J-A14022-25
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
USAA FEDERAL SAVINGS BANK : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : ALEX BELFI : : Appellant : No. 913 EDA 2024
Appeal from the Order Entered March 11, 2024 In the Court of Common Pleas of Philadelphia County Civil Division at No(s): 190100496
BEFORE: PANELLA, P.J.E., NICHOLS, J., and FORD ELLIOTT, P.J.E. *
MEMORANDUM BY NICHOLS, J.: FILED DECEMBER 16, 2025
Appellant Alex Belfi appeals pro se from the order granting summary
judgment in favor of Appellee USAA Federal Savings Bank 1 in the underlying
residential mortgage foreclosure action. Appellant raises numerous claims
related to Appellee’s standing to bring this action, Appellee’s failure to join
indispensable parties, and the trial court’s failure to consider Appellant’s
defenses and counterclaims. We affirm.
The trial court summarized the relevant facts and procedural history of
this matter as follows:
[Appellee] filed a complaint in mortgage foreclosure on January 10, 2019. The complaint included the following allegations: On ____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1 In his praecipe for entry of appearance, Appellee’s counsel erroneously identified Appellee as “USAA Federal Savings Bank Nationstar Mortgage, LLC.” See Appellee’s Brief at 4 n.2. We have corrected the caption accordingly. J-A14022-25
June 16, 2016, [Appellant] entered into a mortgage (the “Mortgage”) for a property at 1502 East Moyamensing Avenue in Philadelphia, PA (the “Property”). Complaint ¶ 1, 3 & Ex. A. The mortgagee was Mortgage Electronic Registration Systems, Inc. (“MERS”) as nominee for [Appellee]. Id. ¶ 1(a). The Mortgage provided that MERS “is a separate corporation that is acting solely as a nominee for Lender [i.e., Appellee] and Lender’s successors and assigns.” Id. Ex. A ¶ C. . . .
* * *
[Appellant] also executed a promissory note (the “Note”) promising to pay $400,000 to the lender, [Appellee]. Complaint ¶ 4 & Ex. B. In 2018, MERS assigned the Mortgage to [Appellee], Complaint ¶ 1(d), making [Appellee] “the current holder of the mortgage by operation of law.” Id. ¶ 2. The Mortgage was in default, the complaint alleged, with $389,518.26 owed as of October 31, 2018. Id. ¶ 8. [Appellee] sought judgment in rem in the amount set forth in the complaint, along with additional charges and fees.
[Appellant], representing himself, filed a document on May 16, 2019, captioned “memorandum and counterclaim in opposition of [Appellee’s] complaint; failure to make service upon [Appellant]” (the “Counterclaim”). In this document, [Appellant] alleged that he had not been served properly. . . .
He explained that a third party had defrauded him, leading to litigation in federal court, which somehow caused him to become delinquent on his mortgage payments. . . . [Appellee] filed an answer and new matter to the counterclaim on October 15, 2019. [Appellant] did not respond to the new matter.
[Appellant] answered the complaint on October 1, 2019. He admitted that the Mortgage and its assignment existed and had been publicly recorded, Answer ¶ 1; that he lived at and owned the Property, which was the property described in the Mortgage, Id. ¶¶ 3, 5-6; and that a notice pursuant to the Homeowners’ Emergency Mortgage Assistance Act of 1983, 35 P.S. § 1680.402c, et seq. (the “Act 91 Notice”) had been sent to him, Id. ¶ 11. [However, Appellant denied that the Act 91 Notice contained the information required by law. Id. at ¶ 12.] He generally denied the allegation that he had fallen behind on his payments, stating, “strict proof thereof is demanded at trial.” Id.
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¶ 7. He also denied knowledge or information sufficient to respond to the allegations setting forth the principal, interest, and fees that he allegedly owed, again demanding “strict proof.” Id. ¶¶ 7-10. Finally, [Appellant] denied all allegations relating to the legal effect of the Mortgage, assignment, and Note. For example, he denied that [Appellee] was the holder of the Mortgage, that the Property was subject to the Mortgage, that the Note was evidence of a debt, that he was a mortgagor, and that the Act 91 Notice complied with Act 91. Id. ¶¶ 2-4, 6, 12. [Appellant] did not explain any of these denials, and did not file [a] new matter. Importantly, neither the counterclaim nor the answer asserted any of the defenses that [Appellant] would go on to raise nearly five years later, after [Appellee] moved for summary judgment.
[Appellant] then attempted to remove the case to federal court. The federal court remanded it, holding that as a resident of the forum state, [Appellant] was not entitled to removal based on diversity jurisdiction. . . . On March 16, 2023, this court issued a case management order assigning the case to the February 2024 trial pool. The case management order provided, among other things, that “All Discovery . . . shall be completed no later than NOVEMBER 6, 2023,” and “Dispositive motions must be filed no later than DECEMBER 4, 2023” (emphasis in original).
