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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
WELLS FARGO BANK N.A. IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
KENNETH TAGGART,
Appellant : No. 1384 EDA 2018
Appeal from the Order Dated March 27, 2018
In the Court of Common Pleas of Montgomery County Civil Division at
No(s): No. 2010-08638
BEFORE: GANTMAN, P.J.E., LAZARUS, J., and OTT, J.
MEMORANDUM BY OTT, J.: FILED AUGUST 1, 2019
Kenneth Taggart appeals the order entered on March 27, 2018, in the
Court of Common Pleas of Montgomery County. The court granted Wells Fargo
Bank N.A.'s ("Wells Fargo") motion for summary judgment against Taggart in
a mortgage foreclosure action. On appeal, Taggart argues the trial court erred
in granting summary judgment because (1) Wells Fargo did not provide proper
notice of default and intent to file the complaint; (2) the mortgage note was
not legally perfected; (3) the mortgage did not name the correct lender; and
(4) Wells Fargo lacked standing.' On June 14, 2019, Taggart filed a motion
' Taggart's first issue in both his Rule 1925(b) statement and in his brief is
that the trial court erred in granting summary judgment. See Concise
Statement of Matters Complained of on Appeal, 5/21/2018, at unnumbered
page 1; Taggart's Brief, at 2. In it, Taggart baldy alleges that the trial court
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to take judicial notice. Based upon the following, we affirm the decision of the
trial court and deny Taggart's application for relief in the form of a motion to
take judicial notice.
The trial court set out the relevant facts and procedural history as
follows:
This action in mortgage foreclosure came before the [the trial
c]ourt on cross -motions of the parties for summary judgment.
The record as developed in those motions discloses the following
undisputed facts:
On December 16, 2008, [Taggart] executed a [m]ortgage on
property located at 709 Schwab Road, Hatfield, Montgomery
County, Pennsylvania. The instrument identifies the lender and
mortgagee as "American Partners Bank." [a] It provides that before
erred in granting Wells Fargo's motion for summary judgment and denying his
motion for summary judgment. Id. However, under this heading in the body
of the brief, Taggart argues a variety of issues, including, that there are errors
in the description of the property, various deficiencies in the complaint,
alleged errors in evidentiary rulings, and duplications of arguments made later
in the brief. Taggart's Brief, at 7-24. We note that, "[a] concise statement of
[errors] complained of on appeal must be specific enough to identify and
address each issue the appellant wishes to raise on appeal. Mazurek v.
Russell, 96 A.3d 372, 377 (Pa. Super. 2014). An overly vague or broad
statement of matters complained of on appeal may result in waiver.
Majorsky v. Douglas, 58 A.3d 1250, 1258 (Pa. Super. 2012), appeal denied,
70 A.3d 811 (Pa. 2013). "When a court has to guess what issues an appellant
is appealing, that is not enough for meaningful review." Commonwealth v.
McCree, 857 A.2d 188, 192 (Pa. Super. 2004) (citation omitted), affirmed,
924 A.2d 621 (Pa. 2007). Here, the trial court in its Rule 1925(a) opinion
addressed Taggart's first issue as follows, "[Issue 1] is generic and need not
be addressed beyond the discussion below of the other items." Trial Court
Opinion, 7/02/2018, at n. 5. Thus, the trial court was unable to discern from
Taggart's vague claim, the issues he now argues in his brief. Accordingly, we
find that Taggart's first issue is both waived and duplicative; we will not further
discuss it. See Mazurek, supra at 377; Majorsky, supra at 1258.
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exercising its remedies in the event of default by [Taggart], the
lender must send him written notice of the default and an
opportunity to cure it. [Taggart] failed to make the monthly
payment due on December 1, 2009, and the payments due
thereafter. [Taggart] does not dispute his failure to make such
payments, although he contends that such failure does not
constitute a default under the [m]ortgage, for reasons discussed
below.
[a] Technically speaking, the [m]ortgage identifies
"American Partners Bank" as the "Lender," and it
identifies as the mortgagee "Mortgage Electronic
Registration Systems, Inc. . solely as nominee for
. .
Lender and Lender's successors and assigns." For
purposes of [Taggart's] challenge to the validity of the
[m]ortgage, the parties have treated "American
Partners Bank" as the mortgagee, and this [o]pinion
does the same.
A copy of an Act 91 Notice sent to [Taggart]attached to [Wells
is
Fargo's] [m]otion for [s]ummary [j]udgment as Exhibit D. A copy
of the envelope, included in the exhibit, shows that it was sent by
certified mail to [Taggart] at the address of the mortgaged
property, with a postage meter date of February 10, 2010.
