Bac Home Loans Servicing v. Viola, D. ( 2014 )

J-A25013-14
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37
BAC HOME LOAN SERVICING LP FKA : IN THE SUPERIOR COURT OF
COUNTRYWIDE HOME LOAN : PENNSYLVANIA
SERVICING, :
:
Appellee :
:
v. :
:
DARIA M. VIOLA, :
:
Appellant : No. 3393 EDA 2013
Appeal from the Order entered October 21, 2013,
Court of Common Pleas, Philadelphia County,
Civil Division at No. 1010-00101
BEFORE: DONOHUE, WECHT and PLATT*, JJ.
MEMORANDUM BY DONOHUE, J.: FILED OCTOBER 27, 2014
Daria M. Viola (“Viola”) appeals from the October 21, 2013 order
entered by the Philadelphia County Court of Common Pleas granting the
motion for summary judgment filed by Bank of America, which acquired BAC
Home Loan Servicing LP, FKA Countrywide Home Loan Servicing (“BAC”), in
2008 (hereinafter collectively referred to as “Mortgagee”). For the reasons
that follow, we affirm.
The trial court summarized the facts of the case as follows:
On October 28, 2005, [Viola] executed and delivered
a mortgage upon real property [Viola] owned in
Philadelphia, Pennsylvania to Mortgage Electronic
Registration Systems, Inc. [(‘MERS’)], as nominee
for American Mortgage Network, Inc. ([‘Amnet’).]
Subsequently, [MERS] [] assigned the subject
mortgage to [BAC]. On April 14, 2011, the
assignment to [BAC] was duly recorded by the
*Retired Senior Judge assigned to the Superior Court.
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Philadelphia County Recorder of Deeds. By merger,
Bank of America […] became the mortgagee. [Viola]
allegedly has been in default on the mortgage since
February 1, 2009.
On October 4, 2010, [BAC] filed its Complaint in
Mortgage Foreclosure against [Viola] for real
property located in Philadelphia, Pennsylvania while
it was in the process of finalizing its assignment of
the Mortgage. After numerous Conciliation
Conferences, [Viola] filed Preliminary Objections to
the Complaint. [Viola] alleged that: (1) [BAC]
lacked standing because the assignment to [BAC]
was not effective until April 14, 2011, after the
commencement of the instant action; (2) [the trial
c]ourt lacked jurisdiction because the Act 91 Notice
of Default did not name the correct original lender;
(3) [BAC] failed to attach the Note, Mortgage, and or
assignment of the Mortgage to the Complaint; (4)
the verification attached to the Complaint was
defective because it was signed by [BAC]’s Counsel,
not by an officer of [BAC]; and (5) the assignment of
the Mortgage to [BAC] was defective for various
reasons. [BAC] filed an Answer to [Viola]’s first
Preliminary Objections. Upon reviewing the
Preliminary Objections as contested, [the trial c]ourt
sustained [the] objections regarding the improper
verification of the Complaint and failure to attach the
assignment of the mortgage to [BAC], and overruled
the other objections. [The trial c]ourt dismissed the
Complaint without prejudice and granted [BAC] leave
of court to amend its Complaint.
On August 28, 2012, [BAC] filed its Amended
Complaint correcting the defects in its initial
Complaint. [Viola] again filed Preliminary Objections,
most of which were identical to those in [Viola]’s first
Preliminary Objections; paragraphs 1 and 4-14 were
identical to objections raised in the first Preliminary
Objections.
[Viola]’s new objections were that the [trial c]ourt
lacked jurisdiction because the assignment of the
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mortgage to [BAC] was not effective when the Act
91 Notices were sent and that the Complaint failed to
aver when the lender provided notice of default and
acceleration as per paragraph 20 and 22 of the
Mortgage Instrument. On October 2, 2012, [BAC]
filed its Answer to [Viola]’s Second Preliminary
Objections.
Thereafter, [the trial c]ourt overruled all of [Viola]’s
Second Preliminary Objections. [The trial c]ourt
overruled Preliminary Objections 1 and 4-14 because
they were previously raised and overruled. [The trial
c]ourt overruled objections in paragraphs 2 and 3
because [Viola] waived these arguments; [Viola]
could have, but failed to raise them in her first
Preliminary Objections. Moreover, pursuant to 35
P.S. § 1681.5(3), the statutory pre-foreclosure
notice requirements codified in 35 P.S. §§ 1680.402c
and 1680.403c, commonly known as Act 91, are no
longer jurisdictional, and therefore may be waived.
