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-A19037

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 FANNIE MAE, FEDERAL NATIONAL MORTGAGE ASSOCIATION IN THE SUPERIOR COURT OF PENNSYLVANIA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

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timely filed a court

-ordered Pa.R.A.P. 1925(b) statement. Appellant ra ises 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

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- 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 Nativi dad, 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 stand ing. Accordingly, we affirm. Order affirmed.J

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary Date: 10/21/2016

# 1111 ~~f~t'J~IJ ll 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 JUNE 23, 2015 ROGERS, J. 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 CONSOLIDATED 

### v. FEDERAL NATIONAL MORTGAGE ASSOCIATION THE COURT OF COMMON PLEAS OF MONTGOMERY COUNTY, PENNSYLVANIA CIVIL ACTION - LAW Circulated 09/29/2016 11:20 AM2 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 HISTORY3

(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. The6

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 Appealb. 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 the8

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. DISCUSSION11

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]hecourt 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 Gibson13

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 The undersigned properly granted summary protestations otherwise. 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 Id. (citing constitute admissions where specific denials are required. 

### 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. In15 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~ClassMail: 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 tojudgment 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 at17

Douglas A. Gifford, Esquire, Counsel for Appellant, Marguerite Kratz Andrew L. Markowitz, Esquire, Counsel for Appellee, Federal National Mortgage Association