Notations by the postal authorities show a "first notice" of the
certified mailing on "2/13" and a "second notice" on "2-18"; the
envelope is stamped as "unclaimed" and shows a "returned" date
of "3-2" (capitalization omitted). The Act 91 Notice states that
[Taggart] is in default, that he may cure the default by paying
specified amounts within thirty days, and that if he fails to cure,
the entire balance of the debt will be due and owing.
[Wells Fargo] filed its [c]omplaint in [m]ortgage [f]oreclosure on
April 1, 2010. The [c]omplaint alleged that "[t]he Plaintiff is now
the legal owner of the mortgage and is in the process of
formalizing an assignment of same." On January 7, 2016, [Wells
Fargo] recorded an instrument entitled Corrective Assignment of
Mortgage, reflecting an assignment of the [m]ortgage from
"Mortgage Electronic Registration Systems, Inc., as nominee for
American Partners Bank, its successors and assigns" to Wells
Fargo Bank N.A.[b]
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[b]The [c]orrective [a]ssignment recites that a
previous [a]ssignment had been recorded on May 18,
2010, but was being corrected because "that
Assignment incorrectly shows the Assignor to be
Mortgage Electronic Registration Systems, Inc.
whereas it should show Mortgage Electronic
Registration Systems, Inc., as nominee for American
Partners Bank, its successors and assigns."
[Taggart] created an extensive record on the relevant history of
American Partners Bank. Specifically, Exhibit F to [Taggart's]
[m]otion for [s]ummary [j]udgment is an [a]udit [r]eport issued
by the Office of Inspector General of the Treasury Department,
entitled "Safety and Soundness: In -Depth Review of Waterfield
Bank," dated July 14, 2011 (hereinafter, "Audit Report"). The
Audit Report recites the following history:
Waterfield Bank's History
Since the institution's inception in 2000, Waterfield
Bank has changed ownership three times. Initially, it
opened on June 12, 2000, as Assurance Partners
Bank, a federal chartered de novo thrift in Carmel,
Indiana. . . .
On April 8, 2005, Federal City Bancorp, Inc. acquired
a controlling interest in the institution via a private
placement. The headquarters were relocated to
Bethesda, Maryland, and the name was changed to
American Partners Bank. . . .
On January 16, 2008, Affinity [Financial Corporation,
Inc.] acquired Federal City Bancorp, Inc. and infused
$20 million in American Partners Bank. The
institution's name was changed to Waterfield Bank
and a new board of directors and management team
were installed.[]
[Taggart] filed his [m]otion for [s]ummary [j]udgment on May 12,
2017. [Wells Fargo] filed its own [m]otion for [s]ummary
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[j]udgment on November 7, 2017. The [m]otions were fully
briefed, and oral argument was held on March 26, 2018. On March
27, 2018, [o]rders were issued denying [Taggart's] [m]otion and
granting [Wells Fargo's] [m]otion; the latter [o]rder entered an in
rem judgment against [Taggart] for foreclosure and sale of the
mortgaged property. On April 23, 2018, [Taggart] filed a [m]otion
for [r]econsideration of the [o]rder granting summary judgment
in favor of [Wells Fargo]. That [m]otion was denied by [o]rder
dated April 24,2018.[d]
[C] [c]ertification from the Federal Deposit Insurance
A
Corporation, also submitted by [Taggart], is to the
same effect: "[EJffective February 1, 2006, Assurance
Partners Bank changed title to American Partners
Bank ..[;] effective January 21, 2008, American
.
Partners Bank changed title to Waterfield Bank."
[Taggart] acknowledges that Waterfield Bank had the
same FDIC number as American Partners Bank.