[Appellant] did not serve discovery or file any discovery motions. [Appellee] served discovery on [Appellant] and did not receive a response.
On December 4, 2023, the dispositive motions deadline, [Appellee] filed a motion for summary judgment (“[Appellee] MSJ”). In its motion, [Appellee] contended that there were no genuine issues of material fact . . . .
[Appellee] provided evidence of each of these facts in the form of documents and an affidavit. [Appellee] also relied on [Appellant’s] express and tacit admissions, including his failure to respond with specificity to the material allegations of [Appellee’s] complaint and his failure to answer [Appellee’s] discovery, which included requests for admissions. [Appellee] also sought summary judgment on [Appellant’s] counterclaim, arguing that the counterclaim did not state a claim upon which relief could be granted and that [Appellant’s] failure to respond to [Appellee’s] new matter to the counterclaim eliminated any potential issues of fact.
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[Appellant] did not respond to the numbered paragraphs of [Appellee’s] motion. Instead, on December 5, 2023, he filed a “response and cross-motion” (“MSJ Response”). This document did not contradict any of the facts set forth in [Appellee’s] motion. Instead, it was a free-form discussion of issues that [Appellant] claimed to find suspicious or questionable. For example, [Appellant] argued that [Appellee] lacked standing because it was using a fictitious name, that [Appellee] was not a real party in interest because its name did not appear on [Appellant’s] account statements, that the United States Department of Veteran Affairs (“VA”) should have been notified of the action, that the mortgage debt had been discharged in bankruptcy, that [Appellant] had changed addresses and had not received [Appellee’s] discovery requests, that the assignment of the Mortgage was defective, that [Appellant] questioned certain line items in [Appellee’s] calculation of the amounts owed, that the assignment of the Mortgage violated an alleged “Veteran Loan Guaranty Agreement,” that the Act 91 Notice was defective, and that making electronic copies of the Note violated the law. This [MSJ] Response was verified, but did not include an affidavit. It attached a handful of unauthenticated documents—mortgage statements, a change of address form from the U.S. Post Office, the alleged indenture and deed from [Appellant’s] purchase of the Property, and some internet printouts. None of these controverted the evidence set forth in [Appellee’s] motion.
Although the deadline for dispositive motions had passed, [Appellant] then launched a barrage of motions and other filings, each of which added new legal arguments, alleged new facts, and attached new (unverified and unauthenticated) documents[, including a motion to compel Appellee to answer discovery.]
On January 31, 2024, the Honorable Joshua Roberts signed an order granting [Appellant’s] motion for extraordinary relief and extending all deadlines by thirty days. . . . [Appellant] did not make any attempt to conduct additional discovery in the thirty days following the order. He also did not respond to the discovery requests that [Appellee] had served before the discovery deadline (which he claimed not to have known about until he reviewed [Appellee’s] motion for summary judgment). . . . On March 4, 2024, [Appellant] refiled the motion to compel that this court had administratively dismissed.
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Trial Ct. Op., 12/31/24, at 2-8 (headers, footnotes, and some citations
omitted and some formatting altered).
The trial court entered orders denying Appellant’s motion to dismiss and
motion for summary judgment on March 8, 2024. On March 11, 2024, 2 the
trial court entered an order granting Appellee’s motion for summary
judgment. Appellant then filed a timely notice of appeal. Appellant and the
trial court complied with Pa.R.A.P. 1925.
On appeal, Appellant raises twenty issues,3 which we reorder and
restate as follows:
1. Did the trial court commit a reversible error by granting [Appellee’s] motion for summary judgment because there ____________________________________________
2 The trial court’s order is dated March 8, 2024, but was docketed and served
on the parties on March 11, 2024. See Pa.R.A.P. 108(a)(1) (providing that the date of entry of an order is the day the clerk of court mails or delivers copies of the order to the parties); see also Pa.R.Civ.P. 236. We have amended the caption accordingly.
3 We refer to the oft-cited quote from the late Judge Aldisert of the Third Circuit:
With a decade and a half of federal appellate court experience behind me, I can say that even when we reverse a trial court, it is rare that a brief successfully demonstrates that the trial court committed more than one or two reversible errors . . . When I read an appellant’s brief that contains ten or twelve points, a presumption arises that there is no merit to any of them. I do not say that this is an irrebuttable presumption, but it is a presumption nevertheless that reduces the effectiveness of appellate advocacy. Appellate advocacy is measured by effectiveness, not loquaciousness.
Commonwealth v. Lutes, 793 A.2d 949, 955 n.1 (Pa. Super. 2002) (citations omitted).
