J-A24001-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
THE BANK OF NEW YORK, FKA THE BANK IN THE SUPERIOR COURT OF
OF NEW YORK AS TRUSTEE FOR THE PENNSYLVANIA
CERTIFICATE HOLDERS OF CWALT, INC.
ALTERNATIVE LOAN TRUST 2007-ITI,
MORTGAGE-PASS-THROUGH
CERTIFICATES, SERIES 2007-ITI
v.
JAMES R. DAVIS, JR. SHEILA DAVIS
Appellants No. 2073 EDA 2015
Appeal from the Order Entered June 23, 2015
In the Court of Common Pleas of Montgomery County
Civil Division at No(s): 09791 May Term 2014
BEFORE: BOWES, OTT AND SOLANO, JJ.
MEMORANDUM BY BOWES, J.: FILED SEPTEMBER 15, 2016
James R. Davis, Jr. and Sheila Davis (collectively the “Davises”) appeal
from June 23, 2015 order granting summary judgment in favor of The Bank
of New York, f/k/a the Bank of New York as Trustee for the Certificate Holder
of CWALT, Inc. Alternative Loan Trust 2007-1T1, Mortgage-Pass-Through
Certificates, Series 2007-1T1 (“BNY”). We affirm.
We summarize the facts as presented by the trial court. See Trial
Court Opinion, 12/7/15, at 2-3. The Davises executed a mortgage, which
was recorded, securing the real property located at 1503 Grasshopper Road,
Huntingdon Valley, Pennsylvania. This mortgage secured a promissory note
J-A24001-16
the Davises provided to Countrywide Home Loans, Inc. (“Countrywide”) in
consideration of a loan to them in the amount of $420,880.72, with
payments to commence on March 1, 2007. On April 1, 2013, the Davises
defaulted on the note and mortgage by failing to make their monthly
payment. As a result, Countrywide provided them with the requisite notice
of default, Act 91 notice, and notice of its intention to foreclose.
On June 21, 2013, the mortgage was assigned to BNY. That
assignment was properly recorded, and, on May 2, 2014, BNY commenced
the underlying mortgage foreclosure action by the filing of a complaint in
mortgage foreclosure. The Davises filed an answer to BNY’s complaint,
attaching duly-signed copies of the mortgage and the note. Subsequently,
BNY filed a motion for summary judgment, which the court granted in its
favor. The Davises filed a timely appeal and complied with the court’s
directive to file a Rule 1925(b) statement of errors complained of on appeal,
and the court issued its Rule 1925(a) opinion.
The Davises raise one issue for our consideration: “Did the trial court
commit an error of law in granting foreclosing lender’s motion for summary
judgment when Appellee lacked ‘authority’ by not holding nor possessing a
prejudgment negotiated transfer of note through the chain of loan title?”
Appellant’s brief at 8.
Our scope and standard of review of a trial court’s order granting
summary judgment is as follows.
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J-A24001-16
In reviewing an order granting summary judgment, our
scope of review is plenary, and our standard of review is the
same as that applied by the trial court . . . [a]n appellate court
may reverse the entry of a summary judgment only where it
finds that the lower court erred in concluding that the matter
presented no genuine issue as to any material fact and that it is
clear that the moving party was entitled to judgment as a matter
of law. In making this assessment, we view the record in the
light most favorable to the nonmoving party, and all doubts as to
the existence of a genuine issue of material fact must be
resolved against the moving party. Where our analysis involves
solely questions of law, our review is de novo.
Thus, our responsibility as an appellate court is to
determine whether the record either established that the
material facts are undisputed or contains insufficient evidence of
facts to make out a prima facie cause of action, such that there
is no issue to be decided by the fact finder.
Gerber v. Piergrossi, 2016 WL 3414993 (Pa.Super. 2016) at *3 (citation
omitted).
The Davises contend that BNY lacks standing to foreclose on the
mortgage since it did not produce a properly endorsed or transferred note.
They assert further that, without proof that BNY is in possession of the note,
it lacks authority to foreclose. Thus, the Davises maintain, there exists a
genuine issue of material fact until BNY provides evidence that it holds their
note, and summary judgment is inappropriate.
