J. A21022/16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
WELLS FARGO BANK, N.A. SUCCESSOR : IN THE SUPERIOR COURT OF BY MERGER TO WACHOVIA BANK, N.A., : PENNSYLVANIA : Appellee : : v. : : LISA FERRERI A/K/A LISA A. FERRERI, : : Appellant : No. 403 EDA 2015
Appeal from the Order Entered January 16, 20151 In the Court of Common Pleas of Montgomery County Civil Division at No.: 2009-42684
BEFORE: BENDER, P.J.E., DUBOW, J., and MUSMANNO, J.
MEMORANDUM BY DUBOW, J.: FILED NOVEMBER 15, 2016
Appellant, Lisa Ferreri, defendant below, appeals from the January 16,
2015 Order entered in the Montgomery County Court of Common Pleas
granting Appellee’s Motion for Summary Judgment in this mortgage
foreclosure action. We affirm.
We adopt the facts as set forth by the trial court. See Trial Court
Opinion, filed 10/27/15, at 1-5. In summary, Wachovia Bank, N.A.
(“Wachovia”) instituted this mortgage foreclosure action after Appellant
1 Appellant purports to appeal from the Order entered on January 15, 2014. We note that the trial court dated its Order granting Summary Judgment in favor of Appellee on January 15, 2015, but the trial court did not file and enter this Order on the docket until the next day on January 16, 2015. We have changed the caption accordingly. See Pa.R.A.P. 108 (entitled “Date of Entry of Orders”). J. A21022/16
defaulted on her mortgage for 1516 Surrey Lane in Wynnewood,
Pennsylvania, in the amount of $269,015.93. After serving Act 91 2 notice of
its intent to foreclose, Wachovia eventually filed a second Amended
Complaint. Appellant responded with an Answer that included general
denials, and an admission that she mortgaged the property to Wachovia.
Appellant also raised twenty-six affirmative defenses, which the trial court
dismissed with prejudice.
On April 14, 2014, Wells Fargo Bank, N.A. (“Wells Fargo”) became the
plaintiff in this action pursuant to Pa.R.C.P. No. 2352 as Wachovia’s
successor by merger. On July 3, 2014, Wells Fargo filed a Motion for
Summary Judgment. On August 1, 2014, Appellant filed her response
admitting that she had executed the note and mortgage, that she was in
default, and that Wells Fargo merged with Wachovia as its successor
generally.
On January 16, 2015, the trial court granted Wells Fargo’s Motion for
Summary Judgment and entered Judgment on January 22, 2015. On
January 26, 2015, Appellant filed a 424-page Motion for Reconsideration.
On February 9, 2015, Appellant filed a Notice of Appeal before the trial court
had ruled on Appellant’s Motion for Reconsideration.
2 Homeowners Emergency Mortgage Assistance Act (“Act 91”), 35 P.S. § 1680.401c et seq.
-2- J. A21022/16
Both Appellant and the trial court complied with Pa.R.A.P. 1925.
Appellant presents four issues for our review:
I. This Court has held that a foreclosing bank is not entitled to summary judgment when that bank cannot establish that it was the owner or holder in due course of the relevant promissory note when the mortgage foreclosure action was filed. Here, Wells Fargo has not established that it, or its predecessor in title, was the owner or holder in due course of the relevant promissory note when this mortgage foreclosure action was filed. Did the trial court commit an error of law or abuse its discretion when it granted Wells Fargo’s Motion for Summary Judgment?
II. Whether fraud has been committed is a question of fact. Homeowner has alleged that fraud has been committed by Wachovia Bank and Wells Fargo. Did the trial court commit an error of law or abuse its discretion when it granted Wells Fargo’s Motion for Summary Judgment despite the existence of disputed issues of fact with respect to Homeowner’s fraud claims?
III. An Act 91 Notice is defective if it lists more than just the contact information for the county counseling agency where the property is located or when it is written on the mortgagee’s letterhead. A defective Act 91 Notice requires dismissal of the action. The Act 91 Notice received by Homeowner included contact information for counseling agencies in at least five different counties and was written on Wachovia Bank’s letterhead. Did the trial court commit an error of law or abuse its discretion when it granted summary judgment in favor of Wells Fargo, despite such evidence that the Act 91 Notice was defective?
IV. The federal Real Estate Settlement Procedures and Truth In Lending Acts required Wells Fargo to provide certain information to Homeowner that was not provided in this case. Did the trial court commit an error of law or abuse its discretion when it granted summary judgment in favor of Wells Fargo, despite Homeowner’s claims that Wells Fargo violated these federal laws?
Appellant’s Brief at 4.
-3- J. A21022/16
Each of Appellant’s four issues challenge the trial court’s Order
granting summary judgment in favor of Appellee. Our Supreme Court has
clarified our role as the appellate court as follows:
On appellate review, then, an appellate court may reverse a grant of summary judgment if there has been an error of law or an abuse of discretion. But the issue as to whether there are no genuine issues as to any material fact presents a question of law, and therefore, on that question our standard of review is de novo. This means we need not defer to the determinations made by the lower tribunals. To the extent that this Court must resolve a question of law, we shall review the grant of summary judgment in the context of the entire record.
Summers v. Certainteed Corp., 997 A.2d 1152, 1159 (Pa. 2010)
(citations and quotation omitted).
A trial court may grant summary judgment “only in those cases where
the record clearly demonstrates that there is no genuine issue of material
fact and that the moving party is entitled to judgment as a matter of law.”
Id. (citation and quotation omitted); see also Pa.R.C.P. No. 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.” Summers, supra at 1159 (citation
omitted). “In so doing, the trial court must resolve all doubts as to the
existence of a genuine issue of material fact against the moving party, and,
thus, may only grant summary judgment where the right to such judgment
is clear and free from all doubt.” Id. (citation and internal quotation marks
omitted).
-4- J. A21022/16
“Where the non-moving 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.” Truax v. Roulhac, 126 A.3d 991, 997 (Pa. Super.
2015), appeal denied, 129 A.3d 1244 (Pa. 2015) (citation and quotation
omitted). “Further, 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.” Id. (citation and internal quotation marks omitted). “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.” Id.
(citation and quotation omitted).
