U.S. Bank National Association v. Blount, J. ( 2018 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
U.S. BANK NATIONAL ASSOCIATION, AS IN THE SUPERIOR COURT
TRUSTEE SUCCESSOR IN INTEREST TO OF
BANK OF AMERICA NATIONAL PENNSYLVANIA
ASSOCIATION AS TRUSTEE SUCCESSOR
TO MERGER TO LASALLE BANK
NATIONAL ASSOCIATION AS TRUSTEE
FOR STRUCTURED ASSET INVESTMENT
LOAN TRUST MORTGAGE PASS-
THROUGH CERTIFICATES, SERIES 2004-
4
Appellee
v.
JACQUELINE BLOUNT AND/OR
OCCUPANTS
APPEAL OF JACQUELINE BLOUNT
No. 2056 EDA 2017
Appeal from the Order Entered May 23, 2017
In the Court of Common Pleas of Monroe County
Civil Division at No: 735 CV 2017
BEFORE: OTT, STABILE, and MUSMANNO, JJ.
MEMORANDUM BY STABILE, J.: FILED JULY 09, 2018
Appellant, Jacqueline Blount, appeals pro se from an order entering
summary judgment in favor of Appellee, U.S. Bank National Association, in its
action for ejectment and against Appellant on her counterclaims. We affirm.
In January 2004, Appellant and her husband, now deceased, entered
into a mortgage with BNC Mortgage, Inc., relating to real property owned by
the Blounts at 198 Scenic Drive, Blakeslee, Pennsylvania (“the Property”).
Subsequently, the mortgage was assigned to Appellee, which commenced a
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mortgage foreclosure action against Appellant in early 2014 and obtained a
default judgment against Appellant in mid-2014. Appellant filed a petition to
open judgment, which the trial court denied on July 21, 2015. Appellee
purchased the Property at sheriff’s sale on September 23, 2015 and recorded
the sheriff’s deed on October 23, 2015.
On February 2, 2017, Appellee filed a complaint in ejectment, the action
that presently is before us for review. On February 21, 2017, Appellant filed
an answer to the ejectment complaint with counterclaims against Appellee
alleging, inter alia, violations of the Due Process Clause of the Fifth
Amendment and the federal Fair Debt Collection Practices Act, 15 U.S.C.
§§ 1692-1692p.
On April 18, 2017, Appellee filed a motion seeking summary judgment
in its favor on the ejectment action and against Appellant on her
counterclaims. Appellee argued that Appellant’s counterclaims were barred
by res judicata due to Appellant’s failure to raise them in the underlying
foreclosure action. On May 23, 2017, the trial court entered an order granting
Appellee’s motion for summary judgment and entering summary judgment in
ejectment in favor of Appellee and against Appellant. The order, however, did
not expressly resolve Appellant’s counterclaims.
On June 19, 2017, Appellant appealed to this Court. On August 9, 2017,
the trial court filed a Pa.R.A.P. 1925(a) opinion concluding that Appellant’s
counterclaims belonged in the underlying foreclosure action and could not be
raised in the present ejectment action.
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On June 5, 2018, we remanded this case to the trial court for entry of a
final order, i.e., an order that expressly disposes of Appellee’s claims and
Appellant’s counterclaims. On June 7, 2018, the trial court entered an order
granting summary judgment to Appellee on its ejectment action and against
Appellant on her counterclaims. The order provides with regard to Appellant’s
counterclaims:
Pa.R.C.P. 1056 prohibits counterclaims which do not arise from
the same transaction or occurrence from which the cause of action
arose. [Appellant’s] Counterclaims do not assert a superior title
and are therefore not permitted in this case. To the extent that
[Appellant] alleges defects in the mortgage foreclosure
proceedings which led to [Appellee’s] sheriffs deed, they were
concluded by the final judgment in the mortgage foreclosure case.
Order, 6/7/18, at 1.
As promised in our June 5, 2018 order, we now treat Appellant’s appeal
as filed in accordance with Pa.R.A.P. 905(a)(5). See id. (“[a] notice of appeal
filed after the announcement of a determination but before the entry of an
appealable order shall be treated as filed after such entry and on the day
thereof”).
