Wells Fargo Bank v. Fonash, J.

J-S19033-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
WELLS FARGO BANK NA, AS : IN THE SUPERIOR COURT OF
TRUSTEE, ON BEHALF OF THE : PENNSYLVANIA
REGISTERED CERTIFICATE HOLDERS :
OF FIRST FRANKLIN MORTGAGE :
LOAN TRUST 2004-FF-4, MORTGAGE :
PASS-THROUGH CERTIFICATES, :
SERIES 2004-FF-4 :
:
:
v. :
:
:
JOHN J. FONASH, III AND MARLENE :
R. FONASH, :
:
Appellants : No. 3311 EDA 2019
Appeal from the Order Entered September 24, 2019
in the Court of Common Pleas of Montgomery
County Civil Division at No(s): 2018-24445
BEFORE: BOWES, J., McCAFFERY, J., and MUSMANNO, J.
MEMORANDUM BY MUSMANNO, J.: Filed: June 11, 2020
John J. Fonash, III (“John”), and Marlene R. Fonash (collectively, the
“Fonashes”) appeal from the Order granting the Motion for Summary
Judgment filed by Wells Fargo Bank N.A., as Trustee, on behalf of the
certificate holders of First Franklin Mortgage Loan Trust 2004-FF-4, Mortgage
Pass-Through Certificates, Series 2004-FF-4 (“Wells Fargo”), and entering
judgment in favor of Wells Fargo, and against the Fonashes, in a mortgage
foreclosure action with respect to property located at 101 Ridgeway Road,
North Wales, Pennsylvania (“the Property”). We affirm.
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On March 6, 2004, John entered into a home mortgage loan transaction
with First Franklin Financial Corporation (“First Franklin”), wherein John
executed a Note (“the Note”) in favor of First Franklin in the amount of
$307,200.00, plus interest. The Note provides for monthly payments of
$2,095.65, to commence on May 1, 2004, and an interest rate of 7.25% per
annum. The Note also specifies a maturity date of April 1, 2034, at which
time any outstanding balance shall be paid in full. On the same date, the
Fonashes1 executed a mortgage on the Property to secure the Note, which
was recorded in the Montgomery County Recorder of Deeds Office on April 1,
2004 (the Note and mortgage will hereinafter be referred to collectively as
“the Mortgage”).
First Franklin assigned the Mortgage to Wells Fargo on July 23, 2008,
and Wells Fargo recorded the assignment on August 8, 2008.
The Fonashes defaulted on the Mortgage by failing to tender the
payment due on April 1, 2018, and each month thereafter. The Fonashes
were provided with Act 91 Notice2 of Wells Fargo’s intent to foreclose on the
Mortgage.
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1Although only John signed the Note, both parties are named on the mortgage
document.
2 See 35 P.S. § 1680.401(c) et seq.
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On October 19, 2018, Wells Fargo filed a Complaint in mortgage
foreclosure,3 appending thereto the Mortgage and Act 91 Notice. The
Fonashes filed an Answer and New Matter on January 3, 2019. Wells Fargo
filed a Reply.
On August 9, 2019, Wells Fargo filed a Motion for Summary Judgment,
alleging that there were no genuine issues of material fact in dispute. The
Fonashes filed an Answer on September 9, 2019. By Order dated September
23, 2019,4 the trial court granted summary judgment in favor of Wells Fargo,
and awarded Wells Fargo an in rem judgment in the amount of $271,456.87,
plus $45.15 interest per diem accruing after July 1, 2019, and other costs and
charges collectable under the Mortgage.
The Fonashes filed a timely Notice of Appeal and a court-ordered
Pa.R.A.P. 1925(b) Concise Statement of errors complained of on appeal.
The Fonashes now raise the following issues for our review:
1. Did the [trial c]ourt improperly grant summary judgment when
[Wells Fargo] did not establish that there is no genuine issue of
material fact?
2. Has [Wells Fargo] met its burden to prove its allegation that it
has rights by way of assignment[?]
