J-S18032-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

WILMINGTON TRUST, NATIONAL 

ASSOCIATION, NOT IN ITS

INDIVIDUAL CAPACITY, BUT SOLELY AS 

TRUSTEE FOR MFRA TRUST 2014-2

IN THE SUPERIOR COURT OF

PENNSYLVANIA

v.

STEPHEN R. SAFT AND ELLYN GOLDER 

SAFT

 Appellants No. 1750 EDA 2016

Appeal from the Order Dated May 5, 2016

in the Court of Common Pleas of Montgomery County 

Civil Division at No(s): 2014-22230

BEFORE: PANELLA, SOLANO, and FITZGERALD,*JJ.

MEMORANDUM BY FITZGERALD, J.: FILED APRIL 11, 2017

Appellants, Stephen R. Saft and Ellyn Golder Saft, appeal from the 

order of the Montgomery County Court of Common Pleas granting summary 

judgment in favor of Bank of America, N.A (“BANA”), 1and entering an in 

rem judgment of $600,893.78, with interest, in BANA’s favor. Appellants 

contend the trial court impermissibly relied on an affidavit when granting 

summary judgment. We affirm. 

 

*

Former Justice specially assigned to the Superior Court.

1 On January 20, 2017, this Court granted an application for voluntary 

substitution of a party and amended the name of the captioned Appellee as 

“Wilmington Trust, National Association, not in its individual capacity, but 

solely as trustee for MFRA Trust 2014-2.” Order, 1/20/17. 
J-S18032-17

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The trial court set forth the factual and procedural history of this 

matter as follows: 

On November 8, 2005, [Appellants] made, executed, and 

delivered to Lafayette Lending Group, Inc. (“Lender”) a 

promissory note (“the Note”) in consideration for a loan 

made by Lender to [Appellants] on said date, whereby 

[Appellants] promised and agreed to pay to Lender, its 

successors and assigns, the principal loan amount of 

$550,000.00 at 5.875%. As security for the Note, 

[Appellants] made, executed, and delivered a mortgage 

(“the Mortgage”) [on 525 Hoffman Drive in Bryn Mawr, 

Pennsylvania (“Property”)] to Lender. [BANA] is in 

possession of the Note, indorsed in blank.

[BANA] filed a Complaint in foreclosure on July 28, 2014. 

Trial Ct. Op., 6/6/16, at 1. 

BANA’s complaint contained the following allegations: 

3. On 11/08/2005 [Appellants] made, executed and 

delivered a mortgage upon the premises hereinafter 

described to MORTGAGE ELECTRONIC REGISTRATION 

SYSTEMS, INC. AS NOMINEE FOR LAFAYETTE LENDING 

GROUP, INC., which mortgage is recorded in the Office of 

the Recorder of Deeds of MONTGOMERY County, in 

Mortgage Book 11690, Page 2595. By Assignment of 

Mortgage recorded 11/26/2013 the mortgage was 

assigned to [BANA], which Assignment is recorded in 

Assignment of Mortgage Book 13717, Page 02749. The 

mortgage and assignment(s), if any, are matters of public 

record and are incorporated herein by reference in 

accordance with Pa.R.C.P. 1019(g);[2] which Rule relieves 

 

2 Rule 1019(g) states:

Any part of a pleading may be incorporated by reference in 

another part of the same pleading or in another pleading in 

the same action. A party may incorporate by reference any 

matter of record in any State or Federal court of record 

whose records are within the county in which the action is 
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[Appellee] from its obligations to attach documents to 

pleadings if those documents are of public record.

4. The premises subject to said mortgage is described as 

attached. 

5. The mortgage is in default because monthly payments 

of principal and interest upon said mortgage due 

09/01/2013 and each month thereafter are due and 

unpaid, and by the terms of said mortgage, upon failure of 

[Appellants] to make such payments after a date specified 

by written notice sent to [Appellants], the entire principal 

balance and all interest due thereon are collectible 

forthwith.