Appellant raises the following issues in her appeal:
1. Can [the trial court] issue an order outside [its] authority that
deprives Appellant of a federal “Private Right of Action” of
rescission and consumer protections, pursuant to Article 3 Section
2 of the Constitution for the United States of America and the laws
enacted by the United States Congress, as it relates to Appellant’s
private property?
2. Can [the trial court] issue an order outside [its] authority that
deprives Appellant of federally protected rights pursuant to the
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Consumer Protection Laws, Federal Judicial Authority ---Article 3
Section 2, in the laws enacted by the United States Congress, and
issue orders that give rise to the taking of Appellant’s private
property for public use without just compensation, Constitution for
the United States of America (Amendment 5, the Bill of Rights)?
3. Can [the trial court] issue any order concerning the taking of
Appellant’s private property when that order was “voidable” from
the beginning, by operation of law, due to fraudulent
misrepresentation of the contract (Promissory Note and
Mortgage), and Fraud upon the Court?
When reviewing a trial court’s grant of summary judgment, our standard
and scope of review are as follows:
Our scope of review is plenary, and our standard of review is the
same as that applied by the trial court . . . An appellate court may
reverse the entry of a summary judgment only where it finds that
the lower court erred in concluding that the matter presented no
genuine issue as to any material fact and that it is clear that the
moving party was entitled to a judgment as a matter of law. In
making this assessment, we 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. As our inquiry involves solely questions
of law, our review is de novo.
Reinoso v. Heritage Warminster SPE, LLC, 108 A.3d 80, 84 (Pa. Super.
2015) (en banc).
Although Appellant’s argument is difficult to follow, she appears to claim
that Appellee cannot eject her from the Property because she rescinded the
underlying mortgage pursuant to the Truth in Lending Act (“TILA”), 15 U.S.C.
§§ 1601-1667f. We agree with Appellee that this argument lacks merit.
“Generally, attacks on a sheriff’s sale cannot be made in a collateral
proceeding.” Dime Savings Bank v. Greene, 813 A.2d 893, 895 (Pa. Super.
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2002). “An ejectment action is a proceeding collateral to that under which
the land was sold.” Id. Further, when there is a final judgment in a
foreclosure action, res judicata bars a separate action by an occupant to
rescind a mortgage based on the TILA. Stuart v. Decision One Mortgage
Co., LLC, 975 A.2d 1151, 1152 (Pa. Super. 2009). Thus, Appellant’s
counterclaim under the TILA in this ejectment action is barred as a matter of
law.
Appellant also claims that Appellee violated the Takings Clause in the
Fifth Amendment by taking the Property without just compensation. Appellee
responds that Appellant fails to present any evidence of a Takings Clause
violation. We agree with Appellee. To prove a Takings Clause violation, the
occupant must show that the private acting entity intends to use the property
in question for public use. Kelo v. City of New London, 545 U.S. 469(2005). Here, Appellee is not a government actor, and Appellant has failed to
provide any evidence that Appellee intends to use the Property for any public
use or purpose.
Finally, Appellant claims that her ejectment and/or the underlying
sheriff’s sale are precluded by Appellee’s fraud and its violation of the Fair
Debt Collection Practices Act (“FDCPA”), 15 U.S.C. §§ 1692-1692p. Appellant
bases this argument on allegations that the note and mortgage were assigned
in 2004 to MERS, “an entity not registered in Pennsylvania to conduct any
form of business,” and the note was rescinded in 2000 when the original
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mortgagee, BNS, went out of business. Appellant’s Brief at 5. This does not
amount to a fraud or FDCPA claim; instead, it is a challenge to Appellee’s
standing to pursue the underlying mortgage foreclosure action due to defects
in the chain of title. As such, the proper time to raise this challenge was in
the underlying foreclosure action, and res judicata bars Appellant from raising
it in this action. Compare Bayview Loan Servicing LLC v. Wicker, 163
A.3d 1039 (Pa. Super. 2017) (standing raised as defense by mortgagor in
mortgage foreclosure action).
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/9/18
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