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was still a remaining issue of material fact related to [Appellant’s] allegation that [Appellee] was not the owner of the note, therefore, the complaint did not set forth a cause of action or show [Appellee] was the real party in interest?
2. Did the trial court err in in determining that [Appellee] was the note holder and mortgagee, despite [Appellant] being the note holder, holding the original blue ink signed promissory note?
3. Did the trial court commit a reversible error by granting [Appellee’s] motion for summary judgment because [Appellee] is operating without a mortgage license pursuant to 7 Pa.C.S. § 6101 et seq.
4. Did the trial court commit a reversible error by granting [Appellee’s] motion for summary judgment because there was still an issue of material fact concerning the faulty verification that was attached to the complaint and summary judgment?
5. Did the trial court commit a reversible error by granting [Appellee’s] motion for summary judgment because there was still an issue of material fact that [Appellee] failed to adhere to the VA Servicing guidelines?
6. Did the trial court commit a reversible error by granting [Appellee’s] motion for summary judgment and dismissing [Appellant’s] counterclaims with prejudice when the counterclaims filed in federal court, case no. 2-19-cv-03607, were the governing counterclaims?
7. Did the trial court commit a reversible error by granting [Appellee’s] motion for summary judgment because of the then-remaining issue of material fact that there had been no transfer of the note to [Appellee] from the original lender to provide a cause of action for [Appellee] to have filed the complaint?
8. Did the trial court commit a reversible error when it granted [Appellee’s] motion for summary judgment, because of the then remaining issue of material fact concerning the required power of attorney in reference to MERS, as a nominee, which was not filed of record before the complaint was filed, and therefore, the complaint did not set forth a cause of action?
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9. Did the trial court err in not dismissing the action due to [Appellee’s] lack of registration as its fictitious name?
10. Did the trial court err in not joining Mortgage Electronic Registration System, Inc (MERS) as an indispensable party?
11. Can MERS, as a nominee of a mortgage lender, holding only legal title to the mortgage but not holding the correlative promissory note, exercise the statutory power of sale, foreclose on the mortgaged property and transfer interest?
12. Did the trial court err in determining [Appellee’s] Act 91 [notice] was not defective.
13. Did the court err in granting [Appellee’s] motion for summary judgment when matters of public record directly challenge [Appellee’s] standing that they “no longer had any immediate, direct pecuniary or substantial interest in the real estate or the in-rem mortgage foreclosure action.”
14. Should the VA be joined as an indispensable party as it has guaranteed the loan secured by the mortgage?
15. Did Omar Basped, acting as both the assignee and assignor, have the authority to assign [Appellant’s] mortgage from MERS to [Appellee]?
16. Did the trial court err in granting [Appellee’s] motion for summary judgment when [Appellee] did not respond to discovery requests and motions to compel were still outstanding?
17. Did [Appellee] violate 1999 Act 69 § 901 by converting a paper Note into an electronic PDF?
18. Is [Appellant] at risk of double jeopardy, given multiple Notes exist for the same Property and it was securitized?
19. Does Bank of New York Mellon also have the right to foreclose along with the investors of the Ginnie Mae pool which his loan was securitized into?
20. Did the trial court err in granting [Appellee’s] motion for summary judgment against the VA memorandum, Circular 26-23-25, which postpones foreclosures until May 31, 2024[?]
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Appellant’s Brief at 10-17 (footnotes omitted and formatting altered). 4,5
Waiver
Before we address the merits of Appellant’s claims, we must first
determine if he has preserved his issues for appeal. This Court may raise this
issue of waiver sua sponte. See Tucker v. R.M. Tours, 939 A.2d 343, 346
(Pa. Super. 2007). “The issue of waiver presents a question of law, and, as
such, our standard of review is de novo and our scope of review is plenary.”
Trigg v. Children’s Hosp. of Pittsburgh of UPMC, 229 A.3d 260, 269 (Pa.
2020) (citation omitted).
Rule of Civil Procedure 1028 provides, in pertinent part, as follows:
(a) Preliminary objections may be filed by any party to any pleading and are limited to the following grounds:
____________________________________________
4 Appellant has not presented any argument in support of his claim that the
trial court erred by not complying with the VA Circular 26-23-25 in his appellate brief. We conclude that Appellant has abandoned this issue, and, therefore, it is waived. See In re D.N.G., 230 A.3d 361, 363 n.2 (Pa. Super. 2020) (stating that “an issue identified on appeal but not developed in the appellant's brief is abandoned and, therefore, waived” (citation omitted and some formatting altered)).
