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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
NATIONSTAR MORTGAGE, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
:
SHELLY OGILVIE, :
:
Appellant : No. 784 MDA 2014
Appeal from the Judgment Entered April 10, 2014
In the Court of Common Pleas of Lackawanna County
Civil Division No(s).: 12-CV-418
BEFORE: FORD ELLIOTT, P.J.E., PANELLA, and FITZGERALD,* JJ.
MEMORANDUM BY FITZGERALD, J.: FILED MAY 04, 2015
In this mortgage foreclosure action, pro se Appellant, Shelly Ogilvie,
appeals from the judgment entered in the Lackawanna County Court of
Common Pleas in favor of Appellee, Nationstar Mortgage, after the court
granted Appellee’s motion for summary judgment. Although Appellant’s pro
se brief is largely unintelligible and lacking in relevant legal authority, we
discern the following claims: Appellee lacked standing to file suit, Appellee
improperly filed a motion for summary judgment while discovery was
pending, and the court erred in failing to rule on her motion to set aside the
verdict. We affirm.
*
Former Justice specially assigned to the Superior Court.
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On May 22, 2007, Appellant executed a promissory note and mortgage
in the sum of $79,500. The mortgage identified the “Lender” as Suntrust
Mortgage, Inc. (“Suntrust”), and stated Mortgage Electronic Registration
Systems, Inc. (“MERS”) was “acting solely as a nominee for Lender and
Lender’s successors and assigns,” and that “MERS is the mortgagee under
this Security Instrument.” Mortgage, filed 6/8/07, at 2, Ex. A to Appellee’s
Mot. for Summ. J., 1/30/14. On September 22, 2011, MERS filed an
assignment of mortgage with the Lackawanna County Recorder of Deeds,
which transferred the mortgage to Appellant.
On January 20, 2012, Appellee filed the instant complaint in mortgage
foreclosure against Appellant, seeking in rem judgment of $83,828.26. On
September 13, 2012, Appellant filed an amended complaint, which was
signed by Appellant’s attorney. An attached verification was signed by Olivia
McAdams, an assistant secretary of Appellant, averring the statements in the
amended complaint were true to the best of her knowledge.
On January 30, 2014, Appellant filed a motion for summary judgment.
The certified record includes a letter from the court administrator, addressed
to both parties, advising oral argument was scheduled for April 2nd. The
record does not include any further information about oral argument, but
Appellee’s appellate brief states the court held argument that day and
Appellant failed to appear. Appellee’s Brief at 4. The court granted
Appellee’s motion for summary judgment on that day, April 2nd. On April
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8th, Appellant filed a motion to set aside or vacate the order, which was not
ruled upon by the court. Two days thereafter, on April 10th, judgment was
entered in favor of Appellant in the amount of $100,880.25. Appellant took
this timely appeal.1, 2
The trial court did not order a Pa.R.A.P. 1925(b)
statement of matters complained of on appeal or issue an opinion.
Appellee suggests this Court quash the instant appeal for Appellant’s
failure to comply with the Pennsylvania Rules of Appellate Procedure. In the
statement of questions involved in Appellant’s appellate brief, she avers the
trial court erred in: (1) not ruling on her motion to set aside or vacate the
grant of summary judgment to Appellee, (2) not giving her “an opportunity
to be heard on her Application to the Court,” and (3) “closing the Court in
direct violation of [her] Rights to[ ] due process of law, the right to be
heard, an opportunity to a fair and impartial trial, etc.” Appellant’s Brief at
1
As judgment was entered on April 10, 2014, the thirty-day period to appeal
expired on Monday, May 12th. See 1 Pa.C.S. § 1908 (providing that when
last day of any period of time referred to in any statute falls on Saturday,
Sunday, or legal holiday, such day shall be omitted from computation);
Pa.R.A.P. 903(a) (requiring notice of appeal to be filed within thirty days
after entry of order). Appellant’s notice of appeal bears a filing stamp dated
May 12, 2014, although there is no docket entry for any notice of appeal
filed.
2
On November 17, 2014, while this appeal was pending, Appellee filed
notice that Appellant had initiated a Chapter 7 bankruptcy. Pursuant to the
automatic stay provisions of the Bankruptcy Code, this Court stayed the
appeal.
On January 22, 2015, Appellee filed a suggestion of bankruptcy relief,
averring the Bankruptcy Court had granted it relief from the automatic stay
and permitted it to proceed with its rights under the instant mortgage. We
subsequently lifted the stay in this appeal.
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2. As stated above, many parts of Appellant’s pro se brief are unintelligible.
She advances a litany of muddled allegations, most without legal authority.3
“Although this Court is willing to liberally construe materials filed by a pro se
litigant, pro se status confers no special benefit upon the appellant. To the
contrary, any person choosing to represent himself in a legal proceeding
must, to a reasonable extent, assume that his lack of expertise and legal
training will be his undoing.” Wilkins v. Marsico, 903 A.2d 1281, 1284-85
(Pa. Super. 2006) (citations omitted).
