U.S. ROF III v. Laird, S. ( 2018 )

J-S71032-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
U.S. ROF III LEGAL TITLE TRUST 2015- IN THE SUPERIOR COURT
1, BY U.S. BANK NATIONAL OF
ASSOCIATION, AS LEGAL TITLE PENNSYLVANIA
TRUSTEE,
Appellee
v.
SUSAN LAIRD & GENE STRIKWERDA,
Appellants No. 1812 EDA 2016
Appeal from the Order April 22, 2016
in the Court of Common Pleas of Montgomery County
Civil Division at No.: 2014-29951
BEFORE: PANELLA, J., STABILE, J., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED FEBRUARY 16, 2018
Appellants, Susan Laird and Gene Strikwerda, appeal, pro se, from the
trial court’s April 22, 2016 order granting the motion for summary judgment
of Appellee, U.S. ROF III, Legal Title Trust 2015-1, by U.S. Bank National
Association as legal title trustee in this mortgage foreclosure action. We
affirm.
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
J-S71032-17
In its opinion, the trial court fully and correctly sets forth the relevant
facts and procedural history of this case.1 (See Trial Court Opinion, 4/07/17,
at 1-5). Therefore, we have no reason to restate them.
On appeal, Appellants raise the following issue for our review:
Did the trial court err in granting summary judgment in favor of
[Appellee?]
(Appellants’ Brief, at 6).
We briefly note our standards of review.
Our scope of review of an order granting summary judgment
is plenary. We apply the same standard as the trial court,
reviewing all the evidence of record to determine whether there
exists a genuine issue of material fact. 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. 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.
Motions for summary judgment necessarily and directly
implicate the plaintiff’s proof of the elements of his cause of
action. Thus, a record that supports summary judgment will
either (1) show the material facts are undisputed or (2) contain
insufficient evidence of facts to make out a prima facie cause of
action or defense and, therefore, there is no issue to be submitted
to the fact-finder. Upon appellate review, we are not bound by
the trial court’s conclusions of law, but may reach our own
conclusions. The appellate court may disturb the trial court’s
order only upon an error of law or an abuse of discretion.
____________________________________________
1 On May 24, 2016, the trial court ordered Appellants to file a concise
statement of errors complained of on appeal. See Pa.R.A.P. 1925(b). On
June 13, 2016, Appellants filed a timely Rule 1925(b) statement. See id. On
April 7, 2017, the court filed an opinion. See Pa.R.A.P. 1925(a).
-2-
J-S71032-17
Dibish v. Ameriprise Financial, Inc., 134 A.3d 1079, 1084-85 (Pa. Super.
2016), appeal denied, 141 A.3d 481 (Pa. 2016) (citation omitted).
Moreover,
[t]he holder of a mortgage has the right, upon default, to
bring a foreclosure action. The holder of a mortgage 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.
Bank of America, N.A. v. Gibson, 102 A.3d 462, 464-65 (Pa. Super. 2014),
appeal denied, 112 A.3d 648 (Pa. 2015) (citations omitted).
After a thorough review of the record, the parties’ briefs, the applicable
law, and the well-reasoned opinion of the trial court, we conclude that there
is no merit to the issues Appellants have raised on appeal. The trial court
opinion properly disposes of the questions presented.2 (See Trial Ct. Op., at
7-12) (finding that: (1) Appellee is the real party in interest with standing to
foreclose; (2) Appellants failed to rebut any of Appellee’s substantive
allegations; (3) Appellants’ general denials did not identify any issues of
factual dispute; and (4) Appellants’ claim that Appellee wrongly filed two
____________________________________________
2 To the extent it can be determined from Appellants’ brief, which is all but
unintelligible, Appellants appear to argue that the affidavit filed by Appellee in
support of its motion for summary judgment was inadmissible hearsay. (See
Appellants’ Brief, at 7-8). The trial court did not address this issue in its
opinion because Appellants did not raise it in their Rule 1925(b) statement.
(See Statement of Matters Complained of on Appeal, 6/13/16, at 1). Thus,
Appellants waived this issue. See Pa.R.A.P. 1925(b)(4)(vii); see also
Commonwealth v. Lord, 719 A.2d 306, 308 (Pa. 1998), superseded by rule
on other grounds as stated in Commonwealth v. Burton, 973 A.2d 428, 431
(Pa. Super. 2009).
