US Bank v. Mallory - Superior Court - September 14, 2009
http://origin-www.courts.state.pa.us/OpPosting/Superior/out/a15045_09.pdf
The Superior Court denied the homeowner's petition to open/strike a default judgment. The Petition to Strike relied on the fact that, at the time the complaint was filed, the mortgage had not been assigned to plaintiff but rather was alleged to be in the process of being assigned. The homeowner claimed that this failure was in violation of Pa. RCP 1147(a)(1), which requires a statment of the date of assignment and the place where it is recorded, and of Pa. R.C.P. 1019(i), which requires that, where claims are based a writing, the writing must be attached.
Plaintiff filed its foreclosure complaint on November 14, 2007. The mortgage was not assigned to plaintiff untilDecember 28, 2007, and was not recorded until January 15, 2008 -- after a default judgment had already been entered against the homeowner, for failure to respond to the complaint.
Petition to Strike
The court concluded that "there was not a fatal defect apparent on the record" and that the plaintiff "sufficiently set forth the existence and date of the mortgage," the fact that plaintiff was the mortgage holder and "was now the legal owner of the mortgage, thereby indicating it had assumed all the rights and remedies related to the mortgage, and the fact [plaintiff] was seeking to formalize the assignment....Simply put, [plaintiff's] complaint sufficiently put [the homeowner] on notice of [plaintiff's] claim of interest with regard to the subject mortgage. Contrary to [the homeowner's] suggestion, we conclude that Pa.R.C.P. 1147(a)(1) does not require that a party have a recorded assignment as a prerequisite to filing a complaint in mortgage foreclosure."
Concerning the failure to attach the assignment to the complaint, as required by Pa. R.C.P. 1019(i), the court said that the "averment that [plaintiff] was in the process of formalizing the assignment sufficiently explained why, under Pa.R.C.P. 1019, a copy of the written assignment was not attached to the complaint. Thereafter, as [plaintiff] explained in the complaint that it was in the process of doing, the written assignment was executed on December 28, 2007, and recorded on January 15, 2008. We are convinced that [plaintiff] adequately met the requirements of Pa.R.C.P. 1147 and 1019, and we note that, to the extent [the homeowner] believes [plaintiff] was not the legal owner of the mortgage, who was in the process of formalizing the assignment, then the proper recourse would have been to go beyond the face of the record and seek to open the judgment on this basis."
The court squarely rejected the argument that "the trial court should have granted [the homeowner's] to strike since it was apparent on the face of the record that [plaintiff] did not have standing to file a complaint in mortgage foreclosure against [the homeowner]. The “crux” of [homeowner's] argument is that, before [plaintiff] could file a complaint in mortgage foreclosure, [plaintiff] was required to have executed and recorded a written assignment..., thereby indicating it was the real party in interest. We reject this argument....Simply put, contrary to [the homeowner's] suggestion, the recording of an assignment of the mortgage was not a prerequisite to plaintiff/assignee having standing to seek enforcement of the mortgage via a mortgage foreclosure action."
Petition to Open
The court noted the the homeowner had "averred meritorious defenses, namely, that she lacked a security interest in the property due to her rescission of the loan, the loan should not be enforced since it is a predatory loan, the loan was void due to the broker’s violation of Pennsylvania’s Credit Services Act, and the loan violated Pennsylvania’s consumer protection statute."
However, it did not consider these defenses, holding that the homeowner's petition to open filed 82 days after the entry of judgment was not "promptly filed" and that she did not have a valid excuse for not filing earlier, rejecting her claim of lack of sophistication and belated awareness of potentially valid defenses. The court said that "this is a case where [the homeowner], despite numerous notices to secure counsel, simply did not do so until approximately three months after the complaint was filed and six weeks after the default judgment was entered against her. The fact [she]may be unsophisticated in legal and financial matters is all the more reason she should have heeded the notices to secure legal counsel at once, and her deliberate decision not to defend does not provide a reasonable explanation or excuse necessary to open the default judgment." Thus, "even assuming [she] pleaded a meritorious defense, the trial court properly denied [the homeowner's] petition to open the default judgment."
