J-A22003-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
LSF9 MASTER PARTICIPATION : IN THE SUPERIOR COURT OF
TRUST : PENNSYLVANIA
:
:
v. :
:
:
JEAN DESY, THOMAS MUELLER, IN :
HIS CAPACITY AS HEIR OF FRANCES : No. 95 EDA 2019
MUELLER, DECEASED; MARY R. :
MUELLER, IN HER CAPACITY AS HEIR :
OF FRANCES MUELLER, DECEASED; :
AND UNKNOWN HEIRS, :
SUCCESSORS, ASSIGNS, AND ALL :
PERSONS, FIRMS, OR :
ASSOCIATIONS CLAIMING RIGHT, :
TITLE OR INTEREST FROM OR :
UNDER FRANCIS J. MUELLER, :
DECEASED.
APPEAL OF THOMAS MUELLER
Appeal from the Judgment Entered December 28, 2018
In the Court of Common Pleas of Monroe County Civil Division at No(s):
3150 CV 2013
BEFORE: MURRAY, J., STRASSBURGER, J.*, and PELLEGRINI, J.*
MEMORANDUM BY MURRAY, J.: FILED OCTOBER 03, 2019
Thomas Mueller (Appellant) appeals from the judgment entered in favor
of LSF9 Master Participation Trust (Appellee) in this mortgage foreclosure
action. Upon review, we affirm.
The trial court recounted the factual and procedural background as
follows:
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* Retired Senior Judge assigned to the Superior Court.
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Frances Mueller and Jean Desy executed a Mortgage and
Promissory Note with Bank of America on April 24, 2009. The
mortgage was assigned to Nationstar Mortgage, LLC ([]
Nationstar) by Bank of America, which was recorded on January
11, 2013. On January 7, 2013, the loan went into default and
Nationstar sent both Frances Mueller and Jean Desy notice of the
default.
This action was commenced as a [c]omplaint in [m]ortgage
[f]oreclosure by Nationstar against Frances Mueller and Jean Desy
on April 15, 2013. Defendant Frances Mueller filed an Answer with
New Matter on May 20, 2013. Nationstar’s Response to New
Matter was filed on June 7, 2013. A Praecipe for In Rem Judgment
for Failure to Answer was filed on August 15, 2013 against Jean
Desy for failure to file an answer and a judgment was entered
against Jean Desy. The first motion for summary judgment was
filed by Nationstar on March 25, 2014, and briefs were filed by
both Nationstar and Frances Mueller. Following oral argument,
the Motion for Summary Judgment was denied on May 7, 2014.
The mortgage was assigned to [Appellee] on November 8, 2016.
A Praecipe for Voluntary Substitution of [Appellee] was filed on
November 14, 2016, and [Appellee] assumed control of this
action.
[Appellee] filed a second motion for summary judgment on
February 6, 2017. Notice of Death of Defendant Frances Mueller
was filed on April 4, 2017. The Motion for Summary Judgment
was withdrawn on April 17, 2017. [Appellee] then moved to
amend its Complaint on July 26, 2017, which was granted on July
27, 2017. The Amended Complaint was filed on August 9, 2017,
wherein [Appellant] was named a party to the action, in his
capacity as heir to Frances Mueller. The Amended Complaint also
included Mary R. Mueller, in her capacity as heir to Frances
Mueller, and also included as Defendants any unknown heir,
successors, assigns, and all persons firms, or associations
claiming right, title, or interest from or under Frances Mueller.
On October 10, 2017, a Praecipe to Reinstate Amended Civil
Action/Mortgage Foreclosure was filed, and [Appellant] filed an
Answer with New Matter on October 11, 2017. [Appellee] filed a
Praecipe to Reinstate Amended Civil Action/Mortgage Foreclosure
on November 3, 2017. [Appellee] filed a Reply to [Appellant’s]
New Matter on November 14, 2017. [Appellee] filed a Praecipe
for In Rem Judgment for Failure to Answer and Assessment of
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Damages on January 31, 2018 against the non-responding
parties, Jean Desy, Mary Mueller, and known heirs. [Appellee]
filed a third motion for summary judgment, and its brief, on June
7, 2018. [Appellant] filed his brief in opposition on August 3,
2018.
Trial Court Opinion, 11/20/18, at 1-3 (footnotes omitted).
