J-S18032-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
WILMINGTON TRUST, NATIONAL IN THE SUPERIOR COURT OF
ASSOCIATION, NOT IN ITS PENNSYLVANIA
INDIVIDUAL CAPACITY, BUT SOLELY AS
TRUSTEE FOR MFRA TRUST 2014-2
v.
STEPHEN R. SAFT AND ELLYN GOLDER
SAFT
Appellants No. 1750 EDA 2016
Appeal from the Order Dated May 5, 2016
in the Court of Common Pleas of Montgomery County
Civil Division at No(s): 2014-22230
BEFORE: PANELLA, SOLANO, and FITZGERALD,* JJ.
MEMORANDUM BY FITZGERALD, J.: FILED APRIL 11, 2017
Appellants, Stephen R. Saft and Ellyn Golder Saft, appeal from the
order of the Montgomery County Court of Common Pleas granting summary
1
judgment in favor of Bank of America, N.A (“BANA”), and entering an in
rem judgment of $600,893.78, with interest, in BANA’s favor. Appellants
contend the trial court impermissibly relied on an affidavit when granting
summary judgment. We affirm.
*
Former Justice specially assigned to the Superior Court.
1
On January 20, 2017, this Court granted an application for voluntary
substitution of a party and amended the name of the captioned Appellee as
“Wilmington Trust, National Association, not in its individual capacity, but
solely as trustee for MFRA Trust 2014-2.” Order, 1/20/17.
J-S18032-17
The trial court set forth the factual and procedural history of this
matter as follows:
On November 8, 2005, [Appellants] made, executed, and
delivered to Lafayette Lending Group, Inc. (“Lender”) a
promissory note (“the Note”) in consideration for a loan
made by Lender to [Appellants] on said date, whereby
[Appellants] promised and agreed to pay to Lender, its
successors and assigns, the principal loan amount of
$550,000.00 at 5.875%. As security for the Note,
[Appellants] made, executed, and delivered a mortgage
(“the Mortgage”) [on 525 Hoffman Drive in Bryn Mawr,
Pennsylvania (“Property”)] to Lender. [BANA] is in
possession of the Note, indorsed in blank.
[BANA] filed a Complaint in foreclosure on July 28, 2014.
Trial Ct. Op., 6/6/16, at 1.
BANA’s complaint contained the following allegations:
3. On 11/08/2005 [Appellants] made, executed and
delivered a mortgage upon the premises hereinafter
described to MORTGAGE ELECTRONIC REGISTRATION
SYSTEMS, INC. AS NOMINEE FOR LAFAYETTE LENDING
GROUP, INC., which mortgage is recorded in the Office of
the Recorder of Deeds of MONTGOMERY County, in
Mortgage Book 11690, Page 2595. By Assignment of
Mortgage recorded 11/26/2013 the mortgage was
assigned to [BANA], which Assignment is recorded in
Assignment of Mortgage Book 13717, Page 02749. The
mortgage and assignment(s), if any, are matters of public
record and are incorporated herein by reference in
accordance with Pa.R.C.P. 1019(g);[2] which Rule relieves
2
Rule 1019(g) states:
Any part of a pleading may be incorporated by reference in
another part of the same pleading or in another pleading in
the same action. A party may incorporate by reference any
matter of record in any State or Federal court of record
whose records are within the county in which the action is
-2-
J-S18032-17
[Appellee] from its obligations to attach documents to
pleadings if those documents are of public record.
4. The premises subject to said mortgage is described as
attached.
5. The mortgage is in default because monthly payments
of principal and interest upon said mortgage due
09/01/2013 and each month thereafter are due and
unpaid, and by the terms of said mortgage, upon failure of
[Appellants] to make such payments after a date specified
by written notice sent to [Appellants], the entire principal
balance and all interest due thereon are collectible
forthwith.
6. The following amounts are due on the mortgage as of
06/13/2014:
Principal Balance $485,023.37
Interest $24,682.73
08/01/2013 through 06/13/2014
Late Charges $488.01
Property Inspections $32.25
Escrow Deficit $6,775.74
TOTAL $517,002.10
BANA’s Compl., 7/28/14, at ¶¶ 3-6.
Appellants filed an answer and new matter on August 28, 2014,
responding, in relevant part, as follows:
3. Denied. After reasonable investigation [Appellants] lack
knowledge or information sufficient to form a belief as to
pending, or any matter which is recorded or transcribed
verbatim in the office of the prothonotary, clerk of any
court of record, recorder of deeds or register of wills of
such county.
Pa.R.C.P. 1019(g).
-3-
J-S18032-17
the truth of the averments contained in this paragraph.
Strict proof is demanded at trial.
4. Admitted.
5. Denied. After reasonable investigation [Appellants] lack
knowledge or information sufficient to form a belief as to
the truth of the averments contained in this paragraph.
[Appellants] are entitled to a full accounting through the
master transaction histories and general ledger for the
account since a summary of said information cannot be
relied upon to determine the rightful amounts owed. Strict
proof is demanded at trial.
6. Denied. After reasonable investigation [Appellants] lack
knowledge or information sufficient to form a belief as to
the truth of the averments contained in this paragraph.
[Appellants] are entitled to a full accounting through the
master transaction histories and general ledger for the
account since a summary of said information cannot be
relied upon to determine the rightful amounts owed. Strict
proof is demanded at trial.
Appellants’ Answer & New Matter, 8/28/14, at ¶¶ 3-6. In their new matter,
Appellants asserted BANA was not entitled to relief because it could not
produce the original mortgage and did not maintain the business records for
the mortgage. Id. at ¶¶ 11, 13-14.
