New York Guardian Mortg. Corp. v. Dietzel
Decision Date | 06 July 1987 |
Citation | 524 A.2d 951,362 Pa.Super. 426 |
Court | Pennsylvania Superior Court |
Parties | NEW YORK GUARDIAN MORTGAGE CORPORATION v. Albert DIETZEL & Michele A. Dietzel, Appellants. 1164 Phila. 1986 |
Mary Jeffery, Philadelphia, for appellants.
Lawrence T. Phelan, Philadelphia, for appellee.
Before CIRILLO, President Judge, and ROWLEY and BECK, JJ.
This is an appeal from an order of the Court of Common Pleas of Philadelphia County granting appellee's motion for summary judgment in an action in mortgage foreclosure. We affirm.
Appellant raises three issues for our review: (1) whether the trial court committed an error of law in granting plaintiff summary judgment and concluding that there were no material facts in dispute and that plaintiff was entitled to relief; (2) whether the trial court committed an error of law in concluding that plaintiff did not violate the provisions of 15 U.S.C. § 1601 et seq.; and (3) whether the trial court committed an error of law in concluding that plaintiff did not violate the provisions of 41 P.S. §§ 401 et seq.
It is axiomatic that in granting a motion for summary judgment, there must be no genuine issue of material fact and as a matter of law the moving party is entitled to prevail. Furthermore, the record is viewed in the light most favorable to the non moving party. Fox v. State Farm Mutual Auto Insurance Company, 322 Pa.Super. 96, 469 A.2d 199 (1983).
With regard to the first issue raised by appellants, we find that the trial court did not err in granting summary judgment as to all issues raised in appellee's motion. It is clear that the court was correct in granting summary judgment as to the liability issue. Appellants, in their answer to appellee's complaint, admitted that they were behind in their mortgage payments. Likewise, appellants' general denial that they "are without information sufficient to form a belief as to the truth of" appellee's averment as to the principal and interest due is to be considered an admission of those facts. See Pa.R.C.P. 1029(c); Cercone v. Cercone, 254 Pa.Super. 381, 386 A.2d 1 (1978). Unquestionably, apart from appellee, appellants are the only parties who would have sufficient knowledge on which to base a specific denial.
Appellants also claim that there is a genuine issue of material fact as to the attorney fees, costs of suit and title search. In support of this claim, appellants refer to the denial of these items in their answer to appellee's complaint. This case is very similar to the recent case of Washington Federal Savings and Loan Association v. Stein, 357 Pa.Super. 286, 515 A.2d 980 (1986). In Stein, we stated that appellant's . At 292, 515 A.2d at 982-83.
Here, as in Stein, appellants offered nothing to contradict appellee's claim except the denial in their answer. Therefore, we find that there was no genuine issue of fact, and summary judgment was proper.
The second issue raised by appellant concerns appellee's compliance with the federal Truth-in-Lending Act, 15 U.S.C. §§ 1601-1693R. Appellants have asserted, in a counterclaim to the mortgage foreclosure action, the right to set-off for a violation of the Federal Truth-In-Lending Act, 15 U.S.C. §§ 1601-1693R. Section 1640(h) of the Act provides:
A person may not take any action to offset any amount for which a creditor is potentially liable to such person under subsection (a)(2) of this section against any amount owed by such person, unless the amount of the creditor's or assignee's liability under this subchapter has been determined by judgment of a court of competent jurisdiction in an action of which such person was a party. This subsection does not bar a consumer then in default on the obligation from asserting a violation of this subchapter as an original action, or as a defense or counterclaim to an action to collect amounts owed by the consumer brought by a person liable under this subchapter.
(Emphasis added). Additionally, § 1640(e) of the Act which is labelled "Jurisdiction of courts; limitations on actions" states:
This section does not bar a person from asserting a violation of this subchapter in an action to collect the debt which was brought more than one year from the date of the occurrence of the violation as a matter of defense by recoupment or set-off in such action....
(Emphasis added). These provisions make clear that a person can assert a claim under the Act only in an action for a money judgment either as a counterclaim to an action to collect money owed by the consumer, or in an original claim brought by the consumer. Therefore, a counterclaim for a set-off under the Act can only be asserted in an action which contemplates a personal judgment.
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. Meco Realty Co. v. Burns, 414 Pa. 495, 200 A.2d 869 (1964). A judgment in a mortgage foreclosure action is not a judgment for...
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