J-S46011-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
GREEN TREE SERVICING, LLC IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
PATRICIA KENT
Appellant No. 2599 EDA 2013
Appeal from the Judgment Entered September 10, 2013
In the Court of Common Pleas of Bucks County
Civil Division at No(s): 2010-11202
BEFORE: MUNDY, J., OLSON, J., and MUSMANNO, J.
MEMORANDUM BY MUNDY, J.: FILED OCTOBER 15, 2015
Appellant, Patricia Kent, appeals from the September 10, 2013 in rem
judgment entered in favor of Bank of America, N.A. (Bank of America),
pursuant to the order granting Bank of America’s motion for summary
judgment in its action for mortgage foreclosure.1 After careful review, we
affirm.
The trial court summarized the facts and procedural history as follows.
On April 26, 2004, []Appellant[] and Joel R.
Kent, Jr. (“Joel Kent”) jointly made, executed, and
delivered a Mortgage to Oak Street Mortgage, Inc.
and Joel Kent solely executed the Promissory Note.
The Mortgage applied to 25 Quince Circle, Newtown,
Pennsylvania, 18940 (“Subject Property”) and was
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1
As explained below, this Court granted Bank of America’s application to
substitute Green Tree Servicing, LLC (Green Tree), which it filed after
assigning the mortgage to Green Tree.
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recorded in the Office of the Recorder of Deeds of
Bucks County, Mortgage Book No. 3979, page 1314.
The Mortgage was assigned to BAC Home Loans
Servicing, LP (“BAC”) and said assignment was
recorded in the Office of the Recorder of Deeds of
Bucks County, Mortgage Book No. 6528, page 2228.
On September 15, 2010, notice was sent to
Appellant and Joel Kent (collectively “the Kents”) of
the intention of BAC to foreclose on the Subject
Property. Because the Kents failed to take the
necessary affirmative steps to cure the delinquency,
on October 28, 2010, BAC filed a Complaint in
mortgage foreclosure against the Subject Property.
Bank of America [] is the successor by merger with
BAC and on February 28, 2012, a Voluntary Praecipe
to Substitute Party Plaintiff was filed and
subsequently granted, causing the complaint to be
amended in 2012.
In 2010, when the Original Complaint was
filed, the Mortgage was in default because the
required payments had not been made as set forth in
the Promissory Note. Specifically, the Kents failed to
make payments on the Mortgage from May 1, 2009
until the present. The Kents also failed to cure this
default and otherwise comply with the terms of the
Mortgage. At that time, the principal balance due
was $225,051.40 with interest from May 1, 2009 to
October 26, 2010 of $20,632.83 (per diem at
$35.9457). Other fees sought in this action include
attorney’s fees, late charges through October 26,
2010, costs of suit and title search, and escrow
deficit. When the Complaint was filed, [Bank of
America] sought $251,246.64 including fees and
costs, which have increased as the default continues.
Attached to the Complaint, [Bank of America]
included both Act 91 of 1983 notice, Act 6 Notice,
and a legal description of 25 Quince Circle in
Newtown. See Complaint; see also 35 P.S.
§ 1680.403c (2008); 41 P.S. § 403 (1974).
The Parties also participated in the Bucks
County Conciliation Program and tried to modify the
mortgage loan. Appellant was denied a loan
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modification on May 12, 2011. [Appellant] filed two
Answers in this action, one to the Original Complaint
and one to the Amended Complaint. In both
answers, Appellant made general denials. However,
in her Amended Answer of January 3, 2013,
Appellant did admit that Act 6 Notice was given.
During the pendency of this action, Joel Kent
obtained a Chapter 7 Discharge of Bankruptcy,
releasing him personally from the debt owed under
the Mortgage. Also during the pendency of this
action, Joel Kent deeded the Subject Property to
Appellant as a result of a divorce settlement. Now,
Appellant is the current and sole owner of the
Subject Property. Currently, there is also a tax lien
against the Subject Property, which caused an
Amended Complaint to be filed where the United
States was added as an additional defendant in this
action.
