J-A01018-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
U.S. BANK N.A., AS TRUSTEE, ON IN THE SUPERIOR COURT
BEHALF OF THE HOLDERS OF THE J.P. OF PENNSYLVANIA
MORGAN MORTGAGE ACQUISITION
TRUST 2006-MC2 ASSET BACKED PASS
THROUGH CERTIFICATES,
SERIES 2006-NC2
Appellee
v.
ROBERT J. CAREY AND OCCUPANTS
Appellants No. 923 EDA 2018
Appeal from the Order Entered February 22, 2018
In the Court of Common Pleas of Chester County
Civil Division at No.: 16-05885
BEFORE: OTT, STABILE, and McLAUGHLIN, JJ.
MEMORANDUM BY STABILE, J.: FILED MARCH 22, 2019
Robert J. Carey and occupants (individually “Mr. Carey” and collectively
“Appellants”) appeal from the February 22, 2018 order entered in the Court
of Common Pleas of Chester County (“trial court”), which granted summary
judgment in favor of Appellee U.S. Bank N.A., as Trustee, on Behalf of the
Holders of the J.P. Morgan Mortgage Acquisition Trust 2006-MC2 Asset Backed
Pass Through Certificates, Series 2006-NC2 (“U.S. Bank”). Upon review, we
affirm.
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The facts and procedural history of this case are undisputed.1 On April
28, 2006, Mr. Carey, as the sole owner of 106 Windridge Drive, West Goshen
Township, Pennsylvania (“the Property”), executed a note and mortgage in
favor of New Century Mortgage Corporation. New Century Mortgage
Corporation subsequently assigned the mortgage to U.S. Bank. On September
15, 2006, Carey executed a second mortgage on the Property in favor of Gary
and Joy Lehndorff. On November 1, 2006, Carey defaulted on the U.S. Bank
mortgage.
On June 13, 2007, U.S. Bank filed a mortgage foreclosure action against
Mr. Carey, serving him on June 20, 2007. Four days later, on June 24, 2007,
Mr. Carey executed a deed transferring title to the Property from himself,
individually, to both himself and Mrs. Carey, his wife. This deed was
acknowledged on June 27, 2007 and recorded with the Chester County
Recorder of Deeds on August 31, 2007. Likewise, the Lehndorffs’ mortgage
was both acknowledged and recorded on June 27, 2007.
On March 24, 2008, U.S. Bank filed a motion for summary judgment.
On May 5, 2008, the trial court granted U.S. Bank’s motion for summary
judgment and entered an in rem judgment in favor of U.S. Bank and against
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1 Unless otherwise noted, these facts are taken from our May 19, 2015
Memorandum. See U.S. Bank Nat’l Ass’n. v. Carey, No. 2206 EDA 2014,
unpublished memorandum, at 1-3 (Pa. Super. filed May 19, 2015), appeal
denied, 132 A.3d 459 (Pa. 2016).
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Mr. Carey.2 On November 20, 2008, U.S. Bank purchased the Property as the
successful bidder at the sheriff’s sale (“the first sheriff’s sale”). The sheriff’s
deed was issued on February 25, 2009 and recorded on March 25, 2009. U.S.
Bank failed to provide notice to Mrs. Carey of the first sheriff’s sale, however,
because U.S. Bank’s title company did not discover the deed transferring title
to the Property into both Mr. and Mrs. Carey’s names. Thus, on September
2, 2009, U.S. Bank filed a motion seeking to confirm the first sheriff’s sale and
strike the June 24, 2007 deed transferring title of the Property from Mr. Carey,
individually, to both Mr. and Mrs. Carey. On December 4, 2009, the trial court
denied U.S. Bank’s motion, and sua sponte set aside the first sheriff’s sale
based on U.S. Bank’s failure to provide notice to Mrs. Carey of the first sheriff’s
sale.
On January 4, 2010, Mr. Carey appealed the trial court’s decision to set
aside the first sheriff’s sale. On March 3, 2011, the Superior Court affirmed
the trial court’s order setting aside the first sheriff’s sale. See U.S. Bank
Nat’l Ass’n v. Carey, 26 A.3d 1177 (Pa. Super. March 3, 2011) (unpublished
memorandum). Mr. Carey filed a petition for allowance of appeal to the
Supreme Court of Pennsylvania, which it denied on May 1, 2012.
