J-S43029-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
WILMINGTON SAVINGS FUND : IN THE SUPERIOR COURT OF SOCIETY FSB, DBA CHRISTIANA : PENNSYLVANIA TRUST, NOT INDIVIDUALLY BUT AS : TRUSTEE FOR PRETIUM MORTGAGE : ACQUISTION TRUST : : : v. : : No. 214 WDA 2018 : CHARLOTTE L. ELLISON, : : Appellant :
Appeal from the Order December 18, 2017 In the Court of Common Pleas of Allegheny County Civil Division at No(s): GD-15-003644
BEFORE: STABILE, J., DUBOW, J., and NICHOLS, J.
MEMORANDUM BY DUBOW, J.: FILED JANUARY 29, 2019
Appellant, Charlotte L. Ellison, appeals pro se from the Order entered in
the Allegheny County Court of Common Pleas granting Summary Judgment to
Appellee, Wilmington Savings Funds Society, FSB, D/B/A Christiana Trust, not
Individually but as Trustee for Pretium Mortgage Acquisition Trust (“Appellee”
or “WSFS”). We affirm.
On August 29, 2005, Appellant borrowed $50,503 from Washington
Mutual Bank, FA, secured by a promissory note (the “Note”) and mortgage
(the “Mortgage”), on the property at 3534 Centralia Street, Pittsburgh, PA
15204. In 2007, Washington Mutual assigned the Note to Wells Fargo Bank,
NA. J-S43029-18
On April 28, 2010, Appellant and Wells Fargo entered a Loan
Modification Agreement.
Beginning in July 2014, Appellant stopped making monthly mortgage
payments. Wells Fargo complied with Act 91 and Act 6 requirements,1 giving
notice to Appellant that it intended to foreclose on the property. On March 6,
2015, Wells Fargo filed a Complaint in mortgage foreclosure against Appellant,
annexing a copy of the promissory note signed by Appellant and a copy of the
loan modification agreement. Appellant filed an Answer on March 23, 2015 in
which she challenged the original assignment of the Note from Washington
Mutual Bank to Wells Fargo, and contended that Wells Fargo Bank had refused
to accept her payments.
On May 9, 2016, Wells Fargo assigned the Note and Mortgage to
Appellee WSFS. On December 19, 2016, WSFS filed a Praecipe for substitution
for party plaintiff.
On May 19, 2017, WSFS filed a Motion for Summary Judgment, to which
Appellant filed a response on June 19, 2017. In her response, Appellant
averred that “this cause of action exists due to the negligence of Wells Fargo
Home Mortgage to accept timely payments and the question of the validity of
the assignment of the mortgage exists.” See Appellant’s Objection to Motion
for Summary Judgement, dated 6/19/17, at 2.
____________________________________________
1 35 P.S. § 1680.401(c) and 41 P.S. § 403, respectively.
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On December 18, 2017, the trial court granted Appellee’s Motion for
Summary Judgment.
This timely appeal followed. Appellant and the trial court complied with
Pa.R.A.P. 1925.
Appellant presents the following issues for our review:
1. Whether the trial court erred as a matter of law by concluding Wilmington is a proper party by way of assignment of mortgage recorded on May 9, 2016 when a sworn deposition exists which calls into question Wilmington’s standing?
2. Whether the trial court erred as a matter of law by waiving the negligence issue regarding the failure of Wells Fargo to accept timely payments during normal business hours?
Appellant’s Brief at 5.
An appellate court may reverse a grant of summary judgment if there
has been an error of law or an abuse of discretion. The issue of whether there
are no genuine issues as to any material fact presents a question of law and
our standard of review is de novo. Weaver v. Lancaster Newspapers, Inc.,
926 A.2d 899, 902-03 (Pa. 2007). When considering a motion for summary
judgment, the trial court must take all facts of record and reasonable
inferences in a light most favorable to the non-moving party. Toy v.
Metropolitan Life Ins. Co., 928 A.2d 186, 195 (Pa. 2007).
