J-A19037-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

FANNIE MAE, FEDERAL NATIONAL 

MORTGAGE ASSOCIATION

IN THE SUPERIOR COURT OF

PENNSYLVANIA

v. 

JEFFREY F. KRATZ AND MARGUERITE F. 

KRATZ

APPEAL OF: JEFFREY F. KRATZ

No. 1534 EDA 2014

Appeal from the Order Entered May 5, 2014

in the Court of Common Pleas of Montgomery County Civil Division

at No(s): 2011-25916

BEFORE: FORD ELLIOTT, P.J.E., OTT, and FITZGERALD,*JJ.

JUDGMENT ORDER BY FITZGERALD, J.: FILED OCTOBER 21, 2016

Appellant, Jeffrey F. Kratz, appeals from the order granting summary 

judgment in favor of Appellee, Fannie Mae, Federal National Mortgage 

Association, in this mortgage foreclosure action. Appellant contends (1) that 

because the United States government “bailed out” the banks, he owes no 

money under the mortgage; (2) every assignment of Appellant’s mortgage 

was defective and thus the mortgage was never properly transferred from 

the original holder; and (3) thus, Appellee lacks standing to bring suit 

because it is not the owner and holder of the mortgage. We affirm.

We adopt the facts and procedural history set forth in the trial court’s 

opinion.1 See Trial Ct. Op., 6/23/15, at 2-7. Appellant timely appealed and 

 

*

Former Justice specially assigned to the Superior Court.
J-A19037-16

- 2 -

timely filed a court-ordered Pa.R.A.P. 1925(b) statement. Appellant raises 

the following issue: “Have the pleadings and discovery of [Appellant] shown 

that there is a genuine issue as to material facts and that [Appellee] is not 

entitled to a judgment as a matter of law pursuant to Pa.R.C.P. 1035.2.” 

Appellant’s Brief at 7.

In support of his issue, Appellant raises three arguments. First, 

because the United States government “bailed out” Wall Street and the 

banks, Appellee has been paid-in-full and Appellant owes no money. In 

support of this argument, Appellants generally refers this Court to a fifty-six 

page expert report and cites no law. Second, Appellant states that all the 

assignments were invalid because the assignments were not executed by the 

“appropriate officers of the bank involved in the actual assignments of the 

note and mortgage.” Appellant’s Brief at 18. Appellant cites no law for this 

proposition, either. Lastly, citing a single trial court opinion, Appellant 

opines that because the assignments were invalid, Appellee lacks standing to 

bring suit. Id. at 16. We affirm.

We adhere to the following standard of review:

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. Only where there is no genuine issue as to 

any material fact and it is clear that the moving party is 

 

1 We note this appeal was stayed when Appellant filed for bankruptcy. The 

stay was lifted on April 18, 2016. Order, 4/18/16.
J-A19037-16

- 3 -

entitled to a judgment as a matter of law will summary 

judgment be entered. Our scope of review of a trial 

court's order granting or denying summary judgment is

plenary, and our standard of review is clear: the trial 

court's order will be reversed only where it is established 

that the court committed an error of law or abused its 

discretion.

NASDAQ OMX PHLX, Inc. v. PennMont Secs., 52 A.3d 296, 303 (Pa. 

Super. 2012) (citation omitted).

When a party cites no legal authority in support of its claim, the claim 

is waived. Commonwealth v. Natividad, 938 A.2d 310, 340 (Pa. 2007); 

Commonwealth v. Jette, 947 A.2d 202, 205 (Pa. Super. 2008) (same). 

Instantly, Appellant cites no law for the propositions that because Appellee 

was “bailed out” by the federal government, Appellant owes nothing for the 

mortgage and the assignments were invalid. Because Appellant cites no 

legal authority, he has waived his claims. See Natividad, 938 A.2d at 340; 

Jette, 947 A.2d at 205. Appellant’s third argument derives from his second 

argument. Because Appellant has waived his claim that the assignments 

were invalid, Appellant cannot establish his derivative claim that Appellee 

lacks standing. Accordingly, we affirm.