On November 20, 2018, the trial court granted Appellee’s third motion
for summary judgment and entered judgment in favor of Appellee and against
Appellant “for $150,779.50 plus interest from June 12, 2018 and other costs
and charges collectible under the mortgage foreclosure and sale of the
mortgaged property.” Trial Court Order, 11/20/18. Appellant filed a notice of
appeal on December 20, 2018. Both Appellant and the trial court have
complied with Pennsylvania Rule of Appellate Procedure 1925.1
Appellant presents two issues for our review:
1. Did the [c]ourt below err as a matter of law in dismissing the
issues raised by Appellant[] in his New Matter against the
[]Appellee’s mortgage foreclosure complaint?
2. Did the [c]ourt below err as a matter of law in granting the
[]Appellee’s Motion for Summary Judgment?
Appellant’s Brief at 4.
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1 On December 28, 2018, in response to Appellee’s praecipe, the Monroe
County Prothonotary entered final judgment in favor of Appellee and against
Appellant and his co-defendants in the amount of $153,126.52. Although
Appellant’s notice of appeal was filed prior to the entry of judgment, “appellate
jurisdiction may be perfected after the notice of appeal has been filed upon
docketing of a final judgment.” See Reuter v. Citizens & Northern Bank,
599 A.2d 673, 676 (Pa. Super. 1991); Arcadia Co., Inc. v. Peles, 576 A.2d
1114 (Pa. Super. 1990).
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Because Appellant’s issues are related, we address them together. We
begin with our standard of review:
We review an order granting summary judgment for an abuse of
discretion. Our scope of review is plenary, and we view the record
in the light most favorable to the nonmoving party. 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. 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.
Bank of Am., N.A. v. Gibson, 102 A.3d 462, 464 (Pa. Super. 2014) (citations
omitted).
With regard to mortgage foreclosures:
The holder of a mortgage has the right, upon default, to bring a
foreclosure action. Additionally, 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.
The foreclosing party can prove standing either by showing that it
(1) originated or was assigned the mortgage, or (2) is the holder
of the note specially indorsed to it or indorsed in blank.
Gerber v. Piergrossi, 142 A.3d 854, 859-60 (Pa. Super. 2016) (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).
When responding to a motion for summary judgment setting forth
evidence establishing the moving party’s right to relief, “the adverse party
may not rest upon mere allegations or denials of the pleadings,” Pa.R.C.P.
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1035.3(a), but must identify evidence controverting the evidence cited in
support of the motion or establishing facts essential to the defense that the
motion cites as not having been produced. Pa.R.C.P. 1035.3(a)(1)-(2).
“[P]arties seeking to avoid the entry of summary judgment against them . .
. are required to show, by depositions, answers to interrogatories,
admissions[,] or affidavits, that there is a genuine issue for trial.” Wash.
Fed. Sav. & Loan Assn. v. Stein, 515 A.2d 980, 981 (Pa. Super. 1986).
Moreover, responsive pleadings in a mortgage foreclosure action should
include specific denials; general denials constitute admissions. See Pa.R.C.P.
1029(b); Gibson, 102 A.3d at 466-67.
Here, the trial court articulated:
[Appellee], as successor to Nationstar by assignment, has
proven that it is the current mortgagee of record. The chain of
assignment provided in [Appellee’s Exhibit A-2] shows notarized
assignments from Bank of America to Nationstar; from Nationstar
to Secretary of Housing and Urban Development; and, lastly, from
Secretary of Housing and Urban Development to [Appellee].
[Appellant] has neither produced nor cited any evidence in the
record to establish that [Appellee] is not the mortgage holder or
note holder. As the current mortgagee of record, [Appellee] has
established that it has standing to pursue this action.
[Appellant] contends that Mortgage Electronic Recording
Systems, Inc., [(MERS)] “had no apparent authority or actual
authority to execute the Assignment of Mortgage.” [Appellant’s
Answer at ¶ 2]. However, [Appellant] again cites no authority,
nor provides any evidence raising a material issue of fact to
preclude summary judgment. And in fact, MERS does not appear
in the Mortgage, the Note, or in any of the Assignments.
[Appellant] asserts that an Assignment of Mortgage is ineffective
for assigning an interest of MERS, who “is not the true lender on
the mortgage,” but as MERS was never assigned the mortgage in
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the chain of assignment, [Appellant’s] issue with MERS, and the
assignment generally, is without merit.
[Appellant] denies that default occurred for [Appellee’s]
failure “to provide [Appellant] with written notice of [b]reach as
required by the Note and the Mortgage,” and of “notice of
acceleration,” and “notice of a change of the loan servicer.”
[Appellee’s Complaint at ¶ 5]. However, the mortgage does not
require notice to be given to non-mortgagors with mere possible
future interest to mortgagors’ estate as an heir. All of these
notices were provided to the mortgagors, Frances Mueller and
Jean Desy, in timely fashion. Here, [Appellant] again fails to
establish a genuine issue of material fact to prevent summary
judgment.
