neither an error of law nor an abuse of discretion in
granting JP Morgan’s motion for summary judgment. The parties shall
1
We note with displeasure that the argument portion of the Palumbos’ brief
is not divided into as many parts as there are questions to be argued, with
corresponding headings, as is required by Pa.R.A.P. 2119(a). Because it
would take more effort than it is worth to pour through the brief to
determine whether each of the ten issues raised actually is supported by
independent argument, reference to the record, and citation to authority, we
decline to consider waiver.
2
The opinion was filed on December 1, 2015.
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J-S52044-16
attach a copy of the trial court’s opinion dated November 24, 2015, to this
memorandum in the event of further proceedings.
We add that, with the last question stated in their brief, the Palumbos
question why the trial court in its opinion addressed whether JP Morgan had
supplied the requisite notice to pursue a foreclosure action against them
when that issue was not raised in their statement of errors complained of on
appeal filed pursuant to Pa.R.A.P. 1925(b). Palumbos’ Brief at 11. The easy
answer to that question is that the Palumbos, although they have abandoned
any notice-related claim in their brief to this Court, did claim in their 1925(b)
statement that JP Morgan failed to provide a “notice required prior to filing.”
Statement of Matters Complained of on Appeal, 10/20/2015, at ¶ II.
Accordingly, the trial court addressed that claim of error in its opinion. We
fail to see why the Palumbos raise it as a question in their brief, as they do
not even attempt to argue that the issue warrants some form of relief from
this Court.
Judgment affirmed.
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J-S52044-16
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/14/2016
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Circulated 08/16/2016 01:33 PM
IN THE COURT OF COMMON PLEAS OF DELAWARE COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
JPMORGAN CHASE BANK, N.A. No. 12-1389
vs.
GREGORY PALUMBO and LISA PALUMBO
and UNITED STATES OF AMERICA
Robert E. Warring, Esquire - Counsel for Appellee/Plaintiff
Gregory and Lisa Palumbo - Pro Se Appellants/Defendants
United States of America - Pro Se Appellee/Defendant
ANGELOS,J. DATE: November 24, 2015
OPINION
Appellants/Defendants, Gregory and Lisa Palumbo, appeal from the August 27, 2015
Order granting summary judgment in favor of Plaintiff, JPMorgan Chase Bank, N.A., in the
above-captioned mortgage foreclosure action. Appellee, JPMorgan Chase Bank, N.A.,
established that they hold the subject bearable note and mortgage, and Appellants acknowledged
that they were in default and failed to specifically deny the amounts alleged due and owing under
the mortgage. Therefore, Appellee is entitled to judgment as a matter of law and the August 27,
2015 Order should not be disturbed.
PROCEDURAL AND FACTUAL HISTORY
Appellee filed the instant mortgage foreclosure action on February 17, 2012 with the
filing of a complaint. Appellants filed an answer with new matter on April 23, 2012. Appellee
filed a reply to Appellants' new matter on June 13, 2012. The action was consolidated with
Appellants' quiet title and conversion action against Appellee at case number 2011-009799 on
October 24, 2014. Appellee moved for summary judgment on July 17, 2015. Appellants filed
their response to Appellee's motion for summary judgment on August 10, 2015. Summary
judgment was granted in mortgage foreclosure only in favor of Appellee by Order dated August
27, 2015, which was docketed on August 28, 2015. Upon entry of summary judgment in the
mortgage foreclosure action, the action at case number 2011-009799 was unconsolidated from
the instant action. Appellants filed their notice of appeal on September 28, 2015.
STATEMENT OF MATTERS COMPLAINED OF ON APPEAL
The issues raised in Appellants' Statement of Matters Complained of on Appeal are as
follows:
1. Whether it was error to deem Appellee's allegations concerning default and the
amounts due under the mortgage admitted;
2. Whether it was error to find that Appellee is entitled to foreclose in the instant
action;
3. Whether it was error to find that Appellee's Complaint is properly verified;
4. Whether Appellants were denied meaningful discovery; and
5. Whether Appellee was required to provide Appellants notice in addition to any
notice required by Act VI and Act IX.
