J. A33008/15

 

* Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

WELLS FARGO BANK NA, KONDAUR 

CAPITAL CORPORATION AND 

U.S. BANK NATIONAL ASSOCIATION

:

:

:

IN THE SUPERIOR COURT OF

PENNSYLVANIA

:

v. :

:

SCOTT A. BARRIS AND KELLY HANSON 

A/K/A KELLY BARRIS

:

:

:

APPEAL OF: SCOTT A. BARRIS, : No. 268 EDA 2015

:

 Appellant :

Appeal from the Order Entered December 15, 2014,

in the Court of Common Pleas of Bucks County

Civil Division at No. 2012-03715

BEFORE: FORD ELLIOTT, P.J.E., STABILE AND STRASSBURGER,* JJ.

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED FEBRUARY 23, 2016

Scott A. Barris and Kelly Hanson, a/k/a Kelly Barris (hereinafter 

“appellants” or “defendants”), appeal from the December 15, 2014 order 

granting Kondaur Capital Corporation’s (hereinafter “appellee” or “plaintiff”) 

motion for summary judgment. We affirm.

The trial court provided the following facts and procedural history of 

this case:

On April 23, 2012, the original Plaintiff in this 

matter, Wells Fargo Bank, N.A. (hereinafter referred 

to [as] “Wells Fargo”), filed a Complaint in Mortgage 

Foreclosure against Scott A. Barris and Kelly Hanson 

a/k/a Kelly Barris (hereinafter referred to [as] 

“Defendants”). According to the Complaint, on or 
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about September 7, 2007, Defendants executed and 

signed an adjustable rate mortgage Note in favor of 

Wells Fargo’s predecessor-in-interest, World Savings 

Bank, FSB. They promised to repay $421,800.00 

plus interest and other costs to “World Savings Bank, 

F[SB], a Federal Savings Bank, its successors and/or 

assignees, or