5 We note that in his reply brief, Appellant argues, for the first time, that the
securitization of the mortgage was the result of fraud; the affiant who signed Appellee’s affidavit in support of its motion for summary judgment lacked personal knowledge of the amount due; and that Appellant has new evidence related to Appellee’s standing from a separate quite title action. See Appellant’s Reply Brief at 15-16, 21 (unpaginated). Our Supreme Court has explained that “an appellant is prohibited from raising new issues in a reply brief.” Reginelli v. Boggs, 181 A.3d 293, 307 n.15 (Pa. 2018) (citation omitted)). Therefore, these issues are waived. See id.
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(1) lack of jurisdiction over the subject matter of the action or the person of the defendant, improper venue or improper form or service of a writ of summons or a complaint;
(5) lack of capacity to sue, nonjoinder of a necessary party or misjoinder of a cause of action[.]
Pa.R.Civ.P. 1028(a)(1), (5).
Rule of Civil Procedure 1030 states, in relevant part, “all affirmative
defenses . . . shall be pleaded in a responsive pleading under the heading
‘New Matter’. A party may set forth as new matter any other material facts
which are not merely denials of the averments of the preceding pleading.”
Pa.R.Civ.P. 1030(a).
Additionally, Rule 1032 provides, in relevant part: “A party waives all
defenses and objections which are not presented either by preliminary
objection, answer or reply, except a defense which is not required to be
pleaded under Rule 1030(b), . . . the defense of failure to join an indispensable
party[.]” Pa.R.Civ.P. 1032(a). It is well established that lack of standing must
be raised at the earliest opportunity in either preliminary objections or in an
answer. See Foxfield at Naaman’s Creek Homeowner’s Ass’n v.
Eventoff, 329 A.3d 1271, 1275 (Pa. Super. 2024); see also Erie Indem.
Co. v. Coal Operators Cas. Co., 272 A.2d 465, 467 (Pa. 1971) (stating that
“[t]he issue of incapacity to sue is waived unless it is specifically raised in the
form of a preliminary objection or in the answer to the complaint” (citations
omitted)). Further, a claim that the bank failed to comply with the servicing
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provisions of the VA Lenders Handbook may be raised as an equitable defense
in a new matter. See generally Union Nat’l Bank of Little Rock v. Cobbs,
567 A.2d 719, 720 (Pa. Super. 1989) (explaining that the defendant “asserted
in [his] new matter that a VA mortgagee who does not service a mortgage in
accordance with the VA Lenders Handbook is barred on equitable grounds
from foreclosing”).
Further, this Court has explained that “arguments not raised initially
before the trial court in opposition to summary judgment cannot be raised for
the first time on appeal.” Moranko v. Downs Racing, LP, 118 A.3d 1111,
1115-16 (Pa. Super. 2015) (en banc) (citations omitted and some formatting
altered); see also Pa.R.A.P. 302(a) (stating that “[i]ssues not raised in the
trial court are waived and cannot be raised for the first time on appeal”).
Lastly, it is well-established:
Although this Court is willing to liberally construe materials filed by a pro se litigant, pro se status confers no special benefit upon the appellant. To the contrary, any person choosing to represent himself in a legal proceeding must, to a reasonable extent, assume that his lack of expertise and legal training will be his undoing.
Norman for Estate of Shearlds v. Temple Univ. Health Sys., 208 A.3d
1115, 1118-19 (Pa. Super. 2019) (citation omitted).
Here, the trial court explained:
Throughout this litigation, [Appellant] failed to comply with the basic Rules of Civil Procedure. He left pleadings and discovery unanswered, missed deadlines, filed repetitive, scattershot documents not permitted under the rules, and made untimely allegations that he never backed up with any record evidence.
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This conduct made it very difficult for [Appellee] to respond to his filings and for this court to assess them. As discussed below, [Appellant’s] procedural missteps were so serious that they waived his arguments.
[Appellant’s] pro se status does not excuse his flouting of court rules. As the Superior Court explained in Jones v. Rudenstein,
[the plaintiff] apparently labors under the false assumption that by proceeding pro se he is absolved of all responsibility to comply with procedural rules, and that the appellee and/or the court had some affirmative duty to walk him through the procedural requirements, or to ignore the procedural requirements, in order to reach the merits of his claim. Such is not the case. The United States Supreme Court has explained: The right of self-representation is not a license to abuse the dignity of the courtroom. Neither is it a license not to comply with relevant rules of procedural and substantive law.
585 A.2d 520, 522 (Pa. Super. 1991) (quoting Farretta v. California, [422 U.S. 806, 834 n.46,] 95 S.Ct. 2525, 254[1] n.46 (1975)). From his filings, it appears that [Appellant] is a sophisticated person who is capable of reviewing legal documents and doing basic legal research. He has been able to follow court procedures when he cares to do so; he must be held responsible when he declines to follow them.
[Appellant] filed his motion to dismiss long after the court’s deadline for dispositive motions. For this reason alone, this court did not err in denying the motion.
