978-1285770178 Case Printout Case CPC-14-05 Part 1

United States Bankruptcy Court,

E.D. Pennsylvania.

In re Kiya CARMICHAEL, Debtor(s).

Adversary No. 10–193.

Feb. 1, 2011.

Background: Mortgagee filed a complaint in mortgage foreclosure prepetition against debtor-mortgagors and sub-

sequently moved for summary judgment. Debtors sought bankruptcy protection and removed the matter to bank-

(4) debtors’ claims under Pennsylvania’s Unfair Trade Practices and Consumer Protection Law (UTPCPL) were sub-

ject to mortgagee’s HDC defense; and

(5) debtors’ claim for breach of contract was barred against mortgagee, given its HDC status.

Motion granted.

228k181 Grounds for Summary Judgment

228k181(15) Particular Cases

228k181(25) k. Mortgages and secured transactions, cases involving. Most Cited Cases

Under Pennsylvania law, entry of summary judgment is appropriate in a mortgage foreclosure action where

mortgagors admit that the mortgage is in default, that they have failed to pay interest on the obligation, and that the

302III(C) Traverses or Denials and Admissions

302k129 Admissions by Failure to Traverse or Deny

302k129(1) k. In general. Most Cited Cases

Under Pennsylvania law, averments in a responsive pleading are deemed admitted when not denied specifically

or by necessary implication. Rules Civ.Proc., Rule 1029(b), 42 Pa.C.S.A.

[3] Pleading 302 129(1)

302 Pleading

302III Responses or Responsive Pleadings in General

302III(C) Traverses or Denials and Admissions

302k129 Admissions by Failure to Traverse or Deny

302k129(1) k. In general. Most Cited Cases

266X(F) Pleading

266k454 Plea, Answer, or Affidavit of Defense

266k454(2) k. Denials. Most Cited Cases

Under Pennsylvania law, in a mortgage foreclosure action, the mortgagors, aside from the mortgagee or assign-

ee, are the only parties with sufficient knowledge to base a specific denial.

266k415 Defenses

266k415(3) k. Set-off or counterclaim. Most Cited Cases

Under Pennsylvania law, a defendant in a mortgage foreclosure action can only raise counterclaims which arise

from the same transaction or occurrence from which the plaintiff’s action arose.

92Bk63 k. Persons liable; assignees. Most Cited Cases

Mortgages 266 224

266 Mortgages

266V Assignment of Mortgage or Debt

266k234 Transfer of Debt or Obligation Secured

266k235 k. In general. Most Cited Cases

[7] Bills and Notes 56 327

56 Bills and Notes

56VIII Rights and Liabilities on Indorsement or Transfer

56VIII(D) Holders in Due Course

56VIII Rights and Liabilities on Indorsement or Transfer

56VIII(D) Holders in Due Course

56k327 k. Nature and grounds of protection. Most Cited Cases

Under Pennsylvania law, the threshold requirement for holder in due course status is that the party asserting that

defense be a holder of a negotiable instrument.

56k150 Promissory Notes

56k150(1) k. In general. Most Cited Cases

Bills and Notes 56 330

[10] Bills and Notes 56 330

56 Bills and Notes

56VIII Rights and Liabilities on Indorsement or Transfer

56VIII(D) Holders in Due Course

56k336 Constructive Notice, and Facts Putting on Inquiry

[11] Bills and Notes 56 373

56 Bills and Notes

56VIII Rights and Liabilities on Indorsement or Transfer

56VIII(D) Holders in Due Course

ducement to enter into the transaction. 13 Pa.C.S.A. § 3305(a)(1)(iii).

[12] Bills and Notes 56 373

56 Bills and Notes

266 Mortgages

266IV Rights and Liabilities of Parties

266k215 Actions for Damages

266k216 k. Between parties to mortgage or their privies. Most Cited Cases

Pa.R.C.P. 1035.2. Where such a motion is opposed, Rule 1035.3 provides, in pertinent part:

(a) Except as provided in subdivision (e), the adverse party may not rest upon the mere allegations or denials of

the pleadings but must file a response within thirty days after service of the motion identifying

entitled to relief as a matter of law, summary judgment may be entered. Where the non-moving party bears the bur-

den of proof on an issue, he may not merely rely on his pleadings or answers in order to survive summary judgment.

Failure of a non-moving party to adduce sufficient evidence on an issue essential to his case and on which he bears

the burden of proof establishes the entitlement of the moving party to judgment as a matter of law. The court will

view the record in the light most favorable to the non-moving party, and all doubts as to the existence of a genuine

gage foreclosure. Entry of summary judgment is appropriate in a mortgage foreclosure action where 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.” Cunningham v. McWilliams, 714 A.2d 1054, 1057 (Pa.Super.1998) (citing

Landau v. Western Pennsylvania National Bank, 445 Pa. 217, 225–26, 282 A.2d 335, 340 (1971)). Additionally,

averments in a responsive pleading are deemed admitted when not denied specifically or by necessary implication.

Attached in support of Deutsche‘s Motion is the Affidavit of Kathy Sath [?] FN2, Vice President and Assistant

Secretary of CitiResidential Lending, as Attorney in Fact for the movant. The affiant states from personal

knowledge that the mortgage is held by Deutsche pursuant to a Pooling and Services Agreement dated June 1, 2005

(Affidavit, ¶ 4); FN3 that the underlying loan is in default because no monthly payments of interest or principal have

been made since March 1, 2007 (Id., ¶ 5); and that Defendants were consequently given the requisite notice of

drawn that argument based on controlling Pennsylvania law. See Defendants’ Supplemental Brief, 3.