U.S. Bank v. Glassman, S.

J-A34005-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
U.S. BANK NATIONAL ASSOCIATION, AS IN THE SUPERIOR COURT OF
TRUSTEE FOR THE PENNSYLVANIA
CERTIFICATEHOLDERS OF BANK OF
AMERICA FUNDING CORPORATION
MORTGAGE PASS-THROUGH
CERTIFICATES, SERIES 2006-J
Appellee
v.
STEPHEN A. GLASSMAN
Appellant No. 793 MDA 2015
Appeal from the Order April 6, 2015
In the Court of Common Pleas of Berks County
Civil Division at No(s): 12-6213
BEFORE: PANELLA, J., OTT, J., and JENKINS, J.
MEMORANDUM BY PANELLA, J. FILED FEBRUARY 11, 2016
Appellant, Stephen A. Glassman, appeals from the order entered April
6, 2015, in the Court of Common Pleas of Berks County, which entered
summary judgment in favor of Appellee, U.S. Bank National Association, as
Trustee for the Certificateholders of Bank of America Funding Corporation
Mortgage Pass-through Certificates, Series 2006-J. We affirm.1
____________________________________________
1
The record indicates that Appellant has not filed a reproduced record or a
designation of record. Appellee, however, has made no motion for dismissal
pursuant to Pa.R.A.P. 2188. Thus, while we admonish Appellant for failing to
comply with the requirements of Rule 2188, we decline to dismiss his
appeal. See Pa.R.A.P. 2188 (requiring a motion from appellee before
dismissing an appellant’s brief for untimeliness).
(Footnote Continued Next Page)
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We take the underlying history of this case from the trial court’s Rule
1925(a) opinion.
[Appellee, U.S. Bank], is the mortgagor and last record
owner of the subject property. On November 17, 2006,
[Appellant] executed and delivered to Bank of America, N.A.
(hereinafter, Lender), a promissory note in consideration for a
loan made to him by Lender on that date. [Appellant] promised
and agreed to pay to Lender, its successors, and assigns the
principal loan amount of $562,500 plus interest. A mortgage [for
the property located at 1600 Hampden Boulevard, Reading,
Pennsylvania] was executed as security for the loan.
A Title Report was made on December 23, 2011. On
September 5, 2012, the mortgage was assigned to [Appellee] by
an assignment which was recorded in the Office of the Recorder
of Deeds of Berks County on September 11, 2012.
_______________________
(Footnote Continued)
We further note that Appellant’s brief, drafted by John D. Bucolo,
Esquire, fails to substantially comply with our Rules of Appellate Procedure,
in that the brief does not include (1) a statement of jurisdiction; (2) a copy
of the order or other determination in question; (3) statements of the scope
and standard of review; (4) a statement of the case; (4) a summary of the
argument; (5) a copy of the Rule 1925(b) statement; and (6) a table of
contents or a table of citations. See Pa.R.A.P. Rules 2111(a) and 2174(a)
and (b), respectively. Appellant’s Brief violates Pa.R.A.P. 2119 in that the
argument is not divided into as many parts as there are questions to be
argued, and does not contain any reference to the record as per Pa.R.A.P.
2132.
This Court is empowered to dismiss appeals when substantial defects
in a brief impede us from conducting meaningful appellate review. Pa.R.A.P.
2101. However, despite Appellant’s blatant and willful disregard for our
Rules of Appellant procedure, these infractions do not affect our ability to
review this matter. Indeed, our review of the record quickly reveals that
Appellant’s claims are patently meritless or otherwise waived. Therefore, we
decline to dismiss this appeal. See, e.g., Morgan Guar. Trust Co. of New
York v. Mowl, 705 A.2d 923, 924 n.1 (Pa. Super. 1998). We caution
Attorney Bucolo against disregarding our Rules of Appellate procedure in the
future.
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[Appellee] filed a complaint in Mortgage Foreclosure on
April 20, 2012. [Appellee] alleged that [Appellant] had defaulted
on the mortgage by failing to make the required monthly
payments of principal and interest due on December 1, 2010 and
thereafter. [Appellee] sent the requisite [pre-foreclosure notices]
on January 31, 2011, before it initiated this action.
[Appellant’s] Answer to the Complaint consisted of
admissions and general denials. [Appellant’s] New Matter alleged
that [U.S. Bank] lacked standing to bring the action. [Appellant]
also contended that [Appellee] is not the real party in interest
and that Bank of America is an indispensable party to the
litigation. Additionally, [Appellant] maintained that [Appellee]
failed to provide the requisite [pre-foreclosure notices].
[Appellant’s] last contention was that [Appellee] failed to
conduct a title search.
In [Appellant’s] reply to [Appellee’s] request for
admissions, [Appellant] admits that the loan is in default and the
[pre-foreclosure notices] complied with all statutory
requirements.
Trial Court Opinion, 6/19/15 at 1-2.
Appellee moved for summary judgment, which the trial court granted.
This timely appeal followed.
Appellant raises the following issues for our review.
A. Where the assignment of a mortgage and note in [Appellee’s]
favor occurs after a mortgage foreclosure action based on
that same mortgage and note is commenced by the same
plaintiff, is the assignment without consideration and
unenforceable?
B. Where there is a genuine issue of material fact regarding
what entity owns and is in possession of the original note, is it
proper to deny summary judgment against the mortgagor?
Appellant’s Brief at 2-3 (unnumbered).
We review a challenge to the entry of summary judgment as follows.