Moreover, [Appellant] had long since waived all the arguments he made in the motion. [Appellant] argued that [Appellee] did not have standing to sue, that it was not permitted to sue because it was using a fictitious name, and that [Appellee] had failed to allege that it complied with federal regulations involving notice to the VA. The standing and fictional name arguments implicate [Appellee’s] capacity to sue, a defense that must be raised either in preliminary objections or in an answer and new matter. See Pa.R.Civ.P. 1028(a)(5) (“lack of capacity to sue” may be raised in preliminary objections); Five Star Bank v. Chipego, 312 A.3d 910, 918 (Pa. Super. 2024) (“Parties . . . may challenge standing either in preliminary objections or in the answer to the complaint.”). [Appellant’s] assertion that [Appellee] did not plead that it had notified the VA should have been raised in preliminary
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objections as a “failure of a pleading to conform to law or rule of court,” Pa.R.Civ.P. 1028(a)(2). Because [Appellant] did not assert any of these defenses in preliminary objections or in his answer, he waived them. See Pa.R.Civ.P. 1032(a).
Trial Ct. Op. at 12-13 (header omitted and some formatting altered); see also
id. at 14-16 (concluding that Appellant waived his claims because his
responses to Appellee’s motion for summary judgment did not comply with
the Pennsylvania Rules of Civil Procedure and the Philadelphia Local Rules of
Civil Procedure and because Appellant failed to submit affidavits or other
record evidence in support of his factual allegations).
Based on our review of the record, we agree with the trial court that
Appellant has waived his claims related to Appellee’s standing to bring this
action,6 and defects in the complaint because Appellant failed to raise these
claims either in preliminary objections or in his answer and new matter. See
Erie Indem., 272 A.2d at 467; Foxfield, 329 A.3d at 1275; Pa.R.Civ.P.
1032(a); Pa.R.A.P. 302(a). Likewise, we conclude that Appellant has waived
his claims related to whether Appellee has a mortgage license, Appellant’s
counterclaims, and Appellant’s claim that the transfer of the securitized note
creates a risk of double jeopardy because Appellant failed to raise them in his
response to Appellee’s motion for summary judgment. See Moranko, 118
A.3d at 1115-16; Pa.R.A.P. 302(a). Lastly, we agree with the trial court that ____________________________________________
6 Even if Appellant’s claims related to Appellee’s standing to sue and Appellee’s
possession of the Note and Mortgage were not waived, we would affirm on the basis of the trial court’s opinion. See Trial Ct. Op. at 11-12, 17 (concluding that Appellee is the current holder of the Note and the Mortgage).
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Appellant’s pro se status does not excuse Appellant from complying with the
applicable court rules.7 See Norman, 208 A.3d at 1118-19; Jones, 585 A.2d
at 522.
We turn to the merits of the claims that Appellant has preserved for
appeal and/or are non-waivable.
Failure to Join Indispensable Parties
Appellant has raised two claims related to the failure to join
indispensable parties; therefore, we discuss them together. First, Appellant
argues that the trial court erred by not joining MERS as an indispensable party
because “MERS’s role as a nominee and its purported assignment of the
mortgage to [Appellee] raise significant issues that cannot be resolved without
MERS’s participation.” Appellant’s Brief at 62. Appellant essentially
challenges MERS’s legal authority to assign the mortgage and contends that
without joining MERS, the trial court cannot fully and adjudicate the issues in
this matter. Id. at 63.
Next Appellant argues that the VA is an indispensable party because it
has guaranteed the loan secured by the mortgage. Id. at 74-76. Appellant
claims that the VA has a financial interest in the outcome of this action because
it has guaranteed the loan and is obligated to reimburse the lender losses ____________________________________________
7 To the extent Appellant argues that as a pro se litigant he is entitled to a certain amount of leeway and this Court should decline to find his issues waived when Appellant made a good faith effort to comply with procedural rules, we note that the cases Appellant has cited do not stand for that proposition. See Appellant’s Reply Brief at 17-18, 21 (unpaginated).
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incurred due to a default. Id. at 74. Appellant also contends that this action
affects the VA’s financial and regulatory interests, namely whether the lender
complied with VA servicing guidelines. Id. at 75.
Our standard of review for summary judgment is well settled:
In reviewing an order granting summary judgment, our scope of review is plenary, and our standard of review is the same as that applied by the trial court.
An appellate court may reverse the entry of a summary judgment only where it finds that the lower court erred in concluding that the matter presented no genuine issue as to any material fact and that it is clear that the moving party was entitled to a judgment as a matter of law. In making this assessment, we view the record in the light most favorable to the non-moving party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party. As our inquiry involves solely questions of law, our review is de novo.
