Specialized Loan Servicing, LLC v. Timney, R. & P. ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
SPECIALIZED LOAN SERVICING, LLC IN THE SUPERIOR COURT
OF PENNSYLVANIA
Appellee
v.
ROBERT J. TIMNEY AND PATRICIA A.
TIMNEY
Appellant No. 1887 MDA 2019
Appeal from the Judgment Entered October 16, 2019
In the Court of Common Pleas of Centre County
Civil Division at No: 2018-2048
BEFORE: SHOGAN, J., STABILE, J., and MURRAY, J.
MEMORANDUM BY STABILE, J.: FILED MAY 26, 2021
Appellants, Robert J. Timney and Patricia A. Timney, appeal from the
October 16, 2019 judgment in foreclosure in favor of Appellee, Specialized
Loan Servicing, LLC. We affirm.
The trial court set forth the pertinent facts in its Pa.R.A.P. 1925(a)
opinion:
On or about October 20, 2005, Central Federal Mortgage Company
(“Central”) extended a loan to [Appellants] for the principal sum
of $177,650.00. [Appellants], in turn, executed a Promissory
Note for the same amount which was secured by a mortgage (the
“Mortgage”) in favor of Central. Central assigned the Mortgage to
Wells Fargo Bank, N.A. (“Wells Fargo”) on October 20, 2005. The
Mortgage and the assignment of the Mortgage were recorded in
the Office of the Recorder of Deeds of Centre County on October
20, 2005. On January 29, 2018, Wells Fargo assigned the
mortgage to [Appellee]. Said assignment was recorded in the
Officer of the Recorder of Deeds of Centre County on January 30,
2018.
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On or about July 27, 2016, [Appellants] executed a Loan
Modification Agreement (“Modification”) with Wells Fargo. After
the Modification, [Appellants’] principal balance increased to
$207,456.08 with an interest rate of 3.875%. [Appellants’] new
monthly payment was $1,201.93 beginning August 1, 2016. The
Modification was recorded with the Office of the Recorder of Deeds
of Centre County on August 30, 2016. [Appellants] defaulted on
the Mortgage by failing to make the payment due December 1,
2017 and all payments due thereafter. Summaries of
[Appellants’] payment history are attached to [Appellees’] Motion
for Summary Judgment.
[Appellee] mailed an Act 91 Notice of its intention to foreclose on
the Property on or about January 31, 2018. After [Appellants]
failed to cure the default, [Appellee] filed a Complaint in Mortgage
Foreclosure against [Appellants] seeking to foreclosure on
residential real property located at 211 Mountain Road, State
College, PA 16801 (the “Property”) on May 23, 2018. [Appellants]
did not timely submit an answer to [Appellee’s] complaint and a
default judgment was entered against them on August 14, 2018.
The Property serves as [Appellant] Robert Timney’s primary
residence. [Appellant] Timney was granted ownership of the
Property via a Quit Claim Deed recorded in the Centre County
Recorder of Deeds on May 23, 2014. On November 27, 2018, the
court granted [Appellant] Timney’s Emergency Petition to Stay the
sale of the Property. On January 29, 2019, the Court granted
[Appellant] Timney’s Motion to Open or Strike the Judgment.
[Appellee] filed a Motion for Summary Judgment on August 29,
2019. Thereafter, the court entered a scheduling order directing
[Appellants] to file a brief in opposition to [Appellee’] motion by
October 7, 2019. The court’s order also stated the matter may be
considered by the court as if uncontroverted if [Appellants] failed
to timely deliver a responsive brief. [Appellants] did not file a
responsive brief and they were absent from oral argument without
explanation or excuse. The court then granted summary
judgment in favor of [Appellee] on October 15, 2019. [Appellants]
filed a motion to reconsider and re-open judgment on October 25,
2019 after which this court issued a rule to show cause on
[Appellee]. [Appellee] filed an answer to [Appellants’] motion on
November 12, 2019. The court did not make a ruling on
[Appellants’] motion for reconsideration before this appeal was
filed.
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Trial Court Opinion, 1/9/20, at 1-3 (record citations omitted).
