J-A16037-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
US BANK NATIONAL ASSOCIATION, AS IN THE SUPERIOR COURT OF
TRUSTEE FOR SARM 2006-4 PENNSYLVANIA
Appellee
v.
JOHN MCCLAIN AND MITCHELL PRINCE
Appellants No. 3062 EDA 2014
Appeal from the Order Entered October 3, 2014
In the Court of Common Pleas of Montgomery County
Civil Division at No(s): 2009-07709
BEFORE: LAZARUS, J., OLSON, J., and PLATT, J.*
MEMORANDUM BY LAZARUS, J.: FILED OCTOBER 16, 2015
John McClain and Mitchell Prince (Defendants) appeal from the trial
court’s order, entered in the Court of Common Pleas of Montgomery County,
granting Appellee US Bank National Association’s (US Bank) motion for
reconsideration, entering summary judgment1 on all claims in favor of US
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
1
Our standard of review in cases of summary judgment is well settled. This
court will only reverse the trial court’s entry of summary judgment where
there was an abuse of discretion or an error of law. Merriweather v.
Philadelphia Newspapers, Inc., 684 A.2d 137, 140 (Pa. Super. 1996).
Summary judgment is proper when the pleadings, depositions, answers to
interrogatories, admissions on file, and affidavits demonstrate that there
exists no genuine issue of material fact and the moving party is entitled to
judgment as a matter of law. Pa.R.C.P. 1035.2. In determining whether to
grant summary judgment a trial court must resolve all doubts against the
moving party and examine the record in a light most favorable to the non-
(Footnote Continued Next Page)
J-A16037-15
Bank and against Defendants’ counterclaims, reforming a 2005 mortgage in
this consolidated reformation/mortgage foreclosure action, and entering in
rem judgment in the amount of $1,031,639.72, plus interest, against
Defendants. After careful review, we affirm.
In 2005, Defendants purchased the subject property, located at 624
Montgomery School Lane, Wynnewood, Lower Merion Township,
Montgomery County (property), from Michael and Theresa Power (the
Powers) for $1.1 million.2 At the time the Powers purchased the property in
2001, a deed, registered with Lower Merion Township and recorded in
Montgomery County, included a legal description of the property as two
adjoining parcels, “Lot A” (100 ft. by 205 ft.) and “Lot B” (50 ft. by 205 ft.).
Lot A has a house and pool on it and Lot B is vacant. In 2002, the Powers
consolidated the lots into a single lot by deed in order to obtain a swimming
pool permit. The 2002 deed (deed of consolidation) was also registered and
recorded, and contained a proper metes and bounds description of the entire
property. The property was assigned a single tax parcel number and is
known by the single address of 624 Montgomery School Lane. When
Defendants purchased the property from the Powers, the agreement of sale
_______________________
(Footnote Continued)
moving party. Id. Summary judgment may only be granted in cases where
it is clear and free from doubt that the moving party is entitled to judgment
as a matter of law. Id.
2
The Powers purchased the property and acquired title to the property from
the Estate of Rush Donwell Touton, Jr., by deed dated November 15, 2001.
-2-
J-A16037-15
described the property simply by address and tax parcel number. However,
the 2005 deed conveying the property to the Defendants, which was
prepared by a title agent, contained an error in the legal description of the
property -- the deed only included the metes and bounds description of Lot
B and completely omitted the metes and bounds description of Lot A.
Defendants borrowed $825,000 from Wells Fargo to buy the property. The
legal description of the property in the Wells Fargo mortgage contains the
same error as the 2005 deed, it identifies the correct address and tax parcel
number, but it contains a metes and bounds description of only Lot B. The
Wells Fargo loan application issued to the Defendants for the property
certifies that the Defendants will utilize the property as their primary
residence.
In 2006, Wells Fargo, the original mortgagor of Defendants’ loan,
transferred all rights, title, and interest in the loan to US Bank. As a result
of that transaction, Wells Fargo became the servicer of the loan and US Bank
the trustee, holding an interest in the mortgage loan for the benefit of
investors.3 Defendants failed to make their monthly mortgage payments.
