J. A18018/16

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

NATIONSTAR MORTGAGE, LLC :

:

IN THE SUPERIOR COURT OF

PENNSYLVANIA

v. :

:

MARK JOSEPH ELSESSER, : No. 83 MDA 2016

:

 Appellant :

Appeal from the Order Entered December 18, 2015,

in the Court of Common Pleas of Berks County

Civil Division at No. 2013-15154

BEFORE: FORD ELLIOTT, P.J.E., BENDER, P.J.E., AND STEVENS,* P.J.E.

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED SEPTEMBER 13, 2016

Mark Joseph Elsesser appeals from the order entered December 18, 

2015, denying his Petition to Strike Judgment. We affirm.

This court summarized the history of this case in a prior memorandum 

as follows:

On December 29, 2006, Elsesser executed a 

promissory note (“Note”) and Mortgage on the 

property at 3425 Fairchild Street, Alburtis, PA 

18011[-]2632, in consideration of his borrowing 

$173,000 from Countrywide Home Loans, Inc. 

(Countrywide). Both the Note and Mortgage were 

recorded in the Berks County Recorder of Deeds 

Office. Countrywide’s nominee was Mortgage 

Electronic Registration Systems, Inc. (“MERS”). On 

April 26, 2012, MERS assigned the Mortgage and 

Note and “all beneficial interest” thereunder to 

“Bank of America, NA, Successor by merger to BAC 

 

* Former Justice specially assigned to the Superior Court.
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Home Loans Servicing, LP FKA Countrywide Home 

Loans Servicing, LP.”

The assignment was recorded in the Berks 

County Recorder of Deeds Office on April 30, 2012. 

The Mortgage and Note, and “all beneficial interest” 

were again assigned on May 10, 2013, from Bank of 

America to Appellee Nationstar. The assignment was 

also recorded in the Berks County Recorder of Deeds 

Office on June 6, 2013.

Nationstar alleged that Elsesser defaulted 

under the Mortgage and Note by failing to make 

payments due March 1, 2012, and each month 

thereafter. Per the account statement, supplied by 

Nationstar as Exhibit “C” to the motion for summary 

judgment, the last payment applied to Elsesser’s 

mortgage account was on March 27, 2012. Elsesser 

has provided no affidavit or other proof of payment 

since that time.

Bank of America issued a combined 

Act 6[Footnote 1]/Act 91[Footnote 2] Notice (Notice) 

to Elsesser, dated February 5, 2013. Proof of 

mailing the Notice was attached to the Motion for 

Summary Judgment as Exhibit “D.” It appears from 

the United States Postal Service tracking sheet that 

Elsesser failed to claim the mail. Elsesser, however 

had been afforded the opportunity to avail himself of 

the protections provided by the Homeowner’s 

Emergency Mortgage Assistance Program[Footnote 

3] (“HEMAP”). Despite this opportunity, he failed to 

take advantage of HEMAP; consequently, Nationstar 

proceeded with its foreclosure action.

[Footnote 1] 41 P.S. § 403(b).

[Footnote 2] 13 Pa.C.S. § 3205(b).

[Footnote 3] HEMAP is a state loan 

program which offers remedies for 

Pennsylvania citizens facing mortgage 

foreclosure. Citizens either may receive 

a short-term loan to cure default, or may 
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opt for continuing subsidies to aid in 

avoiding future default. See 35 P.S. 

§§ 1680.401c-412c.

Nationstar filed its complaint in mortgage 

foreclosure against Elsesser on June 17, 2013. 

Service of the complaint and Notice regarding the 

mortgage foreclosure diversion program was made 

upon Elsesser on July 8, 201[3]. On August 13, 

2013, Elsesser filed preliminary objections that 

contained a demand for a jury trial. Nationstar’s 

Motion to Strike Defendant’s Jury Trial Demand was 

granted on September 26, 2013. On November 14, 

2013, Elsesser’s preliminary objections were 

overruled after argument. Elsesser filed his Answer 

to the Complaint on December 3, 2013. On April 8, 

2014, Nationstar filed its motion for summary 

judgment. On May 6, 201[4], Elsesser filed a motion 

in opposition to Nationstar’s motion for summary 

judgment. After argument on July 7, 2014, the 

Court granted Nationstar’s summary judgment 

motion. Elsesser filed a timely Notice of Appeal on 

July 30, 2014. On August 6, 2014, the Court 

ordered Elsesser to file a Pa.R.A.P.1925(b) Concise 

Statement of Errors Complained of on Appeal, which 

he did on August 28, 2014.

