U.S. Bank National Assoc. Feldman, M.

• Court: Superior Court of Pennsylvania
• Decided: February 25, 2015
• Docket: 3541 EDA 2013
• Status: Unpublished

Opinion

J-A32001-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

U.S. BANK NATIONAL ASSOCIATION, AS IN THE SUPERIOR COURT OF TRUSTEE, ON BEHALF OF THE HOLDERS PENNSYLVANIA OF THE CSMC MORTGAGE-BACKED PASS-THROUGH CERTIFICATES, SERIES 2007-1

Appellee

v.

MICHAEL G. FELDMAN AND LESLIE A. FELDMAN

Appellants No. 3541 EDA 2013

Appeal from the Order November 5, 2013 In the Court of Common Pleas of Montgomery County Civil Division at No(s): Case No. 2012-24465

BEFORE: PANELLA, J., OLSON, J., and FITZGERALD, J.*

MEMORANDUM BY PANELLA, J. FILED FEBRUARY 25, 2015

Appellants, Michael G. Feldman and Leslie A. Feldman, appeal from the

order entered November 5, 2013, by the Honorable Thomas C. Branca,

Court of Common Pleas of Montgomery County, which entered Summary

Judgment in favor of Appellee, U.S. Bank National Association, as Trustee,

on behalf of the holders of the CSMC Mortgage-Backed Pass-Through

Certificates, Series 2007-1 (“U.S. Bank”). We affirm.

Preliminarily, we are constrained to note that Appellants’ brief filed in

this matter does little to aid our review of the claims raised therein. ____________________________________________

* Former Justice specially assigned to the Superior Court. J-A32001-14

Appellants’ brief, at best, provides a skeletal outline of this case. Rule

2117(a)(4) of the Pennsylvania Rules of Appellate Procedure requires an

appellant to include in their brief a statement of the case, which shall contain

“[a] closely condensed chronological statement, in narrative form, of all the

facts which are necessary to be known in order to determine the points in

controversy.” Pursuant to Rule 2118 of the Pennsylvania Rules of Appellate

Procedure, the summary of argument “shall be a concise, but accurate,

summary of the arguments presented.”

Herein, Appellants fail to provide a chronological statement of facts,

instead opting to “incorporate by reference” the minimal procedural history

provided on page 11. Likewise, Appellants’ Summary of the Argument

consists of four terse sentences, which amount to a regurgitation, without

context, of the issues Appellants raise on appeal. This Court is empowered

to dismiss appeals when substantial defects in a brief impede us from

conducting meaningful appellate review. See Pa.R.A.P. 2101. However, as

our review of the certified record quickly reveals that Appellants’ claims are

patently meritless, we will proceed to dispose of the issues raised on appeal.

We admonish counsel, Matthew B. Weisberg, Esquire, to comply with

our Rules of Appellate Procedure in the future.

The record reveals that on December 6, 2006, Appellants executed a

mortgage to Mortgage Electronic Registration Systems, Inc. (“MERS”), as a

nominee for Credit Suisse Financial Corporation, for property located at 1540

Jarrettown Road, Dresher, PA 19025. The mortgage was recorded in the

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Montgomery County Recorder of Deeds Office in Mortgage Book 11990, Page

662. The mortgage was assigned to Appellee, U.S. Bank, by written

assignment dated April 30, 2010, and duly recorded in the Montgomery

County Recorder of Deeds Office on May 11, 2010. The mortgage was

modified by a written loan modification agreement signed by Appellants on

April 28, 2010, and recorded May 11, 2010.

On September 11, 2012, U.S. Bank filed a complaint in mortgage

foreclosure. Appellants filed preliminary objections, which the trial court

denied. Appellants filed an answer to the complaint, generally denying the

averments alleged in the complaint, along with a new matter. U.S. Bank

filed a reply to Appellants’ new matter.

