J. S36033/17

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

WELLS FARGO BANK, N.A. :

:

IN THE SUPERIOR COURT OF

PENNSYLVANIA

v. :

:

RICHARD POSOFF AND SUSAN 

POSOFF,

:

:

: No. 3472 EDA 2016

 Appellants :

Appeal from the Order Entered October 12, 2016,

in the Court of Common Pleas of Delaware County

Civil Division at No. 16-0792

BEFORE: PANELLA, J., OLSON, J., AND FORD ELLIOTT, P.J.E. 

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED JULY 17, 2017

Richard Posoff and Susan Posoff (collectively, “appellants”) appeal 

pro se from the October 12, 2016 order of the Court of Common Pleas of 

Delaware County that granted the motion for summary judgment of Wells 

Fargo Bank, N.A. (“appellee”) and entered judgment in favor of appellee and 

against appellants in the amount of $602,892.61 plus interest at the rate of 

$25.46 per diem from May 18, 2016 plus such costs and charges as are 

collectible under the mortgage and for foreclosure and sale of the mortgaged 

property. We affirm.

The relevant facts, as recounted by the trial court, are as follows:

[Appellants] executed a Mortgage in favor of World 

Savings Bank, FSB[Footnote 1] on June 3, 2004 in 

the amount of $487,500 with regard to real property 

located at 535 Brandymede Road, Rosemont, 
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Delaware County, Pennsylvania. On the same date, 

Richard Posoff also signed a Promissory Note which 

was secured by the Mortgage. The Mortgage and 

Promissory Note were modified pursuant to a Loan 

Modification Agreement on April 9, 2013. 

[Appellants] have failed to make the scheduled 

payments on the Mortgage since July 1, 2012. Thus, 

under the terms of the Mortgage, the entire loan has 

become due and payable, along with interest, late 

charges, costs and attorney fees and expenses. 

[Appellee] provided [appellants] with written notice 

of [appellants’] default under the Mortgage and 

[appellee’s] intention to foreclose through a Notice of 

Homeowners Emergency Mortgage Assistance 

Program pursuant to Act 91 of 1983 as amended in 

2008. 

[Footnote 1]: [Appellee] is currently the 

holder of the mortgage and note as 

successor by merger to World Savings 

Bank, FSB.

[Appellee] instituted this action on January 29, 

2016 by filing a Complaint in Mortgage Foreclosure. 

[Appellee] filed an in rem action and did not seek 

personal liability against [appellants]. On March 21, 

2016, [appellants] filed an Answer with New Matter 

to [appellee’s] Complaint. [Appellants’] Answer sets 

forth a series of general denials. They admit only 

their names and address, that they are the record 

owners of the mortgaged premises and that they 

were sent the Act 91 notice. In [appellants’] New 

Matter, they assert that [appellee’s] Complaint 

should fail due to accord and satisfaction, estoppel, 

failure of consideration, impossibility of performance, 

the Doctrine of Laches, the Statute of Frauds, and 

truth and waiver. [Appellants] also assert that the 

Complaint should fail as only Richard Posoff[] 

executed the Mortgage[Footnote 2] and because the 

Mortgage is defective. On April 29, 2016, [appellee] 

filed a Reply to New Matter arguing that the 

affirmative defenses asserted by [appellants] did not 

apply, that the Complaint complied with the 
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statutory requirements for a mortgage foreclosure 

and denied that the Mortgage was defective. 

[Footnote 2]: This is factually incorrect. 

A review of the Mortgage shows that 

both [appellants] signed the Mortgage.