Order affirmed.
J-A19037-16

- 4 -

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/21/2016
1111 ~~f~t'J~IJll 11 

201 l-25916.0069 6·23'2015 l0:42 A,\I # 10351206 

Opinion 

RcptrlZ2441845 F~:so.oo 

Xlark Levy - :-.!ontCo Prothonotary 

I Federal National Mortgage Association is also sometimes referred to as "Fannie Mae" in 

the record. 

requests that the Superior Court affirm the judgment in rem. 

judgment. For the reasons set forth below, the undersigned respectfully 

Federal National Mortgage Association's! ("Appellee") motion for summary 

Court"] from this court's order dated and docketed on May 6, 2014, granting 

"Appellants") have appealed to the Superior Court of Pennsylvania ("Superior 

Appellant Marguerite Kratz and Appellant Jeffrey Kratz (jointly 

I. INTRODUCTION 

OPINION 

ROGERS, J. JUNE 23, 2015 

TRIAL COURT 

NO. 2011-25916 

MARGUERITE KRATZ 

and JEFFREY KRATZ 

a/k/a JEFFREY F. KRATZ 

SUPERIOR COURT 

NO. 1534 EDA 2014 

NO. 1545 EDA 2014 

v. CONSOLIDATED 

FEDERAL NATIONAL MORTGAGE 

ASSOCIATION 

THE COURT OF COMMON PLEAS OF MONTGOMERY COUNTY, 

PENNSYLVANIA 

CIVIL ACTION - LAW 

Circulated 09/29/2016 11:20 AM
2 

2 Counsel for Jeffrey Kratz, Gerald M. Barr, Esquire, prepared the deed to transfer ownership 

"from Husband to Husband and Wife" which Jeffrey Kratz executed on November 14, 2008, 

and recorded on the same day. (Motion for Summary Judgment, Exhibit E). 

the month beginning with the payment due on September 1, 2010. 

Appellants failed to make their monthly payments due on the first of 

2010. (Id.). 

County Recorder of Deeds recorded the Assignment of Mortgage on July 28, 

nominee for First Horizon Home Loans. (Id. at Exhibit F). The Montgomery 

2010, to Mortgage Electronic Registration Systems, Inc. ("MERS") as 

First Horizon Home Loan Corporation, assigned the Mortgage on June 3, 

Tennessee Bank National Association, as successor in interest by merger to 

entireties.? (Id. at Exhibit E). First Horizon Home Loans, a division of First 

title to the property to himself and Marguerite Kratz as tenants by the 

(Id.). On November 14, 2008, Jeffrey Kratz executed a deed which conveyed 

First Horizon had the mortgage assignment recorded on December 12, 2002. 

the Mortgage to First Horizon Home Loan Corporation. (Id. at Exhibit D). 

and Exhibit C). On the same day, Financial Mortgage Corporation assigned 

Summary Judgment, filed 7 /24 / 13, Exhibit B (substituted on 10/28/ 13) 

the sums due under the note to Financial Mortgage Corporation. (Motion for 

415 East Broad Street, Souderton, Pennsylvania ("property"), as security for 

("note") in the amount of $169,800.00 and mortgage for property located at 

follows. On November 27, 2002, Jeffrey Kratz executed a promissory note 

The relevant facts and procedural history underlying this appeal are as 

II. FACTUAL AND PROCEDURAL HISTORY 
3 

(Amended Complaint in Mortgage Foreclosure, filed 5/21/ 12, at ,r 9). On 

August 30, 2011, MERS, as nominee for First Horizon Home Loans, assigned 

the mortgage to Appellee. (Motion for Summary Judgment, Exhibit G). 

Appellee recorded the mortgage assignment on September 6, 2011. (Id.). 

Appellee sent the proper notices of intent to foreclose to Appellants. 

(Amended Complaint at ,r 11; Jeffrey Kratz Answer, filed 6/21 / 12). On 

September 15, 2011, Appellee filed a complaint in mortgage foreclosure. 

Appellants each filed preliminary objections. On May 21, 2012, Appellee 

filed an amended complaint alleging that Appellants were in default and 

seeking $172,064.32 in principal, interest, attorney's fees and other charges. 

(Amended Complaint at ,r 10). 

In response, Jeffrey Kratz did not deny his failure to make payments. 

