J-A25018-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
US BANK NATIONAL ASSOCIATION, AS IN THE SUPERIOR COURT OF
TRUSTEE FOR GSR MORTGAGE LOAN PENNSYLVANIA
TRUST 2005-AR4
Appellee
v.
G. LINTON SHEPPARD, JUDITH A.
SHEPPARD AND WENDY LYNNE
SHEPPARD
Appellant No. 2997 EDA 2014
Appeal from the Judgment Entered September 11, 2014
In the Court of Common Pleas of Montgomery County
Civil Division at No(s): 2012-05497
BEFORE: DONOHUE, J., MUNDY, J., and FITZGERALD, J.*
MEMORANDUM BY MUNDY, J.: FILED DECEMBER 22, 2015
Appellants, G. Linton Sheppard, Judith A. Sheppard, and Wendy Lynne
Sheppard, appeal pro se from the September 11, 2014 in rem judgment
entered in favor of Appellee, U.S. Bank National Association, as Trustee for
GSR Mortgage Loan Trust 2005-AR4 (U.S. Bank), pursuant to the order
granting U.S. Bank’s motion for summary judgment in its action for
mortgage foreclosure. After careful review, we affirm.
The relevant procedural history of this case, as gleaned from the
certified record, is as follows. On February 29, 2012, U.S. Bank filed a
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*
Former Justice specially assigned to the Superior Court.
J-A25018-15
complaint in mortgage foreclosure on a property located at 2256 Washington
Lane, Huntingdon Valley, Pennsylvania 19006, for a sum of $989,021.88,
against Appellants, G. Linton and Judith Sheppard.1 U.S. Bank amended
said complaint on January 8, 2013, naming Appellant, Wendy Lynne
Sheppard, as an additional defendant. U.S. Bank’s Amended Complaint,
1/8/13, at ¶ 2. U.S. Bank’s amended complaint asserted the following.
4. On or about April 25, 2005, G[.] LINTON
SHEPPARD and JUDITH A. SHEPPARD made,
executed and delivered to WELLS FARGO BANK, N.A.
a Mortgage in the original principal amount of
$787,500.00 on the premises described in the legal
description marked Exhibit “B”, attached hereto and
made a part hereof. Said Mortgage being recorded
in the Office of the Recorder of MONTGOMERY
County in Book 11457, Page 0123. The mortgage is
a matter of public record and is incorporated herein
by reference in accordance with Pa.R.C.P. 1019(g),
which rule relieves the Plaintiff from its obligation to
attach documents to pleadings if those documents
are of public record. …
5. Plaintiff is the current Mortgagee. By Assignment
of Mortgage recorded July 7, 2010, the mortgage
was assigned to US BANK NATIONAL ASSOCIATION,
AS TRUSTEE ON BEHALF OF GSR MORTGAGE LOAN
TRUST 2005-AR4 which Assignment is recorded in
the Office of the Recorder of MONTGOMERY County
in Book 12866, Page 00018. The Assignment is a
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1
We note Appellants filed several objections to U.S. Bank’s service of the
complaint. On November 16, 2012 a hearing was held, and U.S. Bank’s
original service was stricken, and U.S. Bank was directed to personally serve
Appellants. Thereafter, on November 20, 2012, U.S. Bank filed a “Praecipe
to Reinstate Civil Action/Mortgage Foreclosure.” U.S. Bank personally
served Appellants, G. Linton Sheppard and Judith A. Sheppard, on November
23, 2012.
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matter of public record and is incorporated herein by
reference in accordance with Pa.R.C.P. 1019(g),
which rule relieves the Plaintiff from its obligation to
attach document to pleadings if those documents are
of public record. …
6. Defendant Wendy Lynne Sheppard has been
made a party to the instant action pursuant to a
Deed recorded on March 15, 2012, at the Office of
the Recorder of Montgomery County in Book 5830,
Page 0040. The Deed is a matter of public record
and is incorporated by reference in accordance with
Pa.R.C.P. 1019(g), which rule relieves the Plaintiff
from its obligation to attach documents to pleading if
those documents are of public record.
Id. at ¶¶ 4-6.2
On February 11, 2013, Appellants filed preliminary objections to U.S.
Bank’s complaint, and on March 4, 2013, U.S. Bank filed its response. 3 On
April 23, 2013, the trial court overruled Appellants’ preliminary objections
and ordered Appellants to file an answer to the complaint within 20 days.