On May 24, 2013 and June 10, 2013, [Bank of
America] and Appellant filed Motions for Summary
Judgment, respectively. Both Motions were
praeciped [for disposition] under Bucks County Rule
208.3(b). In its Motion for Summary Judgment,
[Bank of America] avers it is entitled to summary
judgment as a matter of law because (1) the
Mortgage is in default; (2) there are no genuine
issues of material fact present; (3) it is seeking an in
rem judgment only; (4) the mortgage foreclosure
does not come under Act 6 of 1974 but said notice
was given[;] (5) temporary stay under Act 91 of
1983 has terminated; and (6) it named the United
States of America as a proper Defendant in this
action. Attached to the Motion for Summary
Judgment is the Mortgage, which was signed by
Appellant on April 26, 2004.
[Bank of America] attached an Affidavit to the
Motion for Summary Judgment, authored by
Jacqueline S. Nauman, Assistant Vice-President at
Bank of America, N.A. In the Affidavit, Ms. Nauman
stated that, in the performance of her regular job
functions, she has “personal knowledge Bank of
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America, N.A.’s procedures for creating” the records
maintained in this matter. With this personal
knowledge, Ms. Nauman further asserted that in her
said capacity she is “familiar with the account that
forms the basis of the instant action and she has
examined all relevant documents prior to the
execution of the Affidavit.” In the Affidavit, Ms.
Nauman verified that the May 1, 2009 payment, and
every payment thereafter, is due and owing as of
February 21, 2013, the total amount due upon the
Mortgage was $289,874.15, including a per diem
interest at 5.75%. The amount owed was itemized
and listed in her Affidavit.
Trial Court Opinion, 10/10/13, at 2-4 (footnote and some citations omitted).
On August 19, 2013, the trial court entered an order granting Bank of
America’s summary judgment motion and denying Appellant’s summary
judgment motion. That order also entered an in rem judgment in favor of
Bank of America in the amount of $289.874.15, plus per diem interest of
$34,945.70, for a total judgment of $324,819.85. On September 10, 2013,
Bank of America filed a praecipe for judgment in the amount of
$324,819.85, and the same was entered that day.
On September 13, 2013, Appellant filed a timely notice of appeal. 2 On
April 14, 2014, a panel of this Court entered an order staying the appeal
because Appellant had filed for bankruptcy. Superior Court Order, 4/14/14
(per curiam), citing 11 U.S.C. § 362. Thereafter, on April 15, 2015, the
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2
Appellant and the trial court have complied with Pennsylvania Rule of
Appellate Procedure 1925.
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United States Bankruptcy Court for the Eastern District of Pennsylvania
entered an order dismissing Appellant’s Chapter 13 bankruptcy case.
Consequently, on June 16, 2015, this Court entered an order vacating the
previous order staying the appeal. That order also granted Bank of
America’s application for substitution of Green Tree because Bank of America
had assigned the mortgage to Green Tree.3 See generally Pa.R.A.P.
502(b). Accordingly, this appeal is before us for disposition.
On appeal, Appellant presents the following three issues for our
review.
1. Was the trial [court’s] application of the law as
to the affect [sic] of the Bank’s release of the
borrower from the obligation on the note and
its affect [sic] on the mortgage given as
collateral error?
2. Did the trial [court] commit an error of law
when it denied [Appellant]’s legal position that
the release of the borrower from the obligation
on the note, release her as the mortgagor on
the mortgage given as collateral for the
obligation, and therefore deny her Motion for
Summary Judgment and grant the Bank’s
Motion for Summary Judgment[]?
3. Did the trial [court] abuse [its] discretion
and/or commit an error of law when [it]
granted the Bank’s Motion for Summary
Judgment and failed to consider the following
issues raised in the pleadings:
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3
Green Tree has not filed an amended brief.