DISCUSSION
Summary judgment is proper where there is no genuine issue of material fact as to a
necessary element of a cause of action or defense. Fine v. Checcio, 870 A.2d 850, 857 (Pa.
2005). The moving party has the initial burden of establishing through pleadings, deposition,
answers to interrogatories, admissions, and affidavits that it is entitled to judgment as a matter of
law. Washington Fed Sav. & Loan Ass'n v. Stein, 515 A.2d 980, 981 (Pa.Super. 1986). See
2
also, Pa.R.C.P. 1035.1 (defining "record" within the context of a motion for summary judgment).
Any doubts must be resolved against the moving party and the record must be examined in a
light most favorable to the non-moving party. Toy v. Metro. Life Ins. Co., 928 A.2d 186, 195
(Pa. 2007).
Once the movmg party meets their initial burden for summary judgment, a party
opposing summaryjudgment has the burden of establishing a genuine issue for trial and may not
merely rest on averments in the pleadings. Bue/aw v. Penn Linen & Unif. Serv., Inc., 631 A.2d
674, 676 (Pa.Super. 1993). Furthermore, if relevant discovery is complete and a non-moving
party bearing the burden at trial on a cause of action or defense has failed to produce evidence of
fact essential to their claim(s), summary judgment for the moving party is proper. Pa.R.C.P.
103 5 .2(2); Keystone Freight Corp. v. Stricker, 31 A.3d 967, 971 (Pa.Super. 2011). An entry of
summary judgment may only be reversed where there is an abuse of discretion or an error of law.
Sebelin v. Yamaha Motor Corp., 705 A.2d 904, 906 (Pa.Super. 1998).
I. Summary Judgment is Proper Where AppellantAdmitted Default and Failed to
Deny Allegations of Amounts Due with Specificity
It is well settled in Pennsylvania that summary judgment is properiy granted in mortgage
foreclosure actions where the mortgagor admits default, lack of payment of interest and that the
recorded mortgage is in the specified amount. Id at 1057; First Wisconsin Trust Co. v.
Strausser, 653 A.2d 688, 694 (Pa.Super. 1995). A mortgagor can admit averments in a
complaint even absent a specific admission. Cunningham v. McWilliams, 714 A.2d 1054, 1057
(Pa.Super. 1998). General denials or claims that a mortgagor is without information sufficient to
form a belief as to the trust of averments as to the amounts due and owing must be considered an
admission to those facts. Bank of Am., NA. v. Gibson, 102 A.3d 462, 466-67 (Pa.Super. 2014),
3
appeal denied, 112 A.3d 648 (Pa. 2015); First Wisconsin Trust Co. v. Strausser, 653 A.2d 688,
692 (Pa.Super. 1995); New York Guardian Mortgage Corp. v. Dietzel, 524 A.2d 951, 952
(Pa.Super. 1987). See also, Pa.R.C.P. 1029. Since a mortgagor should have knowledge of what
amounts are due under their mortgage and what amounts they paid towards their mortgage, they
should be able to admit or specifically deny averments concerning the amounts due and owing
on their mortgage. First Wisconsin Trust Co. v. Strausser, 653 A.2d 688, 692 (Pa.Super. 1995);
New York Guardian Mortgage Corp. v. Dietzel, 524 A.2d 951, 952-53 (Pa.Super. 1987). A
narrow exception to this rule exists where a party produces specific evidence of or a reason for
their lack of knowledge of such information. See U.S. Bank, NA. v. Pautenis, 118 A.3d 386,
396-97 (Pa.Super. 2015) (holding that a defendant could deny sufficient information to deny or
admit the amount due and owing on her mortgage where that defendant provided specific
evidence that she was unable to ascertain the amount due and owing on her mortgage because the
plaintiff had provided accountings that inexplicably increased the principal on the mortgage
despite defendant's credible testimony that she had made all payments timely).
