Washington Federal Sav. and Loan Ass'n v. Stein

• Decision Date: 29 September 1986
• Parties: WASHINGTON FEDERAL SAVINGS AND LOAN ASSOCIATION v. Marc D. STEIN and Sandra S. Stein, his wife, Appellants.
• Court: Pennsylvania Superior Court

Page 980

515 A.2d 980

357 Pa.Super. 286

WASHINGTON FEDERAL SAVINGS AND LOAN ASSOCIATION v. Marc D. STEIN and Sandra S. Stein, his wife, Appellants.

Superior Court of Pennsylvania.

Argued March 25, 1986.

Filed Sept. 29, 1986.

[357 Pa.Super. 287] Edwin W. Robey, Washington, for appellants.

David S. Posner, Washington, for appellee.

Before ROWLEY, WIEAND and DEL SOLE, JJ.

OPINION OF THE COURT

ROWLEY, Judge:

This is an appeal from a summary judgment entered in favor of Washington Federal Savings and Loan Association (Association), appellee, against Marc D. and Sandra S. Stein, appellants, in a mortgage foreclosure action. The Steins argue that 1) there are disputed issues of material fact to be decided and therefore summary judgment should not have been granted, and 2) their counterclaim was appropriate in a mortgage foreclosure action and raises issues of fact that preclude the entry of summary judgment. Having reviewed the record and considered the arguments advanced on behalf of the parties, we affirm the summary judgment of mortgage foreclosure.

"A motion for summary judgment may properly be granted only 'if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.' Pa.R.C.P. 1035(b). See also Rybas v. Wapner, 311 Pa.Super. 50, 52, 457 A.2d 108, 109 (1983); Williams v. Pilgrim Life Insurance Co., 306 Pa.Super. 170, 172, 452 A.2d 269, 270 (1982). In passing upon a motion for summary judgment, the court must examine the record in the light most favorable to the nonmoving party. Pocono International Raceway, Inc. v. Pocono Produce, Inc., 503 Pa. 80, 82, 468 A.2d 468, 470 (1983); Zimmerman v. Zimmerman, 322 Pa.Super. 121, 123, 469 A.2d 212, 213 (1983); Wilk v. Haus, 313 Pa.Super. 479, 480-482, 460 A.2d 288, 289-290 (1983). It is not part of the court's function to decide issues of fact but solely to determine whether there is an issue of fact to be tried. Wilk v. Haus, supra at 482, 460 A.2d at 290; Tom Morello Construction Co. v. Bridgeport Federal Savings & Loan Association, 280 Pa.Super. 329, 334, 421 A.2d 747, 750 (1980). Any doubt must be resolved against the moving party. Chorba v. Davlisa Enterprises, Inc., 303 Pa.Super. 497, 500, 450 A.2d 36, 38 (1982); First Pennsylvania Bank, N.A. v. Triester, 251 Pa.Super. 372, 378, 380 A.2d 826, 829 (1977)." Thorsen v. Iron and Glass Bank, 328 Pa.Super. 135, 140-141, 476 A.2d 928, 930-931 (1984). Accord Thompson Coal Co. v. Pike Coal Co., 488 Pa. 198, 203-204, 412 A.2d 466, 468-469 (1979); Day v. Volkswagenwerk Aktiengesellschaft, 318 Pa.Super. 225, 231, 464 A.2d 1313, 1316 (1983); Rybas v. Wapner, 311 Pa.Super. 50, 54, 457 A.2d 108, 109-110 (1983). However, parties seeking to avoid the entry of summary judgment against them may not rest upon the averments contained in their pleadings. On the contrary, they are required to show, by depositions, answers to interrogatories, admissions or affidavits, that there is a genuine issue for trial. Pa.R.C.P. 1035(d). The court, in ruling on a motion for summary judgment, must ignore controverted facts contained in the pleadings. Phaff v. Gerner, 451 Pa. 146, 303 A.2d 826 (1973); Younginger v. Heckler, 269 Pa.Super. 445, 410 A.2d 340 (1979). The court must restrict its review to the material authorized by Rule 1035 to be filed in support of and in opposition to the motion for summary judgment and only those allegations in the pleadings that are uncontroverted. Phaff v. Gerner, supra.

Considered in light of the foregoing principles, the record discloses the following facts. On May 29, 1980, the Steins executed and delivered to the Association a thirty-year mortgage in the amount of $55,000. The real estate covered by the mortgage was a tract of land situate in Nottingham Township, Washington County. The mortgage was payable in monthly installments and granted the Association the right to accelerate the entire balance due during any default by the Steins. The mortgage and its accompanying note also provided for the payment, in the event of an action to collect the balance due, of a "reasonable" attorney's fee. The Steins failed to make the payments required by the mortgage and note, however. On December 21, 1982, the principal balance due the Association was in excess of $55,000. As a result, the Association filed its first mortgage foreclosure action against the Steins on December 27, 1982.

Apparently as a result of negotiations between the parties, the Association, on July 7, 1983, extended to the Steins a written "offer" to reinstate the mortgage. The offer contained provisions for the payment of all delinquent interest, then in excess of $12,000, the forgiveness of late charges, and the payment of attorney's fees and costs incurred by the Association in the foreclosure proceeding. The offer also contained a provision for the release from the lien of the mortgage of lots subsequently sold by the Steins. The offer provided that the Association should be paid "the greater of $5,000 or an amount sufficient to keep the loan balance at 80% of a new appraisal (to be done by the [Steins] at [their] cost)." Finally, the offer specifically provided that it would not extend beyond September 2, 1983, at which time a sheriff sale was scheduled.

The record then shows that from July 7, 1983 until May 29, 1984 a total of 14 "payment credits" were posted to the Stein's account. These payments include one for the delinquent interest referred to in the Association's "offer." However, the last payment on account of the mortgage was received by the Association on May 29, 1984. No payments were received after that date. On March 19, 1985, the Association instituted the instant action in mortgage foreclosure. All required notices of intent to foreclose were given by the Association in August of 1984.

In its complaint the Association averred that the amount due was in excess of $53,000 which included late charges, interest, and an attorney's commission of 5% in the amount of $2,558.42. The Association's demand was for the amount due plus interest and costs "and foreclosure of the property." The Steins filed an answer containing new matter and a counterclaim. The Association filed a reply to the new matter and counterclaim. The Association filed a reply to the new matter and counterclaim. After the pleadings were closed the Association filed its motion for summary judgment. Submitted with the motion was an affidavit of the Association's treasurer who stated that he was responsible for the Loan Servicing Department and was familiar with the matters set forth in his affidavit. Included in the affidavit were a loan payout statement as of June 4, 1985, a loan payment history of the Stein's mortgage account, and a copy of the July 7, 1983 "offer." The Steins filed no counter-affidavits, depositions, answers to interrogatories or admissions. The trial court on July 26, 1985, granted the Association's motion and directed that "summary judgment is entered in favor of Washington Federal Savings and Loan Association against the defendants, Marc D. Stein and Sandra S. Stein, his wife." The judgment as entered by the trial court did not determine the amount due.

The trial court in entering summary judgment for the Association found that the Steins were ten months in arrears at the time the action was instituted and concluded "that the [Steins] have asserted no cognizable defenses on their behalf which would excuse their obligation under the mortgage." On...