U.S. Bank Nat'l Assn. v. Piacente, T.

J-S58004-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
U.S. BANK NATIONAL ASSOCIATION, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
TIMOTHY PIACENTE,
Appellant No. 472 MDA 2015
Appeal from the Judgment Entered February 3, 2015
in the Court of Common Pleas of Luzerne County
Civil Division at No.: 2013-07192
BEFORE: GANTMAN, P.J., OLSON, J., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED NOVEMBER 19, 2015
Appellant, Timothy Piacente, appeals pro se from the summary
judgment entered in favor of Appellee, U.S. Bank National Association, in
this mortgage foreclosure action. We affirm.
The trial court aptly summarized the relevant procedural history of this
case as follows:
[Appellee] commenced this action by way of Complaint
filed on June 18, 2013. On December 2, 2013, [Appellant], pro
se, filed his Answer to [Appellee’s] Complaint. In [Appellant’s]
Answer [he] admitted that he executed the Mortgage dated
November [24], 2004 in favor of New Century Mortgage
Corporation [(New Century)] but denied that the assignment of
said mortgage was valid due to the bankruptcy filing of New
Century[]. With respect to the amounts being owed by
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*
Retired Senior Judge assigned to the Superior Court.
J-S58004-15
[Appellant] as alleged in [Appellee’s] Complaint, [Appellant]
stated “[Appellant] specifically denies each and every allegation.
. .” but [Appellant] does not specifically set forth any payment
made or an amount which he feels is owed to [Appellee]. In his
answer to [Appellee’s] Complaint, [Appellant] also specifically
denied receiving the Act 6 and Act 91 notices[1] [Appellee]
alleges to have sent [Appellant].
[Appellant] raised New Matter and Affirmative Defenses to
[Appellee’s] Complaint, including but not limited to the
assignment of mortgage not being valid; the default interest rate
as usurious; [Appellant] not receiving the Act 6 and Act 91
notices[;] and [Appellee] not being the holder of the Promissory
Note. [Appellee] attached in its Reply to New Matter, a copy of
the recorded Assignment, a true and certified copy of the Note
as well as Act 6 and Act 91 notices addressed to [Appellant] at
552 Pardee Street, Hazelton, Pennsylvania as well as 550-552
Pardee Street, Hazelton, Pennsylvania.
(Trial Court Opinion, 5/26/15, at 2-3).
On December 22, 2014, Appellee filed a motion for summary
judgment, attaching an affidavit of lost note prepared by the servicer of the
loan, JPMorgan Chase Bank, N.A. (JPMorgan Chase). The affidavit attached
a copy of the original note and stated that, after a thorough and diligent
search of the hard copy file pertaining to the loan, the original note was not
located, and the loss was not a result of cancellation or transfer of the note
to another party. (See Motion for Summary Judgment, 12/22/14, Exhibit
A1). Appellant filed a response on January 16, 2015, challenging Appellee’s
standing to bring this action. On February 3, 2015, the trial court granted
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1
See 41 P.S. §§ 101-605, 35 P.S. §§ 1680.401(c)-1680.410(c).
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Appellee’s motion and entered summary judgment. This timely appeal
followed.2
Appellant raises ten overlapping issues for our review:
1. Did the [trial court] err in granting summary judgment as
Appellee has no ‘locus standi’ or ‘legal standing’ in this case?
2. Did the [trial court] err in finding that there is no genuine
issue of material fact in this case?
3. Did the [trial court] err in finding that the Appellee is the
real-party-in-interest to initiate this action?
4. Did the evidence on record demonstrate that Appellee did
not possess the Note at any point of time?
5. Did the [trial court] err in disregarding the exhibits filed by
Appellant?
6. Did the [trial court] err in relying upon the falsehoods
and/or misrepresentations made by Appellee?
7. Whether the Appellee failed to comply with the notice
requirements pursuant to Act 6 of 1974 41 P.S. § 101 et. seq.
and Act 91 of 1983, 35 P.S. § 1680.401c?
8. Whether the affidavit of lost Note filed by Appellee is in
compliance of the requirements of UCC?
9. Whether the complaint filed by Appellee is fatally
defective?
10. Whether the Assignment of Mortgage filed by Appellee is
null and void or fatally defective?
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2
Pursuant to the trial court’s order, Appellant filed a timely concise
statement of errors complained of on appeal on March 12, 2015. See
Pa.R.A.P. 1925(b). The trial court entered an opinion on May 26, 2015.
See Pa.R.A.P. 1925(a).
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(Appellant’s Brief, at 4-5).3
Our standard of review of an order granting a motion for summary
judgment requires us to determine whether the trial court committed an
error of law or abused its discretion. See Cigna Corp. v. Exec. Risk
Indem., Inc., 111 A.3d 204, 210 (Pa. Super. 2015).
