U.S. Bank v. Primiano, J.

• Court: Superior Court of Pennsylvania
• Decided: June 8, 2021
• Docket: 1523 EDA 2020
• Status: Unpublished

Opinion

J-S05031-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

U.S. BANK NATIONAL ASSOCIATION : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : JOHN PRIMIANO : : Appellant : No. 1523 EDA 2020

Appeal from the Order Entered June 11, 2020 In the Court of Common Pleas of Philadelphia County Civil Division at No(s): No. 180105578

BEFORE: BOWES, J., LAZARUS, J., and McLAUGHLIN, J.

MEMORANDUM BY McLAUGHLIN, J.: FILED JUNE 8, 2021

John Primiano (“Primiano”) appeals from the entry of summary

judgment in favor of U.S. Bank National Association (“U.S. Bank”) in this

mortgage foreclosure action. We affirm.

In February 2006, Primiano entered into a mortgage loan transaction

(the “Mortgage”) with Washington Mutual Bank, FA (“WaMu”) for real property

located at 2413 Grays Ferry Avenue, Philadelphia, Pennsylvania, and executed

a note (the “Note”) in favor of WaMu in the principal amount of $192,500.00.

The Note was endorsed by WaMu and made payable in blank, without

recourse. The Mortgage was recorded on February 15, 2006 with the Recorder

of Deeds in Philadelphia County.

The Mortgage was subsequently acquired by JPMorgan Chase Bank

(“Chase”), through a purchase and assumption agreement with the Federal

Deposit Insurance Corporation, as receiver of WaMu. The Mortgage was J-S05031-21

thereafter assigned twice. First, Chase assigned the Mortgage to Wells Fargo

Bank, N.A. (“Wells Fargo”), which recorded the assignment on May 9, 2011.

In February 2012, Wells Fargo filed a mortgage foreclosure action against

Primiano (the “2012 Action”). In that case, Primiano entered into a judgment

by stipulation in favor of Wells Fargo in August 2014 in the amount of

$250,220.45, plus interest. The judgment was subsequently vacated when

Primiano remitted payment in January 2016 in the agreed-upon amount of

$99,062.93. The Mortgage was then reinstated and the 2012 Action was

discontinued.

The Mortgage was later assigned a second time — this time, by Wells

Fargo to U.S. Bank, appellee herein. The second assignment was recorded on

December 28, 2016.

On February 1, 2018, U.S. Bank filed a mortgage foreclosure complaint

against Primiano alleging he was in default of the Note and Mortgage for failing

to make the monthly payments since March 1, 2016. Complaint, 2/1/18, at ¶

9. Primiano filed an answer to the complaint and new matter, in which he,

inter alia, denied being in default of the loan, claimed he was overcharged,

and challenged U.S. Bank’s standing to bring this action. Amended Answer

and New Matter, 4/22/19, at ¶¶ 9, 17, 24.

On March 2, 2020, U.S. Bank moved for summary judgment against

Primiano alleging that there were no genuine issues of material fact. Attached

to the motion was an affidavit attesting to the fact that U.S. Bank held the

Note, the Mortgage was in default because no payment had been made since

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March 1, 2016, and certifying the amount of interest, costs, and total amount

due. Motion for Summary Judgment, 3/2/20, at Exh. A, ¶¶ 9, 12, 16, 17.

Primiano thereafter filed a response to the motion for summary judgment. On

June 11, 2020, the trial court granted summary judgment in favor of U.S.

Bank, and awarded U.S. Bank an in rem judgment in the amount of

$224,503.26, plus interest. This timely appeal followed.

Primiano raises the following three issues for our review:

1. Whether the [t]rial [c]ourt committed an error of law or abused its discretion by granting [U.S. Bank’s] Motion for Summary Judgment despite the existence of genuine issues of material fact in that there were contradictory versions of the Promissory Note?

2. Whether the [t]rial [c]ourt committed an error of law or abused its discretion by granting [U.S. Bank’s] Motion for Summary Judgment despite there being a genuine issue of material fact in that [U.S. Bank] was charging [Primiano] for hazard insurance despite [Primiano] having paid for and having continued coverage of hazard insurance?

3. Whether the [t]rial [c]ourt committed an error of law or abused its discretion by granting [U.S. Bank’s] Motion for Summary Judgment despite there being a genuine issue of material fact in that [U.S. Bank] did not prove the precise amount due on the mortgage[?]

Primiano’s Br. at xi.

Our standard of review is de novo and our scope of review is plenary.

