Deutsche Bank v. Banks, R. Appeal of: Banks, J. ( 2016 )


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  • J-A32008-15
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    DEUTSCHE BANK TRUST COMPANY                   IN THE SUPERIOR COURT OF
    AMERICAS, FORMERLY KNOWN AS                         PENNSYLVANIA
    BANKERS TRUST COMPANY, AS A
    TRUSTEE OF AMRESCO RESIDENTIAL
    SECURITIES CORPORATION MORTGAGE
    LOAN TRUST 1998-1, UNDER POOLING
    AND SERVICING AGREEMENT DATED AS
    FEBRUARY 1, 1998,
    Appellee
    v.
    ROBERT BANKS AND JOANNE BANKS,
    APPEAL OF: JOANNE BANKS,
    Appellant                 No. 2037 WDA 2014
    Appeal from the Judgment Entered December 3, 2014
    In the Court of Common Pleas of Allegheny County
    Civil Division at No(s): MG-09-001802
    BEFORE: SHOGAN, OTT, and STABILE, JJ.
    MEMORANDUM BY SHOGAN, J.:                     FILED FEBRUARY 19, 2016
    Appellant, Joanne Banks, appeals from the in rem judgment entered in
    favor of Deutsche Bank Trust Company Americas (“Deutsche Bank”) in this
    mortgage foreclosure action. We affirm.
    The trial court summarized the facts and procedural history as follows:
    On March [2], 2007, [Appellee] Deutsche Bank Trust
    Company Americas filed a Complaint in Mortgage Foreclosure
    against [Appellants,] Joanne Banks and Robert J. Banks,
    regarding Property located at 610 Ridge Street, McKeesport, PA
    15132. On March 20, 2008, [the trial court] entered an Order
    dismissing the Complaint, with prejudice.    The instant case
    J-A32008-15
    involves a Complaint and an Amended Complaint in Mortgage
    Foreclosure, filed on [July 15, 2009,] and June 27, 2012,1
    respectively. By way of history, on December 10, 1997, in
    consideration of a loan in the principal amount of $36,000,
    [Appellant] Joanne Banks executed and delivered to AMRESCO
    Residential Mortgage Corporation, an adjustable rate note with
    interest, payable as to the principal and interest in equal
    monthly installments of $360.08 commencing February 1, 1998.
    [Appellants] are in default of their obligations pursuant to the
    Note and to the Mortgage because payments of principal and
    interest due May 1, 2006 and monthly thereafter are due and
    have not been paid. [Deutsche Bank] seeks an in rem judgment
    against [Appellants] for foreclosure and sale of the Property.
    A non-jury trial was held and a verdict entered on June 12,
    2014 in favor of [Deutsche Bank] in the amount of $39,489.00.
    On June 17, 2014, [Appellant] Joanne Banks filed a Motion for
    Post-Trial Relief and arguments were heard on July 31, 2014.
    Trial Court Opinion, 9/10/14, at 1-2.
    The trial court denied the motion for post-trial relief by order entered
    September 10, 2014. On December 3, 2014, Deutsche Bank filed a praecipe
    for in rem judgment, in favor of Deutsche Bank and against Joanne Banks,
    as “Original Mortgagor and Real Owner.” Praecipe for Judgment, 12/3/14, at
    1.   Judgment on the verdict was entered the same day.           Appellant timely
    appealed.
    Appellant presents the following issues for our review:
    [I.] Whether the trial court improperly concluded that
    Deutsche Bank met its burden to establish its standing to
    ____________________________________________
    1
    The record reflects that Deutsche Bank filed the complaint in mortgage
    foreclosure at issue in this case on July 15, 2009. On September 13, 2010,
    Deutsche Bank filed an amended complaint and on June 27, 2012, Deutsche
    Bank filed a second amended complaint.
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    J-A32008-15
    prosecute the instant action where Deutsche Bank failed to prove
    it was the successor in interest to Bankers Trust Company.
    II.   Whether the trial court improperly concluded that
    Deutsche Bank met its burden to establish its standing to
    prosecute the instant action where Deutsche Bank failed to prove
    it had acquired the subject note prior to its commencement of
    the instant lawsuit.
    [III.] Whether the trial court improperly concluded that the
    doctrine of res judicata did not bar Deutsche Bank from
    prosecuting the instant mortgage foreclosure action where the
    lower court previously dismissed with prejudice Deutsche Bank’s
    materially identical first complaint in mortgage foreclosure.