The party challenging a Motion for Summary Judgment may not rest
upon allegations or denials of the pleadings. Instead, the adverse party must
identify: “(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
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to the credibility of one or more witnesses testifying in support of the motion;
or (2) evidence in the record establishing the facts essential to the cause of
action or defense which the motion cites as not having been produced.”
Pa.R.C.P. 1035.3(a).
“Failure of a non-moving party to adduce sufficient evidence on an issue
essential to his case and on which it bears the burden of proof… establishes
the entitlement of the moving party to judgment as a matter of law.” Cigna
Corp. v. Executive Risk Indemnification Inc., 111 A.3d 204, 210 (Pa.
Super. 2015). Thus, “[t]he holder of a mortgage is entitled to summary
judgment if the mortgagor admits that the mortgage is in default, the
mortgagor has failed to pay on the obligation, and the recorded mortgage is
in the specified amount.” Bank of America, N.A. v. Gibson, 102 A.3d 462,
465 (Pa. Super. 2014).
A note holder is entitled to enforce the note’s obligations in a mortgage
foreclosure action, regardless of the lack of a formal assignment or transfer of
the note. CitiMortgage, Inc. v. Barbezat, 131 A.3d 65, 69 (Pa. Super.
2016); 13 Pa.C.S. § 3301. The chain of possession by which holder came to
hold the note is immaterial to its enforceability. Barbezat, 131 A.3d at 69.
In her first issue, Appellant challenges Appellee’s standing. Appellant
avers that because of an “admitted robo-signing” by an employee of
Washington Mutual Bank, the assignment of the Note and Mortgage from
Washington Mutual Bank to WFB was invalid, thereby invalidating all
subsequent assignments. Appellant’s Brief at 10.
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Appellant predicates her “robo-signing” argument on deposition
testimony given by Mr. Bryan Bly, an employee of Washington Mutual Bank,
in a different proceeding in 2010. Appellant’s Brief at 12-14. The record,
however, contains no transcript of this deposition testimony. See Pa.R.A.P.
1911(d) (pertaining to effect of failure to supply transcript); See also Smith
v. Smith, 637 A.2d 622, 623-24 (Pa. Super. 1993) (explaining that “it is black
letter law in this jurisdiction that an appellate court cannot consider anything
which is not a part of the record in the case,” and that “a failure by an
Appellant to insure that the original record certified for appeal contains
sufficient information to conduct a proper review constitutes a waiver of the
issue(s) sought to be examined.”) (citations omitted).
Moreover, in light of Appellant’s entering a loan modification agreement
with Wells Fargo in 2010, and complying with that agreement for the next four
years, Appellant’s challenge to the assignment of the mortgage from
Washington Mutual to Wells Fargo fails.
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J-S43029-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
WILMINGTON SAVINGS FUND : IN THE SUPERIOR COURT OF SOCIETY FSB, DBA CHRISTIANA : PENNSYLVANIA TRUST, NOT INDIVIDUALLY BUT AS : TRUSTEE FOR PRETIUM MORTGAGE : ACQUISTION TRUST : : : v. : : No. 214 WDA 2018 : CHARLOTTE L. ELLISON, : : Appellant :
Appeal from the Order December 18, 2017 In the Court of Common Pleas of Allegheny County Civil Division at No(s): GD-15-003644
BEFORE: STABILE, J., DUBOW, J., and NICHOLS, J.
MEMORANDUM BY DUBOW, J.: FILED JANUARY 29, 2019
Appellant, Charlotte L. Ellison, appeals pro se from the Order entered in
the Allegheny County Court of Common Pleas granting Summary Judgment to
Appellee, Wilmington Savings Funds Society, FSB, D/B/A Christiana Trust, not
Individually but as Trustee for Pretium Mortgage Acquisition Trust (“Appellee”
or “WSFS”). We affirm.
