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Summary Judgment and the Nanty Glo Rule; the Banker’s Affidavit is still not enough.

Posted By Cliff Tuttle | December 28, 2017

No. 1,383

WELLS FARGO BANK, NA  v. PREMIER HOTELS GROUP, LLC. 2017 PA Super. 405 (2017)

In response to a mortgage foreclosure action, Premier sold its property in Dunmore, Lackawanna County, PA and paid over the proceeds to Wells Fargo, assignee of the mortgage.

However, in a Complaint filed in 2015, Wells Fargo claimed that the proceeds of the sale were insufficient to pay the debt in an Action entitled “Breach of Note.”  Premier stated in its answer that the sum paid was sufficient and the Note should have been cancelled.  It also plead several affirmative defenses under New Matter.  However, Premier’s New Matter was not endorsed with a notice to plead and Wells did not file a response.

Several weeks later, Wells Fargo filed a Motion for Summary Judgment, supported by an affidavit of a Vice President Farr of the bank, (Farr Affidavit) averring that he had examined the numbers in the bank’s records and Premier owed $1,772,957.37 plus per diem interest from the filing of the Complaint of $275.50.

Relying upon the affidavit, the trial court had entered summary judgment in favor of Wells Fargo.  The Superior Court reversed:

“Based on our review of the record, and recognizing that doubts as to the existence of genuine issues of material fact must be resolved against Wells Fargo as the moving party, we find the trial court erred in concluding there were no genuine issues of material fact. We do not take issue with the trial court’s determination that the loan documents are valid and enforceable. However, when we look at the record in a light most favorable to Premier as the non-moving party, it is clear the only support in the record for finding events of default is contained in the Farr Affidavit. While the trial court does not mention the affidavit in its Rule 1925(a) opinion, it appears the trial court accepted the assertions in the affidavit while ignoring Premier’s counter-assertions that its attempted payments were rejected by Wells Fargo and similarly ignoring the terms of the Mortgage that authorized Premier to contest tax liability in good faith. Moreover, the only support for the sums claimed by Wells Fargo appear in the Farr Affidavit. Therefore, we conclude that the trial court’s apparent reliance on the affidavit as the basis for concluding that no genuine issues of material fact exist is, as Premier argues, a violation of the Nanty-Glo rule and requires that we reverse the order granting summary judgment and remand for further proceedings.”

The Nanty-Glo Rule was created by the Supreme Court in the landmark case: Borough of Nanty-Glo v. American Surety Co. of New York, 163 A. 523 (Pa. 1932). It holds:

“Testimonial affidavits of the moving party or his witnesses, not documentary, even if uncontradicted, will not afford sufficient basis for the entry of summary judgment, since the credibility of the testimony is still a matter for the jury.”

Goodrich-Amram, 2d, supra, § 1035(b): 4 at pp. 434-35.

CLT

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CLIFF TUTTLE has been a Pennsylvania lawyer for over 40 years and (inter alia) is a real estate litigator and legal writer. The posts in this blog are intended to provide general information about legal topics of interest to lawyers and consumers with a Pittsburgh and Western Pennsylvania focus. However, this information does not constitute legal advice and there is no lawyer-client relationship created when you read this blog. You are encouraged to leave comments but be aware that posted comments can be read by others. If you wish to contact me in privacy, please use the Contact Form located immediately below this message. I will reply promptly and in strict confidence.

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