    Appellant’s Brief at 4 (full capitalization omitted).2
    Our standard of review is as follows:
    When reviewing the verdict from a bench trial, we must review
    the evidence of record in the light most favorable to the verdict
    winner to determine whether competent evidence supports the
    trial court’s findings and whether it erred in reaching its
    conclusions of law. We afford the same weight to the trial
    court’s findings of fact as we do a jury’s verdict. We will only
    reverse if the trial court’s findings of fact are unsupported by
    competent evidence or if it erred as a matter of law.
    Newman Dev. Grp. of Pottstown, LLC v. Genuardi’s Family Mkt., Inc.,
    
    98 A.3d 645
    , 652 (Pa. Super. 2014) (en banc) (internal citations omitted).
    We first address whether the trial court improperly concluded that
    Deutsche Bank had standing to bring this mortgage foreclosure action.
    Appellant’s Brief at 52.       Appellant asserts that the original mortgage was
    ____________________________________________
    2
    We have renumbered Appellant’s issues raised on appeal for ease of
    disposition and for purposes of first addressing Appellant’s claims regarding
    Deutsche Bank’s standing to bring this foreclosure action.
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    J-A32008-15
    executed in favor of AMRESCO and was subsequently assigned to Bankers
    Trust Company. 
    Id. at 55.
    Appellant maintains that because Bankers Trust
    Company was the sole assignee of the subject mortgage, and because
    Deutsche Bank has failed to establish any legal relationship between it and
    Bankers Trust Company, Deutsche Bank lacks standing to prosecute this
    action. 
    Id. The holder
    of a mortgage has the right, upon default, to bring a
    foreclosure action. Bank of Am., N.A. v. Gibson, 
    102 A.3d 462
    , 464 (Pa.
    Super. 2014), appeal denied, 
    112 A.3d 648
    (Pa. 2015).       In a foreclosure
    action, the plaintiff 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. J.P. Morgan Chase Bank, NA.
    v. Murray, 
    63 A.3d 1258
    , 1267-1268 & n.6 (Pa. Super. 2013).
    In this case, Deutsche Bank proved standing both ways.             First,
    Deutsche Bank owns Appellant’s mortgage via assignment. The complaint in
    a mortgage foreclosure action must allege “the parties to and the date of the
    mortgage, and of any assignments, and a statement of the place of record of
    the mortgage and assignments.”      Pa.R.C.P. 1147(a)(1).    Here, Deutsche
    Bank’s second amended complaint set forth the original parties and date of
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    J-A32008-15
    Appellant’s mortgage. It further asserted that the mortgage was assigned
    from the original lender, AMRESCO, to Bankers Trust Company.3
    The record includes evidence and testimony that Deutsche Bank was
    “formerly known as Bankers Trust Company” and owned Appellant’s
    mortgage via assignment.          Specifically, Deutsche Bank produced a limited
    power of attorney indicating that Deutsche Bank, formerly known as Bankers
    Trust Company, contracted with Wendover Financial Services Corporation
    (“Wendover”) to service its loans and mortgages. Stipulated Supplement to
    Record:     Trial Exhibits Pertinent to the Issues raised on appeal; Plaintiff
    Exhibit 1. At trial, Allison Bielby testified that she worked for LoanCare LLC,
    which is a sub-servicer for Wendover and that she had been servicing
    Appellant’s loan.     N.T., 6/2/14, at 7-9.      Ms. Bielby, on behalf of LoanCare
    LLC, identified a record of payments and documented history of the
    mortgage executed by Appellant. 
    Id. at 10-19.
    Additionally, her testimony
    revealed that a modification was offered on this loan, and that Appellant
    interacted with LoanCare, LLC in its capacity as Appellant’s mortgage
    servicer. 
    Id. at 51-52.
    Thus, the record established that LoanCare LLC, on behalf of Deutsche
    Bank, has been servicing Appellant’s loan. Further, Appellant engaged with
    ____________________________________________
    3
    The complaint also included a statement of the place of record of the
    mortgage and assignment.      The note, mortgage and assignment were
    attached to Deutsche Bank’s second amended complaint.
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    J-A32008-15
    LoanCare LLC as her loan servicer without objection prior to initiation of this
    litigation.   Accordingly, the record reflects an unbroken chain from the
    original lender, AMRESCO, to Deutsche Bank. Because Deutsche Bank is the
    current mortgage owner via assignment, it has standing to enforce the
    mortgage.