6. The following amounts are due on the mortgage as of 

06/13/2014:

Principal Balance $485,023.37

Interest $24,682.73

08/01/2013 through 06/13/2014

Late Charges $488.01

Property Inspections $32.25

Escrow Deficit $6,775.74

TOTAL $517,002.10

BANA’s Compl., 7/28/14, at ¶¶ 3-6. 

Appellants filed an answer and new matter on August 28, 2014, 

responding, in relevant part, as follows: 

3. Denied. After reasonable investigation [Appellants] lack 

knowledge or information sufficient to form a belief as to 

 

pending, or any matter which is recorded or transcribed 

verbatim in the office of the prothonotary, clerk of any 

court of record, recorder of deeds or register of wills of 

such county.

Pa.R.C.P. 1019(g). 
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the truth of the averments contained in this paragraph. 

Strict proof is demanded at trial.

4. Admitted.

5. Denied. After reasonable investigation [Appellants] lack 

knowledge or information sufficient to form a belief as to 

the truth of the averments contained in this paragraph. 

[Appellants] are entitled to a full accounting through the 

master transaction histories and general ledger for the 

account since a summary of said information cannot be 

relied upon to determine the rightful amounts owed. Strict 

proof is demanded at trial.

6. Denied. After reasonable investigation [Appellants] lack 

knowledge or information sufficient to form a belief as to 

the truth of the averments contained in this paragraph. 

[Appellants] are entitled to a full accounting through the 

master transaction histories and general ledger for the 

account since a summary of said information cannot be 

relied upon to determine the rightful amounts owed. Strict 

proof is demanded at trial.

Appellants’ Answer & New Matter, 8/28/14, at ¶¶ 3-6. In their new matter, 

Appellants asserted BANA was not entitled to relief because it could not 

produce the original mortgage and did not maintain the business records for 

the mortgage. Id. at ¶¶ 11, 13-14. 

BANA filed a reply to the new matter asserting it properly incorporated 

the mortgage by reference. Further, BANA attached copies of the mortgage, 

the assignment of the mortgage, and the note as exhibits to its reply. The 

attached assignment read:

CORPORATE ASSIGNMENT OF MORTGAGE

Montgomery, Pennsylvania

SELLER'S SERVICING # :0143676068 "SAFT"

MERS #: 1000104014387606134 SIS #: 1-888-679-6377
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Date of Assignment: November 19th, 2013

Assignor. MORTGAGE ELECTRONIC REGISTRATION 

SYSTEMS, INC. AS NOMINEE FOR LAFAYETTE LENDING 

GROUP, INC., ITS SUCCESSORS AND ASSIGNS Assignee: 

BANK OF AMERICA, N.A., A CORPORATION ORGANIZED 

AND EXISTING UNDER THE LAWS OF THE UNITED STATES

I hereby certify the precise address of the within named 

Assignor is 1901 E VOORHEES STREET, SUITE C, 

DANVILLE, IL 61834, 

I hereby certify the precise address of the within named 

Assignee is 200 S. COLLEGE ST, CHARLOTTE, NC 28255.

MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC is 

at 1901 E Voorhees Street, Suite C, Danville, IL 61834 

P.O. BOX 2026, FLINT, MI 48501-2026

Executed By: STEPHEN R SAFT AND ELLYN GOLDER SAFT 

To: LAFAYETTE LENDING GROUP, INC.

Date of Mortgage: 11/08/2005 Recorded: 12130/2005 in 

Book/Reel /Liben 11690 Page/Folio: 2595 as Instrument 

Document: 2005190467 In the County of Montgomery, 

State of Pennsylvania. 525 HOFFMAN DRIVE, BRYN 

MAWR, PA 19010 in the Township of LOWER MERION 

BANA’s Reply to Appellants’ New Matter, 9/17/14, Ex. B.