A trial court properly grants summary judgment in a mortgage
foreclosure action “where the defendant[/mortgagor] admits that he had
failed to make the payments due and fails to sustain a cognizable defense to
the plaintiff’s claim.” Gateway Towers Condominium Ass’n v. Krohn,
845 A.2d 855, 858 (Pa. Super. 2004); see also Bank of America , N.A. v.
Gibson, 102 A.3d 462, 465 (Pa. Super. 2014), appeal denied, 112 A.3d
648 (Pa. 2015) (holding that entry of summary judgment is proper if the
mortgagor admits that: (1) the mortgage is in default; (2) the mortgagor
has failed to pay the obligation; and (3) the recorded mortgage is in the
specified amount). Where specific denials are required, general denials to
-5- J. A21022/16
averments in a Complaint constitute admissions. Pa.R.C.P. No. 1029(b);
see, e.g., Bank of America, supra at 466-67.
In her first issue, Appellant avers the trial court improperly granted
Wells Fargo’s Motion for Summary Judgment because Wells Fargo failed to
prove it was the “owner or holder in due course of the relevant promissory
note when the mortgage foreclosure action was filed.” Appellant’s Brief at 4.
Appellant’s claim essentially challenges Appellee’s standing to proceed with
the mortgage foreclosure action.3
The law is clear that only “the real party in interest” may prosecute a
legal action. Pa.R.C.P. No. 2002(a). “[T]he mortgagee is the real party in
interest in a foreclosure action.” PHH Mortgage Corp. v. Powell, 100 A.3d
611, 619 (Pa. Super. 2014) (citation omitted). Generally, when the original
mortgagee company merges with another company, the surviving
corporation becomes the mortgagee under the mortgage agreement, as it
“succeeds to both the rights and obligations of the constituent corporations,”
rendering the surviving corporation the real party in interest in a mortgage
foreclosure action. See Park v. Greater Delaware Valley Sav. & Loan
Ass’n, 523 A.2d 771, 775-76 (Pa. Super. 1987); 12 U.S.C. § 215a(e); 7
P.S. § 1606.
3 Insofar as Appellant relies on Nanty-Glo v. American Surety Co., 163 A. 523 (Pa. 1932), for the first time on appeal, Appellant has waived such an argument by failing to present it in the lower court. Pa.R.A.P. 302(a).
-6- J. A21022/16
No assignment or indorsement is necessary to bestow upon the
surviving bank the status of the real party in interest to enforce a debt owed
to its predecessor. 12 U.S.C. § 215a(e); 7 P.S. § 1606. This assumes,
however, that the predecessor in interest was, at the time of the merger,
itself entitled to enforce the note. Unless the predecessor in interest has the
right to enforce the note, the successor by merger does not acquire the right
to enforce the note. 13 Pa.C.S. § 3302(c). See also J.P. Morgan Chase,
N.A. v. Murray, 63 A.3d 1258, 1267-68 n.6 (Pa. Super. 2013) (implying
that succession by merger is sufficient proof to show ownership of note and
mortgage).
As the trial court noted in its Opinion, Appellant admitted that she
obtained a loan from Wachovia and executed a note and mortgage in favor
of Wachovia. See Answer to Second Amended Complaint, R.R. at 26a;
Response in Opposition to Motion for Summary Judgment, R.R. at 70a-71a.
When Appellant defaulted, Wachovia, as the original mortgagee, commenced
the instant mortgage foreclosure action by filing a Complaint in 2009.
Docket Entry from 12/11/2009, R.R. at 1a. As a result of Wachovia’s
merger with Appellee Wells Fargo, Wells Fargo became the plaintiff as
Wachovia’s successor, pursuant to Pa.R.C.P. No. 2352. See also Docket
Entry from 4/14/2014, R.R. at 2a. Appellant admitted that Wells Fargo is
Wachovia’s successor by merger “in general” and that it acquired Wachovia’s
-7- J. A21022/16
assets in 2010. Response in Opposition to Motion for Summary Judgment,
R.R. at 71a.
By virtue of statutory authority and case law, and most significantly
Appellant’s own admissions, there is no question that Wells Fargo had
standing to enforce the note. Appellant’s assertions to the contrary are
baseless.
In her second issue, Appellant avers that the trial court improperly
granted Wells Fargo’s Motion for Summary Judgment because there is a
question of fact as to Appellant’s fraud claims that she asserted in her
Response to the Motion for Summary Judgment, her Motion for
Reconsideration, and her Pa.R.A.P. 1925(b) Statement.
In order to raise a genuine issue of material fact at summary
judgment, a defendant must do more than rest on the pleadings; he or she
must meet the burden of producing facts to counter the plaintiff’s
averments. N.Y. Guardian Mortg. Corp. v. Dietzel, 524 A.2d 951, 952-53
(Pa. Super. 1987); Pa.R.C.P. No. 1035.3 (“adverse party may not rest upon
the mere allegations or denials of the pleadings but must file a
response…identifying (1) one or more issues of fact arising from evidence in
the record controverting the evidence cited in support of the motion or from
a challenge to the credibility of one or more witnesses testifying in support
of the motion, or (2) evidence in the record establishing the facts essential
-8- J. A21022/16
to the cause of action or defense which the motion cites as not having been
produced.”).
In addressing this issue, the trial court concluded as follows:
[Appellant’s] fourteenth assignment of error lacks merit. It presumes, falsely, that [Appellant] presented to this court in opposition to the [Appellee]’s [M]otion for [S]ummary [J]udgment competent evidence to support the assertions now made on appeal that loan application information was fabricated, that the loan made was predatory, or any other of the assertions [Appellant] now makes by her fourteenth assignment of error. [Appellant’s] fourteenth assignment of error lacks merit.
Trial Court Opinion at 12-13, 16. We agree.
Appellant did not attach any affidavits to her Response in opposition to
Appellee’s Motion for Summary Judgment or her “Sur-Sur Reply[.]” Instead,
Appellant relied exclusively on averments or denials contained in her
Response to the Motion for Summary Judgment. She failed to attach any
evidence to support her opposition to Wells Fargo’s Motion for Summary
Judgment. Although Appellant included several exhibits related to Fannie
Mae, the merger between Wachovia and Wells Fargo, and Wachovia’s Act 91
Notice in her “Sur-Sur Reply[,]” these exhibits did not relate to or support
her fraud claims.