Appellants present four questions:
1. Whether the trial court erred in not permitting discovery to fully
proceed prior to making a ruling on the summary judgment
motion.
2. Whether the trial court erred in not dismissing the case
outright, once all of the material facts were shown to the court.
3. Whether the trial court erred in granting the motion for
summary judgment of [Appellee] when all defenses and
arguments were not fully considered.
4. Whether the trial court erred in not granting reconsideration,
when it was made clear we were not served the motion for
summary judgment by [Appellee] and when we were not
served with notice of when the hearing would be by the court.
Appellants’ Brief at 2.
Whether summary judgment was warranted is a question of law for
which of review is de novo and our scope of review is plenary. City of
Philadelphia v. Cumberland Cnty. Bd. of Assessment Appeals, 81 A.3d
24, 44 (Pa. 2013). “Summary judgment may be entered only where the
record demonstrates that there remain no genuine issues of material fact, and
it is apparent that the moving party is entitled to judgment as a matter of
law.” Id.; Pa.R.C.P. No. 1035.2. The record must be reviewed in a light most
favorable to the nonmoving party. Marks v. Tasman, 589 A.2d 205, 206
(Pa. 1991).
We begin with Appellants’ fourth assertion of error, in which they claim
summary judgment was entered in error because Appellants did not receive
notice of Appellee’s summary judgment or the hearing thereon. The record
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reflects that Appellees served their motion on Appellants’ counsel at his
address of record. Motion for Summary Judgment, 8/28/19, at Certificate of
Service. Likewise, the certified docket reflects that Appellants’ counsel
received notice of the date and time of oral argument. In summary,
Appellants present nothing other than a bald, self-serving assertion that they
received no notice of the motion or the hearing, and the record contradicts
their assertion. Timely responses have been lacking from Appellants
throughout this action, leading to a default judgment following their failure to
respond to Appellee’s complaint. Given their consistent dilatory conduct, and
their failure to develop a legal or factual argument in support of this issue, we
discern no error in the trial court’s decision not to grant reconsideration based
on Appellants’ alleged lack of notice.
In their first assertion of error, Appellants claim the trial court erred in
permitting Appellee to litigate its summary judgment motion before discovery
was complete. They offer no legal or factual support for this argument, in
violation of Rule Pa.R.A.P. 2119(b) and (c).1 And, in addition to the dilatory
conduct we already have discussed, we add here that Appellants failed to
respond to Appellee’s discovery requests, and they do not specify any
outstanding discovery requests of their own. They also do not specify what,
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1 Rule 2119 governs the argument section of appellate briefs, and subsections
(b) and (c) govern citation of authorities and reference to the record.
Pa.R.A.P. 2119(b), (c). This Court has held that failure to support an
argument without pertinent citations results in waiver.
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if any, discovery requests they would have filed if given more time that would
be essential to justify their opposition to the summary judgment motion. See
Pa.R.Civ.P. 1035.3(b). For all these reasons, Appellants are not entitled to
relief on this issue.
In their second assertion of error, Appellants claim the trial court erred
in failing to dismiss Appellee’s foreclosure action once the court was apprised
of all pertinent facts. We observe that there was no motion before the trial
court to dismiss this case, as Appellants did not respond to Appellee’s motion
for summary judgment or file a competing summary judgment motion. On
the merits, this issue turns on Appellants claim that Appellee lacks standing
because it failed to demonstrate the chain of assignments of the mortgage
and note underlying this action from the original lender to Appellee.
Rule 2002 of the Pennsylvania Rules of Civil Procedure provides that “all
actions shall be prosecuted by and in the name of the real party in interest[.]”
Pa.R.C.P. No 2002(a). “In a mortgage foreclosure action, the mortgagee is
the real party in interest.” CitiMortgage, Inc. v. Barbezat, 131 A.3d 65, 68
(Pa. Super. 2016). Thus, the party foreclosing on the mortgage must “name
the parties to the mortgage and the fact of any assignments.” Id. (citing
Pa.R.C.P. No. 1147). The foreclosing party also must own or hold the note.
