J-S84033-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
DEUTSCHE BANK NATIONAL TRUST IN THE SUPERIOR COURT OF
COMPANY, AS TRUSTEE FOR PENNSYLVANIA
HOLDERS OF THE HARBORVIEW 2006-5
TRUST, NATIONSTAR MORTGAGE, LLC
v.
NATASHA BOLIS AND GARY BOLIS, JR.
Appellants No. 1241 EDA 2016
Appeal from the Order Entered March 15, 2016
in the Court of Common Pleas of Chester County Civil Division
at No(s): 2014-06455
BEFORE: OLSON, SOLANO, and FITZGERALD,* JJ.
MEMORANDUM BY FITZGERALD, J.: FILED JANUARY 31, 2017
Appellants, Natasha Bolis and Gary Bolis, Jr., appeal from the order
entered in the Chester County Court of Common Pleas granting Appellee,
Deutsche Bank National Trust Company, as Trustee for Holders of the
Harborview 2006-5 Trust, Nationstar Mortgage, LLC’s, motion for summary
judgment in this mortgage foreclosure action. Appellants contend the trial
court erred in granting Nationstar Mortgage, LLC’s motion for summary
judgment because (1) Appellee Nationstar is not the real party in interest,
(2) there are factual issues regarding the validity of the mortgage
assignment, and (3) there is no evidence that Appellee Nationstar is in
possession of the Note. We affirm.
*
Former Justice specially assigned to the Superior Court.
J-S84033-16
The trial court summarized the facts and procedural posture of this
case as follows:
Deutsche Bank National Trust Company, as Trustee for
Holders of the Harborview 2006-5 Trust (Original
Plaintiff)’s Complaint alleged that the mortgage at issue
was in default because monthly payments of principal and
interest were due and unpaid from April 1, 2010 and each
month thereafter. [Appellants] filed their Answer on
August 19, 2014. On May 6, 2015 Original Plaintiff filed a
Praecipe to Substitute Successor Party to substitute
[Appellee Nationstar Mortgage, LLC]. The substitution was
based on an assignment of the mortgage recorded with the
Chester County Recorder of Deeds on July 22, 2014 at
instrument number 11356593. [Appellee Nationstar] filed
its Motion for Summary Judgment on January 27, 2016.
[Appellants] filed their response on February 26, 2016.
We granted [Appellee Nationstar’s] Motion by Order dated
March 14, 2016. [Appellants] filed their timely Notice of
Appeal on April 13, 2016 as well as their timely Concise
Statement of Matters Complained of on Appeal.
Trial Ct. Op., 6/7/16, at 1.
Appellants raise the following issue for our review:
Did the lower court err in concluding that Nationstar
Mortgage, LLC is the real party in interest where there is
no evidence of record that Nationstar Mortgage, LLC is in
possession of a duly endorsed Note and where the issue of
the validity of the mortgage assignments raised questions
of fact?
Appellants’ Brief at 2.1
1
We note that Appellants’ Rule 1925(b) statement contains issues that are
not raised on appeal. See Gurley v. Janssen Pharm., Inc., 113 A.3d 283,
288 n.11 (Pa. Super. 2015) (holding issues raised in Rule 1925(b) and not
addressed in the statement of questions or body of brief are abandoned on
appeal).
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Appellants argue that “[t]here is no evidence of record that Superior
Home Mortgage Corp. assigned the Note to Bank of America, Deutsche Bank
or Nationstar. . . . Whether the Note has been ‘duly endorsed’ to the benefit
of Nationstar Mortgage is a question of fact which precludes the entry of
summary judgment in [Nationstar’s] favor.” Id. at 7-8. Appellee Nationstar
counters that it “is the current mortgagee, and thus has standing to proceed
with this foreclosure action by virtue of assignment of the Mortgage
executed July 10, 2014, and recorded July 22, 2014.” Appellee’s Brief at 8,
citing R.R. at 30a-31a.2
Our review is governed by the following principles:
The standards which govern summary judgment are well
settled. When a party seeks summary judgment, a court
shall enter judgment whenever there is no genuine issue of
any material fact as to a necessary element of the cause of
action or defense that could be established by additional
discovery. A motion for summary judgment is based on an
evidentiary record that entitles the moving party to a
judgment as a matter of law. In considering the merits of
a motion for summary judgment, a court views the record
in the light most favorable to the non-moving party, and
all doubts as to the existence of a genuine issue of
material fact must be resolved against the moving party.