On September 27, 2013, U.S. Bank filed a motion for summary

judgment. As part of their motion, U.S. Bank attached the affidavit of Bret

Cline, a representative of Select Portfolio Servicing Inc., the mortgage-

servicing agent for U.S. Bank. In his affidavit, Cline stated that Appellants

defaulted on the mortgage in February 2012 and owed a principle balance of

$823,753.37. Appellants filed their response on October 23, 2013, arguing,

inter alia, that the rule in Nanty-Glo v. American Surety Co., 163 A. 523

(Pa. 1932), prohibited the entry of summary judgment in favor of U.S. Bank.

The trial court granted U.S. Bank’s motion for summary judgment on

November 5, 2013. This timely appeal followed.

We review a challenge to the entry of summary judgment as follows.

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[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., Rule 1035.2. The rule states 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).

In actions for in rem foreclosure due to the defendant’s failure to pay a

debt, summary judgment is proper where the defendant admits that he had

failed to make payments due and fails to sustain a cognizable defense to the

plaintiff’s claim. See Gateway Towers Condo. Ass’n v. Krohn, 845 A.2d

855, 858 (Pa. Super. 2005); First Wis. Trust. Co. v. Strausser, 653 A.2d

688, 694 (Pa. Super. 1995).

Appellants first argue that U.S. Bank was without standing to enter

judgment in this matter. Pennsylvania Rule of Civil Procedure 2002(a)

provides that “[e]xcept as otherwise provided ... all actions shall be

prosecuted by and in the name of the real party in interest….” Pa.R.C.P.

2002(a). A ‘real party in interest,’ as required to have standing to maintain

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an action, is the person who has the power to discharge the claim upon

which suit is brought and to control the prosecution of the action brought to

enforce rights arising under the claims. See Spires v. Hanover Fire Ins.

Co., 70 A.2d 828, 831 (Pa. 1950), overruled in part on other grounds by

Guy v. Liederbach, 459 A.2d 744 (Pa. 1983). Where an assignment is

effective, however, the assignee stands in the shoes of the assignor and

assumes all of his rights. See Smith v. Cumberland Group, Ltd., 687

A.2d 1167, 1172 (Pa. Super. 1997). It therefore follows that “the assignee

is usually the real party in interest and action on the assignment must be

prosecuted in his name.” Wilcox v. Regester, 207 A.2d 817, 820 (Pa.

1965).

Although Appellants maintain that the original holder of the mortgage,

MERS, did not have the authority to assign the mortgage to U.S. Bank, they

provide no binding authority to support his claim. Regardless, we find the

mortgage note itself belies Appellants’ argument. The mortgage lists MERS 1 ____________________________________________

1 MERS aims to facilitate “by streamlining, successive interbank sales of mortgages.” Union County, Ill. v. MERSCORP, Inc., 735 F.3d 730, 732 (7th Cir. 2013). As the Court explained:

Although MERSCORP [the parent company of MERS] is the mortgagee of record, the assignment of a mortgage to it is not substantive. MERSCORP is not the lender; and as it does not pay the assignor for the assignment it does not become the lender— in fact it has zero financial interest in the mortgage. In a previous decision we described MERSCORP as “a membership organization that records, trades, and forecloses loans on behalf of many lenders, acting for their accounts rather than its own.” (Footnote Continued Next Page)

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as the mortgagee under the security instrument and as nominee for lender,

Credit Suisse Financial Corporation. The mortgage further provides that:

This Security Instrument secures to Lender: (i) the repayment of the Loan, and all renewals, extensions and modifications of the Note; and (ii) the performance of Borrower’s covenants and agreements under this Security Instrument and the Note. For this purpose, Borrower does hereby mortgage, grant and convey to MERS (solely as nominee for Lender and Lender’s successors and assigns) and to the successors and assigns of MERS, the following described property….

Mortgage at 3. Clearly, the security instrument specifically contemplates

MERS’s authority to assign its interest under the note, and Appellants’

continued obligation to the assigns thereafter. Appellants’ unsupported

claim that MERS was without the authority to do so is without merit.

We likewise reject Appellants’ argument that the assignment to U.S.