Thereafter, on May 10, 2013, Appellants filed a motion for reconsideration,
which was denied by the trial court on May 21, 2013. On June 10, 2013,
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2
Despite noting they were not obligated to attach the subject mortgage,
U.S. Bank attached a copy of the mortgage attached to its complaint as an
exhibit. The copy of the mortgage did not include an indorsement.
3
U.S. Bank attached a copy of the indorsed mortgage to its response. U.S.
Bank’s Response to Preliminary Objections, 3/4/13, at Exhibit A.
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Appellants filed an answer and new matter. On June 26, 2013, as amended
on July 9, 2013, U.S. Bank filed a reply to Appellants’ new matter.4
Subsequently, on July 8, 2014, U.S. Bank filed a motion for summary
judgment. On August 18, 2014, Appellants filed a Verified
Opposition/Objection to Motion for Summary Judgment. On September 11,
2014, the trial court granted U.S. Bank summary judgment and an in rem
judgment in the amount of $1,153,370.32 plus interest from June 12, 2014,
against Appellants. On September 19, 2014, Appellants filed an objection,
and on September 25, 2014, a motion for reconsideration, which were
denied by the trial court on October 2, 2014.
On October 7, 2014, Appellants filed a timely appeal. On October 8,
2014, the trial court ordered Appellants to file, within 21 days, a concise
statement of errors complained of on appeal in accordance with
Pennsylvania Rule of Appellate Procedure 1925(b). Said statement noted
“[a]ny issues not properly included in the concise statement timely filed and
served pursuant to Pa.R.A.P. 1925(b) shall be deemed waived.” Trial Court
Order, 10/8/14. On October 29, 2014, Appellants filed a 12 page statement
of errors listing 9 issues, the last of which contained 35 sub-issues.
Appellants’ Rule 1925(b) Statement, 10/29/14.
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4
U.S. Bank attached a mortgage assignment dated September 18, 2012,
assigning the subject mortgage from Wells Fargo to U.S. Bank. U.S. Bank’s
Amended Reply to Appellants’ New Matter, 7/9/13, at Exhibit D.
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On appeal, Appellants raise the following multi-part issue for our
review.
I. Did the lower court commit an error of law and
abuse its discretion when it did not consider the
cumulative effect of all of the following errors,
thereby depriving [Appellants] of their due process
rights and their right to a hearing?
A. [U.S. Bank] was not the owner of the
obligation upon filing the complaint and
therefore did not have standing to sue[.]
B. [U.S. Bank] did not have standing to sue
due to two identical Assignments of Mortgage,
executed two years apart[.]
C. [U.S. Bank] was not the Real Party in
Interest[.]
D. [U.S. Bank] did not have standing as the
chain of title of the mortgage and the note has
not been specifically traced[.]
E. [U.S. Bank] did not have standing when the
mortgage was purportedly assigned into the
Trust five (5) or seven (7) years after the
Appellee Trust closed[.]
F. The blank indorsement argument was
improperly used to grant summary judgment
when the Trust documents require that the
note be specially indorsed[.]
G. The [trial] court improperly granted
summary judgment when none of the
“evidence” provided by [U.S. Bank] was
authenticated and therefore summary
judgment should have been denied[.]
H. The [trial] court granted summary judgment
when discovery and a subpoena duces tecum
were still outstanding[.]
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I. Oral arguments were not granted when
specifically requested[.]
J. Appellants were not given an opportunity to
respond to [U.S. Bank]’s supplemental brief in
support of summary judgment[.]
K. The [trial court] mischaracterizes Appellants
statement of errors as a “concise” statement[.]
L. The [trial court] improperly moved this
[C]ourt to affirm [its] decision[.]
M. U.S. Bank has come to the court with
unclean hands[.]
Appellants’ Brief at 3-4.
Before addressing the merits of Appellants’ claims we first address
Appellants’ issue K arguing the trial court mischaracterizes Appellants’
statement of errors as concise. Id. at 53. Appellants argue that its
“Statement of Errors (or Concise Statement as the Judge insisted on calling
it) conformed to Pa.R.A.P. § 1925(b)(4)(vi).” Id.
Contrary to Appellants’ claim, Pennsylvania Rule of Appellate
Procedure 1925(b) requires Rule 1925(b) statements to “concisely identify
each ruling or error that the appellant intends to challenge with sufficient
detail to identify all pertinent issues for the judge.” Pa.R.A.P. 1925(b)(4)(ii)
(emphasis added). Further, “[t]he Statement should not be redundant or
provide lengthy explanations as to any error.” Id. at 1925(b)(4)(iv). Any
issue not raised in accordance with Rule 1925(b)(4) is waived. Id. at
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1925(b)(4)(vii). Our Supreme Court has clarified that Rule 1925(b) is a
bright-line rule. Commonwealth v. Hill, 16 A.3d 484, 494 (Pa. 2011).
