Wells Fargo Bank v. Hewitt, S. ( 2020 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
WELLS FARGO BANK NATIONAL : IN THE SUPERIOR COURT OF
ASSOCIATION, AS TRUSTEE FOR : PENNSYLVANIA
MORGAN STANLEY ABS CAPITAL 1 :
INC. TRUST 2005-HE5, MORTGAGE :
PASS-THROUGH CERTIFICATES, :
SERIES 2005-HE-5 C/O SELECT :
PORTFOLIO SERVICES :
:
: No. 1659 EDA 2019
v. :
:
:
SUSAN HEWITT & JAMES HEWITT, :
:
Appellants :
Appeal from the Order Entered May 14, 2019
In the Court of Common Pleas of Bucks County Civil Division at No(s):
2017-03597
BEFORE: LAZARUS, J., KUNSELMAN, J., and McCAFFERY, J.
MEMORANDUM BY LAZARUS, J.: FILED MAY 12, 2020
Susan and James Hewitt (h/w) (Hewitts) appeal pro se from the order1
granting summary judgment in favor of Plaintiffs Wells Fargo Bank National
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1 Appellees claim that this Court should quash this appeal for non-compliance
with Pa.R.A.P. 904, which requires an appellant identify the order sought to
be reviewed on appeal. Instantly, the Hewitts’ notice of appeal lists the order
dated June 4, 2019, as the order they are appealing; however, they fail to
attach a copy of the docket entry of this order to the notice of appeal. Despite
this omission, the Hewitts indicate in their docketing statement that it is the
court’s May 8, 2019 order granting summary judgment in favor of Appellees
that they wish to appeal, attaching a copy of that order to the statement. On
May 14, 2019, the court sent the parties Pa.R.C.P. 236 notice of that order,
making the order final for purposes of Pa.R.A.P. 301(a). See Pa.R.C.P. 236
(notice by prothonotary of entry of order or judgment); see also Hepler v.
Urban, 609 A.2d 152 (Pa. 1992) (when prothonotary places notation in docket
that notice of entry of order granting summary judgment has been sent to
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Association, et al., (collectively, Wells Fargo), and entering an in rem
judgment in favor of Plaintiffs in the amount of $563,219.01, together with
ongoing interest on the principal from and after March 23, 2019, and any
additional recoverable costs and charges to the date of the sheriff’s sale. After
careful review, we affirm.
In June 2005, the Hewitts secured a note and mortgage on real property
located at 20 Crocus Lane, Newtown, Pennsylvania (Property). The Bucks
County Recorder of Deeds recorded the mortgage in July 2005. In December
2007, the mortgage was assigned to Wells Fargo. The Hewitts failed to make
the scheduled monthly payment on the mortgage beginning in August 2014.
On June 1, 2017, Wells Fargo filed a foreclosure complaint against the Hewitts.
On June 23, 2017, the Hewitts filed preliminary objections (POs), to which
Wells Fargo filed a response. On August 13, 2018, the court denied the
Hewitts’ POs. The Hewitts filed an answer, with new matter and
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parties, Rule 236(b) procedural requirement is met for purposes of
determining when such order becomes final under Rule 301(a)). Because
“[f]ailure of an appellant to take any step other than the timely filing of a
notice of appeal does not affect the validity of the appeal,” Pa.R.A.P. 902, we
decline to accept Appellees’ invitation to quash the instant appeal where the
notice of appeal was filed on June 7, 2019, within 30 days of Pa.R.C.P. 236
notice of the summary judgment order being sent to the parties. See
Commonwealth v. Martin, 462 A.2d 859 (Pa. Super. 1983) (although
appellant’s notice of appeal was taken from vacated order, court addressed
merits of case despite procedural misstep where it was obvious from
appellant’s brief that he was appealing later, valid order); see also Pa.R.A.P.
105 (rules shall be liberally construed to secure just, speedy and inexpensive
determination of every matter); Pa.R.A.P. 903 (time for appeal).
