Nationstar Mortgage, LLC v. Inch, C. ( 2019 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
NATIONSTAR MORTGAGE, LLC : IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
CHRIS INCH and CHRISTINE INCH
Appellants : No. 1991 MDA 2018
Appeal from the Order Entered November 16, 2018
In the Court of Common Pleas of Lebanon County Civil Division at No(s):
2010-02320
BEFORE: LAZARUS, J., MURRAY, J., and STEVENS*, P.J.E.
MEMORANDUM BY STEVENS, P.J.E.: FILED JULY 31, 2019
Appellants, Chris Inch and Christine Inch, appeal from the order entered
by the Court of Common Pleas of Lebanon County granting a second motion
for summary judgment in favor of Nationstar Mortgage, LLC, ("Nationstar").
The trial court entered the order after reexamining the record consistent with
this Court's decision in the prior appeal, Nationstar Mortgage, LLC v. Inch,
No. 1556 MDA 2016, unpublished memorandum at **2-3 (Pa.Super. filed
November 3, 2017), in which we vacated the prior summary judgment order
in favor of Nationstar and remanded with instructions directing the court to
consider the Inches' expert report-the "Michaels Report"-offered in support
of their defense that they never signed the mortgage at issue. Because the
Inches' brief fails to challenge the trial court's post -remand preclusion of the
Michael's Report as a sanction for their discovery violation-a determination
expressly not barred under this Court's prior decision-we affirm.
Former Justice specially assigned to the Superior Court.
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The panel decision in Nationstar aptly discussed the pertinent facts and
procedural history, such that we adopt it here, with alteration in tense where
necessary to reflect the post -remand stage of the present appeal:
This case relates to a mortgage created on August 13, 2007. The
mortgage document lists Chris Inch and Christine Inch, owners of
real property located at 801 West Cherry Street in Palmyra, as the
borrowers, and Members 1st Federal Credit Union as the lender.
The mortgage and accompanying promissory note specify that the
borrowers owe the lender $131,200 plus interest.
On September 24, 2010, the mortgage was assigned to Ocwen
Loan Servicing, LLC, which then sued the Inches for default. On
January 11, 2012, Ocwen filed a motion for summary judgment,
which the trial court denied on June 6, 2012.H On March 31, 2013,
the mortgage was assigned to Nationstar.H On March 18, 2015,
Christine Inch executed a consent judgment, and on March 25,
2015, judgment was entered against her.]
On April 1, 2016, Nationstar filed another motion for summary
judgment. Chris Inch (hereinafter, "Inch") responded on May 13,
2016. Inch argued that whether he took out a mortgage or signed
the mortgage document and note remained an issue of material
fact," and he attached to his opposition a report by Gary Michaels
of "Mortgage Defense Systems," dated May 12, 2016 (the
"Michaels Report"). The Michaels Report concluded that the
signatures of the Inches were digitally inserted onto the mortgage
and note.
After briefing, on August 26, 2016, the trial court entered
summary judgment in favor of Nationstar. In its opinion
accompanying the order granting the motion, the court explained
that it was Inch's burden to rebut the presumption that the
signatures are authentic and that, although Nationstar provided
evidence supporting the authenticity of the signatures and the
validity of the mortgage, Inch "has not produced any evidence
regarding his denial of signing the documents that contain his
signature." Trial Ct. Op., 8/26/16, at 6. On September 20, 2016,
Inch filed a motion for reconsideration, which the court denied on
September 23, 2016.H
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Inch filed a notice of appeal on September 21, 2016,H and he filed
a pro se appellate brief with this Court on February 2, 2017. [We
found that] Inch's brief fail[ed] to conform in substantial part to
the requirements in the Rules of Appellate Procedure.[] Among
other things, the brief [did] not include a statement of the
questions that he raise[d] on appeal, see Pa.R.A.P. 2116-a
significant defect because that statement defines the issues that
we must address to afford relief. In light of this noncompliance,
we [reasoned that we] could dismiss Inch's appeal. See Pa.R.A.P.
2101.
Upon review of Inch's brief, however, we discern[ed] one issue
that he [sought] to raise that [was] capable of our review. The
third sentence of Inch's brief read[]:
The problems occurred when [the trial judge] took it
upon himself to ignore the Professional Forensic
Document examination performed by Mr. Gary
Michaels of Mortgage Defense Systems and illegally
granted a Summary Judgment against Chris Inch and
in favor of Nationstar Mortgage LLC through the
conspiratorial enterprise of the Plaintiffs for knowingly
and intentionally misrepresenting material evidence
and the concealment and destruction of securities
instruments and the forged and fraudulently creation
of new instruments in an effort to illegally take
possession of the Inch property.