See also Beneficial Consumer Disc. Co. v. Vukman,
77 A.3d 547 (Pa. 2013). In a mortgage foreclosure
action, a plaintiff’s failure to comply with Sections
1680.402c and 1680.403c does not deprive the court
of subject matter jurisdiction over the action. Id.Additionally, [Bank of America] alleged that it sent a
combined Act 6 and Act 91 pre-foreclosure notice to
[Viola] and provided evidence thereof.
Thereafter, [Viola] filed her Answer to the Complaint
with New Matter and a counterclaim to quiet title
seeking to have the Mortgage declared null and void.
In her Answer, [Viola] only admitted her identity and
that she is the owner of the subject property. [Viola]
generally denied all of the other averments. On
December 21, 2012, [BAC] filed a Reply to New
Matter and Preliminary Objections to [Viola]’s
Counterclaim. [Viola] did not file an answer to
[BAC]’s Preliminary Objections. Thereafter, upon
reviewing [BAC]’s Preliminary Objections as
uncontested, the Court sustained the objections,
dismissed [Viola]’s Counterclaim without prejudice,
and granted [Viola] leave to amend.
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[Viola] did not amend her Counterclaim seemingly
under the mistaken belief that [the trial c]ourt’s
January 16, 2013 Order directed [BAC] to amend its
Complaint. The Court admits that it made a clerical
error in the Order by writing ‘complaint’ rather than
‘counterclaim.’ However, the Order clearly stated
that the Court sustained [BAC]’s Preliminary
Objections to [Viola]’s Counterclaim and dismissed
[Viola]’s Counterclaim without prejudice. It defies
logic that [Viola] would interpret this clerical error to
mean that while the Court was dismissing [Viola]’s
Counterclaim without prejudice, it was also sua
sponte granting [BAC] leave to amend its Complaint,
which was not requested by either party. Therefore,
[BAC] did not fail to comply with an order of [the
trial c]ourt as [Viola] now asserts.
On July 15, 2013, shortly after becoming a party to
this action,[1] [Bank of America] filed its Motion for
Summary Judgment that included an affidavit from
an officer of [Bank of America]’s [sic]. Thereafter,
[Viola] filed an Answer. In her Answer, [Viola]
alleged that [Bank of America] was not the current
holder of the Mortgage because of alleged defects in
the chain assignments; [Bank of America]’s
predecessor did not comply with the notice
requirements of Act 6 and Act 91; and that [Bank of
America]’s Affiant lacks personal knowledge of the
account activity and the Affidavit is double hearsay.
[Viola] generally denied being in default and did not
aver that the she was current in her mortgage
obligations. Upon reviewing the Motion for Summary
Judgment as contested, [the trial c]ourt granted the
motion finding that [Viola] was in default on the
mortgage and therefore, there were no genuine
issues of material fact to submit to a finder of fact.
On November 20, 2013, [Viola] filed the instant
appeal. That same day, [the trial c]ourt ordered
1
On July 10, 2013, Bank of America filed a praecipe for the substitution of
parties pursuant to Rule of Civil Procedure 2352(a).
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[Viola] to file of record a Concise Statement of
Matters Complained of on appeal pursuant to
Pa.R.A.P. 1925(b). On December 11, 2013 [Viola]
timely filed her 1925(b) Statement[.]
Trial Court Opinion, 1/28/14, at 1-5 (footnote added; record citations
omitted).
On appeal, Viola raises the following issues for our review:
Whether, under Pennsylvania law, [Viola] is entitled
to an appeal when:
a. Genuine issues of fact remain regarding [the]
validity of [Bank of America]’s assignment,
possession of the original note, power to enforce
it and purported security instrument;
b. The trial court erred in admitting [Mortgagee]’s
defective [and] inadmissible affidavit, business
records and recorded documents;
c. [Mortgagee] failed to comply with the Notice
provisions of Act 91;
d. The [c]ourt erred in overruling [Viola]’s
preliminary objections; and
e. [Mortgagee] failed to comply with [the trial]
court’s order of 17 January 2013 directing
[Mortgagee] to file [an] Amended Complaint?
