U.S. Bank v. Corteal, S.

J-A28044-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
U.S. BANK NATIONAL ASSOCIATION, AS IN THE SUPERIOR COURT OF
SUCCESSOR TRUSTEE TO BANK OF PENNSYLVANIA
AMERICA, N.A., AS SUCCESSOR TO
LASALLE BANK, N.A., AS TRUSTEE FOR
THE MERRILL LYNCH FIRST FRANKLIN
MORTGAGE LOAN TRUST, MORTGAGE
LOAN ASSET-BACKED CERTIFICATES,
SERIES 2007-HL
Appellee
v.
STEVEN CORTEAL
Appellant No. 1242 EDA 2014
Appeal from the Judgment Entered March 25, 2014
In the Court of Common Pleas of Chester County
Civil Division at No(s): 12-06384
BEFORE: GANTMAN, P.J., WECHT, J., and JENKINS, J.
MEMORANDUM BY JENKINS, J.: FILED DECEMBER 03, 2014
Steven Corteal files this appeal from an order granting summary
judgment to U.S. Bank National Association (“Bank”) in this mortgage
foreclosure action. Corteal argues that the trial court erred in granting
summary judgment because the verification to the Bank’s complaint was
defective. We affirm.
The record reveals that on July 17, 2007, Corteal made, executed, and
delivered a mortgage on the property at 358 Yost Avenue, Spring City, PA
19475-1738, to Mortgage Electronic Registration Systems, Incorporated
("MERS") as a nominee for First Franklin Financial Corp. The Mortgage was
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recorded on July 19, 2007 with the Chester County Recorder of Deeds and
assigned to U.S. Bank on October 24, 2011. On June 21, 2012, due to
Corteal's default under the terms of the mortgage by failing to make
payments due June 1, 2011 and each month thereafter, U.S. Bank filed this
action in mortgage foreclosure. The assistant vice-president of Bank of
America, N.A., the servicing agent of U.S. Bank, signed the verification to
the complaint.
Without first filing preliminary objections, Corteal filed a timely answer
to the complaint with new matter. Corteal did not object to the verification
in his answer or new matter. Moreover, he admitted in paragraph 5 of his
answer that the mortgage was in default. He never moved to amend his
answer or new matter.
On January 23, 2014, U.S. Bank filed a motion for summary judgment.
Corteal filed a response to the motion for summary judgment in which he
raised, for the first time, an objection to the verification. Specifically, he
argued that U.S. Bank’s verification was improper because the signator was
an employee of Bank of America, N.A., a non-party to this action.
On March 25, 2014, the trial court granted U.S. Bank’s motion for
summary judgment. On April 17, 2014, Corteal filed a timely appeal to this
Court. On May 1, 2014, the court directed Corteal to file a Pa.R.A.P.
1925(b) statement of matters complained of on appeal. On May 22, 2014,
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Corteal filed a timely Pa.R.A.P. 1925(b) statement. On May 27, 2014, the
court filed its Pa.R.A.P. 1925(a) opinion.
Corteal raises two issues in this appeal:
1. Did the lower court commit an error of law when it
granted Appellee U.S. Bank's Motion for Summary
Judgment despite the fact that Appellee's Verification to
its Complaint failed to comply with the Pennsylvania
Rules of Civil Procedure?
2. Did the lower court commit an error of law when it
granted Appellee U.S. Bank's Motion for Summary
Judgment despite the fact that Appellee's defective
Verification deprived the court of subject matter
jurisdiction?
Paraphrased for the sake of simplicity, the issues raised by Corteal are as
follows:
1. The trial court erroneously granted summary judgment to U.S.
Bank, because the verification to its complaint was signed by a non-
party in violation of Pa.R.Civ.P. 1024.
2. The trial court lacked subject matter jurisdiction over this action
due to the improper verification.
Corteal waived his first argument, a challenge to the validity of the
verification, by failing to file preliminary objections to the complaint.