Nicolaou v. Martin, 195 A.3d 880, 891 (Pa. 2018). “[S]ummary judgment is

only appropriate in cases where there are no genuine issues of material fact

and the moving party is entitled to judgment as a matter of law.” Id. (citing

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Pa.R.C.P. 1035.2(1)). “When considering a motion for summary judgment,

the trial court must take all facts of record and reasonable inferences

therefrom in a light most favorable to the non-moving party and must resolve

all doubts as to the existence of a genuine issue of material fact against the

moving party.” Id. In responding to a motion for summary judgment, “the

nonmoving party cannot rest upon the pleadings, but rather must set forth

specific facts demonstrating a genuine issue of material fact.” Bank of Am.,

N.A. v. Gibson, 102 A.3d 462, 464 (Pa.Super. 2014) (citing Pa.R.C.P.

1035.3). We “reverse a grant of summary judgment if there has been an error

of law or an abuse of discretion.” Nicolaou, 195 A.3d at 892.

Summary judgment in a mortgage foreclosure action is subject to the

same rules as other civil actions. CitiMortgage, Inc. v. Barbezat, 131 A.3d

65, 67 (Pa.Super. 2016) (citing Pa.R.C.P. 1141(b)). In a mortgage foreclosure

action, summary judgment is appropriate “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.” Gerber v. Piergrossi,

142 A.3d 854, 859 (Pa.Super. 2016) (citation and internal quotation marks

omitted).

Primiano’s first argument is that U.S. Bank lacks standing because it is

not the real party in interest. Primiano points out that in the 2012 Action, the

copy of the Note that Wells Fargo (the plaintiff in that case) presented in its

complaint and motion for summary judgment did not contain an endorsement.

Primiano’s Br. at 3, 14. However, in the instant case filed by U.S. Bank, the

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Note attached to the complaint and motion for summary judgment is the same

Note as presented in the 2012 Action but contains a blank endorsement. Id.

Primiano contends that the “issue of the two conflicting notes” creates a

genuine issue of material fact such that summary judgment should not have

been granted. Id. at 9, 12. Primiano argues that “[c]onsidering the chronology

of the alleged assignments and filings, there is a genuine issue of material fact

and question as to the validity of the endorsement and to how [U.S. Bank]

came into possession of the endorsed Note after [j]udgment was entered in a

case wherein the same Note did not contain an endorsement.” Id. at 8.

Primiano concludes that “[w]ithout being the Noteholder, [U.S. Bank] is not

the real party in interest.” Id. at 4.

Pursuant to Pennsylvania Rule of Civil Procedure 2002, “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 is a [p]erson who will be entitled to benefits

of an action if successful.... [A] party is a real party in interest if it has the

legal right under the applicable substantive law to enforce the claim in

question.” Barbezat, 131 A.3d at 68 (quoting U.S. Bank, N.A. v. Mallory,

982 A.2d 986, 994 (Pa.Super. 2009)) (internal quotation marks omitted,

alterations in original).

The mortgagee is the real party in interest in a mortgage foreclosure

action. Wells Fargo Bank, N.A. v. Lupori, 8 A.3d 919, 922 n.3 (Pa.Super.

2010). This is apparent “under our Pennsylvania Rules of Civil Procedure

governing actions in mortgage foreclosure that require a plaintiff in a

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mortgage foreclosure action specifically to name the parties to the mortgage

and the fact of any assignments.” Barbezat, 131 A.3d at 68 (citing Pa.R.C.P.

1147). A plaintiff in a mortgage foreclosure action “can prove standing either

by showing that it (i) originated or was assigned the mortgage, or (ii) is the

holder of the note specially indorsed to it or indorsed in blank.” Gerber, 142

A.3d at 859-60 (quoting J.P. Morgan Chase, N.A. v. Murray, 63 A.3d 1258,

1267-68 n.6 (Pa.Super. 2013)) (emphasis deleted). Pennsylvania permits

assignments of mortgages and “[w]here an assignment is effective, the

assignee stands in the shoes of the assignor and assumes all of his rights.”

Barbezat, 131 A.3d at 69.

Here, U.S. Bank averred and produced evidence that it was the holder

of the Mortgage. U.S. Bank alleged in its complaint that it “is the proper party

by way of an Assignment of Mortgage recorded December 28, 2016 as

Instrument #53154549.” Complaint at ¶ 7. When making its motion for

summary judgment, it produced copies of the original recorded Note and

Mortgage, as well as the recorded assignments from Chase to Wells Fargo and

from Wells Fargo to U.S. Bank. Motion for Summary Judgment at Exh. A, ¶¶

7, 8, 10, 11 (and accompanying exhibits). Furthermore, U.S. Bank’s motion

for summary judgment also included an affidavit from the mortgage servicer

confirming that U.S. Bank is currently in possession of the original Note.

Summary Judgment Motion at Exh. A., ¶ 9.