Thus, our responsibility as an appellate court is to determine whether the record either establishes that the material facts are undisputed or contains insufficient evidence of facts to make out a prima facie cause of action, such that there is no issue to be decided by the fact-finder. If there is evidence that would allow a fact-finder to render a verdict in favor of the non-moving party, then summary judgment should be denied.
Sampathkumar v. Chase Home Fin., LLC, 241 A.3d 1122, 1144 (Pa. Super.
2020) (citation omitted and formatting altered). Further, “[i]t is well-settled
that we may affirm the trial court’s order on any valid basis.” Seneca Res.
Corp. v. S & T Bank, 122 A.3d 374, 387 n.13 (Pa. Super. 2015) (citation and
quotation marks omitted).
“The absence of an indispensable party goes absolutely to the court’s
jurisdiction.” McCann v. SMB Investments, LLC, 338 A.3d 138, 150 (Pa.
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Super. 2025) (citation omitted). “Because jurisdiction is a pure question of
law, our standard of review is de novo, and our scope of review is plenary.”
Id. at 145 (citation omitted). Further, “[i]f an indispensable party is not
joined, a court is without jurisdiction to decide the matter. The absence of an
indispensable party renders any order or decree of the court null and void.
The issue of the failure to join an indispensable party cannot be waived.” Id.
at 150 (citation and quotation marks omitted).
This Court has explained:
“[A] party is indispensable ‘when his or her rights are so connected with the claims of the litigants that no decree can be made without impairing those rights.’” City of Phila. v. Commonwealth, 838 A.2d 566, 581 (Pa. 2003). If no redress is sought against a party, and its rights would not be prejudiced by any decision in the case, it is not indispensable with respect to the litigation. We have consistently held that a trial court must weigh the following considerations in determining if a party is indispensable to a particular litigation.
1. Do absent parties have a right or an interest related to the claim?
2. If so, what is the nature of that right or interest?
3. Is that right or interest essential to the merits of the issue?
4. Can justice be afforded without violating the due process rights of absent parties?
“In determining whether a party is indispensable, the basic inquiry remains ‘whether justice can be done in the absence of a third party.’” Pa. State Educ. Ass’n v. Commonwealth, 50 A.3d 1263, 1277 (Pa. 2012).
Orman v. Mortgage I.T., 118 A.3d 403, 406-07 (Pa. Super. 2015) (some
citations omitted and formatting altered).
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“The holder of a mortgage has the right, upon default, to bring a
foreclosure action.” Bank of Am., N.A. v. Gibson, 102 A.3d 462, 464 (Pa.
Super. 2014) (citation omitted); see also Pa.R.Civ.P. 1147(a)(1) (requiring
that the complaint identify the parties to the mortgage and any assignments
of the mortgage).
Pennsylvania Rules of Civil Procedure 1141 [to 1150] govern actions for mortgage foreclosure. Rule 1141(a) provides that an action at law to foreclose a mortgage upon any estate, leasehold or interest in land shall not include an action to enforce a personal liability. It is well-established that an action in mortgage foreclosure is strictly in rem and thus may not include an in personam action to enforce personal liability. . . .
Moreover, this court has held that because a mortgage foreclosure action is strictly “de terris” in nature, neither a mortgagee-plaintiff nor a mortgagor-defendant can join a party who has no interest in the controverted property.
Newtown Vill. P’ship v. Kimmel, 621 A.2d 1036, 1037 (Pa. Super. 1993)
(citations omitted).
Rule 1144 of the Pennsylvania Civil Procedure requires that a plaintiff in
a mortgage foreclosure action to name as defendants “(1) the mortgagor; (2)
the personal representative, heir or devisee of a deceased mortgagor, if
known; and (3) the real owner of the property, or if the real owner is unknown,
the grantee in the last recorded deed.” Pa.R.Civ.P. 1144(a).
Lastly, in the event of a default by the borrower on a loan guaranteed
by the VA, the VA “may . . . pay to [the holder of the loan] the guaranty not
in excess of the pro rata portion of the amount originally guaranteed.” 38
U.S.C. § 3732(a)(1). The VA may also choose to “pay the holder of a loan
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guaranteed under this chapter an amount necessary to avoid the foreclosure
of such loan[.]” Id. § 3732(a)(2)(A).
The trial court did not address Appellant’s claims that MERS and the VA
were indispensable parties. Rather, the trial court addressed Appellant’s
claims regarding MERS as a challenge to the validity of the assignment. See
Trial Ct. Op. at 18. Further, the trial court concluded that “[a]lthough
[Appellant] provided one document suggesting that he applied for a VA
guarant[y] this court has found no guaranty agreement, or any other evidence
that a guarant[y] was made or that it had any particular terms and conditions,
in any of [Appellant’s] filings.” Id. at 20.