In the instant action, Appellants have generally denied Appellee's allegations of default
and admit that they are currently not making any payments to any entity on the mortgage. See
Defs.' Answer and New Matter,~ 9; Pls./Def. Palumbos' Reply to the Second Mot. for Summ.
I.,~ 10-28; Defs.' Ans. To Pl.'s Second Admission Requests, 19-10. Appellants also generally
denied the specific amounts claimed due under the mortgage by Appellee, merely stating that
some payments were made, but returned by Appellee, Defs.' Answer and New Matter, ~ 10.
Subsequently, Appellants claimed that some payments were made to the original lender, while at
the same time acknowledging that the original lender no longer exists. See Defs.' Ans. To Pl. 's
Requests for Admissions, ~ 4, 6.
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Furthermore, Appellants have failed to come forth with any specific allegations or
evidence of how much, if any, they claim they paid, what dates those payments were made, to
whom those payments were made, and what amounts, if any, they claim to be due under the
mortgage. See, Pls./Def. Palumbos' Reply to the Second Mot. for Summ. J., ~ 10-28; Defs.'
Ans. To Pl.'s Requests for Admissions, ~ 6, 7, 10, 11, 12; Defs.' Ans. To Pl.'s Second
Admission Rcquests.S 2-5, 7. Instead, Appellants currently claim they lack any knowledge as to
whether they have made any payments toward the mortgage, what payments were made toward
the mortgage and when, whether or not they have paid taxes on the property, and whether or not
they maintain home owner's insurance on the property. See Defs.' Ans. To Pl. 's Second
Admission Requests.Y 2-5. Appellants must have knowledge concerning the mortgage and note
they signed, the amounts they were required to pay pursuant to the terms of said mortgage and
note, and whether or not they have made payments toward that mortgage and the amounts of any
such payments. Appellants fail to provide any reason for any such lack of knowledge.
Appellants appear to attempt to rely on the opinion of the Superior Court in the case of
US. Bank, NA. v. Pautenis, 118 A.3d 386 (Pa.Super. 2015) to support their general denial and
claimed lack of information concerning their default as proper. See Statement of Matters
Complained of on Appeal, ~ X. They also appear to claim that summary judgment cannot be
granted where the mortgage and note at issue are subject to a variable interest rate. Id. It should
be noted that the Pautenis cases did not hold that summary judgment could not be entered in a
mortgage foreclosure action involving a variable rate mortgage. In fact, the Superior Court noted
that it appeared summary judgment may have been proper in that very case where the defendant
failed to deny the plaintiff's allegations of default and amount due under the mortgage with
specificity and failed to provide any evidence supporting her defense until trial. See, US Bank,
5
.NA. v. Pautenis, 118 A.3d 386, 397 at n. 12 (Pa.Super. 2015). However, since the appellants in
that matter failed to raise the issue of summary judgment in the matters complained of, the
Superior Court did not reach the merits of that issue. Id.Furthermore, the exception applied in that case allowing the defendant to claim a lack of
knowledge of her default and the amounts due does not apply in the instant action because
Appellants have failed to provide any testimony or evidence whatsoever concerning payments
and have failed to point out any inconsistencies in the amounts demanded by Appellee. Unlike
the defendant in Pautenis, Appellants in the instant action provide no reason they would not have
knowledge of whether they made payments or what amounts are delinquent on their account.
The narrow exception created in Pautenis was dependent on the facts of the case and was only
applied because the defendant in that case had provided credible testimony that she made all
payments due in a timely fashion and because the demands made by the plaintiff were not
credible as they included an inexplicable increase in the principal balance of the loan. US. Bank,
NA. v. Pautenis, 118 A.3d 386, 396-97 (Pa.Super. 2015). Appellants in the instant matter have
admitted they are not making payments on the mortgage and have failed to point out any
specific, let alone unexplainable, inconsistency in the amounts demanded by Appellee.
