Bayview Loan Servicing v. Dahl, M. ( 2018 )

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
BAYVIEW LOAN SERVICING, LLC, IN THE SUPERIOR COURT
OF
PENNSYLVANIA
Appellee
v.
MARY KATHERINE DAHL, RANDOLPH
DANIEL DAHL, SR.,
Appellants No. 795 WDA 2017
Appeal from the Order Entered May 1, 2017
In the Court of Common Pleas of Butler County
Civil Division at No(s): 10-10720
BEFORE: BENDER, P.J.E., SHOGAN, J., and STRASSBURGER, J.*
MEMORANDUM BY BENDER, P.J.E.: FILED MAY 2, 2018
Appellants, Mary Katherine Dahl and Randolph Daniel Dahl, Sr., appeal
pro se from the May 1, 2017 order granting summary judgment in favor of
Appellee, Bayview Loan Servicing, LLC. After careful review, we affirm.
We glean the following facts from the record. On September 13, 1999,
Appellants, in consideration of a loan in the principal amount of $56,250.00,
executed a promissory note in favor of Ameriquest Mortgage Company
(“Ameriquest”). As security for their obligations under the note, Appellants
executed and delivered to Ameriquest, a mortgage for the property located at
122 Ziegler Avenue, Butler, Pennsylvania. An assignment of mortgage from
Ameriquest to Lehman Capital, a division of Lehman Brothers Holdings, Inc.
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* Retired Senior Judge assigned to the Superior Court.
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(“Lehman”), was recorded on March 29, 2010, in the Office of the Recorder of
Deeds of Butler County in Book 3049, at Page 974.
On May 19, 2010, Lehman instituted this in rem mortgage foreclosure
action with the filing of a complaint against Appellants. The complaint alleged
that Appellants defaulted on the mortgage by failing to make payments since
2001, and indicated a total due and owing in the amount of $61,539.22, plus
interest, costs, and attorney’s fees. After multiple subsequent assignments,
Appellee became the holder of the mortgage and filed a motion for summary
judgment on March 1, 2017. Appellants failed to file any responsive pleading.
On May 1, 2017, the trial court issued an order granting summary judgment
in favor of Appellee. Judgment was entered accordingly on May 2, 2017, in
favor of Appellee and against Appellants in the amount of $164,527.36.
Appellants timely moved for reconsideration of the May 1, 2017 order;
however, after a hearing on the matter, the trial court denied their request.
On May 31, 2017, Appellants filed a notice of appeal, followed by a timely,
court-ordered Pa.R.A.P. 1925(b) concise statement of errors complained of on
appeal. Herein, Appellants raise the following issues for our review:
A. Did the lower court wrongfully grant [Appellee’s] motion for
summary judgment where Appellant[s] did not receive proper
notice in violation of due process?
B. Whether the lower court lacked subject matter jurisdiction to
render an enforceable judgment since [Appellee] lacked
standing to commence an action?
Appellants’ Brief at 7 (unnecessary capitalization omitted).
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Our standard of review with respect to a trial court’s decision to grant
or deny a motion for summary judgment is well-settled:
A reviewing court may disturb the order of the trial court only
where it is established that the court committed an error of law or
abused its discretion. As with all questions of law, our review is
plenary.
In evaluating the trial court’s decision to enter summary
judgment, we focus on the legal standard articulated in the
summary judgment rule. Pa.R.C.P. 1035.2. The rule states that
where there is no genuine issue of material fact and the moving
party is entitled to relief as a matter of law, summary judgment
may be entered. 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. 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. 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.
Thompson v. Ginkel, 95 A.3d 900, 904 (Pa. Super. 2014) (some citations
omitted).
Before we address the merits of Appellants’ claims, we must evaluate
whether Appellants have properly preserved those issues for our review, as
required by Rule 1925(b). See Greater Erie Indus. Development Corp. v.
Presque Isle Downs, Inc., 88 A.3d 222, 223 (Pa. Super. 2014) (citing
Commonwealth v. Lord, 719 A.2d 306, 309 (Pa. 1998) (declaring “from this
date forward … [a]ppellants must comply whenever the trial court orders them
to file a Statement of [Errors] Complained of on Appeal pursuant to Rule 1925.
Any issues not raised in a 1925(b) statement will be deemed waived.”)); see
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also Pa.R.A.P. 1925(b)(4)(vii) (requiring that issues not included in the Rule
1925(b) statement, where one is so-ordered by the trial court, are waived).
After careful review of the record, we discern that Appellants’ first issue
regarding notice and violation of due process is not included in their court-
ordered Rule 1925(b) statement. We further acknowledge:
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.
Commonwealth v. Adams, 882 A.2d 496, 497-98 (Pa. Super. 2005)
(internal citations omitted).1 Moreover, our Supreme Court has made its
intention clear, that the holding in Lord is to operate as a bright-line rule,
such that “failure to comply with the minimal requirements of Pa.R.A.P.
1925(b) will result in automatic waiver of the issues raised.” Greater Erie,
88 A.3d at 224 (quoting Commonwealth v. Schofield, 888 A.2d 771, 774
(Pa. 2005)) (emphasis added). “[I]t is no longer within this Court’s discretion
to ignore the internal deficiencies of Rule 1925(b) statements.” Id.Accordingly, we are constrained to deem Appellants’ first issue waived.