-3-
J-S71032-17
different true and correct copies of the note was both waived and unsupported
by record). Accordingly, we affirm based on the trial court’s opinion.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/16/18
-4-
201 ticRALOIN94641P1r11123AP11
IN THE COURT OF COMMON PLEAS OF MONTGOMERY COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
U.S. ROF III LEGAL TITLE TRUST 2015-1 : NO. 14-29951
BY U.S. BANK, N.A., AS LEGAL TITLE 1812 EDA 2016
TRUSTEE
Plaintiff
v.
SUSAN LAIRD Aff(JA SUSAN L. LAIRD
1111 IIRritinilt
2014-29951-0030 4/7/2017 4:07 PM # 11232729
1111
Opinion
AND STRIKWERDA
Rcpt= 23105573 Fee:SO.00
Defendants Mark LCN'y - NIontCo Prothonotary
OPINION
Branca, J. April 7, 2017
1. INTRODUCTION
Susan Laird afkla Susan L. Laird and Gene Strikwerda (collectively, "Defendants")
appeal pro set from this Court's Order, dated April 22, 2016, granting Plaintiff, U.S. ROF III
Legal Title Trust 2015-1, by U.S. Bank National Association, as Legal Title Trustee's Motion for
Summary Judgment and entering judgment, in rem, in favor of Plaintiff and against Defendants
in the amount of $334,811.49, plus interest and applicable costs. For the reasons that follow,
Defendants' appeal is without merit and the Court's Order, dated April 22, 2016, should be
AFFIRMED.
II. STATEMENT OF THE CASE
The instant dispute arises from a Mortgage (the "Mortgage") securing the real property
(the "Property") located at 3126 Shirlene Road, East Norriton, Pennsylvania, executed and
delivered by Defendants to Mortgage Electronic Registration Systems, Inc. ("MERS") as
nominee for Franklin American Mortgage Company ("Franklin") on January 23, 2009, and
While the Court is cognizant of Defendants' pro se status on appeal, Defendants are bound and obligated to
comply with the relevant rules of procedural and substantive law. See Jones v. Rudenstein, 585 A.2d 520, 522 (Pa.
Super. Ct. 1991) (Citing Farretta v. _California, 422 U.S. 806, 834 n. 46 (1975)).
2014-29951-0030 Opinion, Page 2
recorded on February 9, 2009.2 The Mortgage secured Defendants' obligations under the
Promissory Note (the "Note"),dated January 23, 2009, and given to Franklin in consideration of
a loan to Defendants in the amount of $260,855.00, with interest thereon at 5.000%, payable in
equal monthly installments of $1,400.33 commencing on March 1, 2009.3 In relevant portion,
the Note provides:
"Borrower" means each person signing at the end of this Note, and the person's
successors and assigns.
"Lender" means Franklin America Mortgage Company and its successors and
assigns.
Borrower's promise to pay is secured by a Mortgage, that is dated the same
. . .
date as this Note and called the "Security Instrument." The Security Instrument
protects the Lender from losses which might result if Borrower defaults under this
Note. .[4]
.
In relevant portion, the Mortgage states:
Borrower owes Lender the principal sum of ($260,855.00.) This debt is
. .
evidenced by Borrower's note dated the same date as this Security Instrument
(Note) .. This Security Instrument secures to Lender: (a) the repayment of the
. .
debt evidences by the Note, with interest, ; (c) the performance of Borrower's
. .
covenants and agreements under this Security Instrument and the Note.
For this purpose, Borrower does hereby mortgage, grant and convey to MERS
(solely as nominee for Lender and Lender's successors and assigns) and to the
successors and assigns of MERS the following described property .[5] ....
The covenants and agreements of this Security Instrument shall bind and benefit
the successors andassigns of Lender and Borrower .[6] .
Thereafter, on August 1, 2011, Defendants defaulted on the Note and Mortgage by failing to
make the previously agreed upon monthly payments. On January 16, 2013, though not required
2
[Compl. at Ex. A (the "Mortgage") (Montgomery County Record of Deeds, Instrument # 2009010231, Book
12533 at Page 368, (11/10/14)].
3
[Compl. at Ex. B (the "Note"), (11/10/14)].