____________________________________________
3 The Complaint and verification attached thereto identify Select Portfolio
Servicing, Inc. (“Select Portfolio”), as Wells Fargo’s servicing agent and
attorney-in-fact.
4 The Order was docketed on September 24, 2019.
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3. Is the [c]ourt’s grant of summary judgment in violation of the
Nanty-Glo[5] rule insofar as it violates the legal prohibition
against trial by testimonial affidavit?
Brief for Appellants at 4 (footnote added).
Our scope and standard of review in evaluating a trial court’s grant of
summary judgment are well settled:
In reviewing an order granting summary judgment, our scope of
review is plenary…. An appellate court may reverse the entry of
a summary judgment only where it finds that the lower court erred
in concluding that the matter presented no genuine issue as to
any material fact and that it is clear that the moving party was
entitled to a judgment as a matter of law. In making this
assessment, we view 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.
As our inquiry involves solely questions of law, our review is de
novo.
Gerber v. Piergrossi, 142 A.3d 854, 858 (Pa. Super. 2016) (citation
omitted).
In their first claim, the Fonashes assert that Wells Fargo failed to
demonstrate that there are no genuine issues of material fact. See Brief for
Appellants at 7-10. Citing Wells Fargo’s reliance on Pa.R.C.P. 1029(c)6, the
Fonashes claim that “Wells Fargo [] fails to demonstrate, in any way, how it
____________________________________________
5See Borough of Nanty-Glo v. Am. Surety Co. of N.Y., 163 A. 523 (Pa.
1932).
6 Pennsylvania Rule of Civil Procedure 1029(c) provides that “[a] statement
by a party that after reasonable investigation the party is without knowledge
or information sufficient to form a belief as to the truth of an averment shall
have the effect of a denial.” Pa.R.C.P. 1029(c).
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is clear that the [Fonahses] must know the truth or falsity of the allegations
that are denied for lack of knowledge.” Brief for Appellants at 7. According
to the Fonashes, “Wells Fargo has no basis for its conclusory averment that
the borrowers must know the truth of the circumstances and details of any
alleged assignment of the loan in question.” Id. at 8. The Fonashes argue
that they had reason to challenge the allegations in the Complaint for the
following reasons:
 The loan was, at inception, made by [First Franklin;]
 All payments in any pertinent time period have been made to
Select Portfolio[;]
 [] Wells Fargo claims to be an assignee as of July of 2008[;]
 Wells Fargo is a stranger to the [Fonashes,] who have had no
dealings with said company[;]
 No explanation exists of record to explain how the same plaintiff,
Wells Fargo, could have filed suit against the [Fonashes] on the
same alleged obligation in 2007 – when the [Fonashes’] own
allegations suggest that it had no legally cognizable interests until
2008[;]
 If Wells Fargo sued the [Fonashes] in 2007 without a legal right
to do so, why should the [c]ourt assume that they presently have
that right, without proof beyond [Wells Fargo’s] mere inconsistent
allegations[; and]
 The [Fonashes] have the right to challenge the veracity of facts
purportedly established only by [Wells Fargo’s] self-serving
[A]ffidavit, especially where i) there can be no expectation that
the [Fonashes] could have any first-hand knowledge regarding
alleged assignments of a loan obligation, and ii) [Wells Fargo’s]
past averments serve to contradict its present allegations.
Id. at 9-10.
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In its Opinion, the trial court set forth the relevant law and addressed
this claim as follows:
“In an action on a note or bond secured by a mortgage, a
plaintiff presents a prima facie case by showing the execution and
delivery of the [note] and its nonpayment….” CoreStates Bank,
N.A. v. Cutillo, 723 A.2d 1053, 1056 (Pa. Super. [] 1999)
(quoting Philadelphia Workingmen’s Sav. Loan & Gldg. Ass’n
v. Wurzel, 49 A.2d 55, 57 (Pa. 1946)). In an action for mortgage
foreclosure, the entry of summary judgment in proper “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. [] 1998) (citing
Landau v. Western [Pa. Nat’l] Bank, 282 A.2d 335, 340 (Pa.