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counterclaims, on September 5, 2018. On September 25, 2018, Wells Fargo
filed a reply to the Hewitts’ new matter and counterclaims.
Wells Fargo filed a summary judgment motion on March 12, 2019, to
which the Hewitts filed a response. On May 14, 2019, the trial court granted
the motion and entered an in rem judgment in favor of Wells Fargo and against
the Hewitts in the amount of $563,219.01. On May 31, 2019, Wells Fargo
praeciped to have judgment entered on the order.
The Hewitts filed a timely notice of appeal2 and court-ordered Pa.R.A.P.
1925(b) concise statement of errors complained of on appeal. They present
the following issues for our consideration:3
(1) Will the Superior [C]ourt hold the Supreme Court’s precedent
decision and Pennsylvania Foreclosure Notice requirements as in
case[s,] Ajax v. Taggert and Wells Fargo v. Spivik, [Wells
Fargo] voluntarily dismissed Hewitt’s judgment on July 21, 2017)
where new notice of Act 91 was required to be sent to [the
Hewitts] to prevent confusion to [the Hewitts] and the court?
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2The Hewitts also filed a motion to open the judgment, which was never ruled
upon by the trial court. See Moore v. Moore, 634 A.2d 163 (Pa. 1993) (trial
court’s authority to reconsider own judgment left to discretion of court, eve
where notice of appeal filed simultaneously); see also Pa.R.A.P. 1701 (trial
court has authority to rule on motion for reconsideration within 30 days of
entering summary judgment order); 42 Pa.C.S. § 5505.
3 We note with disapproval the significant defects in the Hewitts’ brief. Their
failure to use proper citation format and rambling argument section that does
not refer or cite to any relevant portions of the certified record to support their
claims could support dismissing or quashing this appeal. See Pa.R.A.P. 2101
(if appellate briefs contain substantial defects, reviewing court may quash
appeal); Pa.R.A.P. 2119(b), (c). We, however, have attempted to decipher
the main claim on appeal and address it as best as we can under the
circumstances.
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(2) Whether [Wells Fargo] had standing to continue the instant
foreclosure action, or whether genuine issues of material fact
remain concerning same, where [Wells Fargo] failed to
substantiate the alleged underlying assignments and original note
by which [Wells Fargo] came to hold the right to pursue this
action; the underlying; [Wells Fargo] failed to establish that it was
a holder in due course of the [m]ortgage and [n]ote, and [Wells
Fargo] failed to meet the substitution requirements of Pa.R.C.P.
2352(a)?
(3) Whether the [c]omplaint verification was defective pursuant
to Pa.R.C.P. 1024(c), thus precluding summary judgment?
(4) Should the [trial] court have vacated the judgment improperly
entered by the Prothonotary under Pa.R.C.P. 1511 and held [a]
hearing to afford due process for forfeiture and reassess all
damages [and d]oes the court have jurisdiction when [Wells
Fargo] had dismissed a case during instant case?
(5) Should the [trial] court have considered the Petition to
substitute bonds in accordance with equitable principles as
required by the Supreme Court of Pennsylvania [and s]hould
bonds be paid to [the Hewitts] according to Rule 1075.3 and laws?
(6) Should the [trial] court have found that [the Hewitts] satisfied
the three-prong requirement for opening a judgment by default?
(7) Should the [trial] court have found that [the Hewitts’]
[p]etition was timely filed in accordance with Pa.R.C.P. 237.3 and
governing case law?
(8) Did the [trial] court make findings which were not supported
by the facts and/or the law?
(9) Were [the Hewitts’] rights under the Fourth, Fifth, Sixth, and
Fourteenth Amendments to the United States Constitution
Pennsylvania Constitution violated where [the Hewitts,] without
notice to [themselves] or counsel, without a hearing and without
the right to be present or be heard since [Wells Fargo] has
forfeited [its] property when [it] changed the locks on the
premises.
Appellants’ Brief, at 12-15.