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(a) The Bank did not comply with Act 91 of
1983, a fact raised in [Appellant]’s pleadings,
(b) The Bank, although it claims otherwise,
did not consider [Appellant] a “borrower” for
purposes of mediating pursuant to the Home
Affordable Modification Program[],
(c) Contrary to the allegations in the Bank’s
Motion, [Appellant] did have the resources for
a loan modification, and
(d) The Bank did not mediate in good faith?
Appellant’s Brief at 4.
We begin by noting our standard and scope of review.
We review an order granting summary
judgment for an abuse of discretion. Indalex, Inc.
v. Nat'l Union Fire Ins. Co. of Pittsburgh, PA, 83
A.3d 418, 420 (Pa. Super. 2013)[, appeal denied, 99
A.3d 926 (Pa. 2014)]. Our scope of review is
plenary, and we view the record in the light most
favorable to the nonmoving party. Id. A party
bearing the burden of proof at trial is entitled to
summary judgment “whenever there is no genuine
issue of any material fact as to a necessary element
of the cause of action or defense which could be
established by additional discovery or expert
report[.]” Pa.R.C.P. 1035.2(1). In response to a
summary judgment motion, the nonmoving party
cannot rest upon the pleadings, but rather must set
forth specific facts demonstrating a genuine issue of
material fact. Pa.R.C.P. 1035.3.
The holder of a mortgage has the right, upon
default, to bring a foreclosure action. Cunningham
v. McWilliams, 714 A.2d 1054, 1056–57 (Pa.
Super. 1998)[, appeal denied, 734 A.2d 861 (Pa.
1999)]. The holder of a mortgage is entitled to
summary judgment if the mortgagor admits that the
mortgage is in default, the mortgagor has failed to
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pay on the obligation, and the recorded mortgage is
in the specified amount. Id.
Bank of Am., N.A. v. Gibson, 102 A.3d 462, 464-465 (Pa. Super. 2014),
appeal denied, 112 A.3d 648 (Pa. 2015).
We will address Appellant’s first two issues together as Appellant
consolidates them in the argument section of her brief. Therein, Appellant
contends that the mortgage was discharged when Bank of America, in its
amended complaint, released Joel Kent from personal liability for the debt
secured by the mortgage. Appellant’s Brief at 8-10; see also Amended
Complaint, 12/14/12, ¶ 10 (stating “Plaintiff hereby releases JOEL R. KENT,
JR[.] from liability for the debt secured by the mortgage[]”). Appellant
asserts that because she did not sign a promissory note, Bank of America
cannot foreclose on the property, even though the mortgage is in default.
See id. (concluding “[t]he Bank by its unilateral action released the
borrower[, Joel Kent], therefore releasing the Note. Pursuant to law, the
mortgage is also released[]”). We conclude that Appellant’s argument is
misplaced because it conflates the personal liability for the debt secured by
the mortgage with Bank of America’s right to foreclose on the mortgage lien
on the property to satisfy the outstanding debt.
While Appellant may not have signed a promissory note, she cosigned
the mortgage. Bank of America’s Motion for Summary Judgment, 5/24/13,
at Exhibit A, Mortgage, 4/26/04, at 15 (Mortgage). Moreover, Appellant
became the sole owner and mortgagor of the Subject Property when Joel
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Kent deeded it to her in their divorce settlement. The mortgage secures the
repayment of the note. Mortgage at 3. Specifically, under the terms of the
mortgage, Appellant, as a “Borrower,” incurred the obligation to pay the
debt evidenced by the note. Mortgage at 1 (defining Appellant as a
Borrower); id. at 4, ¶ 1. Bank of America has not released the mortgage or
the lien on the Subject Property. Accordingly, when Appellant defaulted on
the mortgage, Bank of America’s remedy was to seek foreclosure and sale of
the property to satisfy the outstanding debt.4 Mortgage at 13, ¶ 22.