After the trial court granted Appellee’s Motion for Summary Judgment,
Appellant filed a 424-page Motion for Reconsideration and annexed affidavits
from a certified fraud examiner and a securitization analyst, and a letter
from a second certified fraud examiner to support her averment that “the
bank was taking advantage of the limited understanding of interest rates of
-9- J. A21022/16
an elderly woman and using predatory and deceptive practices.” Appellant’s
Motion for Reconsideration, Exhibit A, R.R. at 191a. This was the first and
only “evidence” of fraud or predatory lending practices presented to the trial
court to support her opposition to the Motion for Summary Judgment.
Appellant filed her Notice of Appeal before the trial court ruled on her Motion
for Reconsideration, and the trial court never permitted Appellant to
supplement her Response to the Motion for Summary Judgment with these
additional exhibits. The trial court committed no error of law and did not
abuse its discretion in concluding that Appellant had presented no issue of
fact that would preclude summary judgment. Appellant’s argument to the
contrary lacks merit.
In her third issue, Appellant avers that because the Act 91 Notice was
defective, the trial court improperly refused to dismiss the mortgage
foreclosure action. Appellant contends that the Notice violated Act 91
because it was printed on Wachovia letterhead, failed to accurately
summarize the balance due, and included a list of numerous counseling
agencies rather than just the agency in Appellant’s county. This issue lacks
merit.
Act 91 requires a mortgagee pursuing foreclosure to send notice to a
mortgagor advising her of the delinquency and providing 30 days to have a
face-to-face meeting with the mortgagee or with a consumer credit
counseling agency to attempt to resolve the delinquency. 35 P.S. §
- 10 - J. A21022/16
1680.403c(a), (b)(1). The purpose of Act 91 Notice is “to instruct the
mortgagor of different means [s]he may use to resolve [her] arrearages in
order to avoid foreclosure on [her] property and also [to give] a timetable in
which such means must be accomplished.” Wells Fargo Bank, N.A. v.
Monroe, 966 A.2d 1140, 1142 (Pa. Super. 2009).
In the instant case, Appellee filed a copy of the Act 91 Notice as an
Exhibit to its Motion for Summary Judgment. See Appellee’s Motion for
Summary Judgment, 7/3/14, Exhibit D; R.R. at 826a. In addressing
Appellant’s challenge to the Notice, the trial court observed:
First, [Appellant] failed to present [] the notices that she actually received and she failed to present any evidence to show how the notices presented by the [Appellee] were at variance with the amounts she actually owed on her mortgage. Second, [Appellant] failed to challenge the notices she received on the ground that too many [counseling] agencies were listed. [] In any event, the [Appellant] failed to respond to the [Appellee’s] [M]otion for [S]ummary [J]udgment with any evidence that the notices she received in any way confused her or otherwise caused her to default on her mortgage. [Appellant]’s [] assignment of error lacks merit.
Trial Court Opinion at 12 (citation omitted).
Based on our thorough review of the record, we discern no abuse of
discretion or error of law in the trial court’s disposition of this issue.
Accordingly, Appellant’s third claim does not merit relief.
In her fourth issue, Appellant contends that Wells Fargo violated (1)
the Truth In Lending Act (“TILA”) by failing to respond to her request to
identify the owner of the mortgage; and (2) the Real Estate Settlement
- 11 - J. A21022/16
Procedures Act (“RESPA”) by failing to respond to a request for information
about the note and the mortgage. This issue is waived.
As noted supra, issues not raised in the trial court are waived for
purposes of appeal. Pa.R.A.P. 302(a). This Court has previously held that
“a non-moving party’s failure to raise grounds for relief in the trial court as a
basis upon which to deny summary judgment waives those grounds on
appeal.” Harber Philadelphia Center City Office Ltd. v. LPCI Ltd.
P'ship, 764 A.2d 1100, 1105 (Pa. Super. 2000). These strategic choices in
the lower court are consequential because the “decision to pursue one
argument over another carries the certain consequence of waiver for those
arguments that could have been raised but were not.” Id.
The trial court here concluded that Appellant waived her TILA and
RESPA claims pursuant to Pa.R.A.P. 302(a) because Appellant did not
present these arguments in the lower court in her Response to the Motion
for Summary Judgment. See Trial Court Opinion at 1; Appellee’s Brief at
53. Instead, Appellant presented only a general objection to the calculation
of finance charges based on TILA. She failed to present any issues related
to Wells Fargo’s failure to respond under TILA or any issues related to
RESPA. As a result, Appellant has waived this fourth claim of error on
appeal.
- 12 - J. A21022/16
In summary, we discern no abuse of discretion or error of law and
affirm the trial court’s January 16, 2015 Order granting Summary Judgment
in favor of Wells Fargo.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 11/15/2016
- 13 - Circulated 10/28/2016 02:38 PM
2009-426R-l-OI02 10 27 2015 I0:14 ..\J\I "105Jl8JJ Opinion R~pta'22556R9& Fee:S0.00 IN THE COURT OF ( ~(ark ( .evy • :0.lontCo Prothonotary fY,PA LIV IL lJI V I-'1Ul'li
WELLS FARGO BANK, N.A., Successor by 2009-42684 Merger to Wachovia Bank, N.A. 403 EDA 2015
vs. IN MORTGAGE LISA FERRARI a/k/a LISA A. FERRARI FORECLOSURE
OPINION
BARRETT,J. OCTOBER '7 t , 2015 Defendant Lisa Ferrari has filed a notice of appeal from this court's order dated January
15, 2015, entered of record on January 16, 2015. That order granted the plaintiffs motion for
summary judgment in this in rem action sounding in mortgage foreclosure.
I. PROCEDURAL msTORY
On May 13, 2010, the original plaintiff, Wachovia Bank, National Association, filed its
second amended complaint by which it alleged: (1) that defendant Lisa Ferrari gave a mortgage
to the original plaintiff for the real property she owned at 1516 Surrey Lane, Wynnewood,
Pennsylvania; (2) that the defendant was in default because she had not paid any principal or
interest in over a year; (3) that the defendant owed $269,015.93 on the mortgage; and (4) that
proper notice of intention to foreclose was served upon the defendant. See Second Amended
Complaint, 5/13/10, #0009, ,r,r 3-6. As an exhibit to the second amended complaint, the original
plaintiff attached mortgage papers dated July I 0, 2006, signed by the defendant, bearing the
recordation mark of the Montgomery County Recorder of Deeds. Second Amended Complaint,
5/13/10, #0009 (Exhibit "A").
