J-S38031-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
LSF8 MASTER PARTICIPATION TRUST IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
TERRENCE C. DOUGHERTY AND LISBET
DRIVDAHL DOUGHERTY
Appellants No. 1972 EDA 2016
Appeal from the Order Entered May 25, 2016
in the Court of Common Pleas of Montgomery County Civil Division
at No(s):2014-24840
BEFORE: GANTMAN, P.J., SHOGAN, and FITZGERALD,* JJ.
MEMORANDUM BY FITZGERALD, J.: FILED JULY 25, 2017
Appellants, Terrence C. Dougherty and Lisbet Drivdahl Dougherty,
appeal pro se from the order entered in the Montgomery County Court of
Common Pleas, granting Appellee’s motion for summary judgment. We
affirm.
On September 2, 2014, Appellee, LSF8 Master Participation Trust, filed
a complaint in mortgage foreclosure against Appellants. Appellants filed an
answer on September 25, 2014. Appellee filed a motion for summary
judgment on August 10, 2015, and Appellants filed a response in opposition
on January 29, 2016. Oral argument was waived.
*
Former Justice specially assigned to the Superior Court.
J-S38031-17
The trial court found Appellants’ answer failed to deny each averment
of fact in the complaint. Thus, it granted Appellee’s motion for summary
judgment and entered an in rem judgment of $377,748.18.
Appellants filed a timely notice of appeal and a court-ordered Pa.R.A.P.
1925(b) statement. This appeal followed.
Appellants raise the following issues for our review:
I. Did the [trial] court wrongfully grant[] servicer’s motion
for summary judgment where Appellant[s] did not receive
proper notice in violation of due process?
II. Whether the [trial] court lacked subject matter
jurisdiction to render an enforceable judgment since the
servicer lacked standing to commence an action?
Appellants’ Brief at 7.
Appellants argue the trial court should have liberally interpreted the
contents of their pro se answer, and thus should have found genuine issues
of material fact regarding Appellee’s failure to provide notice of its intent to
foreclose and Appellee’s standing. We disagree.
Our scope and standard of review are as follows:
Our scope of review of an order granting summary
judgment is plenary. We apply the same standard as the
trial court, reviewing all the evidence of record to
determine whether there exists a genuine issue of material
fact. We view 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. Only where there is no genuine issue as to
any material fact and it is clear that the moving party is
entitled to a judgment as a matter of law will summary
judgment be entered.
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Kirwin v. Sussman Auto., 149 A.3d 333, 336 (Pa. Super. 2016) (citation
omitted).
As a prefatory matter, we must ascertain whether the issues
Appellants raise have been waived. “[W]hen a trial court directs a defendant
to file a Concise Statement of Matters Complained of on Appeal, any issues
not raised in such a statement will be waived.” Commonwealth v.
Dowling, 778 A.2d 683, 686 (Pa. Super. 2001) (citation omitted).
Appellants’ first issue in regard to Appellee’s failure to provide notice was not
included in their Pa.R.A.P. 1925(b) statement. Accordingly, it is waived.
As to Appellants’ second issue, we note that in a foreclosure action,
“[t]he 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.” Bank of Am., N.A. v. Gibson, 102 A.3d 462, 465 (Pa. Super.
2014) (citation omitted). Further, responsive pleadings in a mortgage
foreclosure action must contain specific denials; general denials are deemed
admissions. Id. at 466-67; Pa. R.C.P. 1029(b).
Instantly, Appellants’ answer does not discuss, let alone specifically
deny, the alleged default, failure to pay, and specified amount of the
mortgage.1 Appellants’ pro se status is immaterial in this regard. See Deek
1
Appellants’ answer contains the following denials:
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Inv., L.P. v. Murray, 157 A.3d 491, 494 (Pa. Super. 2017) (“[P]ro se status
does not entitle a party to any particular advantage . . . . [P]ro se litigants
are bound by our procedural rules.”) (quotation marks and citations
omitted).
Assuming arguendo Appellants’ answer contained a sufficient denial
regarding Appellee’s standing, summary judgment is still proper. “[T]o
establish standing in [a] foreclosure action, [the mortgagee must] plead
[1)] Defendant(s) denies all allegations and leaves Plaintiff
to its proofs[;]
[2)] Defendant denies the presumptions that plaintiff has
standing or has established true ownership in the security
instrument and leaves Plaintiff to its proofs[;]
[3)] Defendant denies there is evidence on record of a
competent witness with first-hand knowledge of the
facts[;]
[4)] Defendant denies there is evidence of testimony from
a true plaintiff or injured party[;]
[5)] Defendant denies there is evidence of the tangible
instrument (original promissory note) and all valid
assignments pursuant to Article 9 of the Uniform
Commercial Code[; and]
[6)] Defendant denies there is evidence that signatures on
Defendant’s note are authentic and Defendant hereby
challenges the authenticity of all signatures pursuant to
UCC-3-308 – Proof of Signatures and Status as Holder in
due Course.
Appellants’ Ans., 9/25/14, at 2.
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ownership of the mortgage under Rule 1147,[2] and have the right to make
demand upon the note secured by the mortgage.” CitiMortgage, Inc. v.
Barbezat, 131 A.3d 65, 68 (Pa. Super. 2016) (footnote omitted). “The note
as a negotiable instrument entitles the holder of the note to enforcement of
the obligation.” Id. at 69 (citation omitted). Moreover, “the chain of
possession by which a party comes to hold the note is immaterial to its
enforceability . . . .” Id. (quotation marks and citations omitted).
Here, Appellee’s complaint complied with Rule 1147 and incorporated
by reference the copies of the original recorded mortgage and assignments
pursuant to Pa. R.C.P 1019(g). See Barbezat, 131 A.3d at 68. Appellee
also provided copies of the original promissory note and the subsequent
allonge3 indorsing it to Appellee.4 See PHH Mortg. Corp. v. Powell, 100
2
Rule 1147 requires a complaint in mortgage foreclosure to set forth the
following: “(1) the parties to and the date of the mortgage, and of any
assignments, and a statement of the place of record of the mortgage and
assignments; (2) a description of the land subject to the mortgage; (3) the
names, addresses and interest of the defendants in the action and that the
present real owner is unknown if the real owner is not made a party; (4) a
specific averment of default; (5) an itemized statement of the amount due;
and (6) a demand for judgment for the amount due.” Pa.R.C.P. 1147(a).
3
An allonge is “[a] slip of paper sometimes attached to a negotiable
instrument for the purpose of receiving further indorsements when the
original paper is filled with indorsements.” Black's Law Dictionary (10th ed.
2014).
4
Appellee did not attach copies of the note or allonge to its complaint, or
incorporate them pursuant to Pa. R.C.P. 1019(g). However, they were
provided following Appellants’ March 2015 motion to compel.
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A.3d 611, 617 (Pa. Super. 2014) (stating indorsement on allonge establishes
mortgagee’s right to enforce note). Appellants’ challenge to the validity of
the note’s assignments is of no moment. See Barbezat, 131 A.3d at 69.
Therefore, there is no genuine dispute as to Appellee’s standing. Thus, the
trial court properly granted Appellee’s motion for summary judgment.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/25/2017
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