Viola’s Brief at 5.2
2
The issues listed above are recited verbatim from the statement of
questions involved section of Viola’s appellate brief. We note, as does
Mortgagee, that the issues raised in the argument section of Viola’s
appellate brief do not mirror those that are included in the statement of
questions involved, failing completely to raise or develop any argument or
cite to any authority in support of issues c, d, and e stated above. “The
Rules of Appellate Procedure state unequivocally that each question an
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We review a decision granting summary judgment according to the
following standard:
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.
JP Morgan Chase Bank, N.A. v. Murray, 63 A.3d 1258, 1261-62 (Pa.
Super. 2013) (citation omitted).
Viola first argues that the trial court erred by granting Mortgagee’s
motion for summary judgment, asserting that there were genuine issues of
appellant raises is to be supported by discussion and analysis of pertinent
authority. Appellate arguments which fail to adhere to these rules may be
considered waived, and arguments which are not appropriately developed
are waived.” Coulter v. Ramsden, 94 A.3d 1080, 1088 (Pa. Super. 2014);
see also Pa.R.A.P. 2119(a), (b). Therefore, we do not address these three
issues in our decision.
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material fact “that cloud the validity of [Mortgagee]’s security instrument
and the accuracy and truthfulness in the assignment.” Viola’s Brief at 13.
In support of this argument, she states that there was no valid assignment
of the note and mortgage to Mortgagee. Viola states that she signed a
security interest naming Amnet as the lender, which company did not exist
at that time, as Wachovia Bank had acquired it six weeks prior to the signing
of the security instrument, and thus there was nothing to assign to
Mortgagee. Id. The record reflects that Viola raised this issue in her
preliminary objections, and in response, Mortgagee submitted the report
from the Securities and Exchange Commission, revealing that although
Amnet did merge with Wachovia Bank, Amnet survived the merger,
remaining as “a wholly owned subsidiary of Wachovia[.]” Plaintiff’s
Response to Defendant’s Preliminary Objections to Plaintiff’s Complaint,
6/7/12, at Exhibit B. Viola did not provide any evidence to dispute this
information or create an issue of material fact. As the record is clear that
Amnet did exist at the time Viola signed the security agreement with Amnet
as the lender, this argument does not merit any relief.
Viola further contends that there were various flaws in the assignment,
including that the mortgage number listed on the assignment is not hers, 3
3
The mortgage number on the assignment is 51338842, whereas Viola’s
mortgage number is 5133842. Compare Motion for Summary Judgment,
7/15/13, at Exhibit C with id. at Exhibit B. Mortgagee states that this was a
simply scrivener’s error. Mortgagee’s Brief at 23. This conclusion is
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that there is no indication that Amnet ever assigned the mortgage and note
to BAC, and that the assignment executed to Bank of America “is facially
flawed” because the note does not indicate that BAC was in possession of
the note at the time of its assignment. Id. at 14-15. According to Viola,
these flaws create a genuine issue of material fact as to whether Bank of
America is in fact the holder of the note and mortgage. Id. at 15-16. The
trial court found that Viola made the above assertions regarding the validity
of the assignment “without providing any evidentiary support.” Trial Court
Opinion, 1/28/14, at 10. It further found, pursuant to this Court’s holding in
JP Morgan Chase Bank, N.A. v. Murray, Viola lacked standing to
challenge the validity of the assignment to Mortgagee. Id. at 10-11.
In JP Morgan Chase Bank, N.A., this Court found that a note
secured by a mortgage is a negotiable instrument, as defined by the
Pennsylvania Uniform Commercial Code (“PUCC”).4 JP Morgan Chase
supported by the fact that the assignment contains Viola’s name, address
and a legal description of her mortgaged property. Based upon the manner
by which we dispose of this argument, however, we need not address this
question directly.