Appendix I On September 10, 2010, the defendant filed an answer to the second amended complaint.
Defendant admitted expressly that she had mortgaged her property at 1516 Surrey Lane.
Defendant's Answer, 9/10/10, #0022, 12. To the remainder of the original plaintiffs
allegations, the defendant responded "Denied" while admitting that she had given the mortgage
to "Wachovia Bank National Association." Defendant's Answer, 9/10/10, # 0022, 13.1
Defendant also filed a list of twenty-six affirmative defenses designated as new matter. See New
Matter, 9/10/10, #0022, pp. 1-7. Defendant also purported to set forth five separate
counterclaims arising from the original plaintiffs conduct in originating the mortgage loan or in
collecting payment. See Counterclaim, 1127-42. By order entered on October 20, 2011, the
Honorable William R. Carpenter, of this court, dismissed the defendant's new matter and
counterclaims, with prejudice, upon consideration of the original plaintiff's preliminary
objections.
On November 2, 2011, the original plaintiff served upon the defendant a request for
admissions. Motion for Summary Judgment, 7/3/14, #0054, 112; Response, 8/1/14, #0055, 112
(noting that the request was served upon defendant's prior counsel). That request asked the
defendant to admit: (1) the principal and interest due on the mortgage; (2) that the original
plaintiff properly served on the defendant the required legal notices; and (3) that the original
plaintiff is entitled to collect attorney's fees. See Motion for Summary Judgment, 7/3/14, #0054,
(Exhibit "H''). Defendant did not respond to the original plaintiffs request for admissions.
Motion, 7/3/14, #0054, 112. See Response, 8/1/14, #0055, 112 (ignoring the substance of
I Defendant did so while denying that she had given the mortgage to "Wachovia Bank National Association Wachovia Bank DSR 04003-014." Defendant's Answer, 9/10/10, #0022, ~ I. Defendant made that denial mistakenly believing that the original plaintiff's mailing address, that being "Wachovia Bank DSR 04003-014," was part of its name.
2 original plaintiffs allegation and denying that defendant "ever served on Defendant's current
counsel any Request for Admissions.") (emphasis added).
On April 14, 2014, Wells Fargo Bank, N.A., became the plaintiff in this action by
asserting its right to substitution by filing its ''Substitution of Successor Plaintiff Under Rule
2352." That filing indicated that "[o]n March 20, 2010, Wachovia Bank, M.A. merged with
Wells Fargo Bank, N.A. and the resulting bank is Wells Fargo Bank, N.A." Substitution,
4/14/14, #0053, 12. Contemporaneously with its substitution, the plaintiff filed a certificate of
service indicating that the substitution was served upon the defendant on April 14, 2015.
Defendant filed no opposition to the substitution.2
On July 3, 2014, the plaintiff filed its motion for summary judgment, based on the
defendant's general denials to the second amended complaint, and based on the defendant's
failure to respond to the requests for admissions. Plaintiff averred in its motion that the original
plaintiff had been merged into the plaintiff and that that the plaintiff possessed the note that the
defendant had given to the original plaintiff. Motion for Summary Judgment, 7/3/14, #0054, 11
5-6. See also Plaintiff's Reply, 8/19/14, #0058, 14 (reasserting that "Wells Fargo Bank, N.A. is
the successor mortgagee."). To its motion, the plaintiff attached a certificate of service
indicating that a copy of the motion was served upon defendant on July 3, 2014.
On August 1, 2014, the defendant filed her response to the plaintiff's motion for
summary judgment. Defendant admitted that she had executed the note and mortgage, and that
she was in default. Similarly, the defendant conceded that that the plaintiff had obtained the
original plaintiff's assets in 2010 and that the plaintiff was the original plaintiffs successor, in
2 There was no factual dispute as to whether the plaintiff was generally the successor to the original plaintiff. See Response to Motion for Summary Judgment, 8/1/14, #0055, 12 ("It is also admitted that Wells Fargo Bank, N.A. is the successor to Wachovia Bank[,] in general, having obtained the assets of Wachovia Bank in 20 I 0. "). See also Motion for Summary Judgment, Exhibit "C" (merger documentation).
3 3 general. Response, 8/1/14, #0055, 12. Defendant attached to her response no exhibits,
however, the defendant nevertheless opposed the plaintiffs motion on four discernable grounds.
The first of these was that the "[defendant] entered into the Note and loan due to fraudulent
actions of [the original] Plaintiff." Response, 8/1/14, #0055, 12. See also Response, 8/1/14,
#0055, 125 (referring to predatory loan practices); Response, 8/1/14, #0055, 129 (alleging fraud
in the inducement); Response, 8/1/14, #0055, 130 (alleging "additional fraudulent acts").
The second defense was that the original plaintiff forfeited its right to enforce either the
note or the mortgage when it "transferred" the note or the mortgage to the Federal National
Mortgage Association ("Fannie Mae") before the original plaintiff sold its assets to the plaintiff.
Response, 8/1/14, #0055, 128. See also Response, 8/1/14, #0055, 12 (''Wells Fargo Bank, N.A.
is [not] the holder in due course or other valid owner of the Note."); Response, 8/1/14, #0055, 1
23 (asserting that the original plaintiff sold "the loan" to "private investors"); Response, 8/1/14,
#0055, 16 ("Plaintiff is [not] the current holder of the Mortgage and has [no] right to enforce
it."); Response, 8/1/14, #0055, 113, 14-16.
Defendant's third defense was that "the Property is [not] encumbered by the Mortgage."
Response, 8/1/14, #0055, 14. This was apparently because the defendant claimed that the
original plaintiff violated a pooling and servicing agreement when it "record[ed] Defendant's
home equity line of credit in first position on the Mortgage and recording the Mortgage in second
position, ... " Response, 8/1/14, #0055, 124.
3 However, the defendant took the position that the plaintiff could not have acquired the note from the original plaintiff by way of succession, as follows: Plaintiff, Wells Fargo, is not the successor in interest by operation of merger to the initial lender, because the loan was securitized prior to the date of merger and had been transferred from Wells Fargo to at least one other entity. Specifically, the Federal National Mortgage Association ("Fannie Mae") had claimed to own the Note prior to that time. Response, 8/1/14, #0055, 128.