[d] Several other filings deserve brief mention. On
December 18, 2017, [Taggart] (acting pro se,
although represented by counsel) filed a document
entitled Notice of Fraud, attaching a letter addressed
to several government officials complaining of [Wells
Fargo's] alleged fraud in relying on a [m]ortgage that
[Taggart] claimed to be invalid. On January 22, 2018,
[Wells Fargo] filed a [m]otion to [s]trike the [n]otice
of [f]raud. In addition, on March 23 and 26, 2018,
[Taggart] (again acting pro se) filed seven [m]otions
to [t]ake [j]udicial [n]otice of documents described as
follows: public records of the Federal Deposit
Insurance Corporation, public records of the Federal
Reserve Board, a certification of the Federal Deposit
Insurance Corporation, a certificate of the Office of the
Comptroller of Currency, the Audit Report referred to
above, a [p]etition for [w]rit of [m]andamus filed by
[Taggart] in federal court, and a [c]omplaint filed by
[Taggart] in federal court against [the trial c]ourt and
the Commonwealth of Pennsylvania. On March 27,
2018, the same day that the [m]otions for [s]ummary
[j]udgment were decided, [the trial c]ourt dismissed
[Taggart's] [m]otion to [s]trike as moot. Also on that
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date, the [trial c]ourt denied [Taggart's] [m]otions to
[t]ake [j]udicial [n]otice. The [o]rder noted that the
[m]otions to [t]ake [j]udicial [n]otice were improperly
filed by [Taggart] pro se, even though he was
represented by counsel. Further, the Order explained:
To the extent that the documents that are
the subjects of the seven [m]otions are
attached as exhibits to [Taggrt's]
[m]otion for [s]ummary [j]udgment or his
opposition to [Wells Fargo's] [m]otion for
[s]ummary [j]udgment, a separate
request to take judicial notice of such
documents is unnecessary, as the exhibits
are already part of the record. To the
extent that such documents, issued by
government agencies, are not already
exhibits, they are redundant and
cumulative, as the fact of the name
change of the bank is already established.
To the extent that [Taggart] requests
judicial notice of filings made by him in
Federal Court, they are irrelevant to the
proceedings before this Court.
[Taggart's] subsequently filed [n]otice of [a]ppeal
states that he is appealing "from the order(s) signed
on March 27, 2018 and April 24, 2018," which might
be construed to include the two [o]rders referred to in
this footnote. The [o]rders are not mentioned,
however, in his [c]oncise [s]tatement of [errors]
[c]omplained of on [a]ppeal, and therefore they are
not addressed further in this [o]pinion.
[Taggart] filed a [timely] [n]otice of [a]ppeal on April 26, 2018,[2]
and subsequently filed a timely [c]oncise [s]tatement of [errors]
2 On June 19, 2018, this Court issued a rule to show cause as to why we
should not quash the appeal as untimely. Taggart filed a response on June
28, 2018. On July 5, 2018, this Court discharged the rule to show cause. Our
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[c]omplained of on [a]ppeal. On July 2, 2018, the trial court
issued an opinion.]
Trial Court Opinion, 7/02/2018, at 1-5 (record citations omitted, emphasis in
original).
Initially, we note that, on June 14, 2019, more than one month after
oral argument and submission of this case to the merits panel, Taggart filed
an application for relief in the form of a motion to take judicial notice. The
Pennsylvania Rules of Appellate Procedure provide:
(a) General rule. After the argument of a case has been
concluded or the case has been submitted, no brief, memorandum
or letter relating to the case shall be presented or submitted,
either directly or indirectly, to the court or any judge thereof,
except upon application or when expressly allowed at bar at the
time of the argument.
(b) Change in status of authorities. If any case or other
authority relied upon in the brief of a party is expressly reversed,
modified, overruled or otherwise affected so as to materially affect
its status as an authoritative statement of the law for which
originally cited in the jurisdiction in which it was decided, enacted
or promulgated, any counsel having knowledge thereof shall file a
letter, which shall not contain any argument, transmitting a copy
of the slip opinion or other document wherein the authority relied
upon was affected.
Pa.R.A.P. 2501(a) and (b). Here, Taggart's application does not allege any
change in the status of authorities and is merely a reiteration and expansion
of the arguments made in both his brief and his reply brief. Moreover, his
review of the record demonstrates that Taggart timely filed his notice of
appeal.
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application does not comply with Pennsylvania Rule of Evidence 201, which
sets forth the criteria for taking judicial notice. Accordingly, we deny the
application.
On appeal, Taggart raises five issues in support of his contention that
the trial court erred in granting Wells Fargo's motion for summary judgment.
See Taggart's Brief at 2. We have disposed of the first issue; we summarize
his arguments on the remaining issues as follows. The trial court erred in
granting summary judgment because Wells Fargo did not properly serve the
Act 91 Notice. See id. At 24-33. The trial court erred in granting summary
judgment because the mortgage and note were not perfected because
"American Partners Bank F.S.B." did not legally exist after January 16, 2008.
See id. at 33-37. The trial court should not have granted summary judgment
because Waterfield Bank was not the original lender. See id. at 37-38. Lastly,
Taggart's claims that the trial court erred in granting summary judgment
because Wells Fargo lacked standing as a real party in interest because it was
not the holder in due course and not a party entitled to enforce the mortgage.
See id. at 38-46.
Our standard of review is well settled:
[o]ur scope of review of a trial court's order granting or denying
summary judgment is plenary, and our standard of review is clear:
the trial court's order will be reversed only where it is established
that the court committed an error of law or abused its discretion.