Inch's Brief at 1-2. Inch therefore question[ed] whether the trial
court erred by not considering the Michaels Report when it granted
Nationstar's motion for summary judgment.
[We found] the record reflects that Inch presented the Michaels
Report to the trial court. However, the trial court's order and
opinion [made] no mention of it; instead, the trial court [stated]
that summary judgment [was] appropriate because Inch [had]
not presented "any evidence" to support the fact at issue.
We [were] therefore unable to discern whether the court
considered the Report and whether it viewed the evidence in a
light most favorable to Inch, the non-moving party. It may be
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that the trial court did not consider the Report[, we deduced,]
because it concluded that the Report was not properly before it-
a reason intimated by Nationstar during the summary judgment
briefing.8 But the trial court [did] not say that, and its reasons for
not considering the Report [were] not apparent.
Accordingly, we vacate[d] the order granting summary judgment
and remand[ed] so that the trial court [could] address the
evidence proffered by Inch. Cf. Eaddy v. Hamaty, 694 A.2d 639,
644 (Pa. Super. 1997) (vacating order granting summary
judgment for correct application of summary judgment rules).
8 We render[ed] no decision as to whether the trial court was
obligated to consider the Report, or whether, for example,
discovery rules precluded its consideration. Nothing within our
decision [barred] the trial court from again granting summary
judgment.
Nationstar, supra at "1-2 (tense modified) (some footnotes omitted).
On remand,' the trial court considered whether the Michaels Report,
when viewed in a light most favorable to the Inches as the non-moving party,
created an issue of material fact regarding whether they signed the mortgage,
thus precluding summary judgment in Nationstar's favor. After discussing the
governing standard of review on a motion for summary judgment and
acknowledging the burdens of production and proof applicable in a matter
involving the validity of a signature on a mortgage, see 13 Pa.C.S.A. §
3308(a) and corresponding decisional law, discussed infra, the trial court
' After remand, Appellants filed Petition for Assumption of Extraordinary
a
Jurisdiction with the Pennsylvania Supreme Court. On September 27, 2018,
the Supreme Court denied the petition, at which point the trial court resumed
its post -remand review of the record.
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reviewed the parties' pleadings, responses, and production of documentary
support-including the Michaels Report-for their respective positions, as
follows:
In light of Defendant Chris Inch's persistent denial of executing
the Mortgage and Promissory Note on the Real Property, the [trial
court] denied [Nationstar's] First Motion for Summary Judgment.
Thereafter, Plaintiff Nationstar provided copies of the [following
documentation]: [the] Mortgage that displayed the signatures of
both Defendants; the Note that also displays the signatures of
both Defendants; the deposition of Ms. Annette C. Myers (wherein
she verifies that she would not have made an entry into her
notarial register or placed her seal on the Mortgage if she did not
witness Defendant Chris Inch sign the name); Defendants Inch
Bank Statements showing automatic withdrawals for the Mortgage
for multiple years; [ ] Schedule D of Defendant Chris Inch's
Bankruptcy Petition which was verified by Defendant Chris Inch
(and in which he listed the Mortgage against the Real Property)[;
and, "of great importance," as the trial court describes it later in
the opinion, "co -Defendant Christine Inch acknowledged the
Mortgage and executed a consent judgment in favor of Plaintiff
[Nationstar]."]
Despite Plaintiff Nationstar's production of these documents,
Defendant Chris Inch continues to claim that neither he nor his
co -Defendant, Christine Inch, signed any documents regarding
taking out a mortgage, and further, Defendant Chris Inch claims
that the documents produced by Plaintiff Nationstar have been
forged.
Defendant Chris Inch submitted two exhibits as part of his May
13, 2016 Affidavit in Objection to Plaintiff's Second Motion for
Summary Judgment. As mentioned, the first exhibit was [the
Michaels Report, prepared by forensic expert Gary Michaels from
Mortgage Defense Systems, opining that the documents used to
foreclose upon Chris Inch were forged and fraudulently created].
Though the [trial court] was aware of this Report and conclusion,
not rendered within any degree of scientific or professional
certainty, and missing one of the four pages it claimed to possess,
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the [trial court] found such report to be barred by the discovery
deadlines set in this case. [Specifically, Inch filed the proposed
expert report] seventy-three (73) days after the deadline as
articulated in the August 18, 2015 Amended Order of Court. The
Court was clear and unambiguous that the deadline for all factual
discovery in the above-referenced matter would be thirty (30)
days thereafter (more than six years after the Complaint in
Mortgage Foreclosure was filed).