BANA filed a reply to the new matter asserting it properly incorporated
the mortgage by reference. Further, BANA attached copies of the mortgage,
the assignment of the mortgage, and the note as exhibits to its reply. The
attached assignment read:
CORPORATE ASSIGNMENT OF MORTGAGE
Montgomery, Pennsylvania
SELLER'S SERVICING # :0143676068 "SAFT"
MERS #: 1000104014387606134 SIS #: 1-888-679-6377
-4-
J-S18032-17
Date of Assignment: November 19th, 2013
Assignor. MORTGAGE ELECTRONIC REGISTRATION
SYSTEMS, INC. AS NOMINEE FOR LAFAYETTE LENDING
GROUP, INC., ITS SUCCESSORS AND ASSIGNS Assignee:
BANK OF AMERICA, N.A., A CORPORATION ORGANIZED
AND EXISTING UNDER THE LAWS OF THE UNITED STATES
I hereby certify the precise address of the within named
Assignor is 1901 E VOORHEES STREET, SUITE C,
DANVILLE, IL 61834,
I hereby certify the precise address of the within named
Assignee is 200 S. COLLEGE ST, CHARLOTTE, NC 28255.
MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC is
at 1901 E Voorhees Street, Suite C, Danville, IL 61834
P.O. BOX 2026, FLINT, MI 48501-2026
Executed By: STEPHEN R SAFT AND ELLYN GOLDER SAFT
To: LAFAYETTE LENDING GROUP, INC.
Date of Mortgage: 11/08/2005 Recorded: 12130/2005 in
Book/Reel /Liben 11690 Page/Folio: 2595 as Instrument
Document: 2005190467 In the County of Montgomery,
State of Pennsylvania. 525 HOFFMAN DRIVE, BRYN
MAWR, PA 19010 in the Township of LOWER MERION
BANA’s Reply to Appellants’ New Matter, 9/17/14, Ex. B.
BANA filed the instant motion for summary judgment on January 26,
2016, claiming it was owed $600,893.78 with interest and costs. BANA
alleged Appellants “filed an Answer and New Matter in which they have
effectively admitted all of the allegations of the Complaint [and] generally
denie[d] paragraphs five (5) and six (6) of the Complaint, which aver the
default and amounts due on the Mortgage.” BANA’s Mot. for Summ. J.,
1/26/16, at ¶ 11-12. BANA also attached to its motion an affidavit of an
-5-
J-S18032-17
officer at Suntrust Mortgage, Inc., BANA’s servicing agent (“Suntrust
affidavit”). Id., Ex. B. The affidavit purported to confirm the default and
the amount of the debt and included a loan history report. Id. at ¶ 5 & Ex.
B.
Appellants filed a response on February 22, 2016. Appellants denied
the allegations in BANA’s motion for summary judgment and requested that
the Suntrust affidavit be stricken as inadmissible hearsay. Appellants’ Resp.
in Opp’n to BANA’s Mot. for Summ. J., 2/22/16, at ¶¶ 5-6.
By order entered on May 6, 2016, the trial court granted summary
judgment and directed that an in rem judgment be entered in BANA’s favor.
Appellants timely appealed and complied with the court’s order to submit a
Pa.R.A.P. 1925(b) statement.
Appellants present the following question for review:
Did the trial court commit an error of law in granting
foreclosing lender’s Motion for Summary Judgment when
[BANA]’s motion was founded upon an inadmissible
testimonial affidavit?
Appellants’ Brief at 8.
Appellants rely on Borough of Nanty-Glo v. American Surety Co.
of New York, 163 A. 523 (Pa. 1932), to assert that the entry of summary
judgment was “predicated upon an impermissible affidavit.” Appellants’
Brief at 13. They claim that “there exists no properly recorded mortgage
through the chain of mortgage title.” Id. at 14. According to Appellants,
BANA thus lacked “authority/standing to foreclose.” Id. at 15. Appellants,
-6-
J-S18032-17
however, concede that “[t]he note was endorsed in blank[,]” as well as a
“loan default.” Id. at 9. No relief is due.
Our standard of review is well settled:
[w]e 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 America, N.A. v. Gibson, 102 A.3d 462, 464 (Pa. Super. 2014)
(citations omitted).
It is well settled that
[t]he holder of a mortgage has the right, upon default, to
initiate a foreclosure action. Additionally, the mortgage
holder “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).
Moreover,
Nanty–Glo prohibits entry of summary judgment based
on the moving party's oral testimony. “An exception to
this rule exists, however, where the moving party supports
-7-
J-S18032-17
the motion by using admissions of the opposing party. . .
.” Admissions include facts admitted in pleadings.
Gibson, 102 A.3d at 466 (citations omitted). “[I]n 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.” Id. at 467 (citation and quotation marks omitted).
Instantly, Appellants’ focus on the Suntrust affidavit is of no avail.
Apart from the affidavit, we agree with the trial court that Appellants’
general denials and assertions that they lacked of sufficient knowledge in
their answer constituted admissions. See id. at 466-67; Trial Ct. Op. at 3.
Additionally, BANA adduced further bases for its “standing” to foreclose in its
reply to Appellants’ new matter, including a copy of the assignment as well
as the bearer note. See Piergrossi, 142 A.3d at 859-60; BANA’s Reply to
Appellants’ New Matter, Ex. B. In any event, because Appellants failed to
deny the relevant portions of BANA’s complaint with the required specificity,
their appellate challenge to the affidavit based on Nanty-Glo lacks merit.
See Gibson, 102 A.3d at 466-67. Accordingly, Appellants’ argument
warrants no relief.
Order affirmed.
-8-
J-S18032-17
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/11/2017
-9-