It is clear from Appellants' Answer and New Matter, their responses to Appellee's
Motion for Summary Judgment, and their responses to Appellee's requests for admissions that
Appellants' sole defense to this mortgage foreclosure action is Appellee's standing to foreclose
on the property. Their general denials concerning their clear default and the amount due under
the mortgage are attempts to cloud the issues and avoid entry of summary judgment. Their mere
reliance on the averments in their pleading, coupled with their failure to provide any specific
allegations or evidence disputing Appellee's allegations and evidence of default and of the
6
itemized amounts due under the mortgage must be considered an admission to those allegations.
Therefore, Appellee's are entitled to judgment as a matter of law on those issues.
II. Summary Judgment is Proper Where Appellee is the Legal Holder of the Mortgage
and the Note Endorsed in Blank
All actions must be prosecuted by and in the name of the real party in interest. Pa.R.C.P.
2002(a). A person is a real party in interest if it has the legal right under the applicable
substantive law to enforce the claim in question. US Bank NA. v. Mallory, 982 A.2d 986, 994
(Pa. 2009). An action in mortgage foreclosure is strictly an in rem proceeding, and the purpose
of a judgment in mortgage foreclosure is solely to effect a judicial sale of the mortgaged
property. New York Guardian Mortgage Corp. v. Dietzel, 524 A.2d 951, 953 (1987). Therefore,
the holder of the mortgage can institute foreclosure proceedings upon default of the mortgagors.
Cunningham v. McWilliams, 714 A.2d 1054, 1056 (Pa.Super. 1998).
In Pennsylvania, a mortgage follows the promissory note secured by the mortgage.
Moore v. Cornell, 68 Pa. 320, 322 (1871); Appeal of Dubois, 38 Pa. 231, 236 (Pa. 1861).
Furthermore, under the Pennsylvania Uniform Commercial Code, the note securing a mortgage
is a negotiable instrument. JP. Morgan Chase Bank, NA. v. Murray, 63 A.3d 1258, 1265
(Pa.Super. 2013). Therefore, a person is entitled to enforce a note if they are: (1) the holder of
the note; (2) a nonholder in possession of the note who has the rights of a holder; or (3) a person
not in possession of the note who is entitled to enforce the instrument under certain
circumstances. 13 Pa.C.S.A. § 3301. The right to enforce a note vests upon delivery of the note
"by a person other than its issuer for the purpose of giving to the person receiving delivery the
right to enforce the instrument." 13 Pa.C.S.A. § 3203. Furthermore, a note endorsed in blank is
a "bearer note" and, as such, is payable to anyone on demand regardless of the chain of
7
possession of the note. 13 Pa.C.S.A. § 3205(b); Bank of Am., NA. v. Gibson, 102 A.3d 462, 466
(Pa.Super. 2014), appeal denied, 112 A.3d 648 (Pa. 2015).
A mortgagor in Pennsylvania has no standing to challenge the assignment or transfer of a
note and mortgage. JP Morgan Chase Bank, NA. v. Murray, 63 A.3d 1258, 1266 (Pa.Super.
2013); Boolanyer v. Davies, 69 Pa. Super. 240, 242 (1918). The transfer of a note is a matter
between the transferor and the transferee and a mortgagor cannot rely on defenses belonging to
the transferor. Bookmyer v. Davies, 69 Pa. Super. 240, 242 (1918). Such defenses are not
relevant to a mortgage foreclosure action because once a debt is satisfied, the debtor cannot be
required to the satisfy the debt again, "even if the recipient of the debtor's performance is not the
holder of the note in question." JP Morgan Chase Bank, NA. v. Murray, 63 A.3d 1258, 1263
(Pa.Super. 2013).