Additionally, the trial court explained:
There is no genuine issue of material fact as to whether [Appellee] has the right to enforce the Note. The Note was issued to [Appellee] as the original lender, and [Appellee] provided an affidavit and documentation confirming that it continues to hold the Note. [Appellant] has provided no record evidence to the contrary.
Trial Ct. Op. at 17; see also id. at 2-5 (explaining that MERS was the
mortgagee as Appellee’s nominee and MERS subsequently assigned the
mortgage to Appellee).
Based on our review of the record, we discern no error of law by the
trial court in granting Appellee’s motion for summary judgment. See
Sampathkumar, 241 A.3d at 1144; see also McCann, 338 A.3d at 150.
Neither MERS nor the VA were indispensable parties to this action. As the trial
court explained, Appellee is the holder of the Note and the Mortgage following
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an assignment from MERS. MERS does not have any right or interest related
to Appellee’s foreclosure action because MERS does not hold the Note or the
Mortgage (and neither party has asserted MERS has any ownership interest in
the Property). See Gibson, 102 A.3d at 464; Newtown Vill., 621 A.2d at
1037; Pa.R.Civ.P. 1144(a). Therefore, MERS is not an indispensable party
because MERS does not have any right or interest in the mortgage that would
be prejudiced by any decision in this case. See Orman, 118 A.3d at 406-07.
Further, as stated above, the trial court concluded that Appellant failed
to present evidence establishing that the VA had guaranteed the loan. See
Trial Ct. Op. at 20. Based on our review of the record, we agree. Appellant
attached a copy of a VA certificate of eligibility for loan guaranty benefits dated
December 19, 2023 to his January 23, 2024 “reply in further support of
[Appellant’s] motion for extraordinary relief” (Reply in Supp.). See Reply in
Supp., 1/23/24, Ex. 5. While this document indicates that the loan in this
matter is eligible for a VA guaranty up to $100,000, it does not establish that
the VA has taken any steps to guarantee this loan. Cf. 38 U.S.C. §
3732(a)(1)-(2). In any event, the VA is neither the mortgagor nor the real
owner of the Property; therefore, the VA is not a proper defendant pursuant
to Pa.R.Civ.P. 1144(a). Accordingly, the VA is not an indispensable party
because the VA does not have any right or interest in the mortgage that would
be prejudiced by any decision in this case. See Orman, 118 A.3d at 406-07.
For these reasons, Appellant is not entitled to relief on his claims related to
the failure to join indispensable parties.
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Grant of Summary Judgment was Premature
Next Appellant argues that the trial court erred by denying his discovery
requests and motion to compel discovery related to Appellee’s possession of
the note and the assignment of the Note and Mortgage to Appellee.
Appellant’s Brief at 77-78; see also Appellant’s Reply Brief at 21
(unpaginated).
Following our review of the record, the parties’ briefs, and relevant legal
authority, we discern no abuse of discretion by the trial court. See
Sampathkumar, 241 A.3d at 1144. Specifically, we agree with the trial court
that Appellant has not shown that he was duly diligent in seeking the material
requested in discovery. See Trial Ct. Op. at 21-22. Additionally, we note that
the trial court also concluded that Appellant’s claims related to the assignment
of the mortgage are meritless because a borrower lacks standing to challenge
the validity of the assignment of the mortgage. See id. at 18. Therefore,
Appellant cannot establish that the requested discovery would have aided in
the establishment of any material fact. See Manzetti v. Mercy Hosp. of
Pittsburgh, 776 A.2d 938, 950-51 (Pa. 2001) (explaining that summary
judgment may be entered where additional discovery would not have aided in
establishing any material fact). Therefore, Appellant is not entitled to relief
on this claim.
Act 91 Notice
Finally, Appellant argues that Appellee’s Act 91 notice was defective for
several reasons. Appellant’s Brief at 68-72. Appellant contends that
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Appellee’s Act 91 is incorrect because it identified Appellee as the investor and
mortgage loan servicer but that MERS eRegistry System lists different parties
as the investor and loan servicer. Id. at 68. Further, Appellant claims that
the Act 91 notice was incorrect because the notice was sent prior to MERS’s
assignment of the mortgage to Appellee. Id. at 70. Appellant contends that
these discrepancies relate to Appellee’s standing and were “highly
prejudicial/perplexing” to Appellant. Id. at 71.
Next Appellant claims that Appellee failed to submit proof that it sent
the Act 91 notice via certified mail. Id. at 69. Appellant also argues that the
Act 91 notice did not comply with 12 Pa. Code § 31.203 because it was sent
on Appellee’s letterhead. Id. at 69-70. Further, Appellant contends that the
Act 91 notice was incorrect because it stated that the loan was assumable,
which is inconsistent with the Note and Mortgage, which both state that the
loan is not assumable without the approval of the VA. Id. at 70.