Id. Thus, a party has standing to bring a mortgage foreclosure action where
it can plead ownership of the mortgage and where it has the right to make
demand upon the note secured by the mortgage. Id.-5-
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The record belies Appellants’ argument. Appellee documented the
assignments from the original lender (Central Federal Mortgage Company) to
Wells Fargo Bank, N.A., and then from Wells Fargo to Appellee. Motion for
Summary Judgment, date, at ¶ 3, Exhibits C-1 and C-2. Appellant also
documented its ownership of the note, indorsed in blank. Id. at Exhibit A. “A
note endorsed in blank becomes payable to ‘bearer’ and may be renegotiated
by transfer of possession alone until specifically endorsed.” Barbezat, 131
A.3d at 69; see also, 13 Pa.C.S.A. § 3205(b) (“If an indorsement is made by
the holder of an instrument and it is not a special indorsement, it is a ‘blank
indorsement.’ When indorsed in blank, an instrument becomes payable to
bearer and may be negotiated by transfer of possession alone until specially
indorsed.”).
In JP Morgan Chase Bank, N.A. v. Murray, 63 A.3d 1258, 1265-66
(Pa. Super. 2013), this Court explained that a note secured by a mortgage is
a negotiable instrument governed by § 3104 of the Pennsylvania Uniform
Commercial Code.2 This Court further explained that if the mortgagee could
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2 That section reads in part:
(a) Definition of “negotiable instrument”.--Except as
provided in subsections (c) and (d), “negotiable instrument”
means an unconditional promise or order to pay a fixed amount
of money, with or without interest or other charges described in
the promise or order, if it:
(Footnote Continued Next Page)
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establish that it was the holder of the original note, indorsed in blank, it would
be entitled to enforce the note against the mortgagor, regardless of any
questions as to the chain of possession from the original mortgagee to the
current holder of the note. Id. at 1267. The Murray Court vacated the
summary judgment in favor of the mortgagee because a question of fact
remained as to whether the foreclosure plaintiff was the holder of the original
note. Instantly, in contrast, Appellee has produced a copy of the original note,
indorsed in blank. Thus, under controlling law, we discern nothing lacking in
the evidence regarding the assignments of the mortgage and/or Appellee’s
possession of the note.
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(1) is payable to bearer or to order at the time it is issued
or first comes into possession of a holder;
(2) is payable on demand or at a definite time; and
(3) does not state any other undertaking or instruction by
the person promising or ordering payment to do any act in
addition to the payment of money, but the promise or order
may contain:
(i) an undertaking or power to give, maintain or
protect collateral to secure payment;
(ii) an authorization or power to the holder to confess
judgment or realize on or dispose of collateral; or
(iii) a waiver of the benefit of any law intended for the
advantage or protection of an obligor.
13 Pa.C.S.A. § 3104(a).
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Appellants also argue, in support of their second assertion of error, that
Appellee failed to provide an Act 91 notice. On the contrary, the record
reflects proper service, on both Appellants, of a valid Act 91 notice. Id. at
Exhibit F. The Act 91 notice provided the amount past due and instructions
for contacting the lender to make payments. Id. Appellants claim in their
brief that they made repeated inquiries as to the payment necessary to
reinstate the loan but received no response. Appellants’ Brief at 17-18. They
also claim to have documented these issues to the trial court “prior to
summary judgment” but they fail to cite the record in support of this claim.
Id. at 18. As we have already explained, Appellants failed to make any record
in support of their opposition to Appellee’s summary judgment motion.
Appellants’ second assertion of error lacks merit.
In their third assertion of error, Appellants claim the trial court erred in
failing to fully consider all their defenses and arguments. Once again, we
must observe that Appellants offered no defenses or arguments prior to entry
of summary judgment. Further, we observe that this assertion of error is in
tension with the previous one, in which Appellants claim that the trial court
erred in entering summary judgment after it was apprised of all pertinent
facts. In any event, this argument in substance is simply a rehashing of their
other three assertions of error, which we already have considered and
rejected. Contrary to Appellants’ assertion, the record reflects the trial court’s
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full consideration of all pertinent facts, arguments, and defenses, and we
discern no error in the order granting summary judgment in favor of Appellee.
Judgment affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/26/2021
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