____________________________________________
3
Many mortgage lenders securitize their outstanding mortgages through the
sale of Mortgage Backed Securities (MBS) in the capital markets. See
https://www.usbank.com/pdf/.../Role-of-Trustee-Sept2013. Parties
involved in a MBS transaction include the borrower, the originator, the
servicer and the trustee, each with their own distinct roles, responsibilities
and limitations. Id. MBS’s are financial instruments which represent an
ownership in a group of mortgage loans, commonly referred to as pools, and
their corresponding cash flows. Id. Mortgage loans are purchased from
(Footnote Continued Next Page)
-3-
J-A16037-15
Defendants have been in default for 7 years. In March 2009, US Bank 4 filed
the underlying mortgage foreclosure action (foreclosure action) against
Defendants. During the pendency of the action, US Bank discovered the
errors in the legal description in the 2005 deed and mortgage. As a result,
US Bank filed a quiet title action in June 2010 against Defendants seeking
to: (1) reform the mortgage to include the residential lot and (2) declare
that it held a “valid first position mortgage” against the residential lot even
though the subsequent Wells Fargo home equity loans were actually
recorded first in time against the residential lot. In response, on July 14,
2010, the Powers corrected the error in the 2005 deed’s legal description by
executing a new deed (“deed of correction”) that contained a corrected
metes and bounds description of the entire property, both Lots A and B.
In August 2011, Defendants filed a lawsuit (“reformation action”) in
Delaware County5 against the Powers to compel reformation of the 2005
_______________________
(Footnote Continued)
banks, mortgage companies, and other originators and then assembled into
pools by a governmental, quasi-governmental, or private entity and then
deposited into trusts which issue securities entitling the investors to all
principal and interest payments made by borrowers on the loans in the pool.
Id.
4
According to Defendant McClain, Wells Fargo instituted the first foreclosure
action on the property in January 2009. Subsequently, and for purposes of
this appeal, US Bank instituted the current foreclosure action in March 2009.
N.T. Judge Green Trial, 2/12/13, at 219.
5
The Powers resided in Delaware County at the time the reformation action
was filed.
-4-
J-A16037-15
deed to include separate legal descriptions for Lots A and B, as well as to
have them convey the property to Defendants as joint tenants with the right
of survivorship.6 After a non-jury trial, the Honorable G. Michael Green
presiding (Judge Green Trial), the trial court determined that the Powers
must record a new deed describing the land as a single consolidated parcel
in conformance with the 2002 deed of consolidation. The Powers complied
with the order and a new deed was recorded in 2013. The 2013 deed
describes the entire property and also lists Defendants as joint tenants with
the right of survivorship. This determination was appealed and our Court
affirmed the trial court’s order. See McClain v. Power, No. 1933 EDA 2013
(filed September 18, 2014) (Pa. Super. 2014).
US Bank filed a motion for summary judgment; oral argument was
held on the motion on May 2, 2013, before the Honorable Rhonda Lee
Daniele. On January 15, 2014, the court denied US Bank’s motion for
summary judgment. US Bank and Defendants filed motions for
reconsideration of the court’s summary judgment order; the court granted
US Bank’s motion and denied Defendants’ motion, after argument, on
October 3, 2014. The court entered summary judgment in favor of US Bank
and against Defendants on their counterclaims. The court specifically
ordered that:
____________________________________________
6
On September 9, 2011, the trial court ordered that the foreclosure action
(No. 09-07709) and reformation action (No. 10-15604) be consolidated.
-5-
J-A16037-15
the legal description attached to the mortgage be reformed to include
the metes and bounds of the entire property (both lots);
the declared mortgage constitutes a valid, first-position mortgage lien
against the entire property; and
in rem judgment be entered in foreclosure in the amount of
$1,031,639.72.
Trial Court Order, 10/3/14, at 1-2. The trial court concluded, on
reconsideration, that collateral estoppel applied to the case where: (1)
Defendants believed that the property consisted of a single lot at the time of
purchase; (2) the reformation action was decided on the merits; (3)
Defendants were a party to that reformation action before Judge Green; and
(4) Defendants had a full and fair opportunity to litigate the issue of whether
the mortgage applied to both lots in the action before Judge Green. Trial
Court Opinion, 10/3/14, at 4.7 Moreover, the trial court found that because
Defendants admitted they are in default, summary judgment was properly
granted in favor of US Bank in the foreclosure action. Defendants now
appeal the October 3, 2014 order granting reconsideration and entering
judgment in favor of US Bank and against Defendants. On appeal,
Defendants raise the following issues for our consideration:
1. Was summary judgment properly granted in either of the
actions when none of the plaintiff’s pleading or discovery
contained a valid verification?