1971)). Granting summary judgment in a foreclosure action is
still proper even if the mortgagors have not admitted the total
amount of indebtedness. Id.In this case, [Wells Fargo] established that there were no
genuine issues of any material fact as to a necessary element of
the cause of action, making a prima facie case for mortgage
foreclosure. [The Fonashes], meanwhile, failed to meet their
burden of proving the existence of any genuine issues. [The
Fonashes] executed and delivered the Note to First Franklin …,
then secured their obligations under the [N]ote by executing,
delivering, and recording a [m]ortgage—a copy of which was
attached to [Wells Fargo’s] Complaint and Motion for Summary
Judgment. [Wells Fargo] was the current mortgagee and
possessor of the original Note by way of assignment at the time it
filed its Complaint, attaching a copy of the Note to its Complaint
and Motion for Summary Judgment. [Wells Fargo] is the recorded
assignee of the Mortgage, having recorded its [a]ssignment of
Mortgage from First Franklin … on July 23, 2008, before it filed its
Complaint. [Wells Fargo] attached to its Motion for Summary
Judgment a copy of its recorded [a]ssignment of Mortgage with
the seal of the Recorder’s Office.
“Averments in a pleading to which a responsive pleading is
required are admitted when not denied specifically or by
necessary implication. A general denial or a demand for proof
… shall have the effect of an admission.” Pa.R.C.P. [] 1029(b)
(emphasis added). Statements that a party is without knowledge
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or information sufficient to form a belief as to the truth of an
averment after reasonable investigation shall have the effect of a
denial. Pa.R.C.P. [] 1029(c). However, “[r]eliance on [Pa.R.C.P.
1029(c)] does not excuse a failure to admit or deny a factual
allegation when it is clear that the pleader must know
whether a particular allegation is true or false.” Id.(emphasis added); see also Cercone v. Cercone, … 386 A.2d 1,
4 ([Pa. Super.] 1978)).
In [the Fonashes’] Answer, they admit the elements
required for [Wells Fargo] to establish summary judgment in a
mortgage foreclosure action by either demanding proof or
otherwise failing to admit or deny factual allegations[,] when it is
clear that [the Fonashes] must know whether [Wells Fargo’s]
allegations are true or false. Specifically, in their Answer, [the
Fonashes] generally deny that the [M]ortgage is in default as of
April 1, 2018, that they have failed to pay interest, and that the
[M]ortgage is in the specified amount as “incorrect conclusions of
law” and demand proof regarding these averments. [See Answer,
1/3/19, ¶¶ 9-11.] [The Fonashes] also generally deny [Wells
Fargo’s] averments that [the Fonashes] executed the Mortgage,
that the Mortgage secures the real property as the specified
address, that [Wells Fargo] holds the [N]ote, and that [Wells
Fargo] is the proper assignee, all by way of claiming lack of
knowledge after reasonable investigation, requiring proof, and
denying as conclusions of law. [See id. ¶¶ 4-7.] In answering
[Wells Fargo’s] Complaint in this way [the Fonashes’] answers are
deemed admissions, as [the Fonashes] cannot claim to have no
knowledge of executing the [M]ortgage, that the [M]ortgage
secures the specific real property, that the [M]ortgage is in
default, that they have failed to pay interest on the obligation, or
that the [M]ortgage is in the specific amount, when [Wells Fargo]
either attached documentation to the Complaint proving such
averments[,] or the information was readily ascertainable by [the
Fonashes]—either as public record or [by] other investigation.
See Pa.R.C.P. [] 1029(c); Cercone[, 386 A.2d at 4].
… [Further,] … [the Fonashes’] [N]ew [M]atter fails to raise
any genuine issues of material fact. “The material facts on which
a cause of action or defense is based shall be stated in a concise
and summary form.” Pa.R.C.P. [] 1019(a) (emphasis added). “A
party may set forth as new matter any other material facts which
are not merely denials of the averments of the preceding
pleading.” Pa.R.C.P. [] 1030 (emphasis added). Here, [the
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Fonashes’s N]ew [M]atter is a barebones list of statutes and other
defenses, devoid of material facts to meet the requisite level of
specificity demanded by Pa.R.C.P. [] 1019(a) and Pa.R.C.P. []
1030. In addition, [the Fonashes’ N]ew [M]atter is deficient on its
merits, lacking the particularity required ….