Rather, Appellant baldly claimed that the mortgage was not in default 

because the original lender and owner of the mortgage had been paid in full 

by virtue of the "massive United States Government bailout of Wall Street 

and the Banks and/ or a payment received under the well-publicized "Credit 

Default Swaps" Insurance Agreements in place covering the mortgage 

derivative market;" (Jeffrey F. Kratz's Answer, filed 6/21/ 12, at ,r,r 9, 10; 

Jeffrey F. Kratz's Answers to [Appellee's] Request for Admissions, filed 

4/11/13, at ,r,r 1-3, 6; Motion for Summary Judgment, filed 7/24/13, 

Exhibit R). In his new matter, Jeffrey Kratz alleged that all of the 

assignments had been fraudulently signed by "Robo-Signers" and that MERS 

could not have legally held an ownership interest to assign. (Jeffrey F. 
4 

Kratz's New Matter at ,i,i 13-18). Jeffrey Kratz also filed a counterclaim 

seeking damages for fraud and wrongful misconduct in bringing the action 

in mortgage foreclosure which allegedly resulted in great financial and 

physical harm. (Id.). 

For her part, Marguerite Kratz either admitted or generally denied 

Appellee's averments in her answer. (Answer and New Matter of Marguerite 

Kratz, filed 6/22/ 12). In her new matter, Appellant claimed that 

unbeknownst to her, Jeffrey Kratz had tricked her into signing a consent to 

divorce in 2001. According to Appellant, the parties remarried in November 

of 2008 and, thereafter, Jeffrey Kratz deeded the property over to both 

Appellants. Marguerite Kratz challenged the validity of the mortgage based 

upon "the divorce improperly obtained by [Appellant] Jeffrey F. Kratz." (Id. 

at ,i,i 15-24). 

Appellee filed preliminary objections to Jeffrey Kratz's counterclaim on 

July 11, 2012. Following oral argument, the undersigned sustained 

Appellee's preliminary objections by order dated September 19, 2012, and 

dismissed Jeffrey Kratz's counterclaim. Jeffrey Kratz filed a motion for 

reconsideration and a separate application for determination of finality of 

order on October 10, 2012. This court denied Appellant's requests by order 

docketed on October 22, 2012. The Superior Court denied Appellant's 

petition for review per curiam. on December 26, 2012, and the Pennsylvania 

Supreme Court denied his petition for review per curiam. on July 11, 2013. 
5 

On July 24, 2013, Appellee filed a motion for summary judgment, 

seeking judgment in rem against Appellants. Appellee attached as exhibits 

to the motion copies of documents, including the: 1) recorded deed 

conferring title to the property solely to Jeffrey Kratz, dated November 27, 

2002, 2) Note executed by Jeffrey Kratz on November 27, 2002, 3) Mortgage 

executed by Jeffrey Kratz on November 27, 2002, 4) Assignment of Mortgage 

recorded on December 12, 2002, 5) Deed conferring title to the property to 

both Appellants executed on November 14, 2008, 6) Assignment of Mortgage 

recorded July 28, 2010, 7) Assignment of Mortgage recorded on September 

6, 2011, 8) Notice of Intention to Foreclose to Marguerite Kratz, 9) Notice of 

Intention to Foreclose to Jeffrey Kratz, 10) Requests for Admissions sent to 

both Appellants, 11) Marguerite Kratz's Answers signed April 2, 2013, 12) 

Jeffrey Kratz's Answers signed April 9, 2013, and 13) an Affidavit by Lisa 

Lubbess, a Foreclosure Specialist at Seterus, Inc., the mortgage servicing 

agent for Appellee. 

Jeffrey Kratz filed an answer to the motion for summary judgment on 

August 23, 2013. Therein, Appellant argued that 1) MERS is not an entity 

which may receive assignment or assign a mortgage, 2) the Affidavit by Lisa 

Lubbess failed to establish any default, and 3) the motion was premature as 

Appellant had not had the opportunity to pursue discovery. The court held 

argument on Appellee's motion on October 28, 2013. Based upon Jeffrey 

Kratz's claim that he needed more time for discovery, the undersigned 

deferred his decision and scheduled reargument for February 4, 2014. The 
6 

undersigned continued reargument twice at the request of Counsel. In the 

meantime, Appellee filed an Acknowledgment executed by Jeffrey Kratz's 

Counsel acknowledging that Counsel "reviewed and inspected the original 

Promissory Note of November 27, 2002 and original Mortgage of the same 

date at the offices of [Appellee's Counsel]". In addition, Jeffrey Kratz filed a 

supplemental memorandum of law on February 25, 2014 with the following 

exhibits: 1) a copy of the original Note dated November 27, 2002, along with 

an endorsement page marked "original" and a Note Allonge listing the payee 

as "[Appellee] by Seterus" as well as the original Mortgage, 2) a report signed 

by Richard M. Kahn, a principal of and Mortgage Foreclosure Fraud 

Examiner for Forensic Professionals Group USA, Inc. and 3) a deposition 

transcript of the testimony of Roger Meadows, a corporate litigation officer 

for Seterus as servicer of loans for Fannie Mae. 