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As the trial court acknowledges, the Hewitts’ Rule 1925(b) concise
statement “consist[s] of seven single-spaced pages which [are] anything but
concise [and] is at best confusing, if not wholly unintelligible.” Trial Court
Opinion, 10/24/19, at 1. However, we, like the trial court, are able to distill
four somewhat decipherable issues: whether the mortgage assignments were
contained in the record; whether the lender signed the note; whether the in
rem judgment was appropriate where Mrs. Hewitt did not sign the note; and
whether there were any genuine issues of material fact with respect to Wells
Fargo’s summary judgment motion.
An appellate court’s scope of review of the grant of a motion for
summary judgment is well-settled: summary judgment is properly granted
where “there is no genuine issue as to any material fact and . . . the moving
party is entitled to a judgment as a matter of law.” First Wis. Trust Co. v.
Strausser, 653 A.2d 688, 691 (Pa. Super. 1995); Pa.R.C.P. 1035. “Summary
judgment may be granted only where the right is clear and free from doubt.”
First Wis. Trust Co., supra at 691. The moving party has the burden of
proving that there is no genuine issue of material fact. Id. “The record must
be viewed 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
moving party.” Davis v. Pennzoil, 438 A.2d 597, 601 (Pa. 1970). Moreover,
summary judgment is properly granted in mortgage foreclosure actions where
the mortgagor admits that he or she is delinquent in mortgage payments.
First Wis. Trust Co., supra at 694.
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Instantly, the record supports the following facts: (1) James Hewitt
entered into a note on June 23, 2005, in the amount of $274,000, to purchase
Property; (2) the Hewitts secured the note by executing a mortgage against
the Property4; (3) the mortgage was assigned to Wells Fargo;5 (4) the
assignment was recorded with the Bucks County Recorder of Deeds and, thus,
is a matter of public record;6 (5) Wells Fargo is a holder-in-due-course of the
note and mortgage, having been in possession of the note since October 28,
2015; (6) the Hewitts have not made payment on the mortgage since August
1, 2014; (7) Wells Fargo established the total amount due under the note and
mortgage as $563,219.01, as of the date of its summary judgment motion;
and (8) the Hewitts admit they received notice under the Homeowners’
Emergency Mortgage Assistance Act (Act 91).
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4 To the extent that the Hewitts argue the action is invalid because Wife did
not sign the note, the fact that she co-signed the mortgage and is listed as a
borrower in the body of the note is irrelevant with respect to the in rem
judgment entered against her. As the court acknowledges, however, because
Mrs. Hewitt did not sign the note, she cannot be personally responsible for the
repayment of the debt under the note. Trial Court Opinion, 10/24/19, at 7.
5 As the trial court acknowledges in its opinion, the fact that the note was not
signed by Wells Fargo does not affect its validity. A note “indorsed in blank”
becomes payable to the bearer and may be negotiated by transfer of
possession. JP Morgan Chase Bank, N.A. v. Murray, 63 A.3d 1258, 1265-
66 (Pa. Super. 2013), citing 13 Pa.C.S. § 3205(b) (when indorsed in blank,
instrument becomes payable to bearer and may be negotiated by transfer of
possession alone until specially indorsed).
6 Wells Fargo acquired ownership of the note and mortgage through a
servicing agreement.
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Having established no genuine issue of material facts exists, the trial
court properly granted summary judgment in favor of Wells Fargo. First Wis.
Trust Co., supra. Accordingly, we find no merit to the Hewitts’ claims on
appeal.
Order affirmed.7
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 05/12/2020
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7 We, herein, deny the Hewitts’ application for continuance, filed on April 20,
2020, as untimely. See No. 3 Administrative Docket Order, 3/19/20
(ordering that all cases on Panel A08/20 submitted for disposition on brief
unless counsel files application for continuance to next available oral argument
panel in which case “[a] party shall have up to and including April 17, 2020 to
request that oral argument be held at a later date.”).
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