4 [Compl. at Ex. B (the "Note"), at ¶ 1, 3, (11/10/14)].
5 [Compl. at Ex. A (the "Mortgage") (Montgomery County Record of Deeds, Instrument # 2009010231, Book
12533 at Page 368, (11/10/14)].
6
Compl. at Ex. A (the "Mortgage") (Montgomery County Record of Deeds, Instrument # 2009010231, Book 12533
at Page 368, at lj 12, (11/10/14)].
2
2014-29951-0030 Opinion, Page 3
because Defendants' period default exceeded 24 months, Plaintiff, nonetheless, sent Notices of
Intention to Foreclose to each Defendant at the Property via certified and regular mail.7
On August 22, 2012, the Mortgage was assigned by MERS as nominee for Franklin to
Bank of America, N.A., which assignment ("First Assignment") was duly recorded in the Office
of the Recorder of Deeds of Montgomery County on August 24, 2012.8 On April 2, 2014, Bank
of America, N.A. assigned the Mortgage to the Secretary of Housing and Urban Development,
which assignment ("Second Assignment") was duly recorded in the Office of the Recorder of
Deeds of Montgomery County on May 29, 2014.9 On June 6, 2014, the Secretary of Housing
and Urban Development assigned the Mortgage to U.S. Bank National Association, as Trustee
for SROF-2013-S3 REMIC Trust I ("U.S. Bank"), which assignment ("Third Assignment") was
duly recorded in the Office of the Recorder of Deeds of Montgomery County on June 18, 2014.10
On November 10, 2014, U.S. Bank instituted the instant mortgage foreclosure action
against Defendants. On December15, 2014, Defendants filed Preliminary Objections pro se,
asserting that U.S. Bank was not the real party in interest and therefore, lacked standing to
foreclose. (Defendants inexplicably attached to their Preliminary Objections more than 250
pages of exhibits.) U.S. Bank filed its Reply on January 2, 2015, and by Order dated February
25, 2015, this Court overruled Defendants' Preliminary Objections. In the meantime, on January
13, 2015, U.S. Bank assigned the Mortgage to SROF 2013-S3 REO I LLC, which assignment
7
[Comp'. at 1112, Ex. C ("Notice of Intention"), (I 1/10/14)]; See 35 P.S. 5 P.S. § I680.402c.
8
[Pl.'s Mot. for Summ. J. at Ex. C ("First Assignment") (Montgomery County Record of Deeds, Instrument
#2012083941, Book 13388, at Page 01194), (2/26/16)].
9
[Pl.'s Mot. for Summ. J. at Ex. D ("Second Assignment") (Montgomery County Record of Deeds, Instrument
N2014032724, Book 13786, at Page 00926), (2/26/16)].
10
[Pl.'s Mot. for Summ: J. at Ex. E'("Third Assignment") (Montgomery County Record of Deeds, Instrument
#2014037727, Book 13794, at Page 02303), (2/26/16)].
3
2014-29951-0030 Opinion, Page 4
("Fourth Assignment") was duly recorded in the Office of the Recorder of Deeds of Montgomery
County on February 23, 2015.1
On March 16, 2015, Defendants filed their Answer and New Matter, affirmatively
admitting only their names and mailing addresses.I2 But despite Defendants' prevarication, they
ultimately admitted all remaining allegations of material fact by virtue of their lengthy and
obtuse general denials. On April 8, 2015, in response to Defendants' alleged affirmative
defenses, Plaintiff filed a Reply aptly disposing of their New Matter.I3 Thereafter, on November
4, 2015, SROF 2013-S3 REO I LLC assigned the Mortgage to Plaintiff, which assignment
("Fifth Assignment") was duly recorded in the Office of the Recorder of Deeds of Montgomery
County on November 13, 2015.14
On February 26, 2016, Plaintiff filed a Motion for Summary Judgment, asserting therein
that it was the holder of the Note and Mortgage.I5 In response, Defendants filed an Answer,
attaching more than 850 pages of exhibits, and neglected entirely to file the requisite brief in
support thereof.16 After a review of the record, the undersigned determined no genuine issues of
material fact existed, Plaintiff was entitled to judgment as a matter of law, and accordingly
granted Plaintiffs Motion for Summary Judgment by Order dated April 22, 2016.