Accordingly, U.S. Bank produced sufficient evidence to establish that it

had standing to pursue this action by virtue of the assignments, recorded prior

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to the commencement of this action, and the fact that U.S. Bank possessed

the Note. Primiano failed to point to any evidence in the record in support of

his assertion that a genuine issue of material fact exists regarding the validity

of the assignments. See Gerber, 142 A.3d at 860 (concluding that the trial

court did not err by granting summary judgment in favor of appellee where

appellee properly held the mortgage by valid assignment and appellants

offered no evidence to establish a genuine issue of material fact with respect

to the assignment).

Further, Primiano’s argument that there is a genuine issue of fact as to

the validity of the endorsement is unavailing. The 2012 Action was brought by

Wells Fargo, not U.S. Bank. U.S. Bank was not a party to the 2012 Action and

was not involved in that case. U.S. Bank did not have the burden in this case

of explaining the existence of an unendorsed note in a case in which it was

not a party. Therefore, the averments and evidence used in the 2012 Action

are not relevant to U.S. Bank’s instant action and the trial court did not err in

failing to consider them. Moreover, the signature on an endorsement is

presumed to be authentic and authorized. See 13 Pa.C.S.A. § 3308(a); see

also PHH Mortg. Corp. v. Powell, 100 A.3d 611, 617-18 (Pa.Super. 2014).

Primiano produced no evidence to rebut the presumption that the

endorsement in the Note presented in the instant case was authentic and

authorized. Accordingly, Primiano is not entitled to relief on this claim.

Primiano’s final issues are interrelated; as such, we will address them

together. Primiano argues that U.S. Bank overcharged him for “forced-placed”

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insurance despite him carrying and paying for his own hazard insurance.

Primiano’s Br. at 18. Primiano contends that U.S. Bank’s “illegal and improper

charges for ‘forced-placed’ insurance resulted in [U.S. Bank’s] improper

inflation of monthly payments [] due [to] adding escrow charges by ignoring

[Primiano’s] insurance payments.” Id. at 18-19. Primiano argues that the trial

court “failed to consider the evidence and supporting Affidavit of [Primiano]

wherein he presented proof of the required insurance” and he asserts that he

was “overcharged and [U.S. Bank] would not accept the proper, monthly

payment that was due.” Id. at 19. As a result, Primiano maintains that since

U.S. Bank inflated the amounts due by Primiano, U.S. Bank did not prove the

precise amount due on the Mortgage, and summary judgment should not have

been granted. Id. at 21.

In order to defeat a motion for summary judgment, “the nonmoving

party cannot rest upon the pleadings, but rather must set forth specific facts

demonstrating a genuine issue of material fact.” Gibson, 102 A.3d at 464.

Here, Primiano’s amended answer and new matter only contained general

denials and claims of lack of knowledge in response to U.S. Bank’s assertions

of default and amount due under the loan. It is well-settled that general

denials constitute admissions in mortgage foreclosure actions. Id. at 466-67

(citing Pa.R.C.P. 1029(b)). Further, “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 (quoting First Wis. Tr. Co. v.

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Strausser, 653 A.2d 688, 692 (Pa.Super. 1995)). Therefore, Primiano’s

general denials constituted admissions since Primiano could not claim to not

have knowledge of the default or amount due. See Strausser, 653 A.2d at

692 (denial of knowledge of total amount of mortgage due deemed insufficient

under Pa.R.C.P. 1029(c) and therefore averment was admitted when it was

clear that appellant must have known if the allegation was true or not).

Moreover, in order to successfully defend against U.S. Bank’s summary

judgment motion, Primiano was obligated to identify “one or more issues of

fact arising from evidence in the record controverting the evidence cited in

support of the motion[.]” Pa.R.C.P. 1035.3(a)(1). Primiano merely alleges in

his amended answer and new matter and his response to the summary

judgment motion that he is not in default of the loan and that U.S. Bank

overcharged him for the debt. He points to no evidence in the record to

support these bald assertions, such as evidence that he made any payments

after the March 1, 2016 default date,1 proof of payment of hazard insurance,

proof of how and when he was overcharged and the amount of the alleged

overcharges. The only supposed support presented by Primiano is his self-

serving affidavit, in which he conclusory states he is not in default of the loan

and that he was overcharged for insurance payments. See Response to

Summary Judgment Motion, 4/3/20, at Exh. D. Conversely, U.S. Bank

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1 In his discovery responses, Primiano, in fact, admitted that his last mortgage

payment was made in January 2016. See Motion for Summary Judgment at Exh. E, Interrogatory 15; Exh. F, Response to Interrogatory 15.

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presented extensive financial documentation and business records evidencing

nonpayment by Primiano. Primiano’s unsupported arguments fail to establish

a genuine issue of material fact. Accordingly, we conclude that the trial court

did not commit an error of law or abuse its discretion when it granted U.S.

Bank’s motion for summary judgment.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 6/08/2021

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