Bank of America v. Cardenales, E.

J-A17020-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
BANK OF AMERICA, N.A., SUCCESSOR IN THE SUPERIOR COURT OF
BY MERGER TO BAC HOME LOANS PENNSYLVANIA
SERVICING, LP
Appellee
v.
EDWIN CARDENALES, JACKELYN
CARDENALES A/K/A JACKELYN TINEO
CARDENALES
Appellants No. 2101 EDA 2013
Appeal from the Order June 27, 2013
In the Court of Common Pleas of Lehigh County
Civil Division at No(s): 2012-C-459
BEFORE: GANTMAN, P.J., PANELLA, J., and STABILE, J.
MEMORANDUM BY PANELLA, J. FILED DECEMBER 19, 2014
Appellants, Edwin Cardenales and Jackelyn Cardenales (“the
Cardenales”), appeal from the order granting summary judgment to the
Bank of America (“the Bank”) in its mortgage foreclosure action. After
careful review, we affirm.
On July 13, 2007, the Cardenales executed a mortgage in favor of
Mortgage Electronic Registration Systems, Inc. (“MERS”) as nominee for
Countrywide Bank, FSB. At the same time, the Cardenales executed a
promissory note in favor of Countrywide Bank, FSB, and the mortgage was
subsequently recorded in the Recorder of Deeds of Lehigh County. In late
2010, BAC Home Loans Servicing, Inc., filed an assignment of mortgage
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indicating that the mortgage had been assigned in BAC’s favor. The Bank is
the successor by merger to BAC.
On February 7, 2012, the Bank filed a mortgage foreclosure action
against the property secured by the mortgage. The Cardenales filed an
Answer with New Matter, to which the Bank filed a responsive pleading. The
trial court subsequently granted the Bank’s motion for summary judgment,
and this timely appeal followed.
On appeal, the Cardenales raise the following issues for our review:
[1.] Did the trial court commit an error of law in its grant of
summary judgment upon a defective note transfer and mortgage
assignment?
[2.] Did the trial court commit an error of law when it refused
Appellants’ underlying request to depose the assignment of
mortgage’s executrix?
[3.] Did the trial court commit an error of law in its grant of
summary judgment upon an inadmissible hearsay testimonial
affidavit predicated upon an indecipherable hearsay “loan
history?”
Appellant’s Brief, at 9.
The Cardenales’ first argument actually subsumes two separate issues.
First, they argue that the Bank’s note, which is endorsed in blank, does not
name the Bank. Second, they argue that MERS is not empowered to assign
mortgages. Both of these arguments were rejected in Bank of America,
N.A., v. Gibson, ___ A.3d ___, ___, 2014 WL 4923106, *2-*3 (Pa. Super.
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2014).1 Accordingly, we conclude that the Cardenales are due no relief on
this issue.
Next, the Cardenales contend that the trial court erred in failing to
grant their request to depose Judith Romano, Esq., who executed the
assignment of mortgage on behalf of MERS. The Cardenales argue that they
were entitled to explore Attorney Romano’s factual and legal authority to
execute the assignment of mortgage, as they “are not aware of any binding
authority which grants MERS the ability to execute assignments of
mortgage[.]” Appellant’s Brief, at 17. However, as noted above, this Court
has held that MERS has this ability, so long as the mortgage documents
provide for it. Here, the mortgage document explicitly identifies MERS as
the mortgagee. See Mortgage, at 2. Furthermore, the mortgage provides
that MERS has the right to foreclose and sell the property secured by the
mortgage. See id., at 4. Thus, the Cardenales have failed to identify any
material evidence that could have been produced through deposing Attorney
Romano. The Cardenales’ second issue on appeal therefore merits no relief.
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1
The trial court held that the Cardenales had waived this issue by failing to
file preliminary objections to the Bank’s standing in this matter. However, a
review of the record indicates that the Cardenales asserted the Bank’s lack
of standing in their Answer and New Matter. See Defendants’ Answer with
New Matter, filed 9/6/12, at Answer, ¶ 3; at New Matter, ¶ 2. “Challenges
to a litigant’s capacity to sue must be raised by way of preliminary
objections or answer.” Hall v. Episcopal Long Term Care, 54 A.3d 381,
399 (Pa. Super. 2012) (emphasis supplied). Thus, the trial court erred in
concluding that the Cardenales had waived this issue.
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In their final argument, the Cardenales assert that the trial court erred
in relying upon inadmissible hearsay documents in granting summary
judgment. The exact arguments raised by the Cardenales in this issue were
also rejected in Gibson. See Gibson, 2014 WL at *3. We therefore
conclude that the Cardenales’ final issue on appeal merits no relief.
Order affirmed. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/19/2014
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