____________________________________________
7
The trial court adopted the October 3, 2014 memorandum opinion in the
event of an appeal. Thus, we have no separate Pa.R.A.P. 1925(a) opinion in
the matter.
-6-
J-A16037-15
2. Was summary judgment properly granted when the facts
reveal that US Bank has no standing to bring either action?
3. Was summary judgment properly granted in the Foreclosure
Action when there was a genuine issue of material fact regarding
the assignment of the mortgage and note to the plaintiff at the
time the Plaintiff instigated its foreclosure action?
4. Was summary judgment properly granted in the Foreclosure
Action when the plaintiff is not the named mortgagee and it
failed to file an Assignment of Mortgage?
5. Was summary judgment properly granted in the Foreclosure
Action enlarging the mortgage lien to include the additional
100x205' Residential Lot when the plaintiff never requested this
relief in its pleadings?
6. Was summary judgment in the Foreclosure Action properly
granted enlarging the mortgage lien to include the additional
100x205' Residential Lot when the plaintiff judicially admitted
that the lien only encompassed the 50x205 Vacant Lot.
7. Did the court have jurisdiction to grant summary judgment in
the Quiet Title Action when there was a failure to name all
necessary and indispensable parties?
8. Was summary judgment in the Quiet Title Action properly
granted when there was no credible evidence of a mutual
mistake?
9. Was summary judgment in the Foreclosure Action properly
granted when there was no credible evidence of the default?
10. Was summary judgment in the Quiet Title Action properly
granted despite the fact that the Defendants' bankruptcies
granted bona fide purchaser status to the Trustee in bankruptcy
which, in turn, deprived the court to grant the equitable relief
requested to the plaintiff?
11. Did the court properly apply the doctrine of collateral
estoppel when the finding in the prior action was not essential to
the outcome?
Defendants first claim that summary judgment was improperly entered
in favor of US Bank where it never properly verified, swore or attested to
-7-
J-A16037-15
any pleadings or discovery. Instead, the Defendants claim that US Bank’s
attorneys or representatives from Wells Fargo, its servicing agent, submitted
the verifications which are insufficient under the rules of civil procedure.
Pennsylvania Rule of Civil Procedure 1024, that governs the rules
applicable to verification, states in pertinent part:
(a) Every pleading containing an averment of fact not appearing
of record in the action or containing a denial of fact shall state
that the averment or denial is true upon the signer's personal
knowledge or information and belief and shall be verified. The
signer need not aver the source of the information or
expectation of ability to prove the averment or denial at the trial.
A pleading may be verified upon personal knowledge as to a part
and upon information and belief as to the remainder.
...
(c) The verification shall be made by one or more of the
parties filing the pleading unless all the parties (1) lack
sufficient knowledge or information, or (2) are outside the
jurisdiction of the court and the verification of none of
them can be obtained within the time allowed for filing
the pleading. In such cases, the verification may be made
by any person having sufficient knowledge or information
and belief and shall set forth the source of the person's
information as to matters not stated upon his or her own
knowledge and the reason why the verification is not
made by a party.
Pa.R.C.P. 1024 (emphasis added). Our Court has held that a complaint's
verification "must not be transferred into an offensive weapon designed to
strike down an otherwise valid petition". Monroe Contract Corp. v.
Harrison Square, Inc., 405 A.2d 954, 958 (Pa. Super. 1979). Moreover,
before a court dismisses a pleading on the basis of a defective verification, it
should first permit the party to amend. Id. However, where the failure to
-8-
J-A16037-15
comply with Rule 1024 results in an error of a de minimus technical nature
that did not prejudice the substantive rights of the opposing party, it is not
necessary to remand the case for amendment where it would serve no
practical purpose. Id.
