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

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United States Bankruptcy Court,
E.D. Pennsylvania.
In re Kiya CARMICHAEL, Debtor(s).
Adversary No. 10193.
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
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© 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.
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
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© 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.
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
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[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
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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, 22526, 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.
© 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.
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
© 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.
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, 22526, 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.

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