4
The PUCC defines a negotiable instrument as follows:
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:
(1) is payable to bearer or to order at the time it is
issued or first comes into possession of a holder;
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Bank, N.A., 63 A.3d at 1265. “Pursuant to the PUCC, a debtor who satisfies
his obligations under a negotiable instrument cannot be required to do so
again, even if the recipient of the debtor’s performance is not the holder of
the note in question.” Id. at 1263 (citing 13 Pa.C.S.A. § 3602(a)). Because
a borrower is not in danger of double liability – i.e., if the assignment to the
plaintiff was in fact defective, the borrower would not have to pay on the
note to another party or entity – the borrower is not injured by an allegedly
defective assignment. Thus, the Court found that a borrower lacks standing
to challenge the validity of the assignment. Id. at 1266; see also In re
Walker, 466 B.R. 271 (Bankr. E.D. Pa. 2012).
The note in question was indorsed “in blank,” which means it does not
identify the person to whom the instrument is payable, and instead is
(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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payable to the person or entity in possession of the note. See 13 Pa.C.S.A.
§ 3205(a), (b); see also Motion for Summary Judgment, 7/15/13, at Exhibit
A. Other than to challenge the validity of the assignment, Viola does not
challenge that Bank of America is in possession of the note.
Furthermore, Viola did not challenge the fact that she is the mortgagor
of the mortgaged property in question and never specifically denied that she
defaulted on her payments. Answer to Amended Complaint, 12/6/12, at ¶¶
2, 6; see also Amended Complaint in Mortgage Foreclosure, 8/28/12 at ¶¶
2, 6. [I]in mortgage foreclosure actions, general denials by mortgagors that
they are without information sufficient to form a belief as to the truth of
averments as to the principal and interest owing must be considered an
admission of those facts.” First Wisconsin Trust Co. v. Strausser,
653 A.2d 688, 692 (Pa. Super. 1995).
Standing to maintain an action is a prerequisite to a party’s ability to
seek judicial resolution of a controversy. Step Plan Servs., Inc. v.
Koresko, 12 A.3d 401, 417 (Pa. Super. 2010). As Viola admits that she is
the person who mortgaged the property in question and defaulted on the
mortgage, and she lacks standing to challenge the validity of the
assignment, this issue affords her no relief.
As her second issue on appeal, Viola states that the trial court erred by
granting summary judgment, as Mortgagee “failed to show that it is [the]
holder of a properly indorsed promissory note transferring power to enforce
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the mortgage pursuant to [PUCC] Section 3301.” Viola’s Brief at 16. It is
unclear whether Viola is claiming that Bank of America failed to prove that it
had the power to enforce the mortgage or whether BAC, at the inception of
the case, had the authority to bring the action in the first place. She
includes no citations to the record in her rambling argument in support of
this issue, see id. at 17-19, leaving us unable to discern the underlying
question. The law she cites suggests that she is contesting Bank of
America’s authority based upon the fact that the note is not specifically
indorsed to Bank of America. See id. at 17. As stated above, however, the
record reflects that the note is indorsed in blank, which makes the note
payable to the person or entity in possession of the note. See 13 Pa.C.S.A.
§ 3205(a). Viola makes no argument that Bank of America is not in fact in
possession of the note, and fails to include any citation to or discussion of
section 3205(a).
Viola further baldly states that the trial court “also erred as a matter of
law in its opinion declaring that Appellee was a legal owner of the mortgage
at the commencement of the suit without assignment and without being
holder of the note.” Viola’s Brief at 17. She includes no citations to the
record or to any case, statute, or rule in support of this statement. We
reiterate that the Rules of Appellate Procedure expressly require that an
appellant include citations to the record and to pertinent authority in support
of each argument raised on appeal. Pa.R.A.P. 2119(a)-(c). Viola’s failure to
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properly develop this argument results in its waiver. See Coulter v.
Ramsden, 94 A.3d 1080, 1088 (Pa. Super. 2014).
As her third and final issue on appeal, Viola states that the trial court
erred by accepting the affidavit filed by Mortgagee when granting its request
for summary judgment, as the affidavit contained inadmissible hearsay.
Viola’s Brief at 19. The trial court found that the affidavit of Bank of
America’s assistant vice president, Mary Beth Fetkovich (“Fetkovich”), was
properly considered and that Viola failed to produce evidence in support of
her claim that Fetkovich lacked personal knowledge of the information
contained in the affidavit. Trial Court Opinion, 1/28/14, at 13.