The Pennsylvania Rules of Civil Procedure govern actions in mortgage
foreclosure, which are strictly in rem proceedings. See First Wis. Trust
Co. v. Strausser, 653 A.2d 688, 693 n.4 (Pa. Super. 1995) (stating that an
action on a promissory note seeks an in personam judgment, whereas a
mortgage foreclosure action is strictly in rem). Rule 1147 provides that the
complaint must plead the following elements.
(a) The plaintiff shall set forth in the complaint:
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4
We note that ordinarily, when a mortgagor defaults, the lender has two,
nonexclusive remedies. Elmwood Fed. Sav. Bank v. Parker, 666 A.2d
721, 724 n.6 (Pa. Super. 1995). It may seek foreclosure, or it may attempt
to obtain a judgment on the underlying note and issue a writ of execution.
Id. Although the lender may seek these remedies concurrently or
consecutively, the lender may have only one satisfaction. Id. Herein, Bank
of America cannot hold Appellant personally liable because she did not sign
the note and the mortgage only creates a lien on the real property. See id.
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(1) the parties to and the date of the
mortgage, and of any assignments, and a
statement of the place of record of the
mortgage and assignments;
(2) a description of the land subject to the
mortgage;
(3) the names, addresses and interest of the
defendants in the action and that the present
real owner is unknown if the real owner is not
made a party;
(4) a specific averment of default;
(5) an itemized statement of the amount due;
and
(6) a demand for judgment for the amount
due.
Pa.R.C.P. 1147(a). Moreover, Rule 1144(b) provides that the lender is not
required to join all mortgagors as parties if the lender releases those
mortgagors from liability in the complaint.
Rule 1144. Parties. Release of Liability.
(a) The plaintiff shall name as defendants
(1) the mortgagor;
(2) the personal representative, heir or devisee
of a deceased mortgagor, if known; and
(3) the real owner of the property, or if the
real owner is unknown, the grantee in the last
recorded deed.
(b) Unless named as real owner, neither the
mortgagor nor the personal representative, heir or
devisee of the mortgagor, need be joined as
defendant if the plaintiff sets forth in the complaint
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that the plaintiff releases such person from liability
for the debt secured by the mortgage.
Pa.R.C.P. 1144. Herein, Bank of America complied with these Rules by filing
a complaint that named Appellant as the mortgagor and real owner of the
Subject Property and released Joel Kent from personal liability for the debt
evidenced by the note and secured by the mortgage. Compare id. at
1144(b) (providing that a mortgagor does not need to be joined “as
defendant if plaintiff sets forth in the complaint that the plaintiff releases
such person from liability for the debt secured by the mortgage[]”) with
Amended Complaint, 12/14/12, ¶ 10 (stating, “Plaintiff hereby releases JOEL
R. KENT, JR[.] from liability for the debt secured by the mortgage[]”). Bank
of America did not release Appellant from the mortgage or release the lien
on the Subject Property created therein. Further, as this action is in rem
only, Bank of America is not seeking to hold Appellant personally liable for
the debt. Accordingly, because the mortgage is in default, Bank of America
can proceed in rem to foreclose on the mortgage and force a sale of the
property.5
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5
Appellant’s argument that she was under no obligation to make mortgage
payments is disingenuous. In her answer, she claims that she obtained a
loan modification and has attempted to make payments in accordance with
it. Appellant’s Answer to Amended Complaint, 1/3/13, at ¶ 5. Further, the
mortgage has been in default since May 1, 2009.
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Moreover, Bank of America was entitled to summary judgment
because there is no issue of material fact that the mortgage is in default,
Appellant has failed to pay on the obligation, and the recorded mortgage is
in the specified amount. See Gibson, supra. We conclude the trial court
did not err as a matter of law by granting Bank of America’s motion for
summary judgment and denying Appellant’s cross-motion for summary
judgment. Consequently, Appellant’s first two issues lack merit.