During the pendency of the action, [appellee] 

discovered errors in the legal description in the 

Mortgage. On May 6, 2016, [appellee] filed a Motion 

to Reform Mortgage to Correct Legal Description 

requesting this Court to reform the Mortgage to 

correct the legal description of the mortgaged 

property. [Appellee] states that a scrivener’s error 

resulted in an inaccurate legal description of the 

property. The proposed correction involves minimal 

revisions to the metes and bounds description 

appearing in the Mortgage. On May 12, 2016, 

[appellants] filed an Answer to [appellee’s] Motion 

arguing that the Motion should be denied as the 

elements to reform a written instrument have not 

been met. This Court denied [appellee’s] Motion to 

Reform Mortgage to Correct Legal Description by 

way of Order dated June 29, 2016. This Court 

denied [appellee’s] Motion as it is not the proper 

procedure for reforming a mortgage to correct a 

legal description. Such reformation is addressed 

through an action to quiet title, a remedy remaining 

available to [appellee]. However, this Court finds 

that the errors in the Mortgage are de minimus and 

immaterial to the issue before this Court.

[Appellee] filed its Motion for Summary 

Judgment on July 21, 2016. [Appellants] filed a 

response on August 18, 2016. In their response, 

[appellants] assert that the mortgage is “defective” 

in that it contains an incorrect legal description of 

the property. They assert that this fact has been 

admitted by [appellee] as it had filed the Motion to 

Reform Mortgage to Correct Legal Description. They 

argue that [appellee’s] Motion for Summary 

Judgment must be denied because the incorrect legal 

description of the property in the Mortgage is an 

issue of material fact relevant to their defense. On 
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October 12, 2016, this Court entered an Order 

granting [appellee’s] Motion for Summary Judgment 

entering an in rem judgment against [appellants] in 

the amount of $602,892.61 plus interest, costs and 

charges collectible under the Mortgage and for 

foreclosure and sale of the mortgaged property. 

[Appellants] filed a Motion for Reconsideration[1] 

with this Court and an appeal to the Superior Court, 

both on November 3, 2016.

Trial court opinion, 1/17/17 at 1-3 (citations omitted).

On appeal, appellants raise the following issue for this court’s review: 

“Whether the judgment following [appellee’s] motion for summary judgment 

should be stricken because there was an admitted error in the legal 

description of the real property that was the subject of the mortgage 

foreclosure complaint with no showing of fraud, accident or mistake?” 

(Appellants’ brief at 4 (capitalization omitted).)

This court reviews a grant of summary judgment under the following 

well-settled standards:

Pennsylvania law provides that summary 

judgment may be granted only in those 

cases in which the record clearly shows 

that no genuine issues of material fact 

exist and that the moving party is 

entitled to judgment as a matter of law. 

The moving party has the burden of 

proving that no genuine issues of 

material fact exist. In determining 

whether to grant summary judgment, 

the trial court must view the record in 

the light most favorable to the nonmoving party and must resolve all doubts 

as to the existence of a genuine issue of 

 

1 The trial court did not rule upon this motion.
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material fact against the moving party. 

Thus, summary judgment is proper only 

when the uncontroverted allegations in 

the pleadings, depositions, answers to 

interrogatories, admissions of record, 

and submitted affidavits demonstrate 

that no genuine issue of material fact 

exists, and that the moving party is 

entitled to judgment as a matter of law. 

In sum, only when the facts are so clear 

that reasonable minds cannot differ, may 

a trial court properly enter summary 

judgment.

[O]n appeal from a grant of summary 

judgment, we must examine the record 

in a light most favorable to the 

non-moving party. With regard to 

questions of law, an appellate court’s 

scope of review is plenary. The Superior 

Court will reverse a grant of summary 

judgment only if the trial court has 

committed an error of law or abused its 

discretion. Judicial discretion requires 

action in conformity with law based on 

the facts and circumstances before the 

trial court after hearing and 

consideration.

Gutteridge v. A.P. Green Services, Inc., 804 A.2d 

650, 651 (Pa.Super. 2002).

Wright v. Allied Signal, Inc., 963 A.2d 511, 514 (Pa.Super. 2008) 

(citation omitted). Summary judgment in mortgage foreclosure actions is 

subject to the same rules as any other civil action. See Pa.R.C.P. 1141(b).

Appellants argue that the trial court erred when it granted the motion 

for summary judgment because there was an admitted error in the legal 
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description of the real property that was the subject of the mortgage 

foreclosure complaint with no showing of fraud, accident, or mistake.