The Honorable Thomas C. Branca authored a thorough and well-
reasoned opinion rejecting the Davises’ challenge to BNY’s standing to
foreclose. After reviewing the certified record and the parties’ briefs, we
affirm on the basis of the trial court’s opinion. See Trial Court Opinion,
12/7/15, at 7-10 (concluding BNY adequately demonstrated its status as real
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J-A24001-16
party in interest by attaching copies of the note, endorsed in blank, to its
complaint, and by attaching an affidavit to its motion for summary
judgment, to the effect that it was in possession of the original note; the
trial court observed the Davises did not offer evidence to contradict BNY’s
averments and did not seek discovery, but rather, attached a copy of the
same note to its answer to BNY’s complaint, thereby conceding that the
holder of the note was entitled to enforcement).
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/15/2016
-4-
Circulated 08/31/2016 02:43 PM
IN THE COURT OF COMMON PLEAS OF MONTGOMERY COUNTY, PENNSYLVANIA
ClVIL ACTION - LAW
THE BANK OF NEW YORK MELLON NO. 14~09791
FKA THE BANK OF NEW YORK AS 2073 EDA 2015
TRUSTEE FOR THE
CERTIFICA TEHOLDERS OF CW ALT,
INC. ALTERNTATIVE LOAN TRUST
2007*1 Tl. MORTGAOE-PASS~THROUGH:
CERTIFICATES, SERlES 2007~1Tl
101,J..097'>1-IJOJf,12 'f"Wl ~ J:l'J P\C i1 W58<>7GJ
Plaintiff Opinfon
v. R~'l)tr.72593466 l'u::S0.00
~ Ind. I~\)'· ~font(.'!)l'rulhon<>lllry
JAMES R. DAVIS, JR. AND SHEILA DAVIS:
Defendants
OPINION
December 7, 2015
I. INTRODUCTION
James R. Davis, Jr. and Sheila Davis (collectively, "Defendants") appeal pro se'
from this Court's Order, dated June 23, 2015, granting Plaintiff, Bank of New York
Mellon f/k/a Bank ofNew York's ("BNY")2 Motion for Summary Judgment and
entering judgment, in rem) in favor of BNY and against Defendants in the amount of
$428,836.43, plus interest at the per diem rate of $6 J .33 until judgment is paid in full plus
any additional recoverable costs and charges collectible under the subject Mortgage. For
the reasons that follow, Defendants' appeal is without merit and the Court's Order, dated
June 23, 2015, should be AFFIRMED.
I
While tho Court is cognizant of Defendants' prose status on appeal, Defendants are bound and obligated
to comply with the relevant rules of procedural and substantive law. See Jones v, Rudenstetn, 585 A.2d
520, 522 {Pa, Super, Ct. 1991) (Citing Farretta v. California, 422 U.S. 806, 834 n. 46 (1975)). Of note,
however, is Defendants' recent retention of David Michelson, Esquire, as counsel who filed his entry of
appearance on Octoher 28, 2015.
2
While the docket designates Plaintiff as "Bank of Now York Mellon" formerly known as "Bank of Now
York," Plaintiff's complete designation in their pleading and assignment of the Mortgage is "Bank of New
York Mellon FKA Bank of New York as Trustee for the Certlficateholders of CW ALT, Inc, Alternative
Loan Trust 2007-11'1, Mortgage-Pass Through Certificates, Series 2007~1TI ."
II. STATEMENT OF THE CASE
The instant dispute arises from a. Mortgage (tho "Mortgage") securing the
real property (the "Property") located at 1503 Grasshopper Road, Huntingdon
Valley, Pennsylvania, executed and delivered by Defendants to Mortgage
Electronic Registration Systems, Inc, (11MERS") as nominee for Countrywide
Home Loans, Inc. ("Countrywide,,) on January 9, 2007, and recorded on February
12, 2007.3 The Mortgage secured Defendants' obligations under the Promissory
Note (the "Note"), given to Countrywide in consideration of a loan to Defendants
in the amount of $420,880. 72, with interest thereon at 6.125%, payable in equal
monthlyinstallments of $2,557.32 commencing on March 1, 2007.4 In relevant
portion the Mortgage specifically provided the following:
This Security Instrument secures to Lender: (i) the repayment of the Loan,
and all renewals, extensions and modifications of the Note; and (ii) the
performance of Borrower's covenants and agreements under this Security
Instrument and the Note. For this purpose, Borrower does hereby
mortgage, grant and convey to MERS (solely as nominee for Lender and
Lender's successors and assigns) and to the successors and assigns of
MERS, the following described property located in the County of
Montgomery ... [SJ
Thereafter, on April 1, 2013, Defendants defaulted on the Note and
Mortgage by failing to make the previously agreed upon monthly payments, On
April 12, 2013t the required Notices of Default and Intention to Foreclose were
sent to Defendants at the Property via certified and regular mail,6 On June 21,
2013, the Mortgage was assigned by MERS as nominee for Countrywide to BNY,
3
[Compl, at Bx. B (the "Mortgage") (Montgomery County Record of Deeds, Instrument II 2007018944,
Book 12029 at Page 00091), 5/2/14].
