Goldberg: Plaintiff 'lacked evidence' to support UTPCPL violation claim

By Nicholas Malfitano | Jul 6, 2015

Judge Mitchell S. Goldberg  

PHILADELPHIA – A lawsuit levying claims in violation of Pennsylvania’s Unfair Trade Practices Act and Consumer Protection Law (UTPCPL) was thrown out of federal court on Tuesday, after a judge granted a motion for summary judgment to the defendants.

Judge Mitchell S. Goldberg of the U.S. District Court for the Eastern District of Pennsylvania ruled in favor of Hartford National Title, Inc., Hartford National Settlement Services and Scott Penner, stating plaintiff John H. Norman, Sr. of Philadelphia lacked “any evidence to support his contentions.”

Norman was the resident and owner of the property located at 6727 Egret Place, in Philadelphia. On or about Aug. 31, 2007, Lownhome Financial Holdings contacted Norman regarding completion of a loan application. Later that evening, a Lownhome representative appeared at Norman’s home, accompanied by several other individuals. According to the lawsuit, these individuals presented Norman with several documents, though Norman claimed to be unaware of the content of the documents.

The documents were blank and Norman believed they were merely a loan application, when in fact they were documents for refinancing the mortgage on Norman’s property. The documents were processed by Defendants Hartford National Title, Inc., a title company, and Hartford National Settlement Services, a settlement company. Penner is the Director and President of both Hartford National Title, Inc. and Hartford National Settlement Services.

In 2009, Lownhome transferred the mortgage to CitiMortgage, Inc. which instituted foreclosure actions against Norman.

On Sept. 3, 2013, Norman filed a complaint alleging the defendants violated the UTPCPL (Count One), the Truth in Lending Act (Count Nine), and the Real Estate Settlement Procedures Act. Norman further alleged fraud, deception and misrepresentation (Count Two); civil conspiracy (Count Three); negligence and negligent infliction of emotional distress (Count Four); unjust enrichment (Count Five); rescission (Count Six); equitable rescission (Count Seven); accounting (Count Eight); restitution (Count Ten); and slander (Count Eleven).

On Jan. 16, 2014, the defendants filed a motion to dismiss, which was granted on Sept. 5, as Goldberg dismissed all of Norman’s claims except Count One, the UTPCPL claim. In the case of all the other claims, Goldberg ruled the applicable statutes of limitations had expired.

On Dec. 11, the defendants filed a motion for summary judgment in December, which brought the matter before Goldberg.

“Defendants argue that Plaintiff’s UTPCPL claim fails as a matter of law because plaintiff has not offered any evidence to support the allegation that defendants engaged in deceptive conduct during the closing on Aug. 31, 2007,” Goldberg said. “In support, defendants point to plaintiff’s sworn testimony taken during the deposition in the foreclosure action in which he is unable to recount the closing with any consistency or in any detail.”

Per Pennsylvania law, the UTPCPL prohibits “unfair methods of competition and unfair or deceptive acts” in the conduct of any trade or practice. The UTPCPL specifically lists 20 prohibited acts and also contains a catch-all provision which prohibits “engaging in any other fraudulent or deceptive conduct which creates a likelihood of confusion or of misunderstanding.”

Goldberg said in order to establish “deceptive conduct” under the catch-all provision, a plaintiff must satisfy the following three elements: A deceptive act, which is conduct that is likely to deceive a consumer acting reasonably under similar circumstances; justifiable reliance, in other words that they justifiably bought the product in the first place (or engaged in some other detrimental activity) because of the defendants’ misrepresentation or deceptive conduct; and that their justifiable reliance caused an ascertainable loss.

Norman sought to prove this trio of criteria through asserting the defendants took advantage of his dementia and associated mental incapacity in order to persuade him to sign the mortgage refinancing documents.

“Defendants’ role in appearing at the home of a 76 year-old senior, who has dementia, at night, while he was all alone, with a stack of documents for plaintiff’s signature(s), while causing plaintiff ‘confusion’ and ‘misunderstanding’, and resulting in a security interest as against his home, without his knowledge and consent, in a manner, or using conduct or practices that is deceptive, in the course of obtaining plaintiff’s signatures, is in violation of the UTPCPL,” Norman explained through his counsel.

Goldberg found Norman had not demonstrated evidence to support his allegations.

“Even assuming that this theory of ‘deceptive conduct’ is viable under the UTPCPL catch-all provision, Plaintiff has offered no evidence to support these allegations. Plaintiff’s unsupported assertion in the pleadings that he suffers from dementia is insufficient to create a genuine issue of material fact. Furthermore, defendants note that, during his deposition taken in the related foreclosure action, plaintiff denied that he suffered from dementia and also stated that it would not be apparent to a stranger that he suffered from any memory issues in 2007,” Goldberg said.

Goldberg added the plaintiff’s claim the defendants’ role in the deceptive acts which allegedly took place would become clear upon completion of the discovery process was “insufficient."

“Plaintiff argues that ‘The role that defendants played in the ‘Settlement Services’ provided to plaintiff will become clear upon completion of the discovery process.’ However, fact discovery is closed and defendants timely filed a motion for summary judgment noting the absence of any evidence to support plaintiff’s contentions,” Goldberg said.

“Plaintiff’s statement that further discovery will disclose what role defendants played in the alleged deceptive conduct is insufficient to survive summary judgment, as plaintiff bears the burden of pointing to particular parts of materials in the record which establish a genuine issue of material fact,” Goldberg added.

The plaintiff was represented by Debra D. Rainey, of The Law Office Of Debra D. Rainey, in Philadelphia.

The defendants were represented by Joseph Goldberg, Michael B. Pullano and Shannon R. Pierce of Weber Gallagher Simpson Stapleton Fires & Newby, also in Philadelphia.

U.S. District Court for the Eastern District of Pennsylvania case 2:13-cv-05133

From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at

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