[Furthermore, the trial court rejects Chris Inch's argument that
the Michaels Report was a continuation of timely testimony
provided by one Michael Paoletta. First, the court notes Mr.
Paoletta provided no testimony in this matter, and second, the
Michaels Report concedes that Mr. Inch did not even hire Mortgage
Defense Systems until April 7, 2016, which was more than one
month past the court -imposed deadline for expert reports. For
these reasons, the trial court] found the reports of Mr. Gary
Michaels inadmissible.
Trial Court Opinion, at 33-34.
Even if the trial court had not barred the Michaels Report as untimely,
the court explains, it still would have granted Nationstar's second motion for
summary judgment. Specifically, the court reviewed the substance of the
Report and found there were "no statements or opinions that conclude
Defendants did not sign the Mortgage and/or Promissory Note in this action .
. . let alone opinions [rendered] within any degree of scientific or professional
certainty." Id. at 34-35. Instead, the court noted, the Report consisted only
of "many images and phrases such as "Photocopy Fabrication
Detected/Clone," "Photoshop JPEG compression 12%," "Duplicated Regions,"
and "Evidence of Photoshop Cut & Paste/JPEG Compression." Id. at 35.
The trial court concludes, therefore, that even when viewing the
Michaels Report in a light most favorable to Defendants/Appellees Chris and
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Christine Inch as the non-moving party, the Report does not assist the Inches
in rebutting the presumption that they validly signed the Mortgage on August
13, 2007. Because the Inches otherwise 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, the trial court granted Nationstar's
second motion for summary judgment. This timely appeal followed.
We begin with our standard of review of an order granting a motion for
summary judgment:
'Our standard of review of an order granting summary judgment
requires us to determine whether the trial court abused its
discretion or committed an error of law[,] and our scope of review
is plenary.' Petrina v. Allied Glove Corp., 46 A.3d 795, 797-
798 (Pa.Super. 2012) (citations omitted). 'We view the record in
the light most favorable to the nonmoving party, and all doubts
as to the existence of a genuine issue of material fact must be
resolved against the moving party.' Barnes v. Keller, 62 A.3d
382, 385 (Pa.Super. 2012), citing Erie Ins. Exch. v. Larrimore,
987 A.2d 732, 736 (Pa.Super. 2009) (citation omitted). 'Only
where there is no genuine issue as to any material fact and it is
clear that the moving party is entitled to a judgment as a matter
of law will summary judgment be entered.' Id.PHH Mortg. Corp., 100 A.3d at 616 (citation omitted).
Initially, we note the scope of this appeal is limited to the one issue this
Court's previous three -judge panel deemed capable of review and, ultimately,
remanded for the trial court's attention, namely, whether summary judgment
is appropriate after due consideration of the Michaels Report.2 One aspect of
2Therefore, the second stated issue asking whether Nationstar"use[d] bribery
and coercion to force Christine Inch to recant her original testimony for the
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due consideration involves whether Chris and Christine Inch filed the Report
in compliance with the trial court's discovery deadline. See Nationstar,
supra at *2 n.8 (noting the panel rendered no decision as to whether
discovery rules precluded consideration of the Michaels Report).
As the trial court explains in its post -remand opinion, the first reason it
rejected the Michael's Report was because the Inches filed the Report
belatedly. Specifically, the trial court's case management order of August 18,
2015, culminated a six -year long discovery period by imposing an expert
report deadline of March 1, 2016. The Inches, however, failed to file a report
during the remaining five and one-half months. Instead, without offering any
reason for their delay, let alone one averring due diligence or good faith
inadvertence, the Inches filed the Michaels Report on May 13, 2016, 73 days
past the deadline prescribed by the court's order.
Notably, we observe that the Inches' appellate brief fails to address the
issue of whether the court appropriately enforced its discovery deadline by
precluding submission of the Michael's Report into the discovery record. This
failure represents a critical briefing deficiency, where the trial court clearly
articulated in its post -remand opinion that preclusion resulted in a record
necessitating summary judgment, and where this Court's previous three -
judge panel acknowledged that nothing in its decision barred the trial court
from so ruling.
purpose of seeking summary judgment" is beyond the limits of our review of
the post -remand appeal.