Finally, the court may grant summary judgment only when
the right to such a judgment is clear and free from doubt.
An appellate court may reverse the granting of a motion
for summary judgment if there has been an error of law or
an abuse of discretion. . . .
2 For the parties’ convenience, we refer to the reproduced record where
applicable.
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Varner-Mort v. Kapfhammer, 109 A.3d 244, 246-47 (Pa. Super. 2015)
(citation omitted).
Rule 1029 of the Pennsylvania Rules of Civil Procedure provides:
(b) Averments in a pleading to which a responsive pleading
is required are admitted when not denied specifically or by
necessary implication. A general denial or a demand for
proof, except as provided by subdivisions (c) and (e) of
this rule, shall have the effect of an admission.
(c) A statement by a party that after reasonable
investigation the party is without knowledge or information
sufficient to form a belief as to the truth of an averment
shall have the effect of a denial.
Note: Reliance on subdivision (c) does not excuse a
failure to admit or deny a factual allegation when it
is clear that the pleader must know whether a
particular allegation is true or false. See Cercone v.
Cercone, 254 Pa. Super. 381, 386 A.2d 1 (1978).
Pa.R.C.P. 1029(b), (c).
Furthermore, in mortgage foreclosure actions, general
denials by mortgagors that they are without information
sufficient to form a belief as to the truth of averments as
to the principal and interest owing [on the mortgage] must
be considered an admission of those facts. By his
ineffective denials and improper claims of lack of
knowledge, [the a]ppellant admitted the material
allegations of the complaint, which permitted the trial
court to enter summary judgment on those admissions.
Bank of America, N.A. v. Gibson, 102 A.3d 462, 467 (Pa. Super. 2014),
appeal denied, 112 A.3d 648 (Pa. 2015) (quotations marks and citations
omitted) (emphasis added); accord First Wisconsin Trust Co. v.
Strausser, 653 A.2d 688, 692 (Pa. Super. 1995).
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It is well-established that “the real party in interest” may prosecute a
legal action. Pa.R.C.P. 2002(a). In CitiMortgage, Inc. v. Barbezat, 131
A.3d 65 (Pa. Super. 2016), the appellant contended appellee was not the
real party in interest and lacked standing to bring the foreclosure action.
The appellant claimed that appellee failed to establish that it possessed a
valid assignment of the mortgage and that the note was assigned or
transferred to appellee. Id. at 68. This Court opined:
In a mortgage foreclosure action, the mortgagee is the
real party in interest. This is made evident under our
Pennsylvania Rules of Civil Procedure governing actions in
mortgage foreclosure that require a plaintiff in a mortgage
foreclosure action specifically to name the parties to the
mortgage and the fact of any assignments. Pa.R.C.P.
1147. A person foreclosing on a mortgage, however, also
must own or hold the note.
* * *
Here, appellee not only averred, but also produced
evidence that it was the holder of the mortgage.
Specifically, appellee alleged in its complaint that
“[Appellee] is [a] proper party . . . by way of an
Assignment of Mortgage recorded August 6, 2012 under
Instrument 2012032210.” Appellee produced copies of the
original recorded mortgage and its recorded assignment to
appellee. Where an assignment is effective, the assignee
stands in the shoes of the assignor and assumes all of his
rights.
* * *
A note endorsed in blank becomes payable to “bearer” and
may be negotiated by transfer of possession alone until
specially endorsed. See 13 Pa.C.S.A. §§ 3109(a),
3205(b). The note as a negotiable instrument entitles the
holder of the note to enforcement of the obligation. See
13 Pa.C.S.A. §§ 3109(a), 3301. Thus, appellant's
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argument that ownership of the note cannot be established
in appellee because there was no formal assignment or
transfer is unavailing, because “the chain of possession by
which [a party] c[o]me[s] to hold the [n]ote [is]
immaterial to its enforceability by [the party].” [The
a]ppellee, as the holder of the note, . . . was entitled to
make demand upon and to enforce the obligations under
the note. Accordingly, given appellee’s uncontested
ownership of the mortgage and possession of the note, the
trial court did not err in concluding that appellee had
standing as a real party in interest to bring the underlying
foreclosure action.