Defendants rely upon J.P. Morgan Chase Bank, N.A. v. Murray, 63
A.3d 1258 (Pa. Super. 2013), to argue that Wells Fargo, as a mortgage
servicer, is not the proper party to execute verifications in this case. In
Murray, the underlying mortgage foreclosure action was filed by Deutsche
Bank National Trust Company as trustee for Washington Mutual Mortgage
Securities Corporation. JP Morgan Chase Bank was later substituted as
plaintiff, as an agent of Deutsche Bank. When a vice president of JP Morgan
signed the complaint’s verification “on behalf of” JP Morgan, mortgagee-
defendants argued that, as a representative of JP Morgan, she could only
verify the complaint if she “certified satisfaction of the requirements of Rule
1024(c).” Id. at 1270. In finding the verification deficient, and remanding
the case to permit amendment, our Court reiterated that any person,
including an attorney for a party, could verify on behalf of another party,
provided that the person does so “only in those cases in which the conditions
delineated in Rule 1024 are present.” Id. In Murray, the Court determined
that the verification was not only deficient, but “no effort was made satisfy
Rule 1024(c).” Id. at 1271.
Here, the mortgage foreclosure complaint was filed on March 18,
2009, solely in the name of US Bank National Association as Trustee for
-9-
J-A16037-15
SARM 2006-4.8 The verification to the complaint, made by US Bank’s
attorney,9 provides that because US Bank, as plaintiff, is outside the
jurisdiction of the Court and/or the verification could not be obtained within
the time allowed for the filing of the complaint, US Bank’s attorney is
authorized to make the verification pursuant to Pa.R.C.P. 1024(c), and that
the statements made in the foreclosure action are based upon
information supplied by US Bank and are true and correct to the best of
his knowledge. Complaint Verification, 3/20/05 (emphasis added).
Subsequently, on July 29, 2009, US Bank praecipied to reinstate the
mortgage foreclosure complaint/action against Defendants. Plaintiff’s
attorney filed a praecipe to substitute the verification to the complaint. The
____________________________________________
8
SARM is the acronym for a structured adjustable rate mortgage.
9
Instantly, US Bank’s original verification includes the requisite Rule 1024(c)
language that explains why US Bank did not make the verification in its own
stead. Cf. Atlantic Credit & Finance, Inc. v. Giuliana, 829 A.3d 340 (Pa.
2003) (verification, signed by paralegal of plaintiff corporation, stating that
s/he “reviewed the averments of the attached pleading [and] verifie[d] that
the pleading is based on information furnished to counsel . . . [which] has
been gathered . . . in the course of [the] lawsuit” and that the “language of
the pleading is that of counsel and not of the [signer paralegal]” was wholly
defective under Rule 1024(c) and inadequate to support entry of judgment
against appellants). Counsel may verify a pleading for his or her client when
the conditions delineated in Rule 1024(c) are present. Lewis v. Erie Ins.
Exchange, 421 A.2d 1214, 1217 n.2 (Pa. Super. 1980). Moreover, the
source of information need only be indicated for those matters not stated to
be within the signer's own knowledge. See Monroe Contract, supra
(where all information pertinent to petition was within counsel's knowledge
and failure to state where other information was derived was inconsequential
error which was not prejudicial).
- 10 -
J-A16037-15
substituted verification is signed by a Wells Fargo vice president of loan
documentation on behalf of US Bank; at the time, Wells Fargo was still
acting as the servicing agent for US Bank. In the substituted verification,
the vice president verifies that she is authorized to execute the verification
on behalf of the Plaintiff and that the facts set forth “in the foregoing Civil
Action in Mortgage Foreclosure are true and correct to the best of his/her
knowledge, information and belief.” Verification, 3/20/09.
Thereafter, on July 27, 2010, US Bank filed an amended complaint
attaching a verification from Herman Kennerty, another vice president of
loan documentation for Wells Fargo. In his verification, Kennerty states that
he is authorized to execute the verification on behalf of US Bank and that
“the facts set forth in the foregoing Amended Complaint in Equity are true
and correct to the best of [his] knowledge, information and belief.”
Verification, 7/27/10.
Defendants filed preliminary objections, seeking dismissal of US Bank’s
amended complaint, claiming that the Bank’s verification was defective
because it: (1) was not taken by one of the parties; (2) does not state the
reason why the verification is not or could not be taken by one of the
plaintiffs; (3) does not set forth the source of the information as to the
matters contained in the complaint; and (4) does not state that the Plaintiff
is outside the jurisdiction of the court and its verification could not be
obtained within the time allowed for filing the pleading. Defendants’
Preliminary Objections to Plaintiff’s Amended Complaint, 8/16/10, at 3. In
- 11 -
J-A16037-15
its response to Defendants’ preliminary objections, US Bank averred that the
amended complaint “was properly verified by a representative of the
attorney-in-fact for [US Bank], and complies with Pennsylvania law.”