On April 25, 2014, the undersigned held reargument on Appellee's 

motion for summary judgment. Appellee's Counsel brought the original note 

and original mortgage for inspection by the court. Instead, the undersigned 

noted Jeffrey Kratz's Counsel's confirmation that the documents were, in 

fact, the originals. Following a thorough review of the record, the court 

granted Appellee's motion on May 6, 2014, and entered judgment in rem in 

the amount of $205,256.19 together with interest. 

Jeffrey Kratz filed a notice of appeal to the Superior Court on May 13, 

2014. The undersigned issued an order on May 16, 2014, directing 

Appellant to file a Concise Statement of the Errors Complained of on Appeal 
b. Each transfer and assignment thereafter was also 

deficient in some manner and therefore, Federal National 

Mortgage Association has no standing to bring the within 

7 

a. The Note upon which Plaintiff is suing was never 

properly transferred from the original holder of the Note, 

Financial Mortgage Corporation to First Horizon Home Loans. 

4. The Honorable Thomas P. Rogers erred in determining 

that there were no genuine issues of material fact. The following 

material facts are at issue: 

3. An uncontradicted Affidavit of the moving party or its 

witness will not support a grant of Summary Judgment because 

of the factual issue the Affidavit raises concerning the credibility 

of its maker. Godlewski v. Pars Manufacturing Company [sic] 

408 Superior Court 425 [sic] 597 A.2nd 106 (1991). 

2. A Motion for Summary Judgment is available only where 

the Pleadings, Depositions, Answers to Interrogatories and 

Admissions on file together with the Affidavits, if any, show there 

is no genuine issue as to any material fact and the moving party 

is entitled to a judgment as a matter of law. Pa.R.Civ. (sic] P. 

Rule 1035(b). 

1. The Order of the Honorable Thomas P. Rogers dated May 

6, 2014 provides no reason why Judge Rogers granted Plaintiff's 

Motion for Summary Judgment. A copy of Judge Rogers [sic] 

Order is attached hereto as Exhibit "A". 

Jeffrey Kratz raises the following issues on appeal: 

III. ISSUES 

consolidated the appeals by per curiam. order entered on June 10, 2014. 

her concise statement on June 18, 2014. The Superior Court sua sponte 

Kratz filed a concise statement on June 3, 2014, and Marguerite Kratz filed 

May 29, 2014, directing Appellant to file her concise statement. Jeffrey 

Superior Court on May 22, 2014. The undersigned issued an order dated 

("concise statement"). Marguerite Kratz filed a notice of appeal to the 
8 

3. In granting a summary judgment the Court must examine 

the record in a light most favorable to the non-moving party. In 

2. Summary Judgment is proper only when the pleadings 

and discovery show there is no genuine issue as to any material 

fact and the moving party is entitled to a judgment as a matter 

of law. Pa.R.C.P. No. 1035.2. 

1. Judge Rogers has filed no opinion nor provided reasons 

for the Order of May 6, 2014, the Appeal of which is the matter 

at issue. A true and correct copy of said Order is attached 

hereto as Exhibit "A". 

Marguerite Kratz raises the following issues on appeal: 

EDA 2014). 

{Jeffrey Kratz's concise statement filed June 3, 2014, at Docket No. 1534 

5. The Honorable Thomas P. Rogers erred in determining 

that the Plaintiff has standing to pursue the within action. 

g. The Honorable Thomas P. Rogers erred by granting 

Plaintiff's Motion for Summary Judgment when Plaintiff 

produced no evidence that it is the proper Holder of the Note. 

f. The Honorable Thomas P. Rogers failed to address 

Plaintiff's ownership and possession of the Note as a prerequisite 

in the Foreclosure Action. 

e. One of the assignees of the Note was MERS which 

Plaintiff's witness admitted in his Deposition that MERS was 

never an owner or a holder of the mortgage or note. Therefore, 

said assignment was invalid. 

d. Plaintiff has been unable to produce the original 

assignments of the Note. 

c. Plaintiff relies on an "Affidavit in Support of 

Plaintiff's Motion for Summary Judgment" allegedly executed by 

Lisa Lubbess. An uncontradicted Affidavit of the moving party 

or its witness will not support a grant of Summary Judgment. 