Nationstar Mortg., LLC v. Elsesser, 2015 WL 7454141 at *1 (Pa.Super. 

March 13, 2015) (unpublished memorandum).

In a memorandum decision filed March 13, 2015, this court affirmed 

the order granting summary judgment in favor of Nationstar, concluding, 

inter alia, that Nationstar had standing to commence foreclosure where it 

produced the original Note. Id. at *4. This court also rejected appellant’s 

argument regarding the chain of ownership of the loan:

Where the Note can be classified as a negotiable 

instrument, and Nationstar can demonstrate 

possession of that instrument, the validity of the 
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transfer of the loan is ultimately not controlling. 

There is no risk of double liability, as Elsesser 

argues, because even if the assignment to Nationstar 

was defective, his liability would nonetheless be 

discharged by virtue of payment to Nationstar. See 

J.P. Morgan [Chase Bank, N.A. v. Murray], 

63 A.3d [1258] at [1265] [(Pa.Super. 2013)]; 

13 Pa.C.S. § 3602(a) (discharging liability after 

payment to instrument holder). As such, with the 

threat of double liability gone, Elsesser cannot 

demonstrate that he has or will suffer injury if 

Nationstar is permitted to proceed.

Id. (footnote omitted).

Appellant did not file a petition for allowance of appeal with the 

Pennsylvania Supreme Court. However, on December 9, 2015, appellant 

filed a Petition to Strike Judgment, alleging that the judgment was void and 

unenforceable because the process of securitization of the Note stripped 

Nationstar of any standing. Appellant’s Petition to Strike Judgment was 

denied on December 18, 2015. Appellant filed a motion for reconsideration 

which was denied on January 6, 2016. A timely notice of appeal was filed on 

January 13, 2016. On January 21, 2016, appellant was ordered to file a 

concise statement of errors complained of on appeal within 21 days pursuant 

to Pa.R.A.P. 1925(b); appellant complied on February 6, 2016, and the trial 

court filed a Rule 1925(a) opinion on February 16, 2016.

Appellant has raised the following issues for this court’s review:

(I)[.] Has the Promissory Note been destroyed 

voluntarily within the meaning of the Uniform 

Commercial Code through securitization?
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(II). At any point in the lifetime of this case, was 

the Promissory Note ever a negotiable 

instrument within the meaning of the Uniform 

Commercial Code[?]

(III). Did the trial court err in failing to strike 

(vacate) the judgment in this matter where 

[appellant] made a showing of both fraud and 

extraordinary cause (i.e. securitization of the 

Note)?

(IV). Has the act of securitization of the Promissory 

Note obliterated the Plaintiff’s standing and 

status as a “real party in interest” (as 

previously upheld by this Court and the 

Superior Court) and can standing be lost by a 

party, post-judgment, where a demonstration 

is made, as here, that said judgment was 

obtained on the basis of fraud?

Appellant’s brief at 9.

Initially, we note that appellant took an appeal from the order entering 

summary judgment in favor of Nationstar, and this court affirmed that order 

on the merits. Whether or not, as appellant argues, MERS voluntarily 

destroyed the Note, by splitting it from the Mortgage during the process of 

securitization, was an argument which could have been raised on the first 

appeal. As Nationstar contends, appellant is asking for another “bite at the 

apple,” essentially seeking reconsideration of this court’s decision affirming 

summary judgment. (Appellee’s brief at 9.) 

The law of the case doctrine refers to a 

family of rules which embody the concept 

that a court involved in the later phases 

of a litigated matter should not reopen 

questions decided by another judge of 

that same court or by a higher court in 
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the earlier phases of the matter . . . . 

The various rules which make up the law 

of the case doctrine serve not only to 

promote the goal of judicial economy . . . 

but also operate (1) to protect the 

settled expectations of the parties; (2) to 

insure uniformity of decisions; (3) to 

maintain consistency during the course 

of a single case; (4) to effectuate the 

proper and streamlined administration of 

justice; and (5) to bring litigation to an 

end.

Commonwealth v. McCandless, 880 A.2d 1262, 

1267 (Pa.Super. 2005), appeal dismissed as 

improvidently granted, 593 Pa. 657, 933 A.2d 650 

(2007) (quoting Commonwealth v. Starr, 541 Pa. 

564, 664 A.2d 1326, 1331 (1995)).

Commonwealth v. Gacobano, 65 A.3d 416, 419-420 (Pa.Super. 2013).