Plaintiff’s Response to Defendants’ Preliminary Objections, 8/17/10, at 5.
At all times relative to the verification issue, Wells Fargo was acting as
the servicing agent for US Bank. Counsel for US Bank noted at an
evidentiary hearing on Defendant Prince’s motion for sanctions that, as the
servicer of the loan, Wells Fargo has continued to maintain possession of the
mortgage note and that no official at US Bank, as trustee, would be capable
of answering specific questions regarding the mortgage documents kept in
the ordinary course of business. N.T. Hearing on Motion for Sanctions,
2/18/14, at 6-8.10
____________________________________________
10
Prior to disposition of Defendants’ original preliminary objections,
Defendants moved to file amended preliminary objections on October 13,
2010, rendering all prior preliminary objections withdrawn or moot. In their
amended objections, Defendants no longer raised a Rule 1024 verification
issue. On October 25, 2010, prior to ruling on Defendants’ motion to file
amended preliminary objections, the court dismissed Defendants’
preliminary objections for failure to file a brief after US Bank praecipied for
argument. See Montgomery County Local Rule of Civil Procedure
1028(c)(4). However, the court vacated its order, as improvidently granted,
and directed the court administrator to list the motion for leave to file
amended preliminary objections to the amended complaint for argument
upon praecipe. On March 4, 2011, the trial court entered an order and
accompanying stipulation from the parties granting Defendants leave to file
amended preliminary objections to Plaintiff’s amended complaint. After filing
their amended preliminary objections, the trial court denied the objections in
July 2011. Therefore, we could alternatively find that Defendants have
abandoned this claim on appeal.
- 12 -
J-A16037-15
Defendants are correct that US Bank did not state in its verifications
that Wells Fargo, original mortgagor and current servicer and holder of the
note, was in the best position to verify pleadings or answer any questions
regarding the mortgage documents. However, this exact position was
clearly advanced to the court at the motion for sanctions hearing.
Defendants were unable to advance any colorable argument as to how the
omission of this language prejudiced them in defending this case that is now
more than six years stale. Therefore, because amendment of the
verifications at this stage of the proceedings would serve no practical
purpose and the error is of such a de minimus technical nature that it did
not prejudice Defendants’ substantive rights, Defendants are not entitled to
relief on this claim. Monroe Contract, supra.
Next, Defendants claim that summary judgment was improperly
granted on the following related bases: (1) US Bank does not have standing
to bring either the reformation or foreclosure actions; (2) there was a
genuine issue regarding the Wells Fargo assignment of the mortgage to US
Bank at the time the foreclosure action was instituted; (3) US Bank is not a
named mortgagee; and (4) there was no credible evidence of Defendants’
default on the mortgage.
This case involves a discrepancy in the legal description of the
property found in the Powers’ 2002 deed and the Defendants’ 2005 deed.
The former describes the property as consolidated Lots A and B, the latter
completely omits any description of Lot A. Moreover, the original deed
- 13 -
J-A16037-15
executed when the Powers purchased the property in 2001 lists the lots
separately. Despite these varying legal descriptions, the record reveals that
when Defendants purchased the instant property from the Powers in 2005,
they intended to buy the entire property identified as 624 Montgomery
School Lane, with its corresponding tax parcel number. Defendant McClain
conceded that neither the agreement of sale nor the Powers’ disclosure
statement made any specific reference to Parcels A and B or the property's
metes and bounds description, nor was there anything in writing promising
to convey a deed that specifically referenced Lot A and Lot B. See N.T.
Judge Green Trial, 2/12/13, at 155-58, 230, 297. In fact, Defendant
McClain did not notice the legal description error in the 2005 deed until
October 2009. Id. at 70. Additionally, Defendant Prince acknowledged that
when he signed the agreement of sale he was unaware that there had been
two lots identified separately as Premises “A” and Premises “B”; he, too, was
unaware of the separate A and B Lot descriptions until he was served with
the foreclosure lawsuit in 2009. Id. at 343.
As purchasers of land, Defendants are charged with “constructive
notice of every matter connected with or affecting their title, which appears
by description of the parties, by recital, by reference, or otherwise, on the
face of any deed, or upon any public record, which forms an essential link in
the chain of instruments through which [they] take[] title[.]” Volk v.