Notwithstanding this Court's April 22nd entry of judgment and for reasons still unclear, on April
26, 2016, Defendants filed 'Preliminary Objections In The Nature To Strike Plaintiffs Sur Reply
at Ex. F ("Fourth Assignment") (Montgomery County Record of Deeds, Instrument
11
[Pl.'s Mot. for Summ. J.
#2015011569, Book 13901, at Page 02967), (2/26/16)]; [Pl.'s Praecipe, at Ex, A ("Fourth Assignment")
(Montgomery County Record of Deeds, Instrument 420150 11569, Book 13901, at Page 02967), (4/8/15)].
12 [Defs.' Answ. & New Matter (3/16/15)].
13 [Pl.'s Reply (4/8/15)].
14 [Pl.'s
Mot. for Summ. J. at Ex. G ("Fifth Assignment") (Montgomery County Record of Deeds, Instrument
#2015086531, Book 14043, at Page 00199) (2/26/16)].
15 [Pl.'s Mot. for Summ. J., at ¶ 8, (2/26/16)].
16 [Defs.' Answ. To Pl.'s Mot. Summ. J., (3/28/16)]; see Pa. R.C.P. 1035.3(d); see also Montco. R,C.P. 208.3(b)
(generally permitting entry of judgment where respondent fails to respond).
4
2014-29951-0030 Opinion, Page 5
Brief . . . .'17 On May 20, 2016, Defendants timely filed and served upon the undersigned a
Notice of Appeal, and on June 13, 2016, Defendants timely filed and served upon the
undersigned their Statement of Errors Complained Of On Appeal (Pa. R. A. P. "1925(b)
Statement") which set forth the following:
1. The learned Judge erred in granting Plaintiff's motion for summary
judgement.
The learned Judge erred in granting Plaintiff's motion for summary
judgement by allowing Plaintiff to file two completely different true and
correct copies of the note.
3. The learned Judge erred in granting Plaintiff's motion for summary
judgement by not dismissing Plaintiff's case due to lack of standing.
4. The learned Judge erred in granting Plaintiff's motion for summary
judgement as the court failed to recognize MERS cannot transfer any
beneficial interest in the note or mortgage.
III. DISCUSSION
On appeal Defendants preserved.two issues for review. First, they contend that Plaintiff
is not the real party in interest and lacks standing to foreclose; and second, they claim that
Plaintiff improperly filed two different copies of the Note. Defendants' remaining bald and
undeveloped contentions that the Court erred are waived for vagueness." As discussed
hereinafter, Defendants' claims are meritless, and the Court's entry of summary judgment in
favor of Plaintiff was appropriate.
" Defendants' Preliminary Objections present just one example of Defendants' repeated misapplication and lack of
Comprehension of the rules of civil procedure, as demonstrated herein: "The verification attached is signed by Leslie
J. Rase Esquire. Leslie J. Rase Esquire is not a party to this case. Pa. R.C.P. 1024 requires that parties sign
verifications. This verification violates the rules and therefore this document must be stricken.... This is not proper
under civil procedure. Under old time practice this was called a Speaking Demurrer. Speaking Demurrers are not
aloud [sic]." Additionally, Defendants filed a Motion for Reconsideration, alleging that Plaintiff lacked standing,
which was denied by operation of law.
18
See Pa. R.A.P. 1925(b)(4).
5
2014-29951-0030 Opinion, Page 6
A. Standard of Review
Summary judgment as a matter of law is appropriate when "there is no genuine issue of
material fact as to a necessary element of the cause of action. Pa. R.C.P. 1035.2(1). The record
is to be viewed in the light most favorable to the nonmoving party, and all doubts as to the
presence of a genuine issue of material fact must be resolved against the moving party. Albright
v. Abington Mem'l Hosp., 696 A.2d 1159, 1165 (Pa. 1997) (citing Pennsylvania State University
v. County of Centre, 615 A.2d 303,304 (Pa. 1992)). However, "[w]here 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." JP Morgan Chase Bank,
N.A. v. Murray, 63 A.3d 1258, 1261-62 (Pa. Super. Ct. 2013) (internal quotation omitted). More
specifically, to preclude entry of judgment, respondents must identify:
(1) one or more issues of fact arising from evidence in the record controverting
the evidence cited in support of the motion or from a challenge to the
credibility of one or more witnesses testifying in support of the motion, or
(2) evidence in the record establishing the facts essential to the cause of action or
defense which the motion cites as not having been produced.19
Pa. R.C.P. 1035.3(a)(1),(2). In a mortgage foreclosure action, summary judgment is appropriate
if the mortgagors "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." Cunningham v.