Nevertheless, we discern three claims: Appellee lacked standing to file
suit against her, Appellee improperly filed a motion for summary judgment
while discovery was pending, and the court erred in failing to rule on her
motion to set aside the verdict. Accordingly, we decline to quash. See id.
at 1284 (stating this Court may quash or dismiss appeal if appellant fails to
conform to requirements set forth in Rules of Appellate Procedure).
In her first issue, Appellant avers the assignment of mortgage by
MERS to Appellant was “patently bogus [and] void” and “fabricated to give
3
See, e.g., Appellant’s Brief at 5 (“The [mortgage/promissory note] has not
been attached to the Civil Complaint/Amended Civil Complaint in Mortgage
Foreclosure with attached Allonges thereto, indicating the holder-in-due
course and/or the real party in interest, the current Note holder.”), 9 (“the
government units, departments, bureaus, boards, commissions, etc., of THE
COMMONWEALTH OF PENNSYLVANIA are legal fictions/corporations. See,
28 U.S.C. §3002 et seq. See, the corporate seal for Lackawanna county.”),
10 (“[Appellant] does not consent to these colorable proceedings.
[Appellant] does not accept this underlying officer and/or any officer.
[Appellant] did not, does not, will not now intend to accept and consent to
any offers.”).
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[Appellant] the ‘Colorable’ appearance of being the holder-in-due course
and/or the real party in interest of the” mortgage and promissory note.
Appellant’s Brief at 5, 6. In support, she cites a New York Bankruptcy Court
case which stated, “MERS did not have authority, as ‘nominee’ or agent to
assign the mortgage absent a showing that it was given specific written
directions by its principals.” Id. at 6 (citing In re Agard, 444 B.R. 231
(Bankr. E.D.N.Y. 2011), vacated in part, 2012 WL 1043690 (E.D.N.Y. 2012).
Appellant concludes Appellee lacked “standing to bring the civil action on
behalf of [the] current Note holder—the real party in interest.” Id. at 6. We
disagree.
“When reviewing an order granting summary judgment we must
determine whether the trial court abused its discretion or committed an
error of law.” Wells Fargo Bank N.A. v. Spivak, 104 A.3d 7, 10 (Pa.
Super. 2014). “[W]e review the evidence in the light most favorable to the
non-moving party . . . and resolve all doubts as to the existence of a
genuine issue of material fact against the moving party.” Id. at 11.
Pennsylvania Rule of Civil Procedure 1035.2 governs motions for
summary judgment:
After the relevant pleadings are closed . . . any party
may move for summary judgment in whole or in part as a
matter of law
(1) 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, or
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(2) if, after the completion of discovery relevant to
the motion, including the production of expert reports,
an adverse party who will bear the burden of proof at
trial has failed to produce evidence of facts essential to
the cause of action or defense which in a jury trial
would require the issues to be submitted to a jury.
Pa.R.C.P. 1035.2(1)-(2).
In the case sub judice, the “definitions” section of the mortgage clearly
stated that while Suntrust was the “Lender,” MERS was “acting solely as a
nominee for Lender and Lender’s successors and assigns,” and that MERS
was the mortgagee under this Security Instrument.” Mortgage at 2.
Accordingly, MERS had authority to assign the mortgage, in 2011, to
Appellee. Appellee then, as the mortgagee, had standing to bring a
mortgage foreclosure suit against Appellant. In this regard, we find no
abuse of discretion. See Wells Fargo Bank, 104 A.3d at 10.
Appellant’s second claim on appeal is that Appellee “filed a motion for
summary judgment while discovery was still pending” and while “[t]he
pleadings were still open.” Appellant’s Brief at 3. She maintains she served
discovery requests on Appellee on August 5 and December 12, 2013, and
such requests have yet to be answered “fully, adequately, and completely.”
We find no relief due.
While Subsection (2) of Rule 1035.2 provides that a motion for
summary judgment may be filed “after completion of discovery relevant to
the motion,” Subsection (1) has no such requirement. See Pa.R.C.P.
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1035.2(1)-(2). Instead, Subsection (1) states a motion may be filed
“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.” Pa.R.C.P. 1035.2(1) (emphasis
added).
In the instant appeal, Appellant does not identify what discovery was
necessary to establish a necessary element of her defense. See id.
Instead, her sole claim is that because her discovery requests were not
answered, Appellee erred in filing a motion for summary judgment. As
stated above, there is no absolute requirement that discovery be completed
before a motion for summary judgment may be filed.
Finally, Appellant contends the trial court erred in not ruling on her
motion to set aside the order. However, “no post-trial motions are
permitted where a trial court grants a motion for summary judgment.”
Wells Fargo Bank, 104 A.3d at 10 n.8. Thus, no relief is due.
Finding no abuse of discretion, we affirm the judgment entered in
favor of Appellee.
Judgment affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/4/2015
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