Pennsylvania Rule of Civil Procedure 1035.4 governs affidavits
accompanying motions for summary judgment. It requires, in relevant part,
that affidavits filed in support or opposition of summary judgment “shall be
made on personal knowledge, shall set forth such facts as would be
admissible in evidence, and shall show affirmatively that the signer is
competent to testify to the matters stated therein.” Pa.R.C.P. 1035.4. The
affidavit in question was submitted by Mortgagee to authenticate the records
relevant to the proceeding. Thus, to be admissible as an exception to the
rule against hearsay, the affidavit must indicate:
(A) the record was made at or near the time by--or from
information transmitted by--someone with knowledge;
(B) the record was kept in the course of a regularly
conducted activity of a ‘business’, which term includes
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business, institution, association, profession, occupation,
and calling of every kind, whether or not conducted for
profit;
(C) making the record was a regular practice of that
activity;
(D) all these conditions are shown by the testimony of the
custodian or another qualified witness, or by a certification
that complies with Rule 902(11) or (12) or with a statute
permitting certification; and
(E) neither the source of information nor other
circumstances indicate a lack of trustworthiness.
Pa.R.E. 803(6).
Viola asserts that Fetkovich could not have personal knowledge
regarding the records created and maintained by Amnet and MERS, and that
Fetkovich provides no foundation for her personal knowledge of the
information in her affidavit. Viola’s Brief at 19-20. Viola does not specify
what information in the affidavit Fetkovich would not have had personal
knowledge of by virtue of her position with Bank of America, only that “Bank
of America has no knowledge of the account activity of a non-related bank.”
Id. at 20. Our review of the affidavit reveals that the only “account activity
of a non-related bank” Fetkovich arguably included in her affidavit were that
Viola ceased making mortgage payments beginning with the payment due
on February 1, 2009, and the total amount of money Viola owed as a result
of her default. Affidavit, 6/19/13, at ¶¶ 7-8. However, Viola did not
specifically deny averments in Mortgagee’s Amended Complaint that she
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defaulted on her mortgage beginning with the February 1, 2009 payment or
that she owes the amount Mortgagee alleges. See Answer to Amended
Complaint, 12/6/12, at ¶¶ 6-7; Amended Complaint in Mortgage
Foreclosure, 18/28/12, at ¶¶ 6-7. As we previously stated, Viola’s general
denials, stating that she is without sufficient information to form a belief as
to the truth of these averments, constitutes an admission of those facts.
First Wisconsin Trust Co., 653 A.2d at 692; see also Pa.R.C.P. 1029(c),
Note (stating that generally denying an averment, claiming that the party is
without sufficient knowledge of its truth or falsity, “does not excuse a failure
to admit or deny a factual allegation when it is clear that the pleader must
know whether a particular allegation is true or false”). This is because
Mortgagee and Viola “are the only parties who would have sufficient
knowledge on which to base a specific denial.” First Wisconsin Trust Co.,
653 A.2d at 629 (quoting New York Guardian Mortgage Corp. v. Dietzel,
524 A.2d 951, 952 (Pa. Super. 1987)). Thus, as a result of these
admissions, even if the affidavit is faulty with regard to these inclusions, we
find no error by the trial court on this basis.
The remainder of Viola’s argument focuses on her confusion regarding
to whom she owes money and who is entitled to bring this foreclosure
action. See Viola’s Brief at 20-22. She again assails the validity and
authenticity of the various assignments made. She does not contend that
she does not owe on the mortgage, but she contests that Bank of America is
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the party entitled to payment. See id. at 21-22 (“I just don’t have enough
information to answer whether I owe Bank of America a red US cent.”). As
stated hereinabove, even if she was to pay Bank of America and the
assignment to Bank of America was later invalidated, Viola would not be
responsible for paying the correct party on the mortgage. See JP Morgan
Chase Bank, N.A., 63 A.3d at 1265; 13 Pa.C.S.A. § 3602(a). Thus, this
argument does not entitle her to a reversal of summary judgment.
In summary, based upon the arguments raised on appeal, we find no
error of law or abuse of discretion in the trial court’s determination that
there is no genuine issue of material fact and that Mortgagee is entitled to
relief as a matter of law. We therefore affirm its order granting Mortgagee’s
motion for summary judgment.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/27/2014
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