Eaton, 69 A. 91 (Pa. 1908) (citation omitted). Therefore, Defendants were
imputed with knowledge of the consolidated description of the two lots
- 14 -
J-A16037-15
comprising 624 Montgomery School Lane. The trial court found that the
2002 deed was registered with Lower Merion Township and properly
recorded in the Montgomery County Recorder of Deeds Office. Defendants
presented no evidence to contradict this finding.
Instantly, the evidence presented at the reconsideration hearing on
the Bank’s motion for summary judgment conclusively established both US
Bank’s standing to bring the instant mortgage foreclosure action, as well as
the fact that the Defendants were in default and had not paid the mortgage
on the property since June 2008. See N.T. Reconsideration Hearing,
5/28/14, at 65-73; see also J.P. Morgan Chase Bank v. Murray, 63 A.3d
1258 (Pa. Super. 2013) (citing 13 Pa.C.S. § 3205(b) of Pennsylvania’s
Uniform Commercial Code, stating when note indorsed in blank, instrument
becomes payable to bearer and may be negotiated by transfer or possession
alone until specially indorsed); Cunningham v. McWilliams, 714 A.2d
1054 (Pa. Super. 1998) (in mortgage foreclosure action, summary judgment
proper if mortgagors admit mortgage is in default, that they have failed to
pay interest on obligation, and that recorded mortgage is in specified
amount).
Defendants also claim that the court improperly granted summary
judgment where US Bank did not request enlarging the mortgage lien to
include the additional 100x205' Residential Lot (Lot A), and where US Bank
judicially admitted, by attaching an incomplete legal description of the
- 15 -
J-A16037-15
property in its mortgage foreclosure complaint, that the lien only
encompassed the 50x205 Vacant Lot (Lot B).
Instantly, US Bank’s summary judgment motion specifically requested
the “substitu[tion of] the incomplete legal description attached to the
Mortgage with a full and complete legal description describing the entire
property.” Motion for Summary Judgment, 6/29/12, at ¶3. Therefore, the
motion does specifically ask the court to reform the deed to include the
entire property, Lots A and B, in its description.
Next, while the legal description of the property attached to US Bank’s
mortgage foreclosure complaint only includes the metes and bounds
description for Lot B, it also includes the county parcel number and lot
address (624 Montgomery School Lane) which refers to the entire property
(Lots A and B). For an averment to qualify as judicial admission, it must be
clear and unequivocal admission of fact. John V. Conomos, Inc. v. Sun
Co., 831 A.2d 696 (Pa. Super. 2003)). Moreover, an admission is not
conclusively binding when “the statement is indeterminate, inconsistent, or
ambiguous.” Greater Valley Terminal Corp. v. Goodman, 176 A.2d 408,
410 (Pa. 1962). Accordingly, the legal description of the property, which
includes the metes and bounds description as well as the property address
and county parcel number, contains internal inconsistencies. Thus, we do
not find that US Bank judicially admitted that the Defendants’ mortgage only
pertains to Lot B due to the lack of a clear and unequivocal admission of
fact. Conomos, supra; Greater Valley, supra.
- 16 -
J-A16037-15
Defendants next assert that the trial court did not have jurisdiction to
grant summary judgment in the Quiet Title Action because “all necessary
and indispensable parties” were not named. Specifically, Defendants claim
that Wells Fargo, as a predecessor in interest to the loan, should have been
given the opportunity to be heard before the court declared US Bank to have
a valid first-position mortgage lien against the property.
Pursuant to Pa.R.C.P. 1061(b)(3), an action to quiet title may be
instituted in order to “compel an adverse party to file, record, cancel,
surrender or satisfy of record, or admit the validity, invalidity or discharge
of, any document, obligation or deed affecting any right, lien, title or interest
in land.” Additionally, Pa.R.C.P. 2227, the compulsory joinder rule, states,
“[p]ersons having only a joint interest in the subject matter of an action
must be joined on the same side as plaintiffs or defendants.” Pa.R.C.P.
2227(a).
Historically, Wells Fargo originated the loan on Defendants’ property
and currently holds two junior mortgages against the property. However, it
no longer possesses any rights in the mortgage such that it could be
impacted by the outcome of this consolidated reformation and foreclosure
case. See N.T. Summary Judgment Hearing, 5/2/13, at 46. Moreover,
Wells Fargo, as servicer of the loan, verified the complaint and amended
complaint in the reformation action. If it had competing interests such that
it opposed the action brought by US Bank, it certainly had the opportunity to
voice or raise those objections. Thus, we find no merit to this claim.