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Given the brief's silence on what amounts to a dispositive aspect of the
court's order of summary judgment, we are constrained to affirm the order
based on waiver.3 See In re W.H., 25 A.3d 330, 339 n.3 (Pa.Super. 2011)
(quoting In re A.C., 991 A.2d 884, 897 (Pa. Super. 2010)) ("[W]here an
appellate brief fails to provide any discussion of a claim with citation to
relevant authority or fails to develop the issue in any other meaningful fashion
capable of review, that claim is waived."). See also Irwin Union National
Bank and Trust Company, 4 A.3d 1099 (Pa.Super. 2010) (explaining
Superior Court will not act as counsel and will not develop arguments on behalf
of appellant; when deficiencies in brief hinder our ability to conduct meaningful
appellate review, we may deem certain issues waived).
If we were to assume, arguendo, that the court erroneously precluded
the Michaels Report from the discovery record, we would address whether the
Report created an issue of material fact regarding whether the Inches signed
the mortgage and promissory note in question. It is well -settled that no
person shall be liable on a negotiable instrument such as a mortgage or
promissory note unless his or her signature appears on it. PHH Mortg. Corp.,
3 See Wilkins v. Marsico, 903 A.2d 1281, 1284-85 (Pa.Super. 2006)
("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"; citations omitted).
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100 A.3d at 617 (citing Triffin v. Dillaborough, 670 A.2d 684, 689
(Pa.Super. 1996), aff'd, 716 A.2d 605 (Pa. 1998).
With respect to Section 3308(a), "proof of signatures," of the
Pennsylvania Commercial Code,4 this Court has observed,
Pursuant to section 3308(a), a person denying the authenticity of
a signature on a negotiable instrument must do so by specific
denial in the pleadings. If specifically denied, the party claiming
validity has the burden of proof to establish said validity, but a
rebuttable presumption exists that the signature is authentic and
authorized. Id.; see generally Triffin, 670 A.2d at 689. Section
1201(b)(8) of the PUCC defines "burden of establishing" as "the
burden of persuading the trier of fact that the existence of the fact
is more probable than its nonexistence." 13 Pa.C.S.A. §
1201(b)(8). Section 1206 provides that whenever the PUCC
creates a "presumption" with respect to any fact, "the trier of fact
must find the existence of the fact unless and until evidence is
introduced that supports a finding of its nonexistence." Id. §
1206.
The Comment to section 3308 offers additional insight into the
presumption of the validity of signatures on negotiable
instruments:
4 Section 3308(a) provides:
(a) Proof of signatures.-In an action with respect to an
instrument, the authenticity of, and authority to make, each
signature on the instrument is admitted unless specifically denied
in the pleadings. If the validity of a signature is denied in the
pleadings, the burden of establishing validity is on the person
claiming validity, but the signature is presumed to be authentic
and authorized unless the action is to enforce the liability of the
purported signer and the signer is dead or incompetent at the time
of trial of the issue of validity of the signature.
13 Pa.C.S.A. § 3308(a).
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The presumption rests upon the fact that in ordinary
experience forged or unauthorized signatures are very
uncommon, and normally any evidence is within the
control of, or more accessible to, the defendant. The
defendant is therefore required to make some
sufficient showing of the grounds for the denial before
the plaintiff is required to introduce evidence. The
defendant's evidence need not be sufficient to require
a directed verdict, but it must be enough to support
the denial by permitting a finding in the defendant's
favor. Until introduction of such evidence the
presumption requires a finding for the plaintiff. Once
such evidence is introduced the burden of establishing
the signature by a preponderance of the total
evidence is on the plaintiff.
Id. § 3308 Comment.
PHH Mortg. Corp, 100 A.3d at 617-18.
Our review of the Michaels Report as it appears in the certified record
confirms the trial court's observation that it comprises nothing more than
depictions of two copies of each page of the Mortgage, where one copy
remains unmarked and the other copy bears the superimposed word "CLONE."
At the heading of each depiction, moreover, appear one or more of the
phrases, noted supra, without any explanatory comment or opinion. Notably,
nowhere in the Report is there an expert opinion rendered to a reasonable
degree of certainty that the documentary evidence shows the Inches'
signatures to be invalid.
Under the Section 3308(a) statutory scheme and corresponding
jurisprudence, as discussed supra, the Inches were required to present
evidence sufficient to support their denial of a valid signature by permitting a
finding in their favor. The Report fails to carry this burden of presentation,
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particularly when viewed against the totality of Nationstar's evidence offering
significant proof that the Inches validly signed the mortgage and promissory
note.
Accordingly, were we to rely on merits review of the present matter, we
would discern no abuse of discretion with the trial court's order granting
summary judgment in favor of Nationstar. Nevertheless, as we have
determined that the Brief of Appellants fails to challenge a dispositive aspect
of the court's underlying order, we affirm on that basis.
Order affirmed.
Judgment Entered.
J seph D. Seletyn,
Prothonotary
Date: 7/31/2019
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