J

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NON

- PRECEDENTIAL DECISION

- SEE SUPERIOR COURT I.O.P. 65.37

WILMINGTON TRUST, NA TIONAL ASSOCIATION, NOT IN ITS INDIVIDUAL CAPACITY, BUT SOLELY AS TRUSTEE FOR MFRA TRU ST 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”), 1 and 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 part y 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

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The trial court set forth the fa ctual 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 5 25 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 follo wing 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 t he 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 incorporate d 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 isJ

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- [Appellee] from its obligations to attach documents to pleadings if those documents a re 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

pend ing, 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).J

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- the tru th 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 t he 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, Pennsylv ania SELLER'S SERVICING # :0143676068 "SAFT" MERS #: 1000104014387606134 SIS #: 1

- 888

- 679

- 6377J

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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 AN D 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: S TEPHEN 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 t he Mortgage.” BANA’s Mot. for Summ. J.,

1/26/16, at ¶ 11

- 12. BANA also attached to its motion an affidavit of anJ

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officer at Suntrust Mortgage, Inc., BANA’s servicing agent (“Suntrust

affidavit”). Id. , Ex. B. The affidavit purported to confirm the defau lt 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.

Ap pellants 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 Ju dgment 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 for eclose.” Id. at 15. Appellants,J

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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 spe cific 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 foreclosu re 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 foreclosi ng 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 supportsJ

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- the motion by using admissi ons 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 belie f 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.

Ad ditionally, 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.J

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 4/11/2017