    Second, Deutsche Bank is in possession of the promissory note which
    was endorsed in blank.4
    Under the Pennsylvania Uniform Commercial Code (PUCC), the
    note securing a mortgage is a negotiable instrument.     J.P.
    Morgan Chase Bank, N.A. v. Murray, 
    63 A.3d 1258
           (Pa.Super.2013). A note endorsed in blank is a “bearer note,”
    payable to anyone on demand regardless of who previously held
    the note. 13 Pa.C.S.A. §§ 3109(a), 3301.
    
    Gibson, 102 A.3d at 466
    ; see also PHH Mortg. Corp. v. Powell, 
    100 A.3d 611
    , 621 (Pa. Super. 2014) (“Evidence that some other entity may be the
    “owner” or an “investor” in the Note is not relevant to this determination, as
    the entity with the right to enforce the note may well not be the entity
    entitled to receive the economic benefits from payments received thereon.”).
    The record in this case reveals that Deutsche Bank holds the note
    endorsed in blank, and therefore the mortgage. As holder of the note and
    mortgage, Deutsche Bank has standing to pursue this foreclosure action as
    ____________________________________________
    4
    Appellant does not dispute the fact that Deutsche Bank possesses the
    original note. Appellant’s Brief at 46-48.
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    J-A32008-15
    the proper party in interest.           
    Gibson, 102 A.3d at 466
    .       Appellant’s
    assertions to the contrary are baseless.
    In her next claim, Appellant contends that Deutsche Bank lacks
    standing to prosecute this foreclosure action where it failed to prove that it
    had acquired the promissory note prior to its commencement of the instant
    lawsuit.   Appellant’s Brief at 35.        Notably, Appellant does not allege that
    Deutsche Bank does not possess the original promissory note.5             Instead,
    Appellant argues that the promissory note attached to the complaint differs
    from the original note produced at trial. 
    Id. at 48.
    Specifically, Appellant
    contends that the allonge6 to the promissory note attached to the complaint
    differs from the allonge to the original note because the original note’s
    allonge includes a name stamp of “Aurora P. Cosme, Assistant [Secretary],”
    and the copy does not. 
    Id. Thus, Appellant
    argues that Deutsche Bank did
    not possess the original note and allonge prior to the inception of the instant
    foreclosure action and therefore, has failed to establish its standing as the
    real party in interest to prosecute the instant foreclosure action. 
    Id. at 51-
    52.
    ____________________________________________
    5
    Both the copy and the original promissory note were introduced at trial. As
    noted, Appellant does not dispute this fact.
    6
    An allonge is “[a] slip of paper sometimes attached to a negotiable
    instrument for the purpose of receiving further indorsements when the
    original paper is filled with indorsements.” Black’s Law Dictionary 88 (9th
    ed. 2009).
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    This Court recently held that a complaint in mortgage foreclosure does
    not need to include the original promissory note. Bank of N.Y. Mellon v.
    Johnson, 
    121 A.3d 1056
    , 1063 (Pa. Super. 2015).         In Johnson, default
    judgment had been entered against the appellant in a mortgage foreclosure
    action. 
    Id. at 1058-1059.
    The appellant argued that the default judgment
    should have been struck on the basis that the complaint in foreclosure was
    deficient because the bank did not attach the promissory note to the
    complaint. 
    Id. at 1062.
    The appellant further argued that the bank failed to
    allege that a promissory note even existed or that it legally owned the
    mortgage. 
    Id. In affirming
    the trial court’s decision, this Court concluded
    that a complaint in mortgage foreclosure does not need to include the
    original promissory note.   
    Id. at 1063.
       This Court emphasized that the
    bank’s complaint fully complied with the requirements of Pa.R.C.P. 1147(a):
    the complaint listed the parties to the mortgage, the date of execution, and
    the assignment to the bank; an attachment to the complaint described the
    land subject to the mortgage; the complaint set forth the name, address,
    and interest of the appellant; the bank included a specific averment of
    default, explaining that the appellant had failed to make her required
    monthly payments; the bank also provided an itemized statement of the
    amount due, and it demanded judgment for that amount.           
    Id. at 1063.
    Because the complaint fully complied with Rule 1147(a), this Court
    determined that the appellant was not entitled to relief on her claim. 