Appellants raised the issue of a defective mortgage in new matter and 

stated that the complaint should fail because the mortgage is defective. In 

its reply to new matter, appellee stated, as follows:

Denied. The averments of paragraph twenty-four 

(24) are denied as conclusions of law to which no 

response is necessary. By way of further response, 

[appellants] have not presented any facts in support 

of same and [appellee] submits that no such facts 

exist. Moreover, [appellee] specifically denies that 

the subject mortgage is defective.

Reply to New Matter, 4/29/16 at 3 ¶24. Appellants argue that appellee, by 

filing two motions to reform the mortgage, effectively admitted that the legal 

description of the mortgage was defective. Appellants argue that the 

inaccurate description is reason for this court to reverse the grant of 

summary judgment.

First, it is important to determine exactly what this error in the legal 

description of the property is. The metes and bounds contained in the legal 

description states that at one point there is an arc distance of 111.50 feet 

when it actually is 111.53 feet. Additionally, when a plan of lots is 

mentioned, the word “said” is left out as in “said plan being recorded . . . .” 

There is one other error where the words “91.71 feet to a point; thence 

extending South 78 degrees 18 minutes 8 seconds West 230.31 feet” are 

left out.
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The trial court found that the errors in the description of the property 

in the mortgage were de minimus and immaterial to the issue that was 

before it.

This court agrees with the trial court. Under Pennsylvania law, a 

mortgage is an interest in land which must comply with the Statute of 

Frauds. See Eastgate Enters, Inc. v. Bank & Trust Co. of Old York Rd.,

345 A.2d 279, 281 (Pa.Super. 1979). Under the Statute of Frauds, a 

purported transfer of an interest in real property is not enforceable unless it 

is evidenced in writing and signed by the parties. Long v. Brown, 582 A.2d 

359, 361 (Pa.Super. 1990). See 33 P.S. § 1. To satisfy the statute of 

frauds, the writing:

need only include an adequate description of the 

property, a recital of the consideration and the 

signature of the party charged [with performing]. 

. . . A description of the property will satisfy the 

Statute of Frauds where it describes a particular 

piece or tract of land that can be identified, located, 

or found.

Zuk v. Zuk, 55 A.3d 102, 107 (Pa.Super. 2012). A detailed description of 

the property is not needed where the description shows that a particular 

tract is within the minds of the contracting parties and was intended to be 

conveyed. Id.

Here, the legal description of the property which was included on 

Exhibit A to the mortgage contains the lot number assigned to the property 

in the original recorded subdivision plan and also includes the tax parcel 
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number for the property. These descriptions adequately describe the 

property subject to the mortgage to satisfy the Statute of Frauds.

Given that the legal description adequately describes the real property 

encumbered by the mortgage, this court must determine whether the trial 

court erred or abused its discretion when it granted appellee’s motion for 

summary judgment. Appellee complied with the requirements of 

Rule 1147(a) of the Pennsylvania Rules of Civil Procedure, when it provided 

in its complaint the parties to the mortgage, the record of any assignments 

of the mortgage, a description of the land, the names and addresses of the 

appellants, an averment of default, an itemized statement of the amount 

due and a demand for judgment of the amount due. Appellants either 

admitted the allegations in the complaint or issued a general denial. It is 

well settled that general denials in an answer to a complaint in a mortgage 

foreclosure action constitute admissions. Bank of America, N.A. v. 

Gibson, 102 A.3d 462, 466-467; see also Pa.R.C.P. No. 1029(b). For 

example, general denials by a mortgagor that he is without sufficient 

information as to form a belief with respect to the amount of principal and 

interest due and owing constitutes an admission of the amounts. 

U.S. Bank, N.A. v. Pautenis, 118 A.3d 386, 396 (Pa.Super. 2015). As 

there is no dispute regarding the material facts at issue, the trial court did 

not err when it granted summary judgment.

Order affirmed. 
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/17/2017