Foreclosure Action because they are not the true owner or 

holder of the original mortgage or note. 
9 

1545 EDA 2014). 

(Marguerite Kratz's concise statement filed June 18, 2014, at Docket No. 

9. Defendant, Marguerite Kratz hereby reserves the right to 

file additional matters complained of when the Honorable 

Thomas P. Rogers issues his opinion in support of his Order 

granting the Motion for Summary Judgment. 

8. The Honorable Thomas P. Roger]s] erred in failing to allow 

Marguerite Kratz the opportunity to prove that the Mortgage in 

question should be revoked as it affects and applies to her 

interest in the property in question. 

7. The Honorable Thomas P. Rogers has also erred in failing 

to exercise the equitable powers of the Court to promote 

economic justice on behalf of the Defendant, Marguerite Kratz, 

by sanctioning the conduct of Defendant, Jeffrey Kratz in 

obtaining a divorce by fraudulent means. This allowed him to 

use marital assets to acquire the property in question and, in 

turn, to lien said property without the joinder of Defendant, 

Marguerite Kratz. The mortgage foreclosure will result in a loss 

to Marguerite Kratz of what should have been marital property 

as defined in 23 Pa.C.S.A. Sec. 3501(a). 

6. The Honorable Thomas P. Rogers in granting the Motion 

for Summary Judgment filed by the Plaintiff against the 

Defendant, Marguerite Kratz, has erred in ruling that the 

circumstances surrounding the Defendants' marital status were 

not significant to the mortgage foreclosure action. 

5. The Plaintiff in its general denial of said allegations and in 

its Memorandum of Law in support of its Motion for Summary 

Judgment, has apparently conceded the accuracy of those 

allegations, while disputing the legal significance thereof. To the 

extent the Plaintiff did not so concede, a genuine issue of 

material fact exists relating to this question. 

4. Defendant, Marguerite Kratz, alleged in her New Matter 

that Defendant, Jeffrey Kratz obtained a divorce from her in 

2001 by wrongfully taking advantage of her mental status 

condition at the time in question. 

re: Estate of Shelly, 2008 Pa. Superior Ct. 116, 950 A.2d 1021 

(2008). 
10 

In considering the merits of a motion for summary judgment, a 

court views 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. 

In considering whether there exists a genuine issue of material 

fact, the court does not weigh the evidence, but determines 

jury." 401 Fourth Street, supra (citing Pa.R.C.P. 1035.2(2)). 

defense in which a jury trial would require the issues to be submitted to a 

has failed to produce evidence of facts essential to a cause of action or 

cases in which an adverse party who will bear the burden of proof at trial 

100 A.3d 611, 616 (Pa.Super. 2014). Summary judgment is also "proper in 

n.4 (2005) (citing Pa.R.C.P. 1035.2(1)); PHH Mortgage Corporation v. Powell, 

Inc. v. Investors Insurance Group, 583 Pa. 445, 461 n.4, 879 A.2d 166, 175 

moving party is entitled to judgment as a matter of law. 401 Fourth Street, 

where there is no genuine issue of material fact and it is clear that the 

summary judgment are as follows. Summary judgment is appropriate only 

Preliminarily, the applicable standards on review of an order granting 

which precluded summary judgment. Appellants are both mistaken. 

genuine issues regarding material facts remain regarding her marital status 

Lisa Lubbess in support of its motion. Second, Marguerite Kratz insists that 

the Mortgage and Note and 2) Appellee improperly relied on the Affidavit of 

foreclosure because of the improper or deficient transfer and assignment of 

arguments: 1) Appellee lacked standing to bring this action in mortgage 

albeit for different reasons. First, Jeffrey Kratz sets forth two basic 

Appellants assert that the court erred in granting summary judgment, 

IV. DISCUSSION 
11 

653 A.2d 688, 693 n.4 (Pa.Super. 1995) (citing New York Guardian Mortgage 

sale of the mortgaged property. First Wisconsin Trust Company v. Strausser, 

strictly an in rem proceeding, and its purpose is solely to effectuate a judicial 

The governing law provides that an action in mortgage foreclosure is 

(citation omitted). 