4 The fourth defense asserted was that the notices defendant received failed to comply with
41 P.S. §§ 4~3(b), et seq., and 35 P.S. §§1680.403c, et seq. Response, 8/1/14, #0055, 18. See
also Response, 8/1/14, #0055, 122 ("Specifically, Defendant was neyer given the opportunity to
meet the lender in person, as required, since Plaintiff is not the true lender in this matter.
Defendant was not provided the proper payoff amount as required by the notice.").
The parties presented oral argument to the undersigned on January 15, 2015. By order
dated January 15, 2015, entered of record on January 16, 2015, the court granted the plaintiff's
motion for summary judgment. Accordingly, an in rem judgment was entered in favor of the
plaintiff and against the defendant on January 22, 2015, pursuant to the praecipe filed by the
plaintiff on that date.
On January 26, 2015, the defendant filed a 20 page motion for reconsideration of this
court's order dated January 15, 2015. With its attachments, the defendant's motion for
reconsideration totaled 424 pages. The undersigned had not yet decided the defendant's motion I
for reconsideration when the defendant filed a notice of appeal, on February 9, 2015.
On March 10, 2015, the defendant filed a concise statement of errors complained of on
appeal, as directed by this court's order entered on February 17, 2015. The defendant's
assignments of error for appeal span seven typewritten pages will not be set out here at length,
but will rather be quoted as appropriate below, owing to their length.
II. DISCUSSION
A motion for summary judgment is properly granted when "the pleadings, depositions,
answers to interrogatories, admissions on file, and affidavits demonstrate that there exists no
genuine issue of material fact and the moving party is entitled to judgment as a matter of law."
Horne v. Haladay, 728 A.2d 954, 955 (Pa.Super.1999) (citing Pa. R. Civ. P. 1035.2). "In actions
5 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 the payments due and fails to sustain a
cognizable defense to the plaintiffs claim. Gateway Towers Condominium Ass'n v. Krohn, 845
A.2d 855 (Pa.Super. 2004) ( citing First Wis. Trust Co. v. Strausser, 439 Pa.Super. 192, 653 A.2d
688, 694 (1995)). See also Cunningham v. McWil/iams, 714 A.2d 1054, 1057 (Pa.Super. 1998)
("In a mortgage foreclosure action, summary judgment is properly granted where 'the
mortgagors admit that the mortgage is in default, that they have failed to pay interest on the
obligation, and that the recorded mortgage is in the specified amount.?') (citing Landau v.
Western Pennsylvania National Bank, 445 Pa. 217, 225-26, 282 A.2d 335, 340 (1971)). A
defendant admits the material portions of a complaint in mortgage foreclosure, by operation of
Pa.R.C.P. 1029, when that defendant files an answer containing general denials. E.g., Bank of
America, N.A. v. Gibson, 102 A.3d 462 (Pa.Super. 2014). See also First Wisconsin Trust Co. v.
Strausser, 653 A.2d 688, 692 (Pa.Super. 1995) ("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 must be considered an admission of those facts")
(citing New York Guardian Mortgage Corp. v. Dietzel, 524 A.2d 951, 952 (1987)).
Here, in the matter now on appeal, the case is squarely within the rule by which general
denials to a complaint in mortgage foreclosure amount to admissions justifying the grant of
summary judgment. Here, the defendant responded "denied" to all of the plaintiff's material
allegations. Moreover, the defendant's failure to respond to the requests for admissions
propounded by the plaintiff established the plaintiff's prim a facie claim in mortgage foreclosure
as "[t]he matter is admitted unless, within thirty days after service of the request, or within such
shorter or longer time as the court may allow, the party to whom the request is directed serves
6 upon the party requesting the admission an answer verified by the party or an objection, signed
by the party or the party's attorney." Pa.R.C.P 1014(b). See also Pa.R.C.P. 1014(d) (setting forth
the general rule that such deemed admissions are "conclusively established"). This court
properly granted the plaintiff's motion for summary judgment.
This court will next address the assignments of error the defendant set forth in her
concise statement.
1. Defendant's First Assignment of Error
Defendant's first assignment of error is as follows:
1. Defendant intends to complain on appeal all issues raised both at oral argument and in the pleadings. Pursuant to Rule 1925(b)(4)(vi), because the Court's Order dated January 15, 2015 states no reasons for the granting of Plaintiffs Motion for Summary Judgment, this Statement is being expressed in only general terms. Defendant reserves the right to address issues in any opinion of the Court which did not previously appear of record. See Ryan v. Johnson, 522 Pa. 555, 563 A.2d 1237 (1989). Furthermore, to the extent that this Honorable Court is not basing its decision in any way on the errors of which Defendant has complained, Defendant reserves the right to amend this statement to take into account the specific errors which defendant can discern from an opinion of this Honorable Court.
Concise Statement, 3/10/15, #0078, p. 2.
This assignment of error raises no cognizable issue on appeal. Rather, it is a purported
reservation of appellate rights. Defendant by this paragraph set forth no grounds to support
reversing the order entered by this court granting the plaintiffs motion for summary judgment.
2. Defendant's Second Assignment of Error
Defendant's second assignment of error is as follows:
2. This Honorable Court erred when it granted summary judgment in favor of Plaintiff, because there are material facts in question on which there is a general dispute. Plaintiff's use of an affidavit from a bank officer who was in no way ever involved in the
7 transactions concerning this matter should have been disregarded as the basis for a motion for summary judgment. See Nanty-Glo v. American Surety Co., 309 Pa. 236, 163 A.2d 523 (1932).
Concise Statement, 3/10/15, #0078, pp. 2-3.
This assignment of error lacks merit as it is unsupported in fact since it presumes that this
court granted the plaintiffs motion for summary judgment in sole reliance upon the affidavit by
the plaintiffs bank officer. As noted above, the plaintiff set forth a prima facie case in mortgage
foreclosure in its second amended complaint and in its requests for admissions. Defendant's
deemed admissions were sufficient grounds to entitle the plaintiff to grant of its motion for
summary judgment. Defendant's second assignment of error lacks merit.
3. Defendant's ThirdAssignment of Error
Defendant's third assignment of error is as follows:
3. This Honorable Court erred by applying an incorrect standard when it granted summary judgment in favor of Plaintiff by failing to rule in favor of the non-moving party. "Lastly, we will 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." JP Morgan Chase Bank NA. v. Murray, 63 A.3d 1258, 1268 (Pa. Superior Court, 2013).