The original lender in the instant action was Washington Mutual Bank, F.A. See Compl.,
i! l(a), Ex. A, Ex. C. A copy of the mortgage, dated February 12, 2001, was attached to
Appellee's Complaint with said mortgage having been recorded in the Office of the Recorder of
Deeds for Delaware County, Pennsylvania in Mortgage Book 2133 at page 721 on March 2,
2001. Id. at l(b), l(c), Ex. A. A copy of the note was attached to Appellee's Complaint without
any endorsements. Id. at Ex. C. Appellants admit they signed the mortgage and note. Pl.,
JPMorgan Chase Bank, N.A. 's Mot. for Sunun. J., Ex. 4, Defs.' Ans. to Pl. 's Requests for
Admissions, ~ 1-2. At the time the Complaint was filed, Appellee alleged that they owned the
mortgage pursuant to a transfer to Appellee of Washington Mutual Bank, F.A.'s assets and loans
from the Federal Deposit Insurance Corporation, which allegedly seized Washington Mutual
Bank, F.A. on September 25, 2008. Compl., ~ 2-3. Appellee attached a certified copy of an
Affidavit of the Federal Deposit Insurance Corporation, recorded in the Office of the Recorder of
8
Deeds in King County, Washington, verifying that "certain assets, including all loans and all
loan commitments, of Washington Mutual Bank, F.A. were transferred to JPMorgan Chase on
September 25, 2008 pursuant to a purchase and assumption agreement. Id at Ex. B. Therefore,
at the time of the filing of the Complaint, Appellee had standing as the legal owner of the
mortgage and a nonholder in possession of the note having the rights of a holder pursuant to 13
Pa.C.S.A. § 3301(3) and 3203. Appellant's attempt to challenge the validity of the transfer of
the mortgage and note from the Federal Deposit Insurance Corporation to Appellee is misplaced
because Appellant was not a party to the transfer and cannot rely on a defense belonging to the
original lender of the transferor. The validity of the transfer is not material to this mortgage
foreclosure action.
Furthermore, the note subsequently was endorsed in blank by JPMorgan Chase Bank,
N.A., as successor in interest pursuant to the transfer from the Federal Deposit Insurance
Corporation. Therefore, Appellee has now established that they are the holder of a note endorsed
in blank. As the holder of a "bearer note," Appellee is entitled to enforce the note regardless of
the chain of possession of the note. 13 Pa.C.S.A. § 3205(b ). Appellants are not aggrieved by
any deficiency in the chain of title because Appellants cannot be held responsible for the debt
once it is satisfied. Therefore, Appellee is entitled to judgment as a matter of law.
III. Verification of Complaint
Appellants appear to argue that summary judgment is improper because Appellants want
to challenge the verification attached to Appellee's Complaint. See Statement of Matters
Complained of on Appeal, ~ IV. Pursuant to Pennsylvania Rule of Civil Procedure 1024(a),
pleadings must contain verification that all averments or denials of fact are "true upon the
signer's personal knowledge or information and belief. .. " It is important to note that the signer
9
is not required to identify the source of the information or the expectation/ability to prove the
fact or denial at trial. Pa.R.C.P. 1024(a). Generally, the verification must be made by a party.
Pa.R.C.P. 1024(c).
Appellee's Complaint contains verification by a person declaring that they are an agent of
Appellee, with the authorization to make the verification. See Verification attached to Compl.
Furthermore, the signer verifies that "[t]he statements of fact contained in the [Complaint] are
true and correct to the best of his/her knowledge, information and belief." Id. The signer goes
on to state that they understand the statements are made subject to the penalties of 18 Pa.C.S.A. iJ
4904. Id. Therefore, Appellee's burden under the procedural rule is satisfied and nothing further
is required of Appellee. Rule 1024 "must not be transformed into an offensive weapon designed
to strike down an otherwise valid petition." Monroe Contract Corp. v. Harrison Square, lnc.,
405 A.2d 954, 958 (Pa.Super. 1979). Appellants are improperly attempting to use Rule 1024 as
such by attempting to turn the procedural verification into a substantive issue.
IV. Appellants' Discovery Requests
Appellants also claim that Appellee and the trial court denied them meaningful discovery.
See Statement of Matters Complained of on Appeal, ~ V, VI, VII. The record indicates that
Appellants filed a discovery related motion on June 25, 2015. In that motion, Appellants allege
that Appellee failed to properly respond to interrogatories, expert interrogatories, employee/agent
interrogatories, requests for production of documents and admission requests, and failed to
produce two (2) specific individuals Appellants requested for deposition. See Pl./Defs. Palumbo
Mot. to Preclude or in the Alternative Compel Deposition Attendance by Agents and for
Sanctions,~ 1, 13. Appellants claim that Appellee's conduct left Appellants without knowledge
10
of what documents and witnesses Appellee would utilize at trial and precluded Appellants from
establishing their defense. Id. at 10, 12, 16.