Bank was in some manner defective. The Assignment of the Mortgage to

U.S. Bank was recorded with the Bucks County Recorder of Deeds on May

11, 2010. Significantly, Appellants signed and recorded a written loan _______________________ (Footnote Continued)

Mortgage Electronic Registration Systems, Inc. v. Estrella, 390 F.3d 522, 524–25 (7th Cir.2004). The purpose of assigning a mortgage to MERSCORP is merely to enable repeated de facto assignments of the mortgage by successive mortgagees. We call those assignments “de facto” because MERSCORP remains the official assignee (it prefers to be called the “nominee” of the lender and of the lender’s successors and assigns). These “assignments” are not recorded, and so B in our example can transfer the mortgagor’s promissory note—the homeowner's debt to the bank—to another financial institution without the transfer being recorded in a public-records office.

Id.

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modification agreement with U.S. Bank, acknowledging the fact of the

mortgage assignment. U.S. Bank subsequently filed a complaint in

foreclosure on September 11, 2012. In its complaint, U.S. Bank set forth

the date and existence of the mortgage under which MERS, as nominee for

Credit Suisse Financial Corporation, was mortgage holder, and the mortgage

had been assigned to U.S. Bank and recorded as such. See Complaint,

9/11/12 at ¶¶3-4. We are, therefore, satisfied that U.S. Bank sufficiently

advised Appellants of its claim of interest to the subject mortgage and find

no defect apparent on the face of the recorded assignment. See, e.g., US

Bank N.A. v. Mallory, 982 A.2d 986 (Pa. Super. 2009). Therefore, this

claim, too, is without merit.

Lastly, Appellants argue that summary judgment was improperly

entered based on the testimonial affidavit attached to the complaint in

violation of the rule announced in Nanty-Glo v. American Surety Co., 163

A. 523 (Pa. 1932). Pursuant to Nanty-Glo, “summary judgment may not

be entered where the moving party relies exclusively on oral testimony,

either through testimonial affidavits or deposition testimony, to establish the

absence of a genuine issue of material fact except where the moving party

supports the motion by using admissions of the opposing party or the

opposing party's own witness.” First Philson Bank, N.A. v. Hartford Fire

Insurance Co., 727 A.2d 584, 587 (Pa. Super. 1999) (emphasis added;

citation omitted).

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As noted above, Appellants responded with general denials to the

material portions of U.S. Bank’s complaint. See Defendant’s Answer with

New Matter, 4/10/13. General denials constitute admissions where—like

here—specific denials are required. See Pa.R.C.P. 1029(b). Furthermore,

“in 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.” Strausser, supra, at 692; see

Pa.R.C.P. No. 1029(c) Note. By their general denials and claims of lack of

knowledge, Appellants admitted the material allegations of the complaint,

which permitted the trial court to enter summary judgment on those

admissions. Finally, insofar as Appellants contend that the affidavit

constitutes hearsay, we note that the referenced loan history documents are

records of regularly conducted activity, or business records, and would be

admissible at trial with proper foundation. See Pa.R.E. 803(6); 42 Pa.C.S.A.

§ 6108. Based on the foregoing, we find no abuse of discretion in the trial

court’s entry of summary judgment in favor of U.S. Bank.2

____________________________________________

2 We note that the trial court quashed Appellants’ appeal in its Rule 1925(a) opinion based upon its conclusion that the appeal violated Pennsylvania’s long-standing prohibition against hybrid representation. See Trial Court Opinion, 4/8/14 at 2. We disagree that the instant appeal constituted hybrid representation and decline the trial court’s request to quash the instant appeal. In so doing, we note that “[w]e are not bound by the rationale of (Footnote Continued Next Page)

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Order affirmed. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 2/25/2015

_______________________ (Footnote Continued)

the trial court and may affirm on any basis.” Southwestern Energy Production Co. v. Forest Resources, LLC, 83 A.3d 177, 184-185 (Pa. Super. 2013), appeal denied, 96 A.3d 1029 (Pa. 2014) (citation omitted).

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