Concise Statement, 3/10/15, #0078, p. 3.
This assignment of error lacks merit as it is unsupported in fact since it presumes that the
record as developed contained evidence that required a determination of fact. As noted above,
the defendant failed to adequately respond to the second amended complaint and the defendant
failed to respond at all to the requests for admissions. Defendant's judicial admissions removed
from consideration any need for this court to weigh any evidence. Defendant's third assignment
of error lacks merit.
8 4. Defendant's Fourth Assignment of Error
Defendant's fourth assignment of error is as follows:
4. This Honorable Court erred when it granted summary judgment in favor of Plaintiff by failing to consider the effects of the decision of the Pennsylvania Superior Court in JP Morgan Chase Bank NA. v. Murray, 63 A.3d 1258, 1268 (Pa. Superior Court, 2013), holding that a genuine issue of material fact to preclude summary judgment exists where Plaintiff "has failed to establish possession of the original Note, indorsed in blank."
This assignment of error lacks merit because it ignores the fact that the defendant in the
matter now on appeal admitted that she gave the note and mortgage to the original plaintiff and
she admitted that the substituted plaintiff acquired the assets of the original plaintiff, which
would include the note and mortgage, necessarily. In JP Morgan Chase Bank NA. v. Murray, 63
A.3d 1258 (Pa.Super. 2013), the defendant challenged the evidence supporting the chain of
ownership by assignment of the note and mortgage. In JP Morgan Chase Bank NA. v. Murray,
63 A.3d 1258 (Pa.Super. 2013), it was taken as given that the appellee would own the mortgage
and note following a succession and merger, if there were sufficient proof of the chain of the
underlying assignments. Here, in the matter now on appeal, there are no assignments. The case
of JP Morgan Chase Bank NA. v. Murray, 63 A.3d 1258 (Pa.Super. 2013) militates against the
defendant in this appeal because it implies that succession by merger is sufficient proof to show
ownership of a note and mortgage to support the entry of summary judgment. Defendant's
fourth assignment of error lacks merit.
5. Defendant's Fifth Assignment of Error
Defendant's fifth assignment of error is as follows:
5. This Honorable Court erred when it granted summary judgment in favor of Plaintiff in finding that Plaintiff was a holder
9 in due course of the note in question (the "Note") or that Plaintiff was ever in physical possession of the Note, or ever an owner of the Note, as Plaintiff presented no evidence of those facts.
This assignment of error lacks merit for the same reason that the defendant's fourth
assignment of error lacks merit. The matter now on appeal is a case where the defendant
admitted that she gave the note and mortgage to the original plaintiff and she admitted that the
plaintiff acquired the assets of the original plaintiff. Defendant's fifth assignment of error lacks
merit because it ignores these admissions.
6. Defendant's Sixth Assignment of Error
Defendant's sixth assignment of error is as follows:
6. This Honorable Court erred when it granted summary judgment in favor of Plaintiff when it permitted Plaintiff to argue as agent, as successor by merger, and as owner of the Note without proof of standing to proceed in any of these roles. As a result, this Honorable Court failed to require Plaintiff to prove standing in any capacity while commencing this action. In Plaintiffs response to a formal inquiry by Defendant's agent, Marie McDonnell, Wells Fargo produced documents that clearly admit that they are not the owner nor the assignee, but are at best a servicer of an undetermined entity.
Concise Statement, 3/10/15, #0078, pp. 3-4.
Defendant's sixth assignment lacks merit as raising matters not presented in response to
the plaintiffs motion for summary judgment. Defendant filed a response on August 1, 2014, a
sur-sur reply on September 18, 2014, and a brief on September 18, 2014. There is no mention of
Ms. McDonnell in any of these papers. There is no mention of the documents she purportedly
obtained and they were not filed as exhibits in response to the plaintiffs motion. Accordingly,
the defendant's sixth assignment of error raises matters that where de hors the record presented
to this court.
10 7. Defendant's Seventh Assignment of Error
Defendant's seventh assignment of error is as follows:
7. This Honorable Court erred when it granted summary judgment in favor of Plaintiff by failing to consider the effect of the holdings in the case of Montgomery County, Pa. ex rel. Becker v. MERSCORP, Inc., No. 11-cv-6968, 2014 WL 550805 (E.D. Pa. February 12, 2014), and its holding that every transfer of a mortgage is a conveyance and needs to be recorded, which Plaintiff has failed to do so in this case.
Concise Statement, 3/10/15, #0078, p. 4.
Defendant's seventh assignment of error lacks merit for the same reason that JP Morgan
Chase Bank NA. v. Murray, 63 A.3d 1258 (Pa.Super. 2013) does not control. Inthe matter now
on appeal there were no assignments of the mortgage. Defendant's seventh assignment of error
lacks merit.
8. Defendant's Eighth Assignment of Error
Defendant's eighth assignment of error is as follows:
8. This Honorable Court erred when it granted summary judgment in favor of Plaintiff by failing to consider the responses of Plaintiff to the inquiries of Defendant's agent, Marie McDonnell, to Plaintiff on behalf of Defendant as set forth in Federal law with regard to the question of note ownership, in essence failing to consider the effect of Plaintiff's admission that neither Wells Fargo nor Wachovia is the owner or the assignee of the Note.
Defendant's eighth assignment lacks merit as raising matters not presented in response to
the plaintiff's motion for summary judgment, as addressed previously.
9. Defendant's Ninth Assignment of Error
Defendant's ninth assignment of error is as follows:
9. This Honorable Court erred when it granted summary judgment in favor of Plaintiff by failing to consider the expert testimonies of
11 William Mc Caffrey, Marie McDonnell, and Amy Andersson. All three experts have testified to Plaintiff not having the standing to bring the action as well as to the improper amounts due, their method of being calculated, and amounts already paid.
Defendant's ninth assignment of error lacks merit as raising matters not presented in
response to the plaintiff's motion for summary judgment, as addressed previously. It should be
noted that there was no testimony in this case, expert or otherwise. To the extent the defendant
might be referring to deposition testimony, l'l:o transcripts were filed in response to the plaintiffs
motion for summary judgment. Defendant's ninth assignment of error lacks merit.