[O]ur scope of review is plenary, and our standard of
review is the same as that applied by the trial court. . . . 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.
Thus, our responsibility as an appellate court is to
determine whether the record either establishes that the
material facts are undisputed or contains insufficient evidence of
facts to make out a prima facie cause of action, such that there
is no issue to be decided by the fact-finder. If there is evidence
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3
We note that Appellant’s pro se brief fails to conform to our Rules of
Appellate Procedure in several material respects. For example, the
statement of the case contains argument, and the statement of the
questions involved and argument sections contain issues and discussion that
are duplicative in nature. See Pa.R.A.P. 2116(a), 2117(b), 2119(a).
Significantly, Appellant fails to support many of his issues with discussion of
pertinent legal authority. See Pa.R.A.P. 2119(b). Although this Court is
willing to construe pro se materials liberally, pro se litigants must comply
with procedural rules. See Commonwealth v. Lyons, 833 A.2d 245, 251-
52 (Pa. Super. 2003), appeal denied, 879 A.2d 782 (Pa. 2005). Although
this Court could quash or dismiss this appeal, see Pa.R.A.P. 2101, in the
interest of judicial economy, we will address Appellant’s arguments to the
extent we can discern them.
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that would allow a fact-finder to render a verdict in favor of the
non-moving party, then summary judgment should be denied.
Bastian v. Sullivan, 117 A.3d 338, 344 (Pa. Super. 2015) (citation
omitted).
We will address Appellant’s first, third, fourth, and eighth issues
together because they are interrelated. The crux of Appellant’s claim is that
Appellee lacks standing to bring this action because it does not have
possession of the note, and the affidavit of lost note is defective. (See
Appellant’s Brief, at 12-19, 22-25, 28). He asserts that “the story of the lost
note is a fabricated one to make an impression that Appellee is the lawful
owner of the note.” (Id. at 21, 30). This claim does not merit relief.
Section 3309 of the Pennsylvania Uniform Commercial Code states:4
§ 3309. Enforcement of lost, destroyed or stolen instrument
(a) Enforcement.—A person not in possession of an
instrument is entitled to enforce the instrument if:
(1) the person was in possession of the instrument and
entitled to enforce it when loss of possession occurred;
(2) the loss of possession was not the result of a transfer by
the person or a lawful seizure; and
(3) the person cannot reasonably obtain possession of the
instrument because the instrument was destroyed, its
whereabouts cannot be determined or it is in the wrongful
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4
This Court has held that a note secured by a mortgage is a negotiable
instrument governed by the Pennsylvania Uniform Commercial Code, 13
Pa.C.S.A. §§ 1101-9809. See JP Morgan Chase Bank, N.A. v. Murray,
63 A.3d 1258, 1263, 1265 (Pa. Super. 2013).
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possession of an unknown person or a person that cannot be
found or is not amenable to service of process.
(b) Proof.—A person seeking enforcement of an instrument
under subsection (a) must prove the terms of the instrument
and the person’s right to enforce the instrument. If that proof is
made, section 3308 (relating to proof of signatures and status as
holder in due course) applies to the case as if the person seeking
enforcement had produced the instrument. The court may not
enter judgment in favor of the person seeking enforcement
unless it finds that the person required to pay the instrument is
adequately protected against loss that might occur by reason of
a claim by another person to enforce the instrument. Adequate
protection may be provided by any reasonable means.
13 Pa.C.S.A. § 3309(a), (b).
Here, the trial court determined that Appellee was entitled to enforce
the note even though the original hard copy document could not be located.
The court explained:
. . . [Appellee] provided an affidavit executed before a notary by
an authorized representative of [Appellee, J.P. Morgan Chase,]
setting forth the policies and procedures for maintaining original
notes. [Appellee] also produced a copy of the Note in question
and [Appellant] did not deny executing the Note. Rather, [he]
challenges the ability of the original holder of the note to assign
it. The [c]ourt finds the Affidavit of Lost Note to be credible.
Furthermore, the Note produced by [Appellee] is indorsed in
blank, which enables the holder of the instrument to establish
standing. . . .
The Affidavit provided by [Appellee] establishes J.P.
Morgan Chase Bank, National Association as the servicer of the
of the loan and authorized to act on behalf of [Appellee].
[Appellant] failed to produce any evidence to suggest the
Affidavit of J.P. Morgan Chase Bank is not accurate. . . .
(Trial Ct. Op., at 5).
After review, we discern no error or abuse of discretion in the trial
court’s disposition of this issue. Although Appellee was not able to locate
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the original note, it produced a copy of the original along with an affidavit of
lost note, which the trial court found credible. Appellant’s claim does not
merit relief.