Next, Appellants assert that the trial court lacked subject matter
jurisdiction to render an enforceable judgment, because Appellee lacked
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1 Notably, the trial court previously opined: “While [Appellants] are pro se,
they are no strangers to litigation, or to substantive and procedural law. Their
many appearances before this [c]ourt have demonstrated their high levels of
familiarity and sophistication with legal proceedings.” Trial Court Opinion
(TCO I), 5/22/17, at 5.
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standing to commence the underlying foreclosure action. Appellants’ Brief at
23. In Pennsylvania, “[w]hether a party has standing to maintain an action is
not a jurisdictional question.” In re Adoption of Z.S.H.G., 34 A.3d 1283,
1289 (Pa. Super. 2011) (per curiam) (internal quotation marks and citation
omitted). Thus, to the extent that Appellants are claiming the trial court
lacked jurisdiction based on Appellee’s lack of standing, their argument clearly
fails. Appellants primarily argue, however, that Appellee failed to produce
evidence of its ownership of the note and, thus, lacked standing to commence
the underlying foreclosure action. Appellants’ Brief at 24. More specifically,
Appellants assert that Appellee does not possess a valid assignment of
mortgage and that the note was never transferred to them. Hence, they
conclude that Appellee is “not the real party in interest and lacked standing to
bring the underlying action.” Id.This argument fails, as well, because Appellants simply do not have
standing to challenge the validity of the assignment. See J.P. Morgan Chase
Bank, N.A. v. Murray, 63 A.3d 1258, 1264 (Pa. Super. 2013) (citing In re
Walker, 466 B.R. 271, 285-86 (Bankr. E.D. Pa. 2012) (holding that a debtor
lacks standing to question the validity of an assignment of note)). The
underlying note is governed by Pennsylvania’s Uniform Commercial Code
(“PUCC”) as a “negotiable instrument”; thus, there is no risk of Appellants’
being held accountable twice for this single debt. See id. at 1263 (stating
that “[p]ursuant to the PUCC, a debtor who satisfies his obligations under a
negotiable instrument cannot be required to do so again, even if the recipient
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of the debtor’s performance is not the holder of the note in question”) (citing
13 Pa.C.S. § 3602(a)). Based on the foregoing, the Murray Court found the
chain of possession by which the appellee came to hold the note to be
immaterial to its enforceability. Id. at 1266. Likewise, we conclude that
Appellants’ argument regarding the chain of title in the instant matter is
unavailing.
Moreover, it is well-established that the mortgagee is the real party in
interest in a mortgage foreclosure action. CitiMortgage, Inc. v. Barbezat,
131 A.3d 65, 68 (Pa. Super. 2016).
The holder of a mortgage has the right, upon default, to initiate a
foreclosure action. Additionally, the mortgage holder “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.” The
foreclosing party can prove standing either by showing that it (1)
originated or was assigned the mortgage, or (2) is the holder of
the note specially indorsed to it or indorsed in blank.
Murray, 63 A.3d at 1267-68 n.6 (citations omitted).
Even if possession of the note were material, the trial court concluded
that Appellee does indeed have possession of it, based on the following
evidence produced by Appellee:
[T]he recorded assignment of record confirmed to this court that
the mortgage from the original mortgagor, Ameriquest, was
assigned by duly recorded assignment dated March 29, 2010, to
Lehman…. Said assignee was the plaintiff in the original complaint
in the above[-]captioned matter. The mortgage was subsequently
assigned by Lehman [] to Lex Special Assets, LLC [(“Lex”)], by
recorded assignment, dated June 27, 2013. Thereafter, [] Lex …
assigned the mortgage to Christiana Trust, a division of
Wilmington Savings Fund Society, FSB, as Trustee for Normandy
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Mortgage Loan Trust, Series 2013-7 [(“Christiana Trust”)],
recorded June 12, 2014. Christiana Trust … assigned the
mortgage to Normandy Acquisition Company, LLC
[(“Normandy”)], by assignment, recorded February 19, 2016.
Thereafter, Normandy … assigned the mortgage to [Appellee], by
assignment, recorded February 19, 2016. [Appellee] has proper
standing and is the present plaintiff in this mortgage foreclosure
action. Accordingly, this court[] confirmed, prior to granting the
motion for summary judgment, that a proper chain of recorded
assignments[] exists and affords the [Appellee] standing to
proceed with this case and with its request for summary judgment
in these mortgage foreclosure proceedings.
Trial Court Opinion (TCO II), 6/27/17, at 1-2 (unpaginated) (unnecessary
capitalization omitted). Additionally, the trial court found that Appellants did
not deny “that they entered into the mortgage, that they received the
proceeds, or that they failed to pay the mortgage.” TCO I at 5. The trial
court’s findings are well-supported by the record.
As Appellants failed to establish a genuine issue of material fact, we
conclude that the trial court did not commit an error of law or abuse its
discretion when it granted Appellee’s motion for summary judgment.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/2/2018
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