10. Defendant's Tenth Assignment of Error
Defendant's tenth assignment of error is as follows:
10. This Honorable Court erred when it granted summary judgment in favor of Plaintiff by failing to consider that Plaintiff has twice deceived the Court by presenting to the Court fraudulent and defective notices with improper amounts due that are not true and correct copies of the notices actually received by Defendant. Plaintiff attempts to hide the fact that Plaintiff has twice sent notices with counselling agencies in multiple counties instead of only Defendant's county. Proper notification is required in Pennsylvania to commence a foreclosure action. 35 P.S. 1680.403c. See Washington Mutual v. Carr, CCP Adams County (July 5, 2006), published in Adams Co. Legal Journal, Vol. 49, No. 4, pp. 17-21, June 15, 2007. Act 91 notice defective, foreclosure complaint dismissed because notice included a list of all counseling agencies in Pennsylvania rather than a list of agencies in the country in which the property was located.
Concise Statement, 3/10/15, #0078, pp. 4-5.
Defendant's tenth assignment of error lacks merit as raising matters not presented in
response to the plaintiff's motion for summary judgment. First, the defendant failed to present to
this court the notices that she actually received and she failed to present any evidence to show
how the notices presented by the plaintiff were at variance with the amounts she actually owed
12 on her mortgage. Second, the defendant failed to challenge the notices she received on the
ground that too many counselling agencies were listed. See, Brief, 9/18/14, #0062, pp. 13-14
(setting forth nothing more than a block quote from the Ohio opinion PNC Bank, National
Association v. West, Case No. 12CA0061 (OH Ct. App., Dist 9, Jan. 21, 2014). In any event, the
defendant failed to respond to the plaintiffs motion for summary judgment with any evidence
that the notices she received in any way confused her or otherwise caused her to default on her
mortgage. Defendant's tenth assignment of error lacks merit.
11. Defendant's Eleventh Assignment of Error
Defendant's eleventh assignment of error is as follows:
11. This Honorable Court erred when it granted summary judgment in favor of Plaintiff by failing to consider the subordination and lien position of the subject loan.
Concise Statement, 3/1.0/15, #0078, p. 5.
Defendant's eleventh assignment of error lacks merit as it refers to the defendant's
argument that the "[p Jlaintiff or its predecessor" forfeited its rights under the mortgage for
"materially violating [the] terms of a pooling and service agreement ('PSA')." Response, 8/1/14,
#0055, 124. See also Sur-Sur Reply, 9/18/14, #0061, 17. In no way did the defendant make
clear to this court how she can raise as a defense, in the matter now on appeal, the alleged breach
of a contract to which she is not a party. Accord In re Walker, 466 B.R. 271, 284 (Bkrtcy.
E.D.Pa. 2012) ("[w]hatever the context, it appears that a judicial consensus has developed
holding that a borrower lacks standing to (1) challenge the validity of a mortgage securitization
or (2) request a judicial determination that a loan assignment is invalid due to noncompliance
with a pooling and servicing agreement, when the borrower is neither a party to nor a third party
13 beneficiary of the securitization agreement, i.e., the PSA.") ( citation omitted). Defendant's
eleventh assignment of error lacks merit.
12. Defendant's Twelfth Assignment of Error
Defendant's twelfth assignment of error is as follows:
12. This Honorable Court erred when it granted summary judgment in favor of Plaintiff by failing to consider Federal National Mortgage Association's ("Fannie Mae") claim of ownership of the loan along with the supporting expert testimony to this fact as well as Plaintiff's own admission of lack of ownership. Pa 1141-1150 states that Plaintiff in a mortgage foreclosure must set forth parties to the mortgage, any assignments, and a statement of the place of record of the mortgage and assignments. Wells Fargo v. Janosick, CCP Allegheny County (March 23, 2009).
Concise Statement, 3/10/15, #0078, p. 5.
Defendant's twelfth assignment of error lacks merit as it presumes, falsely, that there
were any assignments in this case, just as it ignores the defendant's admission that the plaintiff
acquired the assets of the original plaintiff. In this regard, the defendant's argument regarding
Fannie Mae lacked merit as did the appellees in PHH Mortg. Corp. v. Powell, 100 A.3d 611
(Pa.Super. 2014). In Powell, the mortgagors argued that they had raised a genuine issue of
material fact because two documents "describe[d] Fannie Mae as the 'investor' and 'owner' of
the (mortgagors'] loan." 100 A.3d at 621. That was insufficient to preclude the entry of
summary judgment because it was not evidence that "Fannie Mae (rather than [the plaintiff])
ha[ d] possession of the original Note." 100 A.3d at 621. Defendant's twelfth assignment of
error lacks merit.
13. Defendant's ThirteenthAssignment of Error
Defendant's thirteenth assignment of error is as follows:
14 13. This Honorable Court erred when it granted summary judgment in favor of Plaintiff by failing to consider that the Note was never attached to a pleading nor seen by Defendant nor by any court until this year and that the signature is possibly a forgery. A national practice by Wells Fargo of fabricating such documents for litigation was ruled upon in Cynthia Carrsow-Franklin v. Wells Fargo, Case No. 10-20010 (RDD) Chapter 13 Entered 1/29/2015 (United States Bankruptcy Court, Eastern District of New York) by Judge Drain of White Plains, New York, almost immediately after the oral arguments in this case. Defendant has presented evidence of the fabrication instructions for attorneys discussed by Judge Drain in a lengthy opinion.
Defendant's thirteenth assignment of error lacks merit as raising matters not presented in
response to the plaintiff's motion for summary judgment. Defendant acknowledges in her
thirteenth assignment of error that the grounds relied upon did not exist prior to "almost
immediately after" the matter was orally argued and thereby submitted to this court for decision.
In any event, the defendant tacitly admits that the plaintiff possesses the note, and "possibly. a
forgery" would be insufficient to raise a genuine issue of material fact precluding summary
judgment. Defendant's thirteenth assignment of error lacks merit.
14. Defendant'sFourteenth Assignment of Error
Defendant's fourteenth assignment of error is as follows:
14. This Honorable Court erred when it permitted the action to move forward to summary judgment in favor of Plaintiff despite the numerous acts of fraud perpetuated by the Plaintiff prior to and during this action. This Honorable Court has been provided with proof of fraud including, but not limited to, the fabrication of loan application information benefitting the [P]laintiff, exercise of an illegal right to offset, i[n]proper lien position, lack of recordation, and fraud in the inducement through predatory practices.