It should first be noted that Appellant attached several discovery requests and responses
to their motion that were captioned as pertaining only to Appellants' case against Appellee's at
case number 2011-009799 (mistakenly cited as case number 2011-009711). See Pl./Defs.
Palumbo Mot. to Preclude or in the Alternative Compel Deposition Attendance by Agents and
for Sanctions, Ex. A, Ex. B, Ex. D. None of those requests contain signatures or dates, but
Appellants state in the motion that at least some of them were served on July 19, 2014. See Id. at
~ 3, Ex. A, Ex. B, Ex. D. Furthermore, the responses to the discovery requests in case number
2011-009799 were all dated August 19, 2014. Therefore, it appears that the discovery requests
were served prior to consolidation of the two (2) actions. Id. at Ex. B, Ex. C, Ex. D, Ex. F. At
the time, Appellee objected to the respective discovery requests as untimely pursuant to the Trial
Assignment and Case Management Order of March 1 7, 2014 that controlled the action at that
time. Id. at Ex. B, Ex. C, Ex. D, Ex. F. See also, March 17, 2014Trial Assignment and Case
Management Order, docketed on March 18, 2014, ~ 1 (attached hereto as Ex. A). According to
that Order, the discovery deadline was June 7, 2014 and the scheduled trial term was July 7,
2014. March 17, 2014 Trial Assignment and Case Management Order, docketed March 18,
2014, ~ 1-2 (attached hereto as Ex. A). Appellants' discovery requests were, therefore, untimely.
They were also not relevant to the instant summary judgment matter, which only pertains to the
mortgage foreclosure action and not case number 2011-009799.
Secondly, although Appellant acknowledges receiving responses to all of Appellants'
discovery requests, Appellants failed to attach several of those responses to their discovery
motion and, in several instances, attached responses to different requests as is evident from the
11
case captions on the respective requests and responses. Id. at ,r 3, , 5, 19, Ex. A, Ex. C, Ex. F.
This makes it impossible to determine whether Appellee's responses were appropriate.
Furthermore, in the single instance where Appellants attached both the discovery request and the
corresponding response for the instant mortgage foreclosure matter, the discovery responses
appear appropriate. Id. at Ex. D. In that response, Appellee provides Appellants with a list of
the exhibits that Appellee planned on using at trial, including the original note, mortgage,
"FDIC" affidavit, payment histories, payoff statement and the."WAMU" purchase agreement, as
well as informing Appellants that Appellee planned on having a corporate designee testify at trial
concerning Appellee's business records and the original lender's business records. Id. at Ex. D,
JPMorgan Chase Bank, N.A.'s Responses to Pls.' Interrogatories dated February 13, 2015,
Specific Objections and Responses to the Interrogatories, ,r 2, 3, 25. Appellee also informed
Appellants that the original note and mortgage were in possession of Appellee's counsel and
could be made available to Appellants for inspection. Id. at Ex. D, JPMorgan Chase Bank,
N.A. 's Responses to Pls.' Interrogatories dated February 13, 2015, Specific Objections and
Responses to the Interrogatories, ,r 7. Therefore, Appellants were, in fact, provided the very
information they claim Appellee failed to provide. None of the other information requested by
Appellants is relevant to the instant mortgage foreclosure action or likely to lead to admissible
evidence because Appellants lack standing to challenge the validity of the chain of custody of
their mortgage and note for the reasons stated above.
Finally, Appellants claim they were improperly precluded from deposing two (2)
individuals that are necessary to establish Appellants' defense. See Statement of Matters
Complained of on Appeal, ,r VII. The two (2) individuals requested by Appellants are the
individuals that verified Appellee's Complaint and their motion for summary judgment in the
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separate action at 2011-009799 that was filed prior to its consolidation with the instant matter.