[Appellant] also denies the amount actually due, but
presents no genuine issue of material fact to contradict
[Appellee’s] evidence of the loan history. [Appellant] can be
reasonably expected to have evidence of his own payments to the
subject loan. Instead, [Appellant] rests on his averments that the
amount due may be different from the loan history provided by
[Appellee]. [Appellant’s] denial is therefore insufficient to
establish a genuine issue of material fact to prevent summary
judgment.
[Appellant] has raised numerous additional affirmative
defenses in his new matter, but has not presented any genuine
issue of material fact that would support his averments. As
previously stated, a party opposing a motion for summary
judgment may not rest on mere allegations. Pa.R.C.P. 1035.3.
We find that [Appellee] has established that no genuine issue of
material fact as to a necessary element as to the cause of action
exists and that [Appellee] is entitled to judgment as a matter of
law.
Trial Court Opinion, 11/20/18, at 4-5 (footnotes citing the record omitted).
The trial court’s analysis is supported by the record. For example,
Appellee averred:
5. The mortgage is in default because the monthly payments of
principal and interest upon said mortgage due 04/01/2012 and
each month thereafter are due and unpaid, and by the terms of
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said mortgage, upon failure of [Appellant] to make such payments
after a date specified by written notice sent to [Appellant], the
entire principal balance and all interest due thereon are collectible
forthwith.
Appellee’s Amended Complaint, 8/9/17, at ¶ 5.
In response, Appellant generally denied default:
5. Paragraph five (5) is denied. Default never occurred as
[Appellee] failed to provide [Appellant] with written notice of
[b]reach as required by the Note and the Mortgage. [Appellee]
failed to provide [Appellant] with the written notice of acceleration
as required by the Mortgage. [Appellee] also failed to provide
[Appellant] with written notice [of] a change of the loan servicer
[as] required by 15 U.S.C. §1641(g), 24 C.F.R. 3500.21(d) and
by the mortgage. [Appellee’s] right to demand any payment or
collect any payment from [Appellant] is denied. As well, the
allegation that the Mortgage is in default is a conclusion of
law to which no response is required on the part of
[Appellant]. The allegation is, therefore, denied and, if relevant,
strict proof thereof is demanded at trial. Furthermore, for the
reasons hereinafter set forth in [Appellant’s] New Matter, the
Mortgage is void and, thus, unenforceable against [Appellant].
Appellant’s Answer and New Matter, 10/11/17, at ¶ 5 (emphasis added).
Appellant’s general denial is an admission. See First Wisconsin Trust
Co. v. Strausser, 653 A.2d 688, 692 (Pa. Super. 1995) (refusing to permit
the mortgagor to generally deny the total amount due on the mortgage by
characterizing it as a conclusion of law); see also Pa.R.C.P. 1029(b);
Pa.R.C.P. 1029(c), Note. In his brief in opposition to summary judgment,
Appellant referenced no “specific denials” or facts, and simply declared that
he “will not restate herein all of the facts set forth in the Answer to the
Complaint, and the items of New Matter included in the pleadings.”
Appellant’s Brief in Opposition to Summary Judgment, 8/3/18, at 4. Thus,
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Appellant failed to present a “genuine issue for trial,” because a “nonmoving
party cannot rest upon the pleadings, but rather must set forth specific facts
demonstrating a genuine issue of material fact.” Gibson, 102 A.3d at 464;
see also Pa.R.C.P. 1035.3(a).
As to the trial court’s dismissal of Appellant’s new matter, Appellant
argues that he presented claims that Appellee “and/or its assignor breached
the covenant of good faith and fair dealing in the initial lending,” which
constitute “genuine issues of material fact left to be decided regarding the
formation of the mortgage.” Appellant’s Brief at 11-14. However, our review
again confirms that Appellant failed to “present[] any genuine issue of material
fact that would support” the affirmative defenses raised. Trial Court Opinion,
11/20/18, at 5. Instead of pleading facts in support of his claims, Appellant’s
new matter contains numerous conclusory statements, none of which specifies
facts derivative of depositions, answers to interrogatories, admissions, or
affidavits. See Appellant’s Answer and New Matter, 10/11/17, at 5-23; see
also Wash. Fed. Sav. & Loan Assn., 515 A.2d at 981.
In sum, the record reveals no abuse of discretion by the trial court in
entering summary judgment where the pleadings indicate Appellant presented
no genuine issue of material fact, such that Appellee was entitled to judgment
as a matter of law.
Judgment affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/3/19
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