Concise Statement, 3/10/15, #0078, p. 6.
15 Defendant's fourteenth assignment of error lacks merit. It presumes, falsely, that the
defendant presented to this court in opposition to the plaintiffs motion for summary judgment
competent evidence to support the assertions now made on appeal that loan application
information was fabricated, that the loan made was predatory, or any other of the assertions the
defendant now makes by her fourteenth assignment of error. Defendant's fourteenth assignment
15. Defendant's Fifteenth Assignment of Error
Defendant's fifteenth assignment of error is as follows:
15. This Honorable Court erred when it granted summary judgment in favor of Plaintiff by honoring the fraud bars for the Truth in Lending Act (TILA) and the Real Estate Settlement Procedures Act (RESPA) since both include many specific laws and many have been amended with the new law of which Plaintiff is still in violation. Defendant's agent, Marie McDonnell, has made inquiries that have gone unanswered to this day on behalf of Defendant in violation of Federal law. Answers would enlighten this Honorable Court if provided since they speak directly to ownership of the Note and standing to bring the action.
Defendant's fifteenth assignment of error lacks merit as raising matters not presented in
response to the plaintiffs motion for summary judgment.
16. Defendant's Sixteenth Assignment of Error
Defendant's sixteenth assignment of error is as follows:
16. This Honorable Court erred when it granted summary judgment in favor of Plaintiff, because it has presumed without evidence that Plaintiff has been injured when expert testimony has declared that the loan was not funded by Plaintiff.
16 Defendant's sixteenth assignment of error lacks merit as raising matters not presented in
17. Defendant's Seventeenth Assignment of Error
Defendant's seventeenth assignment of error is as follows:
17. This Honorable Court erred when it granted summary judgment in favor of Plaintiff by permitting the Plaintiff to mislead this Honorable Court regarding the meanings, definitions, and relationships of owners, servicers, agents, holders, and holders in due course. Washington Mutual v. Carr, CCP Adams County (2007), 2006 WL 2568287 (Pa.Com.Pl.), 77 Pa. D. & C.41h 136. Because Plaintiff failed to allege facts establishing the relationship between it and the original mortgagee in its mortgage-foreclosure complaint, the court granted defendant's preliminary objection based on plaintiffs lack of capacity to sue.
Defendant's seventeenth assignment of error lacks merit as not based in fact. The case
of Washington Mutual v. Carr, CCP Adams County (2007), 2006 WL 2568287 (Pa.Com.Pl.), 77
Pa. D. & C.41h 136 was one where the plaintiff was given the opportunity to amend the complaint
to allege how it became the successor-in-interest to the mortgagee. The matter now on appeal is
a case where the original plaintiff alleged in its second amended complaint that it was the
mortgagee and the defendant filed an answer admitting to that allegation. Defendant's
seventeenth assignment of error lacks merit.
18. Defendant's EighteenthAssignment of Error
Defendant's eighteenth assignment of error is as follows:
18. This Honorable Court erred when it granted summary judgment in favor of Plaintiff in its interpretation and/or misinterpretation of the Uniform Commercial Code as adopted under Pennsylvania law, and its understanding of conveyances and negotiable instruments, if any are applicable in this matter, as well as its understanding of assignments and recordation laws relating to securitized mortgage notes.
17 Concise Statement, 3/10/15, #0078, p. 7.
Defendant's eighteenth assignment of error lacks merit as its generic nature lacks
sufficient specificity to permit meaningful discussion.
19. Defendant's Nineteenth Assignment of Error
Defendant's nineteenth assignment of error is as follows:
19. This Honorable Court erred when it granted summary judgment in favor of Plaintiff when it failed to consider the lack of Plaintiff's proof of establishing a proper chain of title in the history of the instruments in question.
Concise Statement, 3/10/15, #0078, p. 7.
Defendant's nineteenth assignment of error lacks merit for reasons addressed previously.
This is a case where the original plaintiff was the mortgagee and the defendant admitted that the
plaintiff purchased the assets of the plaintiff and it followed that the plaintiff is the original
plaintiffs successor by merger. Defendant's nineteenth assignment of error lacks merit.
20. Defendant'sTwentieth Assignment of Error
Defendant's twentieth assignment of error is as follows:
20. This Honorable Court erred when it granted summary judgment in favor of Plaintiff when it failed to consider that the Note was not attached to the pleadings. Since this is a suit on a contract, the contract must be attached pursuant to Pennsylvania Rule of Civil Procedure 1019.
Defendant's twentieth assignment of error lacks merit as the defendant did not file
preliminary objections to the second amended complaint filed on May 13, 2010 by the original
plaintiff. Rather, the defendant filed an answer and new matter on September 10, 2010.
18 Defendant's twentieth assignment of error therefore raises an issue that has not been preserved
for appellate review.
21. Defendant's Twenty-First Assignment of Error
Defendant's twenty-first assignment of error isas follows:
21. This Honorable Court erred when it granted summary judgment in favor of Plaintiff when it failed to recognize the possibility that a Pooling and Servicing Agreement of the Trust that has been identified as including the instrument in question would play a significant role in determining the standing of this action and that Courts have recognized a homeowner's standing in matters relating to securitized loans that have been pooled into a real estate mortgage investment conduit governed by a pooling and servicing agreement.
Defendant's twenty-first assignment of error lacks merit as it refers to the defendant's
argument that the "[p ]laintiff or its predecessor" forfeited its rights under the mortgage for
"materially violating [the] terms of a pooling and service agreement ('PSA')." Response, 8/1/14,
#0055, 124. See also Sur-Sur Reply, 9/18/14, #0061, 17. It lacks merit for the same reasons
addressed earlier in this opinion, in the discussion of the defendant's eleventh assignment of
error, above. Defendant's twenty-first assignment of error lacks merit.
III. CONCLUSION
Accordingly, for the reasons set forth above, it is respectfully suggested that this court's
order dated January 15, 2015, entered of record on January 16, 2015, should be affirmed.
BY THE COURT:
~./~--~ R. STEPH~N BARRETT, J.
19 Copies mailed on 1j /_,J /, r-;;: Edward D. Conwa~ to: Christine L. Graham, Esquire Manrico A~liti, Jr Esquire