See Pl./Defs. Palumbo Mot. to Preclude or in the Alternative Compel Deposition Attendance by
Agents and for Sanctions, ir 13. Appellee refused the depositions of those specific individuals,
but responded that they would produce a corporate designee to testify concerning the factual
averments in the Complaint as well as Appellee's business records. Id. at ~ 15, Ex. E.
Appellants refused the opportunity to depose an agent for Appellee and, therefore, waived any
argument that they were denied such discovery.
The mere fact that these specific individuals verified filings in this matter as agents of
Appellee does not make them indispensable witnesses to this action or Appellants' defense. The
only reason Appellants would require these specific individuals would be to ask the source of
their information concerning the factual allegations in the filings they verified, which is not
permitted pursuant to Pennsylvania Rule of Civil Procedure 1024(a) (a signer does not need to
state the source of the information or expectation of ability to prove the facts). Especially
objectionable is the fact that Appellants acknowledge the individual that verified the Complaint
is no longer employed by Appellee and, therefore, cannot be produced by Appellee. See
Pl./Defs. Palumbo Mot. to Preclude or in the Alternative Compel Deposition Attendance by
Agents and for Sanctions, ~ 14. In fact, Appellants state that they know the whereabouts and
employment status of that individual, meaning Appellants had the ability to subpoena him for
deposition if they so desired. Id.
V. Notice to Appellants of Transferof Mortgage/Note
Appellants' final argument, concerning a document identified as "chase hate's stamped
document 0388 (Notice Required Prior to Filing)," is unclear. It appears that Appellants argue
Appellee was required to provide Appellants with some notice in addition to any notice required
13
by Act VI and/or Act IX. See, Statement of Matters Complained of on Appeal, ~ II. Appellants
failed to raise any such issue in preliminary objections, an answer, or new matter. Any such
defense is, therefore, waived. See Pa.R.C.P. 1032(a) ("[a] party waives all defenses and
objections which are not presented either by preliminary objection, answer or reply ... ").
Furthermore, any such issue was not raised in Appellants' response to Appellee's motion for
summary judgment and, pursuant to applicable legal authority and the reasons stated above, is
not relevant to the issue of summary judgment in a mortgage foreclosure action.
For the foregoing reasons, the Order of August 27, 2015 should not be disturbed.
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EXHIBIT A
IN THE COURT OF COMMON PLEAS OF DELAWARE COUNTY, PENNSYLVANIA
CIVIL ACTION • LAW
GREGORY PALUMBO, ET AL NO. 11·009799
v.
JP MORGAN CHASE NA, ET AL
Gregory Palumbo, Esquire
Brett L. Messinger, Esquire, Ashley A. Federer, Esquire
TRIAL ASSIGNMENT AND CASE MANAGEMENT ORDER
AND NOW, this 17th day of March, 2014, it is ORDERED and DECREED as
follows:
1. Trial Assignment
Trial is scheduled for this Court's four (4) week trial term commencing
July 7, 2014.
2. Discovery
All pretrial discovery, except the exchange of all expert reports, shall be
completed at least thirty (30) days prior to the beginning of the trial term.
3. Summary Judgment
All Motions for Summary Judgment shall be filed not later than forty five
( 45) days prior to the beginning of the trial term.
4. Witnesses
A. All witnesses are to be available on the first day of trial, unless
permission to do otherwise is obtained from the Court. If there is any
possibility that a witness, either expert or otherwise, will not be
available for trial, the testimony of that witness shall be videotaped so
as not to delay trial. All videotape testimony shall be submitted, by
way of transcript to the Court, no later than ten (10) days prior to the
beginning of the trial term. (See Pa.R.C.P. 4017; 4017.19(a) through
(b); Delaware County Rule of Civil Procedure *4017.1(1) through (m).