On April 5, 2013, U.S. Bank filed and served upon Mr. and Mrs. Carey a
praecipe for a new writ of execution and the affidavit required under Rule
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2As the trial court noted, “[j]udgment was entered on a mortgage foreclosure
action on May 5, 2008 in the amount of $464,019.61.” Trial Court Opinion,
5/17/18, at 1 n.1.
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3129.1 of the Pennsylvania Rules of Civil Procedure to list the Property for
sheriff’s sale. On July 2, 2013, U.S. Bank filed an amended affidavit pursuant
to Rule 3129.1. Thereafter, on January 16, 2014, U.S. Bank again purchased
the Property at sheriff’s sale (“the second sheriff’s sale”).3
Despite U.S. Bank’s purchase of the Property, Appellants refused to
convey possession of the Property to U.S. Bank. As a result, on June 21,
2016, U.S. Bank filed a complaint in ejectment against Mr. Carey and other
unknown occupants.4 In the complaint, U.S. Bank averred that Select Portfolio
Servicing, Inc. (“SPS”) “maintains the business records for [U.S. Bank] in the
ordinary course and scope of its business” and acts as “[t]he loan servicing
agent for this account.” Complaint, 6/21/16, at ¶ 1(b), (c). Additionally, U.S.
Bank averred that it had appointed and empowered SPS “to act as its agent
in this matter” pursuant to a limited power of attorney (“POA”) recorded in
the Office of the Chester County Recorder of Deeds. Id. at ¶ 1(d). The POA
provides, among other things, that SPS has the authority to:
[d]emand, sue for, recover, collect and receive each and every
sum of money, debt, account and interest (which now is, or
hereafter shall become due and payable) belonging to or claimed
by the Trustee, and to use or take any lawful means for recovery
by legal process or otherwise, including but not limited to the
substitution of trustee serving under a Deed of Trust, the
preparation and issuance of statements of breach, or non-
performance or acceleration, notice of default, and/or notices of
sale, accepting deeds in lieu of foreclosure, evicting (to the extent
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3 As noted earlier, we denied Mr. Carey’s challenge to U.S. Bank’s purchase of
the Property at the second sheriff’s sale. See Carey, supra at footnote 1.
Our Supreme Court affirmed our decision on February 26, 2016.
4The complaint was submitted by Barbara A. Fein, Esquire, who identified
herself as counsel for U.S. Bank.
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allowed by federal, state or local laws) foreclosing on the
properties under the Security Instruments by judicial or non-
judicial foreclosure, actions for temporary restraining orders,
injunctions, appointments of receiver, suits for waste, fraud and
any and all other tort, contractual or verifications in support
thereof, as may be necessary or advisable in any bankruptcy
action, state or federal suit or any other action and take any and
all actions necessary for the preparation and execution of such
other document and performance of such other actions as may be
necessary under the terms of the Security Instruments or state
law to expeditiously complete the transaction set forth in this
paragraph.
POA, 5/3/13, at ¶ 1.
On August 5, 2016, Appellants filed preliminary objections, seeking
dismissal of U.S. Bank’s complaint, inter alia, on the allegation that SPS lacked
the capacity to sue. On May 4, 2017, the trial court overruled Appellants’
preliminary objections. On June 5, 2017, Appellants filed an answer and new
matter. U.S. Bank filed its reply to the new matter on August 11, 2017.
On October 4, 2017, U.S. Bank moved for summary judgment, arguing
that (1) “there are no material issues of fact or law as to [Appellants] right to
the property,” (2) “[Appellants have] no right, title, or interest in the
Property,” and (3) “[Appellants] are mere trespassers.” Motion for Summary
Judgment, 10/4/17, at ¶¶ 12-14. Appellants responded to the summary
judgment on November 3, 2017, arguing in part that SPS lacked the capacity
to sue. On February 22, 2018, the trial court granted U.S. Bank’s motion for
summary judgment and ordered that U.S. Bank “is entitled to immediate
possession of” the Property.
On March 22, 2018, Appellants timely appealed to this Court. The trial
court directed them to file a Pa.R.A.P. 1925(b) statement of errors complained
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of on appeal. They complied, raising several assertions. In response, on May
15, 2018, the trial court issued a Pa.R.A.P. 1925(a) opinion.
On appeal, Appellants essentially raise a single issue for our review:
[I.] Whether, where a post-foreclosure complaint in ejectment
was brought by an agent pursuant to a limited power of attorney
which does not grant to the agent the authority to bring post-
foreclosure actions in ejectment or otherwise, and where the
defendants objected to the authority of the agent to bring a post-
foreclosure action in ejectment in both preliminary objections and
in response to plaintiff’s motion for summary judgment, the trial
court abused its discretion and/or committed errors of law by
overruling the defendants’ preliminary objections and granting
plaintiff’s motion for summary judgment.