BANA filed the instant motion for summary judgment on January 26, 

2016, claiming it was owed $600,893.78 with interest and costs. BANA 

alleged Appellants “filed an Answer and New Matter in which they have 

effectively admitted all of the allegations of the Complaint [and] generally 

denie[d] paragraphs five (5) and six (6) of the Complaint, which aver the 

default and amounts due on the Mortgage.” BANA’s Mot. for Summ. J., 

1/26/16, at ¶ 11-12. BANA also attached to its motion an affidavit of an 
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officer at Suntrust Mortgage, Inc., BANA’s servicing agent (“Suntrust 

affidavit”). Id., Ex. B. The affidavit purported to confirm the default and 

the amount of the debt and included a loan history report. Id. at ¶ 5 & Ex. 

B. 

Appellants filed a response on February 22, 2016. Appellants denied 

the allegations in BANA’s motion for summary judgment and requested that 

the Suntrust affidavit be stricken as inadmissible hearsay. Appellants’ Resp. 

in Opp’n to BANA’s Mot. for Summ. J., 2/22/16, at ¶¶ 5-6. 

By order entered on May 6, 2016, the trial court granted summary 

judgment and directed that an in rem judgment be entered in BANA’s favor. 

Appellants timely appealed and complied with the court’s order to submit a 

Pa.R.A.P. 1925(b) statement. 

Appellants present the following question for review:

Did the trial court commit an error of law in granting 

foreclosing lender’s Motion for Summary Judgment when 

[BANA]’s motion was founded upon an inadmissible 

testimonial affidavit?

Appellants’ Brief at 8. 

Appellants rely on Borough of Nanty-Glo v. American Surety Co. 

of New York, 163 A. 523 (Pa. 1932), to assert that the entry of summary 

judgment was “predicated upon an impermissible affidavit.” Appellants’ 

Brief at 13. They claim that “there exists no properly recorded mortgage 

through the chain of mortgage title.” Id. at 14. According to Appellants, 

BANA thus lacked “authority/standing to foreclose.” Id. at 15. Appellants, 
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however, concede that “[t]he note was endorsed in blank[,]” as well as a 

“loan default.” Id. at 9. No relief is due.

Our standard of review is well settled:

[w]e review an order granting summary judgment for an 

abuse of discretion. Our scope of review is plenary, and 

we view the record in the light most favorable to the 

nonmoving party. 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 discovery or expert report[.]” 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.

Bank of America, N.A. v. Gibson, 102 A.3d 462, 464 (Pa. Super. 2014) 

(citations omitted). 

It is well settled that 

[t]he holder of a mortgage has the right, upon default, to 

initiate a foreclosure action. Additionally, the mortgage 

holder “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.” The foreclosing party can 

prove standing either by showing that it (1) originated or 

was assigned the mortgage, or (2) is the holder of the 

note specially indorsed to it or indorsed in blank.

Gerber v. Piergrossi, 142 A.3d 854, 859-60 (Pa. Super. 2016) (citation 

omitted).

Moreover,

Nanty–Glo prohibits entry of summary judgment based 

on the moving party's oral testimony. “An exception to 

this rule exists, however, where the moving party supports 
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the motion by using admissions of the opposing party. . . 

.” Admissions include facts admitted in pleadings.

Gibson, 102 A.3d at 466 (citations omitted). “[I]n 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.” Id. at 467 (citation and quotation marks omitted). 

Instantly, Appellants’ focus on the Suntrust affidavit is of no avail. 

Apart from the affidavit, we agree with the trial court that Appellants’ 

general denials and assertions that they lacked of sufficient knowledge in 

their answer constituted admissions. See id. at 466-67; Trial Ct. Op. at 3. 

Additionally, BANA adduced further bases for its “standing” to foreclose in its 

reply to Appellants’ new matter, including a copy of the assignment as well 

as the bearer note. See Piergrossi, 142 A.3d at 859-60; BANA’s Reply to 

Appellants’ New Matter, Ex. B. In any event, because Appellants failed to 

deny the relevant portions of BANA’s complaint with the required specificity, 

their appellate challenge to the affidavit based on Nanty-Glo lacks merit. 

See Gibson, 102 A.3d at 466-67. Accordingly, Appellants’ argument 

warrants no relief.

Order affirmed.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/11/2017