We caution Appellant that this Court has found
claims waived on appeal for failure to specify the
error alleged. See Commonwealth v. Rolan, 964
A.2d 398, 409–10 (Pa. Super. 2008); see also
Commonwealth v. Hansley, 24 A.3d 410, 415 (Pa.
Super. 2011), appeal denied, 32 A.3d 1275 (Pa.
2011) (“[A] [c]oncise [s]tatement which is too vague
to allow the court to identify the issues raised on
appeal is the functional equivalent of no [c]oncise
[s]tatement at all. The court’s review and legal
analysis can be fatally impaired when the court has
to guess at the issues raised.”) (citation and internal
quotation marks omitted). [] [H]owever, Pa.R.A.P.
1925(b)(4)(v) provides that “[e]ach error identified
in the Statement will be deemed to include every
subsidiary issue contained therein which was raised
in the trial court[.]”
Commonwealth v. Garvin, 50 A.3d 694, 697 n.5 (Pa. Super. 2012).5
Instantly, Appellants’ Rule 1925(b) statement is 12 pages long, and
oftentimes redundant. The trial court in its Rule 1925(a) opinion
acknowledged the excessive length of the statement, but noted that it would
address the issues raised to the extent possible. Trial Court Opinion,
12/23/14 at 3. As the trial court has addressed the majority of Appellants’
issues, we decline to fine waiver.
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5
We note “[s]ince the Rules of Appellate Procedure apply to criminal and
civil cases alike, the principles enunciated in criminal cases construing those
rules are equally applicable in civil cases.” Lineberger v. Wyeth, 894 A.2d
141, 148 n.4 (Pa. Super. 2006), citing Kanter v. Epstein, 866 A.2d 394,
400 n.6 (Pa. Super. 2004), appeal denied, 880 A.2d 1239 (Pa. 2005).
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Additionally, upon review of Appellants’ brief, issues J and L are not
developed. Appellate briefs must conform to the Rules of Appellate
Procedure. Pa.R.A.P. 2101. Rule 2119 requires that the “argument shall be
divided into as many parts as there are questions to be argued” and include
“such discussion and citation of authorities as are deemed pertinent.” Id. at
2119(a). “[W]here an appellate brief fails to provide any discussion of a
claim with citation to relevant authority or fails to develop the issue in any
other meaningful fashion capable of review, that claim is waived.”
Umbelina v. Adams, 34 A.3d 151, 161 (Pa. Super. 2011), appeal denied,
47 A.3d 848 (Pa. 2012), quoting In re W.H., 25 A.3d 330, 339 (Pa. Super.
2011), appeal denied, 24 A.3d 364 (Pa. 2011); see also Pa.R.A.P. 2119(a).
Further, “[t]his Court will not act as counsel and will not develop arguments
on behalf of an appellant.” Commonwealth v. Kane, 10 A.3d 327, 331
(Pa. Super. 2010) (citation omitted), appeal denied, 29 A.3d 796 (Pa. 2011).
Further, while this Court will construe pro se materials liberally, “pro se
status confers no special benefit on an appellant.” Id. at 1211-1212. As
Appellants have failed to develop issues J and L, these issues are waived.
We turn now to the remaining issues Appellants raise. Appellants’ first
six issues, issues A through F, argue various bases on which they assert that
U.S. Bank did not have standing in this matter. Appellants’ 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.
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v. Nat'l Union Fire Ins. Co. of Pittsburgh, PA, 83
A.3d 418, 420 (Pa. Super. 2013). 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). 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 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).
In this appeal, Appellants argue that U.S. Bank does not have standing
because (1) there are two identical assignments of the mortgage, (2) U.S.
Bank was not a real party in interest, (3) there are defects in the chain of
title, (4) the mortgage was purportedly assigned to a trust that closed, (5)
the indorsement was blank when the trust documents require the note be
specially indorsed, and (6) the evidence used to establish summary
judgment was not properly authenticated. Appellants’ Brief at 4. Assuming
arguendo there is a defect in the chain of assignment, we conclude that any
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purported defects in the chain of assignment do not prevent U.S. Bank from
enforcing the note because it is undisputed that U.S. Bank is the current
holder of the original note that has been specially indorsed. In JP Morgan
Chase Bank, N.A. v. Murray, 63 A.3d 1258, 1268 (Pa. Super. 2013), this
Court concluded that under the Pennsylvania Uniform Commercial Code
(PUCC), 13 Pa.C.S.A. §§ 1101-9809, the note securing a mortgage is a
negotiable instrument. Id. at 1265, citing 13 Pa.C.S.A. § 3104. The PUCC
states that a person entitled to enforce an instrument includes the following.