Appellants’ Brief at 8.
We review a challenge to the entry of summary judgment as follows:
[We] may disturb the order of the trial court only where it is
established that the court committed an error of law or abused its
discretion. As with all questions of law, our review is plenary.
In evaluating the trial court’s decision to enter summary
judgment, we focus on the legal standard articulated in the
summary judgment rule. See Pa.R.C.P. No. 1035.2. The rule
[provides] that where there is no genuine issue of material fact
and the moving party is entitled to relief as a matter of law,
summary judgment may be entered. Where the nonmoving party
bears the burden of proof on an issue, he may not merely rely on
his pleadings or answers in order to survive summary judgment.
Failure of a non-moving party to adduce sufficient evidence on an
issue essential to his case and on which he bears the burden of
proof establishes the entitlement of the moving party to judgment
as a matter of law. Lastly, we will review the record in the light
most favorable to the nonmoving party, and all doubts as to the
existence of a genuine issue of material fact must be resolved
against the moving party.
E.R. Linde Const. Corp. v. Goodwin, 68 A.3d 346, 349 (Pa. Super. 2013)
(citation omitted; brackets in original).
As we recently explained in Becker v. Wishard, __ A.3d __, 2019 WL
123695 (Pa. Super. filed January 7, 2019):
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Ejectment is an action filed by a plaintiff who does not possess the
land but has a right to possess it, against a defendant who has
actual possession. Ejectment is a possessory action only, and can
succeed only if the plaintiff is out of possession, and the plaintiff
has a present right to immediate possession. An ejectment action
differs from a quiet title action in that quiet title serves to
determine the relative and respective rights of all potential title
holders. In contrast, ejectment determines the immediate rights
as between the plaintiff and the defendant.[FN1]
FN1. See also 4 Goodrich-Amram 2d § 1051:2
(“Generally, ejectment lies where the defendant is in
possession of land claimed by the plaintiff, and if the
plaintiff is in possession of land claimed by the
defendant, the remedy of the plaintiff is action to quiet
title.”).
Therefore, to prevail in an ejectment action, the plaintiff must
show title at the commencement of the action and can recover, if
at all, only on the strength of his own title, not because of
weakness or deficiency of title in the defendant. If a plaintiff in
ejectment has presented at trial prima facie evidence that it has
title to the property at issue, the burden then shifts to the
defendant, unless the plaintiff’s proof necessarily defeats the
plaintiff’s claim of title. Conversely, if the plaintiff’s claimed chain
of title is faulty, the plaintiff has not shown a prima facie case, and
the plaintiff’s ejectment case fails. An ejectment action likewise
fails if the plaintiff is not a bona fide purchaser.
Becker, 2019 WL 123695 at *3 (quotation marks, citations, brackets and
some footnotes omitted).
Here, Appellants argue only that the trial court “improperly granted the
summary judgment motion of [U.S. Bank] where SPS does not have authority
under the POA to bring this post-foreclosure ejectment on behalf of and in the
name of U.S. Bank [] in the first place.” Appellants’ Brief at 11. Appellants
misapprehend the nature of SPS’s involvement in this case. Contrary to their
characterization and understanding, SPS neither brought the instant
ejectment action against Appellants nor is SPS a party to the action. Rather,
as an agent of U.S. Bank under the POA, SPS simply verified the complaint at
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issue.5 More important, as the trial court aptly found, this action “was brought
by [U.S. Bank], as owner of the Property . . . by virtue of a valid sheriff’s
deed.” Trial Court Opinion, 5/15/18, at 2. As noted, the complaint was signed
by counsel for U.S. Bank. Thus, viewing the record in the light most favorable
to Appellants, as the nonmoving party, we agree with the trial court’s
determination that U.S. Bank is entitled to possession of the Property, which
is supported by the record and free of legal error. Accordingly, we affirm the
trial court’s entry of summary judgment in favor of U.S. Bank.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/22/19
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5 Appellants do not challenge SPS’s verification of the complaint on appeal.
As stated, SPS, as an agent for U.S. Bank pursuant to the POA, only verified
the complaint at issue. However, U.S. Bank, as owner of the Property,
initiated the ejectment action against Appellants.
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