Strine v. Commonwealth, 586 Pa. 395, 402, 894 A.2d 733, 738 (2006) 

resolution could affect the outcome of the case under the governing law." 

factual issue is considered 'material' for summary judgment purposes if its 

N.A. v. Murray, 63 A.3d 1258, 1261 (Pa.Super. 2013); Nordi, supra. "[A) 

party's entitlement to judgment as a matter of law. JP Morgan Chase Bank, 

evidence on an issue essential to his case or defense establishes the moving 

1035.3); Nordi, supra. Failure of the nonmoving party to adduce sufficient 

America, N.A. v. Gibson, 102 A.3d 462, 464 (Pa.Super. 2014) (citing Pa.R.C.P. 

of specific material facts demonstrating a genuine issue for trial. Bank of 

379 (Pa.Super. 2010). Rather, the nonmoving party must produce evidence 

summary judgment. Nordi u. Keystone Health Plan West, Inc., 989 A.2d 376, 

upon mere allegations or denials in the pleadings to defeat the motion for 

absence of a genuine issue of material fact, the adverse party may not rest 

Although the moving party bears the initial burden of establishing the 

401 Fourth Street, supra (citations omitted). 

whether a reasonable jury, faced with the evidence presented, 

could return a verdict for the non-moving party .... [T]he court 

may grant summary judgment only when the right to such 

judgment is clear and free from doubt. 
12 

Powell, supra at 619-20. 

[the Superior] Court has held that the mortgagee is the real 

party in interest in a foreclosure action. Wells Fargo Bank, N.A. 

v. Lupori, 8 A.3d 919, 922 (Pa.Super. 2010) (quoting US Bank 

N.A. v. Mallory, 982 A.2d 986, 994 (Pa.Super. 2009)). Section 

3301 of the PUCC provides that a holder of a negotiable 

instrument is a "person entitled to enforce" it. 13 Pa.C.S.A. § 

3301 ( 1). Section 3302 defines a "holder in due course" of a 

negotiable instrument as the holder of an instrument if "the 

instrument when issued or negotiated to the holder does not 

bear such apparent evidence of forgery or alteration or is not 

otherwise so irregular or incomplete as to call into question its 

authenticity;" and the holder took the instrument for value and 

in good faith. Id. § 3302(a). Finally, Section 1201 defines a 

"holder," in relevant part, as "the person in possession of a 

negotiable instrument that is payable either to the bearer or to 

an identified person that is the person in possession." Id. § 

1201 (b)(21 )(i). 

Pa.C.S.A. §§ 3109(a), 3301) (emphasis added). In addition, 

demand regardless of who previously held the note." Id. (citing 13 

supra). "A note endorsed in blank is a 'bearer note/ payable to anyone on 

securing a mortgage is a negotiable instrument." Id. at 466 (citing Murray, 

"Under the Pennsylvania Uniform Commercial Code (PUCC), the note 

Gibson, supra at 464-65. 

The holder of a mortgage has the right, upon default, to bring a 

foreclosure action. Cunningham v. McWilliams, 714 A.2d 1054, 

1056-57 (Pa.Super. 1998). 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. Id. 

Court recently explained as follows: 

Corporation v. Dietzel, 524 A.2d 951, 953 (Pa.Super. 1987). The Gibson 
13 

In his second issue on appeal, Jeffrey Kratz complains that the court 

erred in considering the Affidavit of Lisa Lubbess that Appellee submitted in 

support of its motion for summary judgment. Appellant's second claim is 

also unavailing. 

Pennsylvania law disfavors trial by affidavit. Murray, supra at 1267. 

Testimonial affidavits by the moving party or its witnesses, even if 

uncontradicted, will not support the entry of summary judgment since 

credibility remains a matter for the jury. Id.; see Nanty-Glo v. American 

Surety Company, 309 Pa. 236, 163 A. 523 (1932). An exception to this rule 

exists, however, where the moving party uses the admissions of the opposing 

party, including facts admitted in the pleadings. Gibson, supra at 466 

(citations omitted). Further, in mortgage foreclosure actions, general denials 

Instantly, Jeffrey Kratz challenges the chain of assignment and 

transfer of the mortgage and note in this matter. More important, however, 

is what he does not challenge. Appellant does not dispute that Appellee is 

the holder of the original mortgage and note. (See Acknowledgment of 

Inspection of Original Documents, filed 4/25/ 14). The record in this case 

clearly shows that Appellee holds the original note and original mortgage 

indorsed in blank and Note Allonge and, therefore, has standing to bring this 

action. Accordingly, Appellant's challenge to Appellee's standing based upon 

the chain of assignment must fail. See Gibson, supra; Powell, supra; Murray, 

supra. 
14 

protestations otherwise. The undersigned properly granted summary 

judgment. 