Thus, under the doctrine of the law of the case,

when an appellate court has considered 

and decided a question submitted to it 

upon appeal, it will not, upon a 

subsequent appeal on another phase of 

the case, reverse its previous ruling even 

though convinced it was erroneous. This 

rule has been adopted and frequently 

applied in our own State. It is not, 

however, inflexible. It does not have the 

finality of the doctrine of res judicata. 

“The prior ruling may have been followed 

as the law of the case but there is a 

difference between such adherence and 

res judicata; one directs discretion, and 

the other supercedes it and compels 

judgment. In other words, in one it is a 

question of power, in the other of 

submission.” The rule of the “law of the 

case” is one largely of convenience and 

public policy, both of which are served by 

stability in judicial decisions, and it must 
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be accommodated to the needs of justice 

by the discriminating exercise of judicial 

power.

Commonwealth v. McCandless, supra at 1268 

(Pa.Super. 2005) (quoting Benson v. Benson, 425 

Pa.Super. 215, 624 A.2d 644, 647 (1993)).

Id. at 420.

As stated above, this court already determined that as bearer of the 

Note, Nationstar had standing to bring a foreclosure action. See 

CitiMortgage, Inc. v. Barbezat, 131 A.3d 65, 69 (Pa.Super. 2016) (“The 

note as a negotiable instrument entitles the holder of the note to 

enforcement of the obligation.”), citing 13 Pa.C.S.A. §§ 3109(a), 3301. 

Nationstar produced both the original Note and Mortgage, showing that 

appellant was granted $173,000 in exchange for an interest in his property. 

As such, Nationstar had an enforceable security interest. Elsesser, 2015 

WL 7454141 at *4-5. Appellant did not attempt to dispute that he was in 

default. Id. at *2. Appellant has offered no compelling reason to revisit this 

court’s prior determination. 

Appellant cites case law for the proposition that a petition to strike a 

judgment as void may be brought at any time. (Appellant’s brief at 16.) 

See Helms v. Boyle, 637 A.2d 630, 632 n.2 (Pa.Super. 1994) (“Absent 

fraud or extraordinary cause, a petition to open, vacate or for 

reconsideration must be brought within thirty (30) days of the entry of 

judgment in a contested proceeding, however, a motion to strike a judgment 
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as void, may be brought at any time.” (citations omitted)). See also 

Williams v. Wade, 704 A.2d 132, 134 (Pa.Super. 1997), appeal denied, 

729 A.2d 1130 (Pa. 1998) (“void judgments should be stricken regardless of 

the passage of time”).

Nevertheless, appellant’s argument that the process of securitization 

somehow “destroyed” the Note and it ceased to be a secured asset or 

negotiable instrument tied to any collateral or debt obligation is nonsense. 

Notably, appellant cites no binding Pennsylvania authority for such a 

proposition, and this court is aware of none. However, courts in other 

jurisdictions, including the federal courts, have consistently rejected the 

notion that securitization of mortgages separates the mortgage from the 

note, thereby converting the note into a security which destroys its 

negotiability:

Attempts to base claims on the securitization of a 

mortgage and the alleged separation of the 

mortgage and note have not been well received by 

courts around the country. See Leone v. 

Citigroup, No. 12-10597, 2012 WL 1564698, at *4 

(E.D.Mich. May 2, 2012) (collecting cases); Mitchell 

v. Mortgage Electronic Registration Systems, 

Inc., No. 1:11-cv-425, 2012 WL 1094671, at *3 

(W.D.Mich. Mar. 30, 2012); Bhatti v. Guild Mortg. 

Co., No. C11-0480JLR, 2011 WL 6300229, at *5 

(W.D.Wash. Dec. 16, 2011) (“Securitization merely 

creates a separate contract, distinct from the 

Plaintiffs’ debt obligations under the Note, and does 

not change the relationship of the parties in any 

way.”).
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Keyes v. Deutsche Bank Nat. Trust Co., 921 F.Supp.2d 749, 762-763 

(E.D.Mich. 2013). See also Rodenhurst v. Bank of Am., 773 F.Supp.2d 

886, 898 (D.Haw. 2011) (collecting cases and noting, “[C]ourts have 

uniformly rejected the argument that securitization of a mortgage loan 

provides the mortgagor with a cause of action.”); In re Williams, 395 B.R. 

33, 47 (S.D.Ohio 2008) (securitization of indebtedness irrelevant to validity 

of mortgage).

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 9/13/2016