    Id. -8- J-A32008-15
    Thus, as this Court held in Johnson, there is no requirement that
    Deutsche Bank attach the original note to the complaint. Furthermore, as in
    Johnson,     here     Deutsche   Bank’s    complaint    fully   complied   with     the
    requirements of Pa.R.C.P. 1147(a).              Therefore, we cannot agree with
    Appellant’s assertion that Deutsche Bank lacks standing to prosecute the
    instant action and that the judgment entered against Appellant should be
    vacated.     Moreover, as noted, Deutsche Bank possesses the original
    promissory note in this case. For reasons explained previously, it is of no
    merit that the note was not attached to the complaint.            Thus, Appellant’s
    second claim challenging Deutsche Bank’s standing to proceed in this
    foreclosure action lacks merit.
    In her final issue, Appellant asserts that the trial court erred in
    concluding that the doctrine of res judicata does not bar Deutsche Bank from
    prosecuting the instant mortgage foreclosure action. Appellant’s Brief at 19.
    Appellant contends that the order entered by the trial court on March 20,
    2008,    dismissing    with   prejudice   Deutsche     Bank’s   first   complaint    in
    foreclosure against Appellant “constitutes res judicata and operates as a bar
    against any subsequent lawsuit by Deutsche Bank against [Appellant] on the
    same cause of action.” 
    Id. at 23.
    “Pursuant to the doctrine of res judicata, a final judgment on the
    merits by a court of competent jurisdiction will bar any future suit between
    the parties or their privies in connection with the same cause of action.”
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    Radakovich v. Radakovich, 
    846 A.2d 709
    , 715 (Pa. Super. 2004) (quoting
    Yamulla Trucking & Excavating Co. v. Justofin, 
    771 A.2d 782
    , 784 (Pa.
    Super. 2001)).        This Court has previously explained the impact of a
    judgment of non pros on the doctrine of res judicata:
    It is settled law that where plaintiff has suffered a
    judgment of non pros, he may later commence a new action
    between the selfsame parties and alleging the selfsame cause of
    action so long as the second action is commenced within the
    applicable statute of limitations. Since a non pros is not a
    judgment on the merits, it cannot have res judicata effect.
    Hatchigian v. Koch, 
    553 A.2d 1018
    , 1020 (Pa. Super. 1989) (internal
    citations omitted). Additionally, our Commonwealth Court has held that “a
    dismissal, even with prejudice, for failure to prosecute a claim is not
    intended to be res judicata of the merits to the controversy.” Municipality
    of Monroeville v. Liberatore, 
    736 A.2d 31
    , 34 (Pa. Cmwlth. 1999)
    (emphasis added).7        See also Moore v. John A. Luchsinger, P.C., 
    862 A.2d 631
    , 634 n.3 (Pa. Super. 2004) (“A non pros against a plaintiff is not
    res judicata, and therefore, does not bar the plaintiff from commencing
    another action based upon the same cause of action within the applicable
    statute of limitations period.”); Gutman v. Giordano, 
    557 A.2d 782
    , 783
    (Pa. Super. 1989) (“[A] non pros for failure to answer a trial listing is not an
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    7
    We note that “[t]his Court is not bound by decisions of the Commonwealth
    Court. However, such decisions provide persuasive authority, and we may
    turn to our colleagues on the Commonwealth Court for guidance when
    appropriate.” Haan v. Wells, 
    103 A.3d 60
    , 68 n.2 (Pa. Super. 2014).
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    J-A32008-15
    adjudication on the merits and thus may not form the basis for application of
    res judicata.”).
    As noted, Appellant defaulted on the mortgage in May 2006. Deutsche
    Bank initiated its first action in foreclosure against Appellant on March 2,
    2007.      That action was dismissed “with prejudice” by court order dated
    March 20, 2008, as a result of “Plaintiffs not responding or appearing.”
    Order, 3/20/08. Thus, Deutsche Bank’s initial action was dismissed due to
    the failure to prosecute the claim. Because the first action was dismissed for
    non pros, there was no final judgment on the merits.         Accordingly, the
    doctrine of res judicata does not bar the filing of the instant foreclosure
    action.8
    Judgment affirmed.
    ____________________________________________
    8
    This second action, filed July 15, 2009, was commenced within the
    applicable statute of limitations. 
    Hatchigan, 533 A.2d at 1020
    (“It is
    settled law that where plaintiff has suffered a judgment of non pros, he may
    later commence a new action between the selfsame parties and alleging the
    selfsame cause of action so long as the second action is commenced within
    the applicable statute of limitations.”). An action under seal must be
    commenced within twenty years. 42 Pa.C.S. § 5529(b)(1); In re Estate of
    Snyder, 
    13 A.3d 509
    , 513 (Pa. Super. 2011).
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    J-A32008-15
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 2/19/2016
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