- 17 -
J-A16037-15
Defendants next argue that because there was no credible evidence of
mutual mistake, summary judgment was improperly granted in favor of US
Bank. We disagree.
It is well known that:
A court of equity has the right to reform a deed where mutual
mistake appears. The right to reformation of a deed in equity, if
mutual mistakes appear, is unquestionable where the purpose is
to correct the inaccurate description given therein, and make it
conform to the intention of the parties; also that where a mutual
mistake in the description appears, reformation of the deed will
be directed notwithstanding an express denial by the defendant
that an error was made.
Armstrong County Bldg. & Loan Ass’n v. Guffyb, 200 A. 160, 163 (Pa.
Super. 1938). See Dudash v. Dudash, 460 A.2d 323 (Pa. Super. 1983)
(when court reforms deed on basis of mutual mistake, it must reform deed
to reflect intent of parties).
As we have already discussed, the evidence demonstrates that the
Defendants intended to purchase and mortgage the entire property,
including both Lots A and B, and to solely reside on Lot A. Moreover, the
court correctly concluded that the mortgagor would not have intended to
issue a mortgage to cover only the vacant lot, Lot B, of the property.
Because Lot A’s metes and bounds description was not included on the deed
or mortgage when Defendants acquired the property, the trial court and our
Court properly determined that a mutual mistake in the description existed
and that reformation of the deed was required in order to rectify the
- 18 -
J-A16037-15
inaccurate property description. We see no error in this judicial action.
Dudash, supra.
Defendants next claim that the court did not have the authority to
grant US Bank the equitable remedy of deed reformation because when
Defendants declared bankruptcy the trustee became a bona fide purchaser
of the property by operation of law.
Section 544 of the United States Bankruptcy Code allows a trustee in
bankruptcy to avoid certain claims against a debtor’s estate. See 11 U.S.C.
§544(a)(3). Specifically, the statute permits the trustee to stand in the
shoes of a lien or judgment creditor, or bona fide purchaser, of the debtor’s
real property. Id. However, for a trustee to exercise his or her rights to the
property, he or she must affirmatively commence an adversary action,
within the applicable statute of limitations, to perfect the lien under section
544. Where a trustee does not timely commence the action, the creditor
retains its unperfected lien.
Because no trustees involved in the Defendants’ bankruptcy
proceedings (which are now closed)11 commenced any proceedings to attack
US Bank’s mortgage lien, the trial court had the authority to grant US Bank’s
requested equitable relief to reform the deed. See also Johnson v. Home
____________________________________________
11
Pursuant to 11 U.S.C § 546(a), “an action or proceeding under . . .
section 544 . . . may not be commenced after the earlier of . . . the time the
case is closed or dismissed.”
- 19 -
J-A16037-15
State Bank, 501 U.S. 78, 83 (1991) (no violation of section 524 occurs
where judgment creditor seeks in rem relief in post-bankruptcy reformation
action).
Finally, Defendants assert that the trial court improperly applied the
doctrine of collateral estoppel because nothing regarding the deed in the
prior Delaware County reformation action was essential to the outcome of
the current mortgage foreclosure action. We disagree.
Collateral estoppel operates to “prevent a question of law or issue of
fact which has once been litigated and adjudicated finally in a court of
competent jurisdiction from being relitigated in a subsequent suit.” Day v.
Volkswagenwerk Aktiengesellschaft, 464 A.2d 1313, 1318 (Pa. Super.
1983) (citations omitted). Moreover, collateral estoppel will bar any issue of
fact previously litigated and determined by a valid and final judgment even if
the subsequent action involves different causes of action and/or parties. Id.
at 1319.
The trial court concluded that Defendants did not intend to purchase
the property as two separate lots and that there was an error, a result of
mutual mistake, in the legal description of the property contained in the
2005 deed. In coming to this conclusion, the court examined the
Defendants’ actions and dealings with Wells Fargo regarding the loan and
mortgage. These determinations were clearly essential to the current
mortgage foreclosure action involving Defendants and US Bank. Therefore,
we find no merit to this claim.
- 20 -
J-A16037-15
Order affirmed.
Judge Platt joins the Memorandum.
Judge Olson concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/16/2015
- 21 -