On August 29, 2005, Appellant borrowed $50,503 from Washington
Mutual Bank, FA, secured by a promissory note (the “Note”) and mortgage
(the “Mortgage”), on the property at 3534 Centralia Street, Pittsburgh, PA
15204. In 2007, Washington Mutual assigned the Note to Wells Fargo Bank,
NA. J-S43029-18
On April 28, 2010, Appellant and Wells Fargo entered a Loan
Modification Agreement.
Beginning in July 2014, Appellant stopped making monthly mortgage
payments. Wells Fargo complied with Act 91 and Act 6 requirements,1 giving
notice to Appellant that it intended to foreclose on the property. On March 6,
2015, Wells Fargo filed a Complaint in mortgage foreclosure against Appellant,
annexing a copy of the promissory note signed by Appellant and a copy of the
loan modification agreement. Appellant filed an Answer on March 23, 2015 in
which she challenged the original assignment of the Note from Washington
Mutual Bank to Wells Fargo, and contended that Wells Fargo Bank had refused
to accept her payments.
On May 9, 2016, Wells Fargo assigned the Note and Mortgage to
Appellee WSFS. On December 19, 2016, WSFS filed a Praecipe for substitution
for party plaintiff.
On May 19, 2017, WSFS filed a Motion for Summary Judgment, to which
Appellant filed a response on June 19, 2017. In her response, Appellant
averred that “this cause of action exists due to the negligence of Wells Fargo
Home Mortgage to accept timely payments and the question of the validity of
the assignment of the mortgage exists.” See Appellant’s Objection to Motion
for Summary Judgement, dated 6/19/17, at 2.
____________________________________________
1 35 P.S. § 1680.401(c) and 41 P.S. § 403, respectively.
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On December 18, 2017, the trial court granted Appellee’s Motion for
Summary Judgment.
This timely appeal followed. Appellant and the trial court complied with
Pa.R.A.P. 1925.
Appellant presents the following issues for our review:
1. Whether the trial court erred as a matter of law by concluding Wilmington is a proper party by way of assignment of mortgage recorded on May 9, 2016 when a sworn deposition exists which calls into question Wilmington’s standing?
2. Whether the trial court erred as a matter of law by waiving the negligence issue regarding the failure of Wells Fargo to accept timely payments during normal business hours?
Appellant’s Brief at 5.
An appellate court may reverse a grant of summary judgment if there
has been an error of law or an abuse of discretion. The issue of whether there
are no genuine issues as to any material fact presents a question of law and
our standard of review is de novo. Weaver v. Lancaster Newspapers, Inc.,
926 A.2d 899, 902-03 (Pa. 2007). When considering a motion for summary
judgment, the trial court must take all facts of record and reasonable
inferences in a light most favorable to the non-moving party. Toy v.
Metropolitan Life Ins. Co., 928 A.2d 186, 195 (Pa. 2007).
The party challenging a Motion for Summary Judgment may not rest
upon allegations or denials of the pleadings. Instead, the adverse party must
identify: “(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
-3- J-S43029-18
to the credibility of one or more witnesses testifying in support of the motion;
or (2) evidence in the record establishing the facts essential to the cause of
action or defense which the motion cites as not having been produced.”
Pa.R.C.P. 1035.3(a).
“Failure of a non-moving party to adduce sufficient evidence on an issue
essential to his case and on which it bears the burden of proof… establishes
the entitlement of the moving party to judgment as a matter of law.” Cigna
Corp. v. Executive Risk Indemnification Inc., 111 A.3d 204, 210 (Pa.
Super. 2015). Thus, “[t]he holder of a mortgage is entitled to summary
judgment if the mortgagor admits that the mortgage is in default, the
mortgagor has failed to pay on the obligation, and the recorded mortgage is
in the specified amount.” Bank of America, N.A. v. Gibson, 102 A.3d 462,
465 (Pa. Super. 2014).
A note holder is entitled to enforce the note’s obligations in a mortgage
foreclosure action, regardless of the lack of a formal assignment or transfer of
the note. CitiMortgage, Inc. v. Barbezat, 131 A.3d 65, 69 (Pa. Super.