4
[Comp!. at Ex. A (the 1'Note11)].
5
[Compl, at Ex. B].
6
[Comp!. at Ex. E]; See 4 l P.S. § 403.
2
which assignment (the "Assignment") was duly recorded in the Office of the
Recorder of Deeds of Montgomery County on the same date,"
On May 2, 2014, BNY instituted the instant mortgage foreclosure action against
Defendants. On June 16, 2014, Defendants filed an Answer to BNY's Complaint,
attaching thereto the copies of the same Mortgage, and Note endorsed in blank, and
8
bearing Defendants' notarized signatures, which BNY had attached to its Complaint On
April 17, 2015, BNY filed a Motion for Summary Judgment, which Defendants answered
on May 18, 2015. Defendants, however, neglected to face their Answer with the required
cover sheet whereupon they could have requested the discovery they now complain they
were denied. 9 TI1e parties waived oral argument on the Motion, and the undersigned
granted the Motion by Order dated June 23, 2015.
On July 7, 2015, Defendants timely filed and served upon the undersigned n
Notice of Appeal, and on July 27.2015, Defendants timely filed and served upon the
undersigned their 'Concise Statement of Errors Complained Of On Appeal' (Pa. R. A. P,.
"I 925(b) Statement") which set forth the following:
1. The Court committed an error of law when granting plaintiff The
Bank of New York FKA The Bank of New York as Trustee for the
Certificatcholders ofCWALT, Inc. Alternative Loan Trust 2007-lTl,
Mortgage-Pass- Through Certificates, Series 2007-lTl (The Bank of
NEW YORK FKA) motion for summary judgment because there were
genuine issues of material fact regarding whether the plaintiff The Bank of
New York FKA is the real party in interest.
2. The Court committed an error of law when granting plaintiff The
Bank of New York FKA motion for summary judgment because there
7
[ Comp 1. at Bx. C (" Assignment") (Montgomery County Record of Deeds, Insnum ent #201306631 8,
Book 13622 at Page 00486)].
8
[Defs, "Ans.to Compl., at Ex. A ("Note"), B ("Mortgage"), 6/16/J4J,
9 See e.g., Montco. Local R, 1035.2(a)(l)(bXl), 2.05.2(b), 1035.2(a)(2Xc)(l) requiring motions and
responses to be faced with a cover sheet, whereupon the parties may request additional discovery to he
concluded within sixty (60) days from the tiling of the motion.
3
were genuine issues of material fact regarding whether plaintiff is the
holder of the original Note upon which judgment is sought.
3. The Court committed an error oflaw when granting The Bank of
New York FKA motion for summary judgment because there were
genuine issues of material fact regarding whether [sic] affidavit is
sufficient for this mortgage loan given the Certiflcateholders of CWALT,
Inc. Alternative Loan Trust 2007-lTl, Mortgage-Pass-Through
Certificates) Series 2007-1 Tl is a pool of loans.
4. The Court committed an error of law when granting plaintiff The
Bank of New York FKA motion for summary judgment because there
were genuine issues of material fact regarding plaintiffs failure to file note
with the Trial Court [slcJ least 20 days before hearing on its motion for
Summary Judgment.
5. The Court committed an error of law when granting The Bank of
New York FKA motion for summary judgment because there were
genuine issues of material fact since affidavits are often submitted to
prove default that are conclusory and insufficient.
III. DISCUSSION
Summary judgment as a matter of law is appropriate when "there is no genuine
issue of material fact as to a necessary element of the cause of action. Pa. R. C.P.
1035.2(1 ). The record is to be viewed in the light most favorable to the nonmoving party,
and all doubts as to the presence of a genuine issue of material fact must be resolved
against the moving party. Albright v. Abington Mem'l Hosp., 696 A.2d 1159, 1165 (Pa.
1997) (citing Pennsylvania State University v. County of Centre, 615 A.2d 303, 304 (Pa.