McWilliams, 714 A.2d 1054, 1057 (Pa. Super. Ct. 1998) (citing Landau v. W. Pa. Nat'l Bank,
282 A.2d 335, 340 (Pa. 1971)). Finally, when reviewing a grant of summary judgment, the
appellate court may only disturb the order of the trial court when it is determined that there has
19
Pa, R.C.P. 1035,3.
2014-29951-0030 Opinion, Page 7
been an error of law or a clear abuse of discretion. Shomo v. Scribe, 686 A.2d 1292, 1294 (Pa.
1996); Panichelli v. Liberty Mutual Insurance Group, 669 A.2d 930, 931 (Pa. 1996).
B. The Court Properly Granted Plaintiff's Motion for Summary Judgment.
On their face, Defendants' pro se pleadings reflect numerous procedural and
substantive deficits. Their anfractuous responses and allegations are improperly
predicated on a variety of documents which are either not part of the record, or
completely irrelevant to the Court's disposition of the instant Motion for Summary
Judgment.2° For the reasons that follow, the Court's entry of judgment in favor of
Plaintiff was appropriate.
i. Plaintiff Is The Real Party In Interest With Standing To Foreclose.21
Given the prolix nature of Defendants' responses and allegations, including block
quotations from various irrelevant publications, their defense to.Plaintiff's Motion for Summary
Judgment, while not entirely clear, appears from their 1925(b) Statement to be that: (1) Plaintiff
is not the real party in interest and lacks standing to foreclose, and (2) a genuine issue of material
fact exists as to Plaintiff's possession of the Note.22 Defendants' claims are meritless.
In its Motion for Summary Judgment, Plaintiff properly alleged it was "the present holder
of the Mortgage and Note, as well as the mortgagee of record."23 In response, Defendants
unconvincingly denied Plaintiff's status as holder, stating, "Denied. There is no evidence that the
2°Defendants repeatedly refer to publications such as, 'Modern Money Mechanics,' as well as the 'Certificate of
Incorporation of Mortgage Electronic Registrations System, Inc.,' as well as ``MERS System of Rules of
Membership,' Ginnie Mae Guaranteed REMIC Pass-Through Securities Base Offering Circular' MERS
Residential Marketing Kit,' MERS Procedures Manual, Release 19.0,' and 'MERS Procedural Manual, Release
1.3.5, .,20
I
21
Notwithstanding Defendants' failure to file a brief, this Court will address Defendants' I925(b) Statement. See
Montco, R.C.P. 208.3(b)(6)(b) (Entry of judgment against respondent for noncompliance is appropriate.)
22 [See Defs.' Preliminary Objections (12/15/14) , Defs.' Answ. & New Matter (3/16/16), Defs.' Answ. to Pl.'s Mot.
for Summ. J., at ¶ 8, (3/28/16)].
23 [Pl.'s Mot. for Summ. J., at ¶ 8, (2/26/16)].
7
2014-29951-0030 Opinion, Page 8
Plaintiff is the holder of the Note or Mortgage."24 Contrary to Defendants' assertion, the record
aptly supports Plaintiff's status as the real party in interest. More specifically, not only did
Plaintiff painstakingly set forth the factual details underpinning each Mortgage Assignment, but
it exceeded its evidentiary burden by attaching copies of each Assignment, statements of their
recordation, and a documentary Affidavit in support of its Motion, all of which supported its
standing to foreclose, as well as the sums due thereunder.25
For their part, however, Defendants baldly asserted in their Answer to the Motion for
Summary Judgment that Plaintiff cannot be the holder of the Mortgage and the Note, because the
Note was specially endorsed by Franklin to Countrywide Bank, FSB.26 Defendants' response
addressing the Note's special endorsement is irrelevant to Plaintiff's status as the mortgagee and,
in any event, not supported by the case law.