We next address Appellant’s challenge to the validity of the mortgage
assignment, which he mentions in his first issue, and then raises again as a
separate issue in his tenth claim. (See Appellant’s Brief, at 12, 16, 30-31).
Specifically, Appellant asserts that New Century did not have the right to
assign the mortgage to Appellee in January 2012 because it “was declared
bankrupt in 2008.” (Id. at 30; see id. at 16, 31). This claim is waived and
would not merit relief.
This Court has stated “[w]hen deficiencies in a brief hinder our ability
to conduct meaningful appellate review, we may dismiss the appeal entirely
or find certain issues to be waived. . . . Pa.R.A.P. 2101.” Krauss v. Trane
U.S. Inc., 104 A.3d 556, 584 (Pa. Super. 2014) (case citation omitted).
“[We] will not act as counsel and will not develop arguments on behalf of an
appellant.” U.S. Bank, N.A. v. Pautenis, 118 A.3d 386, 394 (Pa. Super.
2015) (citations omitted). Here, Appellant fails to support his argument
challenging New Century’s right to assign the mortgage with citation to, and
discussion of, pertinent legal authority. See Pa.R.A.P. 2119(a)-(b); (see
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also Appellant’s Brief, at 12, 16, 30-31).5 Accordingly, Appellant has waived
this underdeveloped issue. See Pa.R.A.P. 2101; Krauss, supra at 584.
Moreover, Appellant’s claim that the assignment is invalid lacks record
support. Specifically, Appellant admits that he executed the mortgage in
favor of New Century on November 24, 2004. (See Answer, 12/02/13, at 2
¶ 3). The mortgage provided that New Century had the right to sell the
note, together with the mortgage, without prior notice to him. (See
Mortgage, 11/24/04, at 13). New Century transferred the mortgage to
Appellee, and the assignment was recorded on January 31, 2012. (See
Assignment recorded 1/31/12, at 1-2). Thus, the record includes evidence
of a valid assignment, and Appellant has failed to support his contention that
the assignment is invalid. Accordingly, Appellant’s challenge to the
assignment is waived and would not merit relief.
We next address Appellant’s second issue, in which he claims that the
trial court erred in entering summary judgment based on its determination
that there are no genuine issues of material fact. (See Appellant’s Brief, at
19-22). We disagree.
. . . A party bearing the burden of proof at trial is entitled
to summary judgment “whenever there is no genuine issue of
any material fact as to a necessary element of the cause of
action or defense which could be established by additional
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5
Appellant cites non-binding case law, specifically, an unpublished decision
from the Hawaii District Court and a Massachusetts trial court decision.
(See Appellant’s Brief, at 16).
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discovery or expert report[.]” Pa.R.C.P. No. 1035.2(1). In
response to a summary judgment motion, the nonmoving party
cannot rest upon the pleadings, but rather must set forth specific
facts demonstrating a genuine issue of material fact. Pa.R.C.P.
No. 1035.3.
The holder of a mortgage has the right, upon default, to
bring a foreclosure action. The holder of a mortgage is entitled
to summary judgment if the mortgagor admits that the
mortgage is in default, the mortgagor has failed to pay on the
obligation, and the recorded mortgage is in the specified
amount.
* * *
. . . General denials [to averments in a complaint]
constitute admissions where . . . specific denials are required.
See Pa.R.C.P. No. 1029(b). Furthermore, “in mortgage
foreclosure actions, general denials by mortgagors that they are
without information sufficient to form a belief as to the truth of
averments as to the principal and interest owing [on the
mortgage] must be considered an admission of those facts.”
First Wis. Tr. Co. v. Strausser, . . . 653 A.2d 688, 692
([Pa.Super.] 1995); see Pa.R.C.P. No. 1029(c) Note. . . .
Bank of Am., N.A. v. Gibson, 102 A.3d 462, 464-67 (Pa. Super. 2014),
appeal denied, 112 A.3d 648 (Pa. 2015) (case citation omitted) (determining
entry of summary judgment proper where appellant effectively admitted
material allegations of complaint with ineffective denials). In a mortgage
foreclosure action, “[u]nquestionably, apart from appellee, appellants are
the only parties who would have sufficient knowledge on which to base a
specific denial.” Strausser, supra at 692 (citation omitted).
Here, after review of the record, we conclude that it belies Appellant’s
contention that the trial court disregarded issues of material fact. As noted
above, Appellant responded to the material portions of Appellee’s complaint
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with general denials. (See Answer, 12/02/13, at 2 ¶¶ 6-7). Although
Appellant pled that he “specifically denies” the allegations, he did not
provide an alternative accounting of his mortgage payments or explain why
the amount sought by Appellee was incorrect. (See id.). Therefore, we
agree with the trial court that Appellant, in effect, admitted the material
allegations of the complaint, and that he failed to set forth specific facts to
raise a genuine issue of material fact regarding the default. (See Trial Ct.