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Summary judgment is appropriate only when the record clearly
shows that there is no genuine issue of material fact and that the
moving party is entitled to judgment as a matter of law. The
reviewing court must view the record in the light most favorable
to the nonmoving party and resolve all doubts as to the existence
of a genuine issue of material fact against the moving party. Only
when the facts are so clear that reasonable minds could not differ
can a trial court properly enter summary judgment.
Bayview Loan Servicing LLC v. Wicker, 163 A.3d 1039, 1043-44 (Pa.
Super. 2017) (citation omitted), affirmed, 206 A.3d 474 (Pa. 2019).
Moreover, "[i]n 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." Bank of Am., N.A. v.
Gibson, 102 A.3d 462, 464 (Pa. Super. 2014) (citation omitted), appeal
denied, 112 A.3d 648 (Pa. 2015). We have also stated, "[t]he holder of a
mortgage has the right, upon default, to bring a foreclosure action. 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. at 464-465
(citation omitted). "This is so even if the mortgagors have not admitted the
total amount of the indebtedness in their pleadings." Cunningham v.
McWilliams, 714 A.2d 1054, 1057 (Pa. Super. 1998), appeal denied, 734
A.2d 861 (Pa. 1999).
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Here, the trial court in its Rule 1925(a) opinion provided a thorough and
well -reasoned discussion of Taggart's second3 through fifth arguments on
appeal. See Trial Court Opinion, 7/02/2018, at 1-10 (finding (1) the use of an
old version of the bank's name on the mortgage did not render it void;4 (2)
3 We briefly note that, to the extent that Taggart is contending that Wells
Fargo did not serve the Act 91 Notice at his last known address rather than
that they did not serve at the mortgaged property, he has waived the claim.
As Wells Fargo correctly notes, and as our review of the certified record
demonstrates, Taggart did not raise this argument in either his motion for
summary judgment or in his response to Wells Fargo's motion for summary
judgment, instead he raised it for the first time in his motion for
reconsideration. See Wells Fargo's Brief, at 25-27 (citing to certified record).
We have held both that a party cannot raise arguments not raised in
opposition for summary judgment to challenge the grant of summary
judgment for the first time on appeal and that a party cannot raise an
argument for the first time in a motion for reconsideration. Krentz v. Consol.
Rail Corp., 910 A.2d 20, 37 (Pa. 2006) (citation omitted)("arguments not
raised initially before the trial court in opposition to summary judgment cannot
be raised for the first time on appeal."); Kelly v. Siuma, 34 A.3d 86, 94 n. 8
(Pa. Super. 2011) (holding trial court properly refused to consider issue raised
for first time in motion for reconsideration), appeal denied, 42 A.3d 294 (Pa.
2012).
4 In its discussion of Taggart's related third and fourth contentions, the trial
court relies upon a Court of Common Pleas case, Mercer v. Santa Lucia of
Hillsville, 82 Pa. D. & C. 233 (Lawrence, 1952), as well as several out-of-
state cases. We have stated that, "court of common pleas decisions provide,
at most, persuasive but not binding authority." Sears, Roebuck & Co. v.
69th St. Retail Mall, L.P., 126 A.3d 959, 972 (Pa. Super. 2015). Moreover,
"[t]he decisions of courts of other states are persuasive, but not binding,
authority." Huber v. Etkin, 58 A.3d 772, 780 n.8 (Pa. Super. 2012) (citation
omitted), appeal denied, 68 A.3d 909 (Pa. 2012). We have been unable to
discover any pertinent decisions by this Court or the Pennsylvania Supreme
Court on the related issues and find the law cited by the trial court to be
persuasive. Moreover, in his underdeveloped argument, Taggart has failed to
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American Partners Bank is an older name for Waterfield Bank and they used
the same FDIC number; (3) Wells Fargo properly served the notice of default;
and (4) Wells Fargo had standing.)
Our review of the record reveals ample support for the trial court's
conclusions. Accordingly, we adopt the reasoning of the trial court and affirm
its order in favor of Wells Fargo.
Order affirmed. Application for relief in the form of a motion to take
judicial notice denied.
Judgment Entered.
Jseph Seletyn,
D.
Prothonotary
Date: 8/1/19
cite to any legal authority in support of his contentions and has completely
failed to address the law cited by the trial court in support of its decision. The
burden is on Taggart to demonstrate that the trial court either abused its
discretion or committed an error of law. It is also his burden, not this Court's,
to support that argument with relevant authority. See Hackett v. Indian
King Residents Assoc., 195 A.3d 248, 254-255 (Pa. Super. 2018) (holding
it is appellant's responsibility to develop argument with citation to relevant
supporting authority).