First, as demonstrated by Pennsylvania Rule of Civil Procedure, the mortgage holder is
the party with standing to foreclose. See Pa. R.C.P. 1147(1) (Requiring complainant to 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.") That propositiOn is supported by our
Pennsylvania jurisprudence, as aptly demonstrated by our Superior Court's recent decision in
CitiMortgage, Inc. v. Barbezat, holding that a mortgagee which avers and produces evidence to
support its status as the holder of the mortgage, by assignment, is the real party in interest." See
CitiMortgage, Inc. v. Barbezat, 131 A.3d 65,68-69 (Pa. Super. Ct. 2016); see also Wells Fargo
24
[Defs.' Answ. to Pl.'s Mot. for Summ. J., at 118, (3/28/16)]. Additionally, while Defendants did not assert with
the requisite specificity any other issues on review, their repeated block recitation of portions of publications which
have no relevance to the instant dispute do not constitute sufficiency, so as to preserve their denials any of Plaintiff's
remaining allegations. See Pa. R.C.P. 1029.
25[See Pl.'s Mot. for Summ, J,, at Exs. A ("the Note"), Ex. B ("Mortgage,") Ex. C ("First Assignment"), Ex. D
("Second Assignment"), Ex. E ("Third Assignment"),Ex. F ("Fourth Assignment,") and Ex. G ("Fifth Assignment"),
Ex, R ("Affidavit"), (2/26/16)1; See Kirby v. Kirby, 687 A.2d 385, 388 (Pa. Super. Ct. 1997) (Documentary
affidavits, if uncontradicted, may properly support the entry of summary judgment as they fall outside the ambit of
the Nanty-Glo Rule.) (internal citation omitted).
26 [Defs.' Answ. to Pl.'s Mot. for Summ. J,, at 118, (3/28/16)].
8
2014-29951-0030 Opinion, Page 9
Bank, N.A. v. Lupori, 8 A.3d 919, 922 n. 3 (Pa. Super. Ct. 2010). It is well -settled that "[w]here
an assignment is effective, the assignee stands in the shoes of the assignor and assumes all of his
rights. See Smith v. Cumberland Group, Ltd., 687 A.2d 1167, 1172 (Pa. Super. Ct. 1997).
Defendants, therefore, not only misrepresented Plaintiff's authority as the mortgagee and
the evidence of record supporting Plaintiff's status as the holder of the Mortgage and Note, but
they also failed to muster any evidence of their own to rebut Plaintiff's allegations and/or
evidence. As delineated by Pa. R.C.P. 1035.3(a), Defendants were obligated to set forth:
(1) one or more issues of fact arising from evidence in the record controverting
the evidence cited in support of the motion or from a challenge to the
credibility of one or more witnesses testifying in support of the motion, or
(2) evidence in the record establishing the facts essential to the cause of action or
defense which the motion cites as not having been produced.27
In response to Plaintiff's properly plead allegations and supporting evidence, Defendants
failed entirely to present any relevant evidence to rebut Plaintiff's claim as the real party
in interest, and holder of the Mortgage and Note despite the opportunity to conduct
discovery.28 Defendants' haphazard attachment of hundreds of pages of extraneous
exhibits, including publications and documents lacking any relevance to the instant
action, in no way rebutted Plaintiff's substantive evidence.29 As set forth above, to
preclude entry of judgment a respondent may not rest upon mere general denials, but
must identify an issue of fact arising from the evidence. See Pa. R.C.P. 1035.3. Given
Defendants' failure to meet their burden of rebuttal, the Court's entry of judgment in
favor of Plaintiff, as mortgagee, was appropriate.
27
Pa. R.C.P. 035.3(a).
I
28 Defendants failed to face their Answer to Plaintiff's Motion for Summary Judgment with the required cover sheet,
pursuant to Montco. R.C.P. 205.2(b), wherein they could have expressly requested discovery, and did not otherwise
seek discovery as to Plaintiff's status as the real party in interest.
29 [See Defs,' Preliminary Objections (12/15/14) , Defs.' Answ. & New Matter (3/16/16), Defs.' Answ. to Pl.'s Mot.
for Summ. J,, at ¶ 8, (3/28/16)].