Preliminary objections are the vehicle through which parties object to
technical defects in an opponent’s pleadings. Pa.R.Civ.P. 1028(a)(2) (party
may file preliminary objections to “failure of a pleading to conform to law or
rule of court”). The failure to file preliminary objections to defects in the
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form of a complaint constitutes an irrevocable waiver. Pa.R.Civ.P. 1032(a)
(except in circumstances not relevant here, “a party waives all defenses and
objections which are not presented either by preliminary objection, answer
or reply”); Bartanus v. Lis, 480 A.2d 1178, 1182 (Pa.Super.1984)
(defendants waived claim that plaintiff failed to properly divide complaint
into separate counts for each cause of action asserted, where defendants did
not challenge form of complaint in their preliminary objections).
Pennsylvania Rule of Civil Procedure 1024 provides detailed
instructions concerning the form of verifications.1 The proper procedure for
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1
Pa.R.Civ.P. 1024 provides:
(a) Every pleading containing an averment of fact
not appearing of record in the action or containing a
denial of fact shall state that the averment or denial
is true upon the signer's personal knowledge or
information and belief and shall be verified. The
signer need not aver the source of the information or
expectation of ability to prove the averment or denial
at the trial. A pleading may be verified upon personal
knowledge as to a part and upon information and
belief as to the remainder.
(b) If a pleading contains averments which are
inconsistent in fact, the verification shall state that
the signer has been unable after reasonable
investigation to ascertain which of the inconsistent
averments, specifying them, are true but that the
signer has knowledge or information sufficient to
form a belief that one of them is true.
(c) The verification shall be made by one or more of
the parties filing the pleading unless all the parties
(1) lack sufficient knowledge or information, or (2)
are outside the jurisdiction of the court and the
(Footnote Continued Next Page)
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objecting to defects in the verification to the complaint was filing preliminary
objections that alleged U.S. Bank’s failure to conform to Rule 1024. Instead
of filing preliminary objections, Corteal elected to file an answer to the
complaint with new matter. Consequently, he has waived his objection to
the verification. Pa.R.Civ.P. 1032; Bartanus, supra.
Even if Corteal preserved his objection to the verification, it would not
have entitled him to relief. The Rules of Civil Procedure “shall be liberally
construed to secure the just, speedy and inexpensive determination of every
action or proceeding to which they are applicable. The court at every stage
of any such action. . .may disregard any error or defect of procedure which
does not affect the substantial rights of the parties.” Pa.R.Civ.P. 126
(emphasis added). Although the verification to U.S. Bank’s complaint might
be technically incorrect,2 this did not affect Corteal’s substantive rights, since
he admits in his answer that the mortgage is in default.
_______________________
(Footnote Continued)
verification of none of them can be obtained within
the time allowed for filing the pleading. In such
cases, the verification may be made by any person
having sufficient knowledge or information and belief
and shall set forth the source of the person's
information as to matters not stated upon his or her
own knowledge and the reason why the verification
is not made by a party.
2
The verification might violate Rule 1024(c) because it is signed by an
employee of U.S. Bank’s agent, Bank of America, N.A., instead of by an
employee of U.S. Bank itself. In such circumstances, the verification should
explain why a U.S. Bank employee did not sign the verification. Id. This
verification fails to provide any such explanation.
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Corteal’s second argument on appeal -- the improper verification
deprived the trial court of subject matter jurisdiction -- is devoid of merit.
Although Corteal did not raise this issue in his answer or new matter, we
examine this issue on the merits because challenges to subject matter
jurisdiction are never waived. Commonwealth v. Jones, 929 A.2d 205,
208 (Pa.2007). On the merits, Corteal’s argument fails, since defects in a
verification do not raise a question of jurisdiction. Monroe Contract Corp.
v. Harrison Square, Inc., 405 A.2d 954, 959 n. 5 (Pa.1979) (a verification
is “necessary to the protection of the party, not to the jurisdiction of the
court”).
For these reasons, we affirm the trial court’s order granting summary
judgment to U.S. Bank.
Judgment affirmed.
Judge Wecht files a Concurring Memorandum.
President Judge Gantman concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/3/2014
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