the affidavit, Ms. Lubbess explained her credentials and how the Seterus 

business records are kept. (Motion for Summary Judgment, Exhibit S). The 

affidavit contains nine (9) paragraphs of allegations based on the evidence, 

the majority of which Appellants previously admitted in their answers to the 

amended complaint or in response to Appellee's requests for admissions. In 

this court's review, the only contested issue alleged in the affidavit is one of 

default. However, the contesting on Appellant's part is by the assertion of 

unsupported allegations. 

Specifically, Jeffrey Kratz has never denied that Appellants have failed 

to make payments on the mortgage on or after September 1, 2010. Rather, 

he claims that there is no default because the original lender on his 

mortgage and note has been paid off by the "government bailout" of certain 

unnamed banks. Arguably, under the recent cases cited above, whether or 

not the original lender has been paid off by anyone other than the borrower 

is irrelevant. Furthermore, while a novel claim, the unsupported allegation 

does not create a genuine issue of material fact contrary to Appellant's 

constitute admissions where specific denials are required. Id. (citing 

Strausser, supra at 692; Pa.R.C.P. 1029{b),(c)). 

Instantly, Lisa Lubbess, a Foreclosure Specialist with Seterus, Inc., 

the mortgage servicing agent for Appellee, provided the affidavit at issue. In 
15 

Marguerite Kratz raises several claims that can be distilled into one. 

Appellant alleges that her husband Jeffrey Kratz took advantage of her 

mental state in 2001 and wrongfully obtained a divorce. In 2008, after the 

couple remarried, Jeffrey Kratz executed a new deed on the property which 

he alone had purchased on November 27, 2002. The new deed transferred 

ownership to Jeffrey F. Kratz and Marguerite Kratz as tenants by the 

entireties. Had Jeffrey Kratz not fraudulently obtained a divorce in 2001, 

Marguerite Kratz's signature would have been required on the note and 

mortgage in November 2008. According to Marguerite Kratz, the fraud 

committed by Jeffrey Kratz renders the mortgage invalid. Appellant's claim 

warrants no relief on appeal. 

The Superior Court addressed an analogous claim in Strausser, 653 

A.2d at 692-93. There, the appellant, Strausser, asserted defenses of 

duress, fraud and unjust enrichment resulting from alleged influence 

brought to bear by the second mortgagor appellant, Perlberger, as the reason 

the mortgage was invalid. Specifically, Strausser claimed Perlberger had 

taken advantage of her while the two were romantically involved and had 

«through manipulation, fraud and deceit, pressured her into purchasing the 

mortgaged premises." Id. at 692. The Court concluded "Strausser's 

allegations of wrongdoing [were) directed at Perlberger and not at [the 

appellee]. Strausser's affirmative defense, therefore, [was] without merit." 

Id. at 693. 
16 

A copy of the above Opinion was 

sent to the following on 06/23/ 15: 

By First~Class Mail: 

Gerald M. Barr, Esquire, Counsel for Appellant, 

Jeffrey F. Kratz 

Court of Common P 

Montgomery County, 

Pennsylvania 

3gth Judicial District 

BY THE COURT: 

respectfully requests that the Superior Court affirm the judgment in rem. 

Based upon the reasoning set forth herein, the undersigned 

V. CONCLUSION 

of material fact. Thus, Appellee is entitled to judgment as a matter of law. 

Appellants have produced no evidence which creates a genuine issue 

denials in her pleadings to defeat the motion for summary judgment. 

in support of her allegations. She may not rest upon mere allegations or 

exercise its equitable powers, Appellant did not provide a shred of evidence 

Moreover, even were this court to consider Marguerite Kratz's appeal to 

Jeffrey Kratz and not at Appellee. Accordingly, Appellant's claim lacks merit. 

Instantly, Marguerite Kratz's allegations of wrongdoing are directed at 
17 

Douglas A. Gifford, Esquire, Counsel for Appellant, 

Marguerite Kratz 

Andrew L. Markowitz, Esquire, Counsel for Appellee, 

Federal National Mortgage Association