Id. at 68-69 (some citations and footnote omitted).
Instantly, the trial court opined:
With regard to the Mortgage, the original mortgagee,
Mortgage Electronic Registration Systems, Inc., as
nominee for Superior Home Mortgage Mortgage Corp.
assigned the Mortgage to Bank of America, N.A., successor
by merger to BAC Home Loans Servicing, LP, f/k/a
Countrywide Home Loans Servicing LP (Bank of America),
This assignment was recorded at book number 8274, page
number 1834. Bank of America then assigned the
Mortgage to Deutsche Bank National Trust Company, as
Trustee for Holders of the Harborview 2006-5 Trust
(Original Plaintiff). This assignment was recorded at book
number 8491, page number 2229. As stated above,
Original Plaintiff assigned the Mortgage to [Nationstar
Mortgage, LLC]. This assignment is recorded at page [sic]
number 8956, page number 2239. For some reason, Bank
of America also assigned the Mortgage to [Nationstar
Mortgage, LLC] and that assignment was recorded at book
number 8834, page number 1143. Nevertheless,
[Nationstar Mortgage, LLC] is the assignee of the
Mortgage.
[I]n their Answer to the Complaint, [Appellants] denied the
averments of the default and the amount of the default.
However, those responses amount to improper general
denials. . . . Finally, pursuant to Pa.R.C.P. 1035.3(a), the
non-moving party may not rest upon the mere allegations
in the pleadings, but must, in an answer to the motion,
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provide evidence to controvert the averments in the
motion. [Appellants] have failed to provide evidence to
controvert the affidavit supplied by [Appellee Nationstar]
in its Motion for Summary Judgment.
Trial Ct. Op. at 2-3. We agree no relief is due.
In the case sub judice, as in Barbezat, Appellants, in their brief in
support of their reply to Appellee’s motion for summary judgment, attached
the summary of the assignments of the mortgage from January 31, 2006, to
the assignments to Nationstar. See Brief in Support of Defendants’ Reply to
Plaintiff’s Motion for Summary Judgment, 2/26/16, at Ex. “A”. 3 The
assignment of the mortgage to Nationstar was included by Appellants in
their reproduced record. See R.R. at 30a-31a. Appellee was the real party
in interest with standing to bring the in rem mortgage foreclosure action.
See Barbezat, 131 A.3d 68-69.
Appellants signed the Adjustable Rate Note which provided, inter alia,
that “I understand that Lender may transfer this Note. Lender or anyone
who takes this Note by transfer and who is entitled to receive payments
under this Note is called the ‘Note Holder.’” R.R. at 14a, 17a. The Affidavit
in Support of Motion for Summary Judgment states: “Nationstar Mortgage,
LLC directly or through an agent, has possession of the promissory note and
held the note at the time of filing the foreclosure complaint. The promissory
3
We note that the trial court’s recitation of the assignments mirrors the
contents of Appellants’ Exhibit. See Trial Ct. Op. at 2.
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note has been duly indorsed.” Id. at 89a. Appellee was the holder of the
note. See Barbezat, 131 A.3d 68-69.
In the mortgage foreclosure complaint, at paragraph 7, Appellee
averred that it “is the current Mortgagee.” Id. at 10a. Appellants
responded as follows: “Denied. After reasonable investigation, [Appellants]
are without knowledge or information sufficient to form a belief as to the
truth of the averments contained in paragraph 7 of [Appellee’s] Complaint
and, therefore, deny said allegation.” Id. at 26a. At paragraph 11, Appellee
averred the amount due and owing on the mortgage. Id. at 10a-11a. In
their answer to paragraph 11 of the complaint, Appellants responded as
follows: “Denied. After reasonable investigation, [Appellants] are without
knowledge or information sufficient to form a belief as to the truth of the
averments contained in paragraph 11 of [Appellee’s] Complaint and,
therefore, deny said allegation.” Id. at 26a.
Appellants’ ineffective denials to Appellee’s complaint were tantamount
to admissions, permitting the trial court to enter summary judgment. See
Gibson, 102 A.3d at 467. We discern no abuse of discretion by the trial
court or error of law. See Varner-Mort, 109 A.3d at 246-47.
Order affirmed.
Judge Solano joins the memorandum. Judge Olson concurs in the
result.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/31/2017
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