Sovereign Bank, N.A. v. Hawkins

28 Pa. D. & C.5th 408
CourtPennsylvania Court of Common Pleas, Philadelphia County
DecidedMarch 4, 2013
DocketNo. 02409, No. 297 EDA 2013
StatusPublished

This text of 28 Pa. D. & C.5th 408 (Sovereign Bank, N.A. v. Hawkins) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Philadelphia County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Sovereign Bank, N.A. v. Hawkins, 28 Pa. D. & C.5th 408 (Pa. Super. Ct. 2013).

Opinion

TUCKER, J.,

I. Procedural History & Facts

This matter comes before the court on appeal from the dismissal of Sovereign Bank’s (hereinafter referred to as “appellant”) complaint in mortgage foreclosure (hereinafter referred to as the “complaint”) against Harold Hawkins and Bessie Luffborough (hereinafter referred to as “appellees”). Order entered by J. Tucker (12/07/2012). The court, upon consideration of appellees’ preliminary objections, sustained the preliminary objections and entered an order in favor of appellees. Id. The basis of that ruling is on appeal.

On October 18, 1990 appellee Hawkins executed and delivered to Liberty Bank, for value received, a home equity line revolving loan agreement (herein after referred to as the “agreement”) with a credit limit of twenty-five thousand dollars ($25,000). Compl. filed notice given (07/18/2012). Appellees also executed and delivered to Liberty Bank an advance money mortgage (hereinafter referred to as the “mortgage”) securing repayment of the agreement by encumbering the premises known as 3037 N. 15th Street, Philadelphia, PA 19132. Id. The mortgage was duly recorded in the Department of Records and for the County of Philadelphia on the following day. Id. Sometime thereafter, Liberty Bank merged with First Union National Bank (hereinafter referred to as “First [411]*411Union”), and as a direct result, the agreement and mortgage and attendant rights, title, and interest were transferred from Liberty Bank to First Union. Id. On January 18, 1999, First Union assigned the agreement and mortgage to appellant (hereinafter referred to as the “assignment”), which described the subject premises and was recorded on March 29, 1999. Id.

On December 7, 2011 appellees defaulted on the agreement and mortgage. Compl. filed notice given (07/18/2012). On February 22, 2012, appellant sent a notice of intent to foreclose by first class and certified mail, addressed to appellees at the subject premises. Id. On July 18, 2012, appellant commenced a civil action in the court of Common Pleas of Philadelphia County, demanding an in rem judgment against appellees. Commencement of civil action (07/18/2012). Pursuant to the terms of the agreement and mortgage, appellant sought judgment in the amount of thirty thousand four hundred and sixty dollars and thirty-two cents ($30,460.32), which represents the outstanding principal, interest, attorney’s fees and other costs of collection. Compl. filed notice given (07/18/2012).

On September 24, 2012, the court entered an order permitting appellant to seek default judgment in the underlying mortgage foreclosure matter because the subject property was not residential and/or not owner occupied. Order entered by J. Rizzo (09/24/2012). Accordingly, appellant entered default judgment against appellees on October 1, 2012. J. by default (10/01/2012). On October 2,2012, appellees filed preliminary objections to the complaint, arguing inter alia that appellant lacked [412]*412standing because it failed to prove chain of title. Prelim, objections (10/02/2012). The response date for appellees’ preliminary objections was October 22, 2012. Id. appellees subsequently filed a petition to open default judgment. Petition to open (10/05/2012). appellees’ preliminary objections were assigned to the instant court on October 24, 2012. Prelim, obj. assigned (10/24/2012). As the preliminary objections were filed premature, the court declined to rule on the preliminary objections until after the resolution of appellees’ petition to open default judgment.

On November 8, 2012, the court entered an order granting appellees’ petition to open judgment. Order entered by J. Tucker (11/08/2012). On November 15, 2012, appellant filed its response to appellees’ preliminary objections. Ans. to preliminary objections (11/15/2012). The court thereafter entered an order sustaining appellees’ preliminary objections and dismissing appellant’s complaint in mortgage foreclosure with prejudice. Order entered by J. Tucker (12/07/2012). For reasons unknown, the order dated November 5, 2012 was docketed on December 7, 2012. Id.

Appellant timely appealed the court’s December 7, 2012 order. Appeal to Superior Court (01/04/2013). The court ordered appellant to file a concise statement of matters complained of on appeal pursuant to Pa. R.A.P. 1925(b) (“1925(b) statement”). Order entered by J. Tucker (01/17/2013). On February 05, 2013, appellant filed its 1925(b) statement. The court will not reproduce the entire statement per its usual custom, but instead includes [413]*413an abbreviated version of appellant’s alleged errors. On appeal, appellant submits that the court improperly dismissed the complaint on the basis of appellees’ lone substantive preliminary objection - that appellant failed to attach the written assignment of appellees’ mortgage and note from Liberty Bank to First Union because:

[TJhere was no assignment from Liberty to First Union. As stated in paragraph 6 of the complaint, First Union was the “successor by merger” to Liberty Bank... Documents evidencing that a Bank is a “successor by merger” to another Bank are not required to be attached to a complaint in mortgage foreclosure. See, Pa. R.C.P. 1147(a).

1925(b) statement filed (02/05/2013)(emphasis retained). After careful review, the court finds this claim without merit. A discussion ensues:

II. Legal Analysis

a. The court properly sustained appellees ’preliminary objections and properly dismissed appellant’s complaint with prejudice.

Under the Pennsylvania Rules of Civil Procedure, a party may file preliminary objections to any pleading for “lack of jurisdiction over the subject matter of the action” and “lack of capacity to sue.” Pa.R.C.P. 1028(a)(1), (5). The Pennsylvania Supreme court summarized the standing requirement as follows:

The core concept of standing is that “a party who is not negatively affected by the matter he seeks to [414]*414challenge is not aggrieved, and thus, has no right to obtain judicial resolution of his challenge.” A litigant is aggrieved when he can show a substantial, direct, and immediate interest in the outcome of the litigation. A litigant possesses a substantial interest if there is a discernible adverse effect to an interest other than that of the general citizenry. It is direct if there is harm to that interest. It is immediate if it is not a remote consequence of a judgment.

In re Milton Hershey School, 911 A.2d 1258, 1261-1262 (Pa. 2006). (Citations omitted). Actions in mortgage foreclosure are governed by Pa.R.C.P. 1147. As with other civil actions, a mortgage foreclosure action may only be pursued by a real party in interest to the underlying mortgage. Pa. R.C.P. 2002. Only the real party in interest has standing and the capacity to sue in an action in mortgage foreclosure. Litigants must aver to their standing or capacity to sue in pleadings filed of record in court. To this end, Pa.R.C.P. 1019 provides, in relevant part, the following:

Rule 1019. Contents of Pleadings. General and Specific Averments
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Related

Cole v. Boyd
719 A.2d 311 (Superior Court of Pennsylvania, 1998)
In Re Milton Hershey School
911 A.2d 1258 (Supreme Court of Pennsylvania, 2006)

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Bluebook (online)
28 Pa. D. & C.5th 408, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sovereign-bank-na-v-hawkins-pactcomplphilad-2013.