J-S68038-17
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37
NATIONSTAR MORTGAGE, LLC, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
MARK JOSEPH ELSESSER, :
:
Appellant : No. 608 MDA 2017
Appeal from the Order Entered March 21, 2017
in the Court of Common Pleas of Berks County,
Civil Division, at No(s): 2013-15154
BEFORE: LAZARUS, DUBOW, and STRASSBURGER,* JJ.
MEMORANDUM BY STRASSBURGER, J.: FILED NOVEMBER 30, 2017
Mark Joseph Elsesser appeals from the March 21, 2017 order that
denied his petition to set aside sheriff’s sale and vacate void judgment in
this mortgage foreclosure action. We affirm the order. Further, finding
Elsesser’s appeal to be dilatory, obdurate, and wholly frivolous, we remand
for a hearing to determine the amount of costs and counsel fees incurred by
Appellee Nationstar Mortgage, LLC (Nationstar) in litigating this appeal.
In December 2006, Elsesser executed a promissory note and mortgage
in exchange for a loan of $173,000 from Countrywide Home Loans, Inc.
Elsesser stopped making his monthly mortgage payments in March 2012. In
June 2013, then-holder of the note Nationstar filed a complaint in
foreclosure.
*Retired Senior Judge assigned to the Superior Court.
J-S68038-17
Nationstar eventually obtained summary judgment against Elsesser by
order of July 7, 2014. In his first appeal to this Court, Elsesser challenged,
inter alia, “the validity of the chain of assignments of the Mortgage and
Note….” Nationstar Mortgage, LLC v. Elsesser, 120 A.3d 1054 (Pa.
Super. 2015) (unpublished memorandum at 7). Upon examination of the
record, this Court determined that, because Nationstar possessed the
original note, which was a negotiable instrument, Nationstar had standing to
foreclose. Id. (unpublished memorandum at 9). Therefore, “Elsesser’s
argument as to the chain of ownership of the loan fail[ed] as a matter of
law.” Id.
Elsesser next filed in the trial court a petition to strike judgment,
“alleging that the judgment was void and unenforceable because the process
of securitization of the Note stripped Nationstar of any standing.”
Nationstar Mortgage, LLC, v. Elsesser, 158 A.3d 178 (Pa. Super. 2016)
(unpublished memorandum at 4). Elsesser timely appealed the order that
denied his petition, and the case was stayed pending the appeal. This Court
first noted that the law of the case doctrine militated against addressing the
merits of the issue, because it is one that Elsesser could have raised in his
first appeal, but did not. Id. (unpublished memorandum at 5-7). Further,
this Court held that the “argument that the process of securitization
somehow ‘destroyed’ the Note and it ceased to be a secured asset or
negotiable instrument tied to any collateral or debt obligation is nonsense.”
-2-
J-S68038-17
Id. at 8. Therefore, this Court affirmed the order denying the petition to
strike.
After the trial court granted Nationstar’s motion to lift the stay,
Nationstar bought the property at a sheriff’s sale on January 6, 2017.
Elsesser filed a petition to set aside the sale and vacate the judgment, which
the trial court denied by order entered March 21, 2017. Elsesser then filed
the instant appeal, and timely complied with the trial court’s order to file a
concise statement of errors complained of on appeal.
Elsesser presents three questions for our review.
(I). Did the trial court err in denying the petition to set aside
sheriff sale where [Elsesser] made a showing of extrinsic
fraud?
(II). Is [Nationstar’s] selectively timed production of two (2)
competing promissory notes in the litigation evidence of
intentional fraud sufficient to set aside the sheriff sale and
void the underlying judgment?
(III). Should equitable relief afford relief from both the judgment
and sale inasmuch as circumstances have arisen making it
inequitable to enforce the judgment and sale?
Elsesser’s Brief at 8 (suggested answers and unnecessary capitalization
omitted).
Elsesser’s issues all relate to the fact that Nationstar attached to its
June 25, 2015 motion to reassess damages a copy of the note that was
made before it was endorsed, whereas the copy of the note attached to
Nationstar’s motion for summary judgment had an endorsement. While he
-3-
J-S68038-17
acknowledges that Nationstar produced the original, endorsed note at a July
17, 2014 hearing, and it was that note that served as the basis of the trial
court’s decision to grant summary judgment to Nationstar, Elsesser now
claims that the existence of different photocopies of the note “calls into
serious question the authenticity” of the note produced at the hearing.
Elsesser’s Brief at 20.
As recognized by the trial court, Elsesser’s argument is nothing more
than another attack on Nationstar’s standing, an issue decided by the trial
court long ago and twice affirmed by this Court. Trial Court Opinion,
5/31/2017, at 4-5. As this Court explained in Elsesser’s last appeal, it is the
law of the case that Nationstar had standing to foreclose against the
mortgaged property as the holder of the note. Elsesser, 158 A.3d 178
(unpublished memorandum at 5-7). Elsesser cannot relitigate the issue now
based upon something of which he was fully aware prior to his last appeal.
Kurns v. Soo Line R.R., 72 A.3d 636, 639 (Pa. Super. 2013) (“An appellant
cannot pursue in a subsequent appeal matters which he or she could have
pursued in a prior appeal.”) (citation and internal quotation marks omitted).
As such, it is patently clear to this Court that this appeal is dilatory,
obdurate, and wholly frivolous.
This is the second frivolous appeal Elsesser has pursued in this matter.
See Elsesser, 158 A.3d 178 (unpublished memorandum at 8) (describing
Elsesser’s argument as “nonsense”). Additionally, two different judges in the
-4-
J-S68038-17
trial court have opined that Elsesser should not be permitted to delay further
in this case. Trial Court Opinion, 5/31/2017, at 5. Accordingly, we hold that
Nationstar is entitled to recover costs of the appeal, including counsel fees,
the amount of which shall be determined by the trial court upon remand.
See Pa.R.A.P. 2744 (“[A]n appellate court may award as further costs
damages as may be just… if it determines that an appeal is frivolous or
taken solely for delay or that the conduct of the participant against whom
costs are to be imposed is dilatory, obdurate or vexatious. The appellate
court may remand the case to the trial court to determine the amount of
damages authorized by this rule.”); Jackson v. Modern Mailers, Inc., 537
A.2d 878, 880 (Pa. Super. 1988) (“Because of the settled nature of the legal
issue presented and because of appellants’ two previous appeals to this
Court regarding the same cause of action, we conclude that the instant
appeal is frivolous and that counsel fees should be awarded.”).
Order affirmed. Case remanded for further proceedings consistent
with this memorandum. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/30/2017
-5-