In her third issue, Appellant asserts that her pleadings created two
issues of material fact that preclude the entry of summary judgment.
Appellant’s Brief at 4. Specifically, Appellant claims that Bank of America did
not provide her with an Act 91 notice. Id. Appellant also alleges that Bank
of America acted in bad faith during the loan modification process. Id. at
10-11.
We conclude that Appellant has waived the argument that Bank of
America did not provide her with Act 91 notice before instituting the present
action.6 Appellant waived this issue by failing to present it to the trial court
in her opposition to Bank of America’s Motion for summary judgment. See
Pa.R.A.P. 302(a) (providing that “[i]ssues not raised in the lower court are
waived and cannot be raised for the first time on appeal[]”); Moranko v.
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As this purported defect is not jurisdictional, it may be waived. See
Beneficial Consumer Disc. Co. v. Vukman, 77 A.3d 547, 550 (Pa. 2013)
(holding “defective Act 91 notice does not implicate the jurisdiction of the
court…[]”).
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Downs Racing LP, 118 A.3d 1111, 1115-1116 (Pa. Super. 2015) (en banc)
(stating that “[a]rguments not raised initially before the trial court in
opposition to summary judgment cannot be raised for the first time on
appeal[]”) (citations and internal quotation marks omitted). Moreover,
Appellant has waived the issue for lack of development in the argument
section of her brief. See Moranko, supra at 1117 n.3 (noting “a failure to
argue and to cite any authority supporting any argument constitutes a
waiver of issues on appeal[]”) (citation and internal quotation marks
omitted). Appellant’s argument section does not contain any reference to
Act 91 nor a citation to any authority supporting her Act 91 claim.
Therefore, we conclude Appellant has waived her Act 91 issue. See id.
Appellant next contends that Bank of America acted in bad faith in the
loan modification process because it “did not acknowledge [Appellant] as a
borrower and did not afford her the opportunity to modify the mortgage.”
Appellant’s Brief at 10. The only authority on which Appellant relies are
federal statutes and court decisions discussing the Home Affordable
Modification Program (HAMP). Id. at 10 n.1. This Court has recently
considered this issue and concluded that a lender’s noncompliance with
HAMP does not raise an issue of material fact that would preclude the entry
of summary judgment. See HSBC Bank, NA v. Donaghy, 101 A.3d 129,
136-137 (Pa. Super. 2014) (rejecting Appellant’s reliance on HAMP as a
defense and concluding that “even if [a]ppellee failed to comply with [HAMP]
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prior to proceeding with its foreclosure against [a]ppellant, [a]ppellant does
not have a right to bring an action against [a]ppellee for such
noncompliance[]”) (emphasis in original). Moreover, the only counterclaims
recognized in a mortgage foreclosure action are those arising from, or
incident to, the creation of the mortgage itself. Pa.R.C.P. 1148; see also
Strausser, supra at 205 (rejecting counterclaims based on the bad faith of
mortgagee’s predecessor-in-interest because they were not part of or
incident to the creation of the mortgage as they transpired only after the
creation of the mortgage and after mortgagor’s default). Here, the alleged
bad faith of Bank of America in the loan modification proceedings cannot
form the basis of a defense to the mortgage foreclosure action because they
arose after the creation of the mortgage and after Appellant’s default.
Therefore, Appellant’s bad faith claims do not give rise to a disputed issue of
material fact and do not preclude the entry of summary judgment.
Accordingly, Appellant’s third issue is waived and meritless.
Based on the foregoing, we conclude Appellant’s issues lack merit or
are waived, and the trial court did not abuse its discretion or err as a matter
of law in awarding summary judgment in favor of Bank of America and
denying Appellant’s motion for summary judgment. See Gibson, supra.
Accordingly, we affirm the trial court’s September 10, 2013 judgment.
Judgment affirmed.
Judge Musmanno joins the memorandum.
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Judge Olson concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/15/2015
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