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[We] 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. See Pa.R.C.P., Rule 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 nonmoving
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 he bears
the burden of proof establishes the entitlement of the moving
party to judgment as a matter of law. Lastly, we will review the
record 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 the moving party.
E.R. Linde Const. Corp. v. Goodwin, 68 A.3d 346, 349 (Pa. Super. 2013)
(citation omitted).
In actions for in rem foreclosure due to the defendant’s failure to pay a
debt, summary judgment is proper where the defendant admits that he had
failed to make payments due and fails to sustain a cognizable defense to the
plaintiff’s claim. See Gateway Towers Condo. Ass’n v. Krohn, 845 A.2d
855, 858 (Pa. Super. 2005); First Wis. Trust. Co. v. Strausser, 653 A.2d
688, 694 (Pa. Super. 1995).
Appellant first argues that Appellee was without standing to enter
judgment in this matter. Pennsylvania Rule of Civil Procedure 2002(a)
provides that “[e]xcept as otherwise provided ... all actions shall be
prosecuted by and in the name of the real party in interest….” Pa.R.C.P.
2002(a). A “real party in interest is a [p]erson who will be entitled to
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benefits of action if successful.... [A] party is a real party in interest if it has
the legal right under the applicable substantive law to enforce the claim in
question.” U.S. Bank N.A. v. Mallory, 982 A.2d 986, 994 (Pa. Super. 2009)
(internal quotation marks and citation omitted). Where an assignment is
effective, however, 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. 1997). It follows that “the assignee is usually the
real party in interest and action on the assignment must be prosecuted in his
name.” Wilcox v. Regester, 207 A.2d 817, 820 (Pa. 1965).
In a mortgage foreclosure action, the mortgagee is the real party
in interest. See Wells Fargo Bank, N.A. v. Lupori, 8 A.3d 919,
922 n.3 (Pa. Super.2010). This is made evident under our
Pennsylvania Rules of Civil Procedure governing actions in
mortgage foreclosure that require a plaintiff in a mortgage
foreclosure action specifically to name the parties to the
mortgage and the fact of any assignments. Pa.R.C.P. 1147. A
person foreclosing on a mortgage, however, also must own or
hold the note. This is so because a mortgage is only the security
instrument that ensures repayment of the indebtedness under a
note to real property. See Carpenter v. Longan, 83 U.S. 271,
275 (1872) (noting “all authorities agree the debt is the principal
thing and the mortgage an accessory.”). A mortgage can have
no separate existence. Id. When a note is paid, the mortgage
expires. Id. On the other hand, a person may choose to proceed
in an action only upon a note and forego an action in foreclosure
upon the collateral pledged to secure repayment of the note.
See Harper v. Lukens, 112 A. 636, 637 (Pa. 1921) (noting “as
suit is expressly based upon the note, it was not necessary to
prove the agreement as to the collateral.”). For our instant
purposes, this is all to say that to establish standing in this
foreclosure action, appellee had to plead ownership of the
mortgage under Rule 1147, and have the right to make demand
upon the note secured by the mortgage.
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CitiMortgage, Inc. v. Barbezat, --- A.3d ---, ---, 2016 WL 99772 at *3
(Pa. Super., filed Jan. 7, 2016).
Appellant avers that the assignment of the mortgage, which was
recorded after Appellee instituted the Complaint in mortgage foreclosure,
was insufficient to confirm standing upon Appellee as the assignee. See
Appellant’s Brief, at 3 (unnumbered). We disagree.
Here, Appellee averred in the complaint the existence and date of the
mortgage and that Appellee was the holder of the mortgage “by assignment
which will be duly recorded in the office of the recorder for Berks County.”
Complaint, 4/20/12 at ¶ 4. Appellee attached to its reply to Appellant’s new
matter a copy of the Assignment of Mortgage from Bank of America to
Appellee, recorded in Dallas, Texas on December 29, 2006. See Plaintiff’s
Reply to New Matter, Exhibit A. Prior to the entry of summary judgment, as
Appellee indicated in the Complaint it would do, the assignment of the
mortgage between Bank of America and Appellee was executed on
September 5, 2012, and recorded in Berks County under instrument number
2012037657 on September 11, 2012. See Motion for Summary Judgment,
Exhibit C.
We note that although the mortgage assignment was not recorded in
Berks County until after the filing of the foreclosure complaint, “the
recording of an assignment of the mortgage was not a prerequisite to
Appellee having standing to seek enforcement of the mortgage via a
mortgage foreclosure action.” Mallory, 982 A.2d at 994. Therefore,
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Appellant’s challenge to Appellee’s standing to pursue the foreclosure
complaint based upon the then unrecorded mortgage assignment is patently
meritless.
Appellant also baldly asserts that Appellee cannot establish ownership
of the note securing the mortgage. We have reviewed Appellant’s argument,
and find that he has offered no citation to pertinent legal authority to
support this argument. We therefore find this claim to be waived for lack of
development. See Umbelina v. Adams, 34 A.3d 151, 161 (Pa. 2011)
(“[W]here an appellate brief fails to provide any discussion of a claim with
citation to relevant authority or fails to develop the issue in any other
meaningful fashion capable of review, that claim is waived.” (citation
omitted)).
Based on the foregoing, we find that the trial court did not err in
finding that Appellee had standing as a real party in interest to bring the
foreclosure action. Appellant has not pointed to any evidence of record to
support his bare assertion that Appellee has not established ownership of the
debt. See Pa.R.C.P. 1035.3(a) (an adverse party may not rest upon the
mere averments or denials in its pleadings). Therefore, we affirm the order
granting summary judgment in Appellee’s favor.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/11/2016
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