This Court has explained that
“[t]he purpose of an Act 91 notice is to instruct the mortgagor of different means he may use to resolve his arrearages in order to avoid foreclosure on his property and also gives him a timetable in which such means must be accomplished. 35 P.S. § 1680.403c.” Fish v. Pennsylvania Housing Fin. Agency, 931 A.2d 764, 767 (Pa. Cmwlth. 2007). The relevant statutory language, governing notice to the mortgagor before any legal action may be taken by a mortgagee, provides:
(a) Before any mortgagee may accelerate the maturity of any mortgage obligation covered under this article, commence any legal action including mortgage foreclosure to recover under such obligation, or take possession of any security of the mortgage debtor for such mortgage obligation, such mortgagee shall give the mortgagor notice
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as described in [35 P.S. § 1680.403c]. Such notice shall be given in a form and manner prescribed by the agency. Further, no mortgagee may enter judgment by confession pursuant to a note accompanying a mortgage, and may not proceed to enforce such obligation pursuant to applicable rules of civil procedure without giving the notice provided for in this subsection and following the procedures provided for under this article.
35 P.S. § 1680.402c. Moreover, section 1680.403c (“Notice requirements”) indicates in pertinent part that:
(a) Any mortgagee who desires to foreclose upon a mortgage shall send to such mortgagor at his or her last known address the notice provided in subsection (b): Provided, however, That such mortgagor shall be at least sixty (60) days contractually delinquent in his mortgage payments or be in violation of any other provision of such mortgage.
(b)(1) . . . The notice shall be in plain language and specifically state that the recipient of the notice may qualify for financial assistance under the homeowner’s emergency mortgage assistance program. This notice shall contain the telephone number and the address of a local consumer credit counseling agency. This notice shall be in lieu of any other notice required by law. This notice shall also advise the mortgagor of his delinquency or other default under the mortgage and that such mortgagor has thirty (30) days to have a face-to-face meeting with the mortgagee who sent the notice or a consumer credit counseling agency to attempt to resolve the delinquency or default by restructuring the loan payment schedule or otherwise.
35 P.S. § 1680.403c.
Wells Fargo Bank, N.A. ex rel. Certificate Holders of Asset Backed
Pass-through Certificates Series 2004-MCWI v. Monroe, 966 A.2d 1140,
1142-43 (Pa. Super. 2009).
Further, our Supreme Court has explained that a notice that does not
meet the requirements of Act 91 is defective, but “a defective Act 91 notice
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does not deprive the courts of subject matter jurisdiction[.]” Beneficial
Consumer Disc. Co. v. Vukman, 77 A.3d 547, 553 (Pa. 2013).
Further, a defendant asserting that the plaintiff failed to comply with Act
91 must show prejudice in order to be entitled to relief. See Monroe, 966
A.2d at 1143-44; see also 35 P.S. § 1681.5(1) (providing that the trial court
may award relief when a plaintiff has failed to comply with the notice
requirements of Act 91 and the defendant has been prejudiced by the
plaintiff’s failure to comply with Act 91).
Before we address the merits of this issue, we note that the only claim
Appellant presented to the trial court regarding the Act 91 notice was that the
notice incorrectly identified Appellee as the investor and loan servicer. See
Appellant’s Reply, 1/11/24, at 2-3 (unpaginated). Appellant failed to raise his
other claims related to the Act 91 notice before the trial court; and therefore,
these issues are waived on appeal. See Moranko, 118 A.3d at 1115-16;
Pa.R.A.P. 302(a).
In its Rule 1925(a) opinion, the trial court did not address Appellant’s
specific claim but concluded that Appellant’s other claims regarding supposed
defects in the Act 91 notice were meritless because Appellant failed to
establish prejudice. See Trial Ct. Op. at 20-21 (citing Monroe, 966 A.2d at
1142-45). Further, as stated above, the trial court concluded that Appellee
has established that it is the current holder of the Note and the Mortgage.
See id. at 11-12, 17.
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Based on our review of the record, we conclude that Appellant has failed
to establish that the Act 91 Notice was defective because it correctly identified
Appellee as the investor. See Sampathkumar, 241 A.3d at 1144. Further,
even if there was a defect on the face of the Act 91 Notice, we agree with the
trial court that Appellant has failed to establish that he was prejudiced by any
defect. See Monroe, 966 A.2d at 1143-44; see also 35 P.S. § 1681.5(1).
Accordingly, Appellant is not entitled to relief on this claim.
For these reasons, we affirm the trial court’s order granting summary
judgment in favor of Appellee.8
Order affirmed. Jurisdiction relinquished.
Date: 12/16/2025
8 The parties are directed to attach a copy of the trial court’s opinion in the
event of further proceedings.
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