Finally, “the non-moving party may not rest upon
averments contained in its pleadings; the non-moving party must
demonstrate that there is a genuine issue for trial.” Accu-
Weather, Inc. v. Prospect Commc’ns, Inc., 644 A.2d 1251,
1254 (Pa. Super. [] 1994) (citing Overly v. Kass, 554 A.2d 970,
972 (Pa. Super. [] 1989)). [The Fonashes] had the burden of
proving a genuine issue of material fact[,] but instead rested on
the averments in their pleadings, only specifically raising [Wells
Fargo’s]] lack of standing as a genuine issue of material fact ….
Nowhere in [the Fonashes’] response in opposition to [Wells
Fargo’s] Motion for Summary Judgment do [the Fonashes]
actually produce evidence to raise a factual question as to whether
the [M]ortgage is in default, whether they executed the [N]ote
and mortgage, or whether the amount due is incorrect. Based on
the inability of [the Fonashes] to adduce sufficient evidence to
defend against summary judgment, this [c]ourt had no choice but
to grant summary judgment as to [Wells Fargo].
Trial Court Opinion, 12/23/19, at 5-8 (some citations to record omitted).
Upon review, we agree with the trial court’s analysis and conclusion.
The record confirms that Wells Fargo established a prima facie case for
mortgage foreclosure, and the Fonashes failed to raise a genuine issue of
material fact. Because the trial court did not err or abuse its discretion in
granting summary judgment, this claim fails.
In their second claim, the Fonashes contend that Wells Fargo failed to
establish that it is the proper party in interest to bring a mortgage foreclosure
action against them. See Brief for Appellants at 10-13. The Fonashes again
point to an action previously filed against them by Wells Fargo in 2007. Id.-8-
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at 12. The Fonashes also “deny that there has been a proper or timely
assignment of the mortgage….” Id.“The holder of a mortgage has the right, upon default, to bring a
foreclosure action.” Bank of America, N.A. v. Gibson, 102 A.3d 462, 464
(Pa. Super. 2014); see also CitiMortgage, Inc. v. Barbezat, 131 A.3d 65,
68 (Pa. Super. 2016) (stating that “[i]n a mortgage foreclosure action, the
mortgagee is the real party in interest.”). In a foreclosure action, a plaintiff
can prove standing either by showing that it (i) originated or was assigned the
mortgage, or (ii) is the holder of the note specifically indorsed to it or indorsed
in blank. See J.P. Morgan Chase Bank, N.A. v. Murray, 63 A.3d 1258,
1267-68, n.6 (Pa. Super. 2013); see also Barbezat, 131 A.3d at 69 (stating
that “[w]here an assignment is effective, the assignee stands in the shoes of
the assignor and assumes all of his rights.”).
Here, Wells Fargo attached to its Complaint a copy of the Note and
Mortgage executed in favor of First Franklin. See Complaint, 10/19/18,
Exhibits A, B. Wells Fargo also attached to its Motion for Summary Judgment
a copy of First Franklin’s assignment of the Mortgage to Wells Fargo. See
Motion for Summary Judgment, 8/9/19, Exhibit E (assignment from First
Franklin to Wells Fargo, executed on July 23, 2008, and recorded on August
8, 2008). Therefore, the evidence of record establishes that Wells Fargo holds
the Mortgage by way of assignment, and the Fonashes failed to offer evidence
in opposition to establish a genuine issue of material fact regarding the validity
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of the assignment.7 See Murray, supra; see also Gerber, 142 A.3d at 860
(concluding that, where the evidence of record established that appellees held
the mortgage by valid assignment, and appellants offered no evidence to
establish a genuine issue of material fact, the trial court did not err by granting
summary judgment in favor of appellees). Therefore, the Fonashes are not
entitled to relief on this claim.