§ 3301. Person entitled to enforce instrument
“Person entitled to enforce” an instrument means:
(1) the holder of the instrument;
(2) a nonholder in possession of the
instrument who has the rights of a holder; or
(3) a person not in possession of the
instrument who is entitled to enforce the
instrument pursuant to section 3309 (relating
to enforcement of lost, destroyed or stolen
instrument) or 3418(d) (relating to payment or
acceptance by mistake).
13 Pa.C.S.A. § 3301. Significantly, Section 3301 also provides that “[a]
person may be a person entitled to enforce the instrument even though the
person is not the owner of the instrument or is in wrongful possession of the
instrument.” Id. Thus, applying the PUCC, this Court has held that if a
mortgagee can “establish that it holds the original Note, and that it is
indorsed in blank [or specially indorsed], under the [PUCC] it will be entitled
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to enforce the Note [as a negotiable instrument] … even if there remain
questions as to the chain of possession of the [n]ote from the time of its
making to its arrival in [a]ppellee’s figurative hands.” Murray, supra at
1268, citing 13 Pa.C.S.A. § 3109(a). Accordingly, if U.S. Bank can establish
both that it was (1) the holder in due course of the original note, and (2) the
note is indorsed in blank or specially indorsed, it is entitled to enforce the
note regardless of the alleged deficiencies in the assignments. See id.
A “holder in due course” of a negotiable instrument is defined by the
PUCC as the holder of an instrument if “the instrument when issued or
negotiated to the holder does not bear such apparent evidence of forgery or
alteration or is not otherwise so irregular or incomplete as to call into
question its authenticity[,]” and “the holder took the instrument … for value
… [and] in good faith.” 13 Pa.C.S.A. § 3302(a)(1)-(2). Regarding
indorsement, the PUCC provides as follows.
§ 3205. Special indorsement; blank
indorsement; anomalous indorsement
(a) Special indorsement.--If an indorsement is
made by the holder of an instrument, whether
payable to an identified person or payable to bearer,
and the indorsement identifies a person to whom it
makes the instrument payable, it is a “special
indorsement.” When specially indorsed, an
instrument becomes payable to the identified person
and may be negotiated only by the indorsement of
that person. The principles stated in section 3110
(relating to identification of person to whom
instrument is payable) apply to special
indorsements.
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(b) Blank indorsement.--If an indorsement is
made by the holder of an instrument and it is not a
special indorsement, it is a “blank indorsement.”
When indorsed in blank, an instrument becomes
payable to bearer and may be negotiated by transfer
of possession alone until specially indorsed.
…
Id. § 3205.
Here, there is no genuine issue of material fact that U.S. Bank is the
current holder of the original note and the note is specially indorsed to Wells
Fargo. U.S. Bank’s Motion for Summary Judgment, 7/8/14, at Ex. A1
(“Adjustable Rate Note”). The note contains the following indorsement.
WITHOUT RECOURSE
PAY TO THE ORDER OF
WELLS FARGO BANK, N.A.
By [signature of Joan M. Mills]
Joan M. Mills, Vice President
Id. Additionally, the assignment of the mortgage from Wells Fargo to U.S.
Bank states Wells Fargo “does hereby grant, sell, assign, transfer, and
convey, unto [U.S. Bank] … a certain Mortgage dated 04/25/05 and
recorded 05/05/2005, … in favor of Wells Fargo Bank, N.A. … together with
the note(s) and obligations therein described[.]” Id. at Ex. A2 (“Assignment
of Mortgage”). U.S. Bank, as the successor in interest to Wells Fargo Bank
N.A., is the current holder of the specially indorsed note. Therefore, U.S.
Bank is entitled to enforce the note despite any alleged deficiencies in the
chain of assignments of the mortgage, and Appellants’ assertion that the
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assignment was defective does not raise a genuine issue of material fact.
See 13 Pa.C.S.A. § 3301; Murray, supra.
Further, the Pennsylvania Rules of Civil Procedure mandate that “all
actions shall be prosecuted by and in the name of the real party in
interest[.]” Pa.R.C.P. 2002. This Court has repeatedly held that the
mortgagee is the real party in interest in a foreclosure action. Wells Fargo
Bank N.A. v. Lupori, 8 A.3d 919, 922 n.3 (Pa. Super. 2010) (noting “[w]e
observe that the mortgagee is the real party in interest in a foreclosure
action[]”); see also PHH Mortgage Corp. v. Powell, 100 A.3d 611, 219
(Pa. 2014) (holding “[t]his Court has held that the mortgagee is the real
party in interest in a foreclosure action[]”). In support of its motion for
summary judgment, U.S. Bank in its prima facie case asserted it is the
mortgagee of record through assignment by Wells Fargo of the original
mortgage. U.S. Bank’s Motion for Summary Judgment, 7/8/14, at ¶ 4.
Therefore, Appellants’ first six issues challenging U.S. Bank’s standing are
without merit.6
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6
In issue E, Appellants argue that the “mortgage was purportedly assigned
to the Trust five (5) or seven (7) years after the Trust closed[.]” Appellants’
Brief at 31. However, Appellants concede the Trust can acquire assets after
closing if “tax counsel has reviewed and approved the acceptance and that
such acceptance will not affect the [Real Estate Mortgage Investment
Conduit] (REMIC)’s status[.]” Id. at 33. Appellant has failed in its
Opposition/Objection to U.S. Bank’ Motion for Summary to Judgment to
provide any evidence that said mortgage was not accepted by the Trust.
Accordingly, the trial court was not precluded from granting summary
(Footnote Continued Next Page)
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Next, in issue G, Appellants argue summary judgment was improper
because “all of U.S. Bank’s paper work has been ‘verified’ by a non-party to
this litigation with no authority provided by U.S. Bank to make
verifications[.]” Appellants’ Brief at 39. Verification is guided by the
following statute.
Rule 1024. Verification
(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.
…
(b) If a pleading contains averments which are
inconsistent in fact, the verification shall state that
the signer has been unable after reasonable
investigation to ascertain which of the inconsistent
averments, specifying them, are true but that the
signer has knowledge or information sufficient to
form a belief that one of them is true.
(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
_______________________
(Footnote Continued)
judgment as there was no genuine issue of material fact. See Gibson,
supra.
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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.
In its motion for summary judgment, U.S. Bank provided the affidavit
of Matthew McKeown, Vice President of Loan Documentation. U.S. Bank
Motion for Summary Judgment, 7/8/14, at Exhibit B. The affidavit provides
that Mr. McKeown is the “mortgage serving agent for [U.S. Bank] in the
within matter.” Id. at ¶ 1. The affidavit states that the note has been duly
indorsed, Appellants have failed to make payments on their mortgage since
July 1, 2009 resulting in default, and Appellants have failed to cure the
default. Id. at ¶¶ 3, 5, 7. Appellants fail to assert on what basis Mr.
McKeown is disqualified from making verifications on behalf of U.S. Bank.
Rather, Appellants revert back to the same argument made in the preceding
six issues arguing “since we know that U.S. Bank is not involved in this
litigation and they are not the owner of the note at the inception of the case
sub judice, there is no evidence in the record giving U.S. Bank authority to
act on anyone else’s behalf.” Appellants’ Brief at 39-40. For all the reasons
set forth above, Appellants’ argument fails.
In its next issue, Issue H, Appellants argue that they requested to
inspect the note, and that U.S. Bank “never notified [Appellants] that the
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collateral file had been obtained for [Appellants’] inspection.” Id. at 45.
Nevertheless, Appellants acknowledge U.S. Bank notified them that “counsel
has requested that the Original Note be sent to its office so it can be
inspected by [Appellants] upon appointment.” Appellants’ Brief at 44.
However, by Appellants’ own admission, “[Appellants] concede that counsel
did not state they would contact [Appellants] when the note was received,
but what were [Appellants] to do? Contact counsel every single day from
the date they received the communication to see if the purported original
note had been received?” Id. Appellants’ inaction does not equate to
discovery being open. Thus, this issue fails.
Next, in Issue I, Appellants assert that oral arguments were not
granted when specifically requested. Appellants’ Brief at 48. In support of
this averment Appellants cite Montgomery County Local Rule of Civil
Procedure 1035.2(a)(3) which states “[i]f oral argument was requested by
either party on either of their respective cover sheets or the argument
Praecipe, the matter shall be scheduled for argument.” Id.
In its Rule 1925(a) opinion in response to Appellants’ issue as framed
in its Rule 1925(b) statement, the trial court noted the following.
[Appellants] claim the Motion was granted
without oral argument despite [Appellants] request
for same and thus constituted a violation of due
process. Further, such denial allegedly violated the
Pennsylvania Rules of Civil Procedure, and,
Montgomery County Local Rules of Civil Procedure
(“the Local Rules”) at Local Rule 1035.2(a)(3). The
Pennsylvania Rules of Civil Procedure, at Pa.R.C.P.
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1035.2, do[] not include a provision for oral
argument and therefore there is no basis for
[Appellants] claim under the Pennsylvania Rules of
Civil Procedure.
The Local Rules allow for oral argument if
requested by either party on their respective cover
sheets and attached to the motion or response, or by
separately filed argument praecipe. Local Rule
1035.2(a)(3). [U.S. Bank’s] form cover sheet
attached to the Motion checked the box indicating no
argument requested. [Appellants] Response to the
Motion did not include a cover sheet. [Appellants’]
claimed error is without merit.
Further, as the Superior Court explained in a
decision involving a mortgage foreclosure appeal,
appellants are “not entitled to any particular
advantage because [they] lack legal training. As our
Supreme Court has explained, any lay person
choosing to represent [themselves] in a legal
proceeding must, to some reasonable extent,
assume the risk that [their] lack of expertise and
legal training will prove [their] undoing.” Branch
Banking and Trust v. Gesiorski, 904 A.2d 939,
942 (Pa. Super. 2006) (citations omitted).
Trial Court Opinion, 12/23/14, at 5-6 (footnotes omitted).
In their appellate brief, Appellants now claim they “clearly requested
oral arguments on the cover page of their Opposition/Objection, contrary to”
the trial court’s claim in its opinion.7 Appellants’ Brief at 49. Nevertheless,
by their own admission Appellants acknowledge they did not include a cover
page, but “[t]hat front page, the ‘cover’ page, was stamped with a lower
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7
The caption to Appellants’ Verified Opposition/Objection to Motion for
Summary Judgment does include the words “Oral Argument Requested” in
the upper right hand corner.
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court clerk’s sticker indicating it was the first page of the pleading[.]” Id.
Montgomery County Local Rule 1035.2(a)(2) requires “an answer from the
adverse parties motion for summary judgment is required … along with[] a
cover sheet in the form set forth in Rule 205.2(b)[.]” Montgomery
Cty.R.C.P. 1035.2(a)(2). Local Rule 205.2(b) states, “[t]he Cover Sheets
required by Rule 208.3(b), 1028(c), 1034(a) and 1035.2(a) shall be as
follows[,]” and then provides a .pdf link to the required cover sheet. Id. at
205.2(b). Appellants completely failed to file a cover sheet in accordance
with Rule 205.2(b), and therefore, their claim that oral argument was not
granted is meritless for failure to comply with procedures necessary to
request argument. Moreover, we note that Appellants were aware of, and
had correctly complied with Rule 205.2(b) by using the mandated cover
sheet on prior filings in this matter. See Appellants’ Preliminary Objections
to Complaint in Mortgage Foreclosure, 2/11/13, at Cover Sheet; Appellants’
Motion to Strike U.S. Bank’s Affidavit in Support of Its Motion for Summary
Judgment Pursuant to 225 Pa.R.E. 104 and 12 P.S. 514, 8/11/14, at Cover
Sheet. Because Appellants failed to include a cover sheet on the Verified
Opposition/Objection to Motion for Summary Judgment, Appellants’ Issue I
fails.
Finally, in Issue M, Appellants baldly assert that “U.S. Bank has come
to the court with unclean hands and, as a result, is not entitled to equitable
relief.” Appellants’ Brief at 54. Appellants base their reasoning on the
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notion that U.S. Bank “did not have possession or ownership of the note at
the inception of the lawsuit and therefore, the Assignments of the Mortgage
are void ab initio … U.S. Bank is not a real party in interest … [and] the
chain of title of the mortgage and note is broken[.]” Id. at 55. For all the
reasons discussed supra, Appellants issue is meritless.
Based on the foregoing, we conclude Appellants’ issues are waived or
devoid of merit and the trial court did not abuse its discretion or err as a
matter of law in awarding summary judgment to U.S. Bank. See Gibson,
supra. Accordingly, we affirm the trial court’s September 11, 2014
judgment.
Judgment affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/22/2015
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