Op., at 4); see also Gibson, supra at 464-67. He was not entitled to rest
simply on the pleadings. See Gibson, supra at 464. Appellant’s second
issue does not merit relief.
We next address Appellant’s fifth and six issues, which assert trial
court error in disregarding certain exhibits he submitted, and in “relying
upon the falsehoods and/or misrepresentations made by Appellee.”
(Appellant’s Brief, at 26; see also id. at 25-27). These claims are waived
and lack record support.
First, Appellant’s arguments, each spanning a single page, are waived
for his failure to support them with citation to, and discussion of, any
pertinent legal authority. See Pa.R.A.P. 2119(a)-(b), 2101.
Furthermore, with respect to Appellant’s claim that the trial court
ignored certain exhibits he submitted, the record reflects that the court did
consider the exhibits; it simply found them flawed and legally unpersuasive.
(See Trial Ct. Op., at 7).
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Regarding Appellant’s claim that the court purportedly relied on
Appellee’s “falsehoods,” he points to Appellee’s characterization of his
responses in his answer to the complaint as general denials. (Appellant’s
Brief, at 26; see also Answer, 12/02/13, at 2 ¶¶ 6-7). However, as
discussed in detail above, we agree with the trial court and Appellee that
Appellant’s responses to the material allegations of the complaint constitute
general denials. Thus, Appellant’s fifth and sixth issues are waived and
would not merit relief.
In Appellant’s seventh issue, he argues that Appellee failed to comply
with the foreclosure notice requirements of Act 6 and Act 91. (See
Appellant’s Brief, at 27-28). He claims that “[t]he evidence on record does
not contain any document to establish that the Appellee has complied with
the notice requirements[.]” (Id. at 27). This issue lacks merit.
Specifically, the record shows that Appellee filed copies of the
foreclosure notices as exhibits to its reply to Appellant’s new matter. (See
Appellee’s Reply to New Matter, 12/30/13, Exhibit C). The address used for
the notices was the same as the address Appellant included on his brief in
this appeal. (See id.). The trial court addressed this issue as follows:
The documentation provided by [Appellee] with respect to
the Act 6 of 1874, 41 P.S. § 101 et seq. and Act 91 of 1983, 35
P.S. § 1680.401(c) clearly sets forth the address of [Appellant]
and where the notices were sent. There is not any
documentation to suggest that [Appellee] did not fulfill its
statutory obligations.
(Trial Ct. Op., at 4).
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Upon review, we discern no abuse of discretion or error of law in the
trial court’s disposition of this issue. Appellant’s seventh claim does not
merit relief.
Finally, in his ninth issue, Appellant claims that the trial court erred in
failing to find that Appellee’s complaint is fatally defective. (See Appellant’s
Brief, at 29-30). He argues that the complaint is defective because the
verification is insufficient, and because Appellee “did not assert the
execution of the Note[.]” (Id. at 29). This issue is waived for several
reasons.
Pennsylvania Rule of Appellate Procedure 302(a) provides that
“[i]ssues not raised in the lower court are waived and cannot be raised for
the first time on appeal.” Pa.R.A.P. 302(a). “Hence, only claims properly
presented in the lower court are preserved for appeal.” Coulter v.
Ramsden, 94 A.3d 1080, 1089 (Pa. Super. 2014), appeal denied, 110 A.3d
998 (Pa. 2014). Here, Appellant failed to challenge the verification of the
complaint in the trial court. (See Answer, 12/02/13, at 1-5; Appellant’s
Response in Opposition to Motion for Summary Judgment, 1/16/15, at 1-7).
Thus, he waived his challenge to the verification for purposes of appeal.
See Pa.R.A.P. 302(a).
With respect to Appellant’s claim that the complaint is defective
because Appellee “did not assert the execution of the Note,” this argument is
waived for his failure to support it with discussion of relevant legal authority.
(Appellant’s Brief, at 29; see id. at 30); see also Pa.R.A.P. 2119(a)-(b);
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2101. Instead of engaging in such discussion, Appellant simply reiterates
his challenge to Appellee’s possession of the note, which we previously
addressed in this memorandum. Appellant’s ninth issue is waived.
In sum, we conclude that the trial court did not err or abuse its
discretion in granting Appellee’s motion for summary judgment. See Cigna
Corp., supra at 210. Accordingly, we affirm the summary judgment
entered in the trial court.
Judgment affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/19/2015
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