A. A brief narrative statement of the case;
B. A list of the types and amounts of all damages claimed, if the
action involves liquidated damages, the basis and specific amount
thereof;
C. A list of the names and address of all persons who may be called
as witnesses by the party filing the statement, classifying them as
liability or damage witnesses. A reference which does not state
the name of the witness shall be permitted when the witness is
described by title or representative capacity;
D. A list of all exhibits which a party intends to use at trial;
E. A copy of the written report, or answer to written interrogatory
consistent with Rule 4003.5, containing the opinion and the basis
for the opinion of any person who may be called as an expert
witness;
F. Any stipulations requested. If you do not object within ten 00)
days to a stipulation requested by another party. such stipulation
shall be regarded as without objection and deemed as agreed to:
G. The exhibits listed in the Pretrial Statement or copies thereof, shall
be made available by the party filing the statement;
H. A realistic estimate of the trial time involved in the case; and
I. A statement of the legal issues in the case including any unusual
evidentiary questions. Vague statements such as "whether or not
the defendant was negligent" will not be acceptable.
7. Motions in Limine
All Motions in Limine shall be filed not later than fifteen (15) days prior to
the beginning of the trial term. Except for good cause shown, any Motion
in Limine filed thereafter shall be deemed waived and denied. All
response, shall be filed not later than seven (7) days after receipt of the
Motion in Limine.
8. Proposed Vair Dire, Points for Charge and Verdict Slip
Not later than ten (10) days prior to the beginning of the trial term,
counsel shall submit, when applicable:
A. proposed voir dire, points for charge and proposed verdict slip. All
requested jury instructions shall be submitted in duplicate with each
point on a separate page and with citations of authority for any point
which is not included in, or deviates from, the Suggested
Pennsylvania Standard Civil Jury Instructions.
9. Proposed Findings of Fact and Conclusions of Law
A. In all non-jury trials, proposed findings of fact and conclusions of law
are to submitted within ten (10) days after the completion of the non-
jury trial.
10. Jury Demand
Except where a party has demanded a trial by a jury consisting of twelve
(12) members in accordance with Pa.R.C.P. 1007.l(a) and Local Civil Rule
*1007.l(f), or a trial by jury has been waived, a general demand for jury
trial shall consist of eight (8) members, and such trial shall continue so
long as at least six (6) jurors remain in service.
11. Cooperation and Coordination
All trial counsel shall meet with each other not later than one (1) week
before the commencement of said trial term, either personally or by
telephone conference, to make a good faith effort to:
A. Settle the case or issues contained therein;
B. Resolve or minimize objections to depositions;
C. Agree upon stipulations to uncontested facts;
D. Minimize the number of required witnesses;
E. Enter into such other reasonable agreements as will expedite the
trial.
12. Settlement
If this case is wholly or partly settled prior to the trial term date assigned
in paragraph 1 herein, counsel for Plaintiff shall immediately notify this
Court by telephone (610-891-5410) and confirm the telephone notice with
written notice to this Court (3'd Floor, Courthouse, Media, PA 19063).
13. Deadlines
Nothing contained in this Order is intended, or shall be construed, to
extend any pre-existing deadlines, however established, for submission of
expert reports or any of the other items which this Order required be
accomplished or submitted. All deadlines in this case shall be calculated
from the date of the first listing for trial. If the case is not reached, or is
continued, the pre-existing deadlines remain the same.
14. Attachment of Trial Counsel
Toe above trial counsel are hereby attached. Unless counsel are notified
prior to July 1, 2014, that the above case will be No. 1 on this trial list,
you and your clients, together with all witnesses, shall appear for the trial
of this case upon Y2 day notice during such term. In the event that your
case is not reached during its scheduled trial. term. it will appear on
successive trial lists without further written notice being given by this
Court. It is counsels' obligation to contact chambers for the next assigned
date.
15. Continuance Requests
Once a date is scheduled for trial, I am extremelyreluctantto
grant continuances. If a continuanceis requested, partiesshould
utilize the Civil ContinuanceForm available throughthe Office of
the CourtAdministrator.
16. Documents
COURTESY COPIES OF ALL DOCUMENTS FILED WITH THE OFFICE
OF JUDICIAL SUPPORT SHALL BE FURNISHED TO THIS COURT
CONTEMPORANEOUSLY WITHTHE FILING.
BY THE COURT:
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