In their final claim, the Fonashes argue that the trial court’s grant of
summary judgment violates the Nanty-Glo rule against trial by testimonial
affidavit. Brief for Appellants at 13-14.
This argument has not been sufficiently developed for our review.
Although the Fonashes identify the Nanty-Glo rule, they failed to include any
explanation of why they believe the trial court violated this rule in granting
summary judgment. Therefore, the Fonashes’ final claim is waived. See
Pa.R.A.P. 2119(a); see also Bombar v. West Am. Ins. Co., 932 A.2d 78,
93 (Pa. Super. 2007) (stating that “[t]his Court will not act as counsel and will
not develop arguments on behalf of an appellant.”).
Moreover, the trial court aptly summarized the relevant law, as well as
its reasoning on the matter as follows:
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7 In its Opinion, the trial court concluded that Wells Fargo had standing both
as the holder of the Note and by assignment. See Trial Court Opinion,
12/23/19, at 8-13. While we have not separately addressed Wells Fargo’s
standing as the holder of the Note, we agree with the trial court’s
determination. See id. at 10-11.
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“The function of the summary judgment proceedings is to avoid a
useless trial but is not, and cannot, be used to provide for trial by
affidavits or trial by depositions. That trial by testimonial affidavit
is prohibited cannot be emphasized too strongly.” DeArmitt v.
New York Life Ins. Co., 73 A.3d 578, 595 (Pa. Super. [] 2013).
“Oral testimony alone, either through testimonial affidavits or
depositions, of the moving party or the moving party’s witnesses,
even if uncontradicted, is generally insufficient to establish the
absence of a genuine issue of material fact.” Pa.R.C.P. [] 1035.2
cmt. (citing Nanty-Glo[, supra]; Penn Center House, Inc. v.
Hoffman, 553 A.2d 900 (Pa. 1989)); see also Dudley v. USX
Corp., 606 A.2d 916, 918 (Pa. Super. [] 1991). “If, however, the
moving party supports its motion for summary judgment with
admissions by the opposing party, Nanty-Glo does not bar entry
of summary judgment.” DeArmitt, 73 A.3d at 595 …. This
[c]ourt finds no application of the Nanty-Glo rule to the facts of
the case at bar.
While it is true that [Wells Fargo] attached an Affidavit[8] in
Support of the Motion for Summary Judgment signed by [an
officer of Select Portfolio], this [c]ourt does not find that this
Affidavit was necessary for [Wells Fargo] to establish the non-
existence of genuine issues of material fact. … [Wells Fargo]
established that it was entitled to enforce the Note and Mortgage,
by way of [its] possession of the original Note. [Wells Fargo]
attached the Note and Mortgage as exhibits to the original
[C]omplaint and attached a copy of the assignment of Mortgage
to its Motion for Summary Judgment. Even without relying on the
statements in the Affidavit confirming possession of the original
[N]ote and the total amount due, this [c]ourt finds that [Wells
Fargo] advanced sufficient evidence to establish a prima facie case
in mortgage foreclosure[,] and that [the Fonashes] failed to meet
their burden of raising any genuine issues of material fact in
response. Thus, because [Wells Fargo] adequately supported its
[M]otion for [S]ummary [J]udgment with admissions by [the
Fonashes] and documents to make a prima facie case for
mortgage foreclosure—even without reliance on the testimonial
[A]ffidavit—the Nanty-Glo rule will not bar entry of summary
judgment.
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8In the Affidavit, a Select Portfolio officer explained Select Portfolio’s role as
Wells Fargo’s mortgage servicer and set forth an itemized explanation of the
balance due under the Mortgage.
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Trial Court Opinion, 12/23/19, at 13-14 (footnote added).
We agree with the sound reasoning of the trial court. Even if the
Fonashes had adequately developed their final claim for our review, we would
affirm on the basis of the trial court’s reasoning. See id.Based upon the foregoing, we affirm the trial court’s Order granting
summary judgment in favor of Wells Fargo.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/11/20
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