2014-29951-0030 Opinion, Page 10
This Court is not unmindful of the mortgage industries' propensity to repeatedly re -assign
mortgages. This practice, though legal, can no doubt be confusing to pro se mortgagees, such as
Defendants. Nonetheless, Plaintiff, in this case has demonstrated its burden under the Rules by
expressly pleading each Mortgage assignment chronologically, and attaching to its pleadings the
referenced assignments; thereby setting forth in as succinct and orderly manner as possible the
basis for its status as assignee of the Mortgage. As such, the uncontroverted evidence establishes
that Plaintiff, by virtue of its unrebutted chain of assignments, is the mortgagee with standing to
foreclose, and Defendants' claim to the contrary is meritless.
ii. Alleged Two Different Copies of Note.
On appeal, Defendants also asserted that the Court erred "by allowing Plaintiff to
file two completely different true and correct copies of the note."30 The Court is
perplexed by this assertion. Not only is this allegation unsupported by any submissions
of Defendants on the record, but this Court's review revealed identical copies of the Note
attached to Plaintiff's Complaint and Motion for Summary Judgment. Indeed, the copy
of the Note attached to the Motion for Summary Judgment includes the exact same time -
stamp affixed to the copy of the Note filed with the Complaint; thereby confirming that
Plaintiff attached the same Note copy to both pleadings.31 Moreover, in any event,
Plaintiff had no obligation under the Rules to attach a copy of the Note; especially in light
of Defendants' apparent failure to demand production of the same.
Under Pa. R.C.P. 1147, a complainant seeking to foreclosure must set
forth the following averments of fact:
30
[See Defs.' 1925(b) Statement].
31 [Compare Pl.'s Compl., at Ex. B ("the Note"), (11/10/14), with P1.'s Mot. for Summ. J,, at Ex. A ("the Note"),
(2/26/16)].
10
2014-29951-0030 Opinion, Page 11
(1) 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;
(2) a description of the land subject to the mortgage;
(3) the names, addresses and interest of the defendants in the action and that
the present real owner is unknown if the real owner is not made a party;
(4) a specific averment of default;
(5) an itemized statement of the amount due; and
(6) a demand for judgment for the amount due.
Pa. R.C.P. 1147. As demonstrated, nowhere in the Pa. R.C.P. 1147 is there a requirement
to attach a copy of the Note upon which entry of j udgment is sought. Thus, in the first
instance, Plaintiff's inclusion and attachment of the Note copy was in excess of that
which is required by Pa. R.C.P. 1147.
Additionally, Defendants' 1925(b) lacks sufficient detail and specificity to
identify the filings at issue, and as such, this Court is unable to ascertain to which exhibits
Defendants refer.32 Therefore, Defendants' claim regarding Plaintiff's filing of two
different copies of the Note is not only meritless, but is also deemed waived in light of
defendants' failure to provide the Court with the mandated specificity.
Finally, as addressed previously, the instant Note has been in arrears since
Defendants' default in August 1, 2011. Despite copious amounts of paper added to this
case by Defendants' futile and frivolous attempts to delay the disposition of this matter,
and abuse our legal system so as to remain in the Property for years without payment; the
record reflects no genuine issues of material fact to preclude entry of judgment. Thus, in
light of Defendants' failure to demonstrate the requisite issue of material fact or produce
32 See Pa. R.A.P. 1925(b)(4)(11).
2014-29951-0030 Opinion, Page 12
any evidence of record to rebut Plaintiff's status as a real party in interest with standing to
foreclose, the Court's entry of judgment in favor of Plaintiff and against Defendants was
wholly appropriate.
IV. CONCLUSION
This Court respectfully requests that its Order, dated April 22, 2016, granting
Plaintiff, U.S. ROF III Legal Title Trust 2015-1, by U.S. Bank National Association, as
Legal Title Trustee's Motion for Summary Judgment and entering judgment, in rem, in
favor of Plaintiff and against Defendants in the amount of $334,811.49, plus interest and
applicable costs, be AFFIRMED.
BY THE COURT:
THOMAS C. BRANCA,
Copies of the above Opinion
mailed on 4/ -7 /17 to:
By First Class Mail:
Sarah McCaffery, Esquire
Leslie J. Rase, Esquire
Susan Laird, Pro Se, 3126 Shirlene Rd., East Norriton, PA. 19403
Susan L. Laird, Pro Se, 3126 Shirlene Rd., East Norriton, PA. 19403
Gene Strikwerda, Pro Se, 3126 Shirlene Rd., East Norriton, PA. 19403
By Interoffice Mail:
Court Administr tion
Secretary w'
L(
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