2016); 13 Pa.C.S. § 3301. The chain of possession by which holder came to
hold the note is immaterial to its enforceability. Barbezat, 131 A.3d at 69.
In her first issue, Appellant challenges Appellee’s standing. Appellant
avers that because of an “admitted robo-signing” by an employee of
Washington Mutual Bank, the assignment of the Note and Mortgage from
Washington Mutual Bank to WFB was invalid, thereby invalidating all
subsequent assignments. Appellant’s Brief at 10.
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Appellant predicates her “robo-signing” argument on deposition
testimony given by Mr. Bryan Bly, an employee of Washington Mutual Bank,
in a different proceeding in 2010. Appellant’s Brief at 12-14. The record,
however, contains no transcript of this deposition testimony. See Pa.R.A.P.
1911(d) (pertaining to effect of failure to supply transcript); See also Smith
v. Smith, 637 A.2d 622, 623-24 (Pa. Super. 1993) (explaining that “it is black
letter law in this jurisdiction that an appellate court cannot consider anything
which is not a part of the record in the case,” and that “a failure by an
Appellant to insure that the original record certified for appeal contains
sufficient information to conduct a proper review constitutes a waiver of the
issue(s) sought to be examined.”) (citations omitted).
Moreover, in light of Appellant’s entering a loan modification agreement
with Wells Fargo in 2010, and complying with that agreement for the next four
years, Appellant’s challenge to the assignment of the mortgage from
Washington Mutual to Wells Fargo fails. See Gibson, supra, 102 A.3d at
465-66 (upholding grant of summary judgment in favor of mortgage holder
after mortgagor challenged the mortgage’s assignment, concluding that, “we
are [also] persuaded by the fact that Appellant made payments on his
mortgage [after assignment] to [Appellee] until his default. Only after
[Appellee] began foreclosure proceedings did Appellant contend that the
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mortgagee to whom he had been making payments was operating under an
improperly transferred mortgage.”).2
In her second issue, Appellant argues that Wells Fargo negligently failed
to accept Appellee’s attempted Mortgage payments during its standard
business hours. Appellant’s Brief at 11-12. She argues that the trial court
erred when it found that Appellant waived this argument because she did not
raise it until she filed her Pa.R.A.P. 1925(b) Statement of Matters Complained
of on Appeal.
Our review indicates that Appellant did raise this issue in both her
Answer to the Complaint and her written Opposition to Appellee’s Motion for
Summary Judgment. See Answer, 3/23/15, at ¶9; Opposition, 6/19/17, at 1.
We, thus, disagree with the trial court’s determination of waiver for failing to
raise the issue in her Rule 1925(b) Statement.
We conclude, however, that based on her failure to develop her
argument properly, Appellant waived the issue. Appellant does not cite to
any evidence of record to support her bald assertion that Wells Fargo
negligently failed to accept Appellant’s attempted Mortgage payments during
2 Appellant also argues that the assignment from Washington Mutual to WFB is invalid because of an improper notary signature. Appellant’s Brief at 15. Appellant, however, did not raise this issue in her 1925(b) statement. Thus, it is waived. Pa.R.A.P. 1925(b)(4)(vii); U.S. Bank, N.A. for Certificateholders of LXS 2007-7N Trust Fund v. Hua, 193 A.3d 994, 997 (Pa. Super. 2018).
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its standard business hours. Further, she provides absolutely no legal
argument to provide any merit to her claim.3 The failure to develop an
argument with citation to legal authority and record evidence waives the issue
on appeal. Bombar v. West American Ins. Co., 932 A.2d 78, 93 (Pa.
Super. 2007). See also Pa.R.A.P. 2119 (briefing requirements). Accordingly,
this issue is waived.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 1/29/2019
3 Appellant similarly did not provide any evidence in support of this claim in the Answer to the Complaint or in her Opposition to Appellee’s Motion for Summary Judgment.
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