1992)). However, "[wjhere the non-moving party bears the burden of proof on an issue,
he may not merely rely on his pleadings or answers in order to survive summary
judgment. Failure of a non-moving party to adduce sufficient evidence on an issue
essential to his case and on which it bears the burden of proof establishes the entitlement
of the moving party to judgment as a matter of law." JP Morgan Chase Bank, N.A. v,
4
Murray, 63 A.3d 1258, 1261-62 (Pa. Super. Ct. 2013) (internal quotation omitted). More
speciflcally, to preclude entry of judgment, respondents must identify:
(1) one or more issues of fact arising from evidence in the record
controverting the evidence cited in support of the motion or from a
challenge to the credibility of one or more witnesses testifying in
support of the motion, or
(2) evidence in the record establishing the facts essential to the cause of
action or defense which the motion cites as not having been
produced. 10
In a mortgage foreclosure action, summary judgment is appropriate if the mortgagors
"admit that the mortgage is in default, that they have failed to pay interest on the
obligation, and that the recorded mortgage is in the specified amount." Cunningham v.
McWllllams, 714 A.2d 1054, 1057 (Pa. Super. Ct. 1998) (citing Landau v. W. Pa. Nat'l
Bank, 282 A.2d 335, 340 (Pa. 1971 )). Finally, when reviewing a grant of summary
judgment, the appellate court may only disturb the order of the trial court when it is
determined that there has been an error of law or a clear abuse of discretion. Shomo v.
Scribe, 686 A.2d 1292, 1294 (Pa. 1996); Panichellt v. Liberty Mutual Insurance Group,
669 A.2d 930, 931 (Pa. 1996).
The Court Properly Grant~d HNY's Motion for Summary Judgment Because
Defendants Failed To Demonstrate The Requisite Genuine Issue of Material Fact.
This Court will only address the issue ofBNY's standing as a real party interest
(Defendants' issues l, 2 and 4, which collectively challenge BNY's standing as the real
party in interest based on the assertion that BNY does not possess the original Note,) us
11
Defendants' remaining issues are incomprehensible and, are, therefore, waived.
10
Pa. R.C.P. 1035.3.
11
Defendants' third and fifth contentions of error are waived for vagueness. See Pa. R.A.P. 1925(bXiv).
Moreover, to the extent Defendants' fifth Issue appears to challenge BNY's claim of default, such claim is
unavailing, as discussed infra at pages 6~7.
5
As set forth above) to preclude entry of judgment a respondent may not rest upon
mere general denials, but must identify an issue of fact arising from the evidence. Pa.
R.C.P. 1035.3. Defendants' Answer to BNY's Motion for Summary Judgment, which
baldly asserts that BNY is not the real party in interest because it has not proven that it
holds both the Note and Mortgage is insufficient to create a genuine issue of material
fact, and the Court' sentry of judgment in rem" was wholly appropriate.
A. To The Extent Defend~1ts ChaUenge Their Default Such Claims Are Unavailing.
By way of admissions or general denials, Defendants ultimately admitted their
status as mortgagors of their Property~13 their execution of the Note, endorsed in blank, as
attached to BNY' s Complaint and Defendants' Answer; their promise to re-pay the sum
of $420,880.72; 14 their execution of the Mortgage upon their Property to secure payment
of $420,880.72 together with all amounts that come due; 15 their failure to pay the Note
and Mortgage when and as due; 16 a description of their Property; 17
and that the required
Act 91 Notices were sent to them.18 Having, therefore, admitted the default and the
amount due, entry of judgment against Defendants was appropriate. See Cunningham v.
Mowilltams, 714 A.2d at 1057 (internal citation omitted); see also First Wisconsin Trust
Co. v. Strausser, 653 A.2d 688, 692 (Pa. Super. Ct. 1995) (Holding that general denials
by mortgagees that they are without information sufficient to form a belief as to the truth
12
ft is well-settled that an action in mortgage foreclosure is strictly an in rem proceeding to affect a judicial
sale of the mortgaged real estate. See First Wisconsin Trust Co. v. Strausser, 653 A.2d 688, 693 n. 4 (Pa.
Super. Ct. 1995).
13
[Defs.' Ans. to Compl., nt c; 2].
14
{Dcfs.' Ans. to Compl., at 13].
15
{Defs.' Ans. to Compl., at 14].
l6 {Defs,' Ans. to Compl., at W 3, 7].
17
[Defs.' Ans. to Compl., at,J 6).
18
[Defs.' Ans. to Comp!., at'i 8).
6
of averments as to princlpal and interest owing must be considered an admission of those
facts.)."
Similarly unavailing is Defendants' response to BNY's averment regarding the
properly executed and recorded Assignment of Mortgage. Deferdants' litany oflegal
conclusions on the doctrines of real party in interest and standing hardly constitute the
specific response necessary to rebut BNYts well-pied averments in their Complaint and
Summary Judgment Motion. Thus, while Defendants assert that BNY is not the holder of
the "Note and Mortgage," there can be no doubt as to BNY's possession of the Mortgage
as it properly pied in both its Complaint and Motion for Summary Judgment, its status as
assignee of the recorded Mortgage, and the recordation of said Assignment. See Pa.
R.C.P. l l47(a)(l); see also Wells Fargo Bank, N.A. v. Lupori, 8 A3d 919, 921~22 (Pa.
Super. Ct. 2010) (By virtue of plaintiff's failure to plead all underlying assignments,
plaintiff failed to establish it had authority to enforce the mortgage.) Accordingly> the
issue of standing raised by Defendants is properly limited to their assertion that BNY
does not possess the original Note, and the Court need not address further any assertion
as to BNY's possession of the Mortgage.
B. BNY Antlv Demonstrated Its Status As TI1e Real Party In Interest.
Contrary to Defendants' assertion, the record reflects that BNY actually exceeded
its evidentiary burden under the applicable rule of procedure by attaching to its
Complaint, and Motion for Summary Judgment, copies of the Note, endorsed in blank,
and Act 91 Notices.20 In addition, BNY attached a documentary Affidavit to its Motion
19
{Comp!. at 19].
20
Interestingly, Defendants also attached 11 copy of the Note, identical to that attached by BNY, which is
endorsed in blank, thereby conceding that the holder or possessor of this Note is entitled to enforcement.
See 13 Pa. C.S. § 3104, et seq.
7
for Summary Judgment attesting therein, based on the attached documents, that it is in
possession of the original Note (a true and correct copy of which is attached as an
exhibit) secured by the recorded Mortgage in the amount of $420,880.72, on which
Defendants defaulted by virtue of their failure to make payments due on April 1 t 2013,
and thereafter." See Cunningham v, McWil/iams, 714 A.2d 1054, 1057 (Pa. Super. Ct.
1998) (Summary judgment is appropriate where mortgagors admit that the mortgage is in
default> that they have failed to pay interest on the obligation, and that the recorded
mortgage is in the specified amount.)
In response, Defendants failed to allege any material facts to specifically
contradict these material allegations. Nor did Defendants counter BNY's Affidavit with
any contrary evidence of their own. Moreover, in the year that transpired between the
filing of their Answer to BNY's Complaint, and BNY's Motion for Summary Judgment,
the record reflects no attempts having been made by Defendants to conduct the discovery
that would have been necessary to support their claim.22 See First Wisconsin Trust Co.,
653 A.2d at 695 (Respondent is required to act in timely fashion to muster evidence
necessary to preclude entry of judgment.) Contrary to that which transpired inJJ>
Morgan Chase Bank, N.A. v. Murray, 63 A.3d 1258 (Pa. Super. Ct. 2013), the prevailing
case on possession of the original note by a mortgagee, Defendants here simply failed to
produce any evidence of record necessary to demonstrate that there exist the requisite
21
[Pl. 's Mot. Summ, J. at 14, Ex. 3}; See Kirby v. Kirby, 681 A.2d 385, 388 (Pa. Super. Ct. l 997)
(Documentary affldavlts, If uncontradicted, may properly support the entry of summary judgment as they
fall outside the ambit of the NaH~G/o Rule.) (Internal citation omitted).
22
Aside from generally Including a rote "strict proof is requested" response ln Paragraphs 7 and 9 of their
Answer to BNYts Complaint, Defendants failed to demand presentation of the Note or apparently conduct
any discovery whatsoever.
8
genuine issue of material fact to preclude entry of judgment, namely that BNY is not the
holder of the original Note.
In JP Morgan Chase Bank, N.A., Mr. Murray appealed from the trial court's entry
of judgment in favor of the bank, asserting that the bank lacked standing based on defects
in the chain of mortgage assignment and its alleged failure to demonstrate that it
possessed the original note endorsed in blank. In addressing Mr. Murray's first claim, the
Superior Court held that his challenge to standing based on the bank's alleged defective
chain of possession of the note was immaterial to the bank's right to enforce the note
because the note was a negotiable instrument under the Pennsylvania Uniform
Commercial Code, 13 Pa. C.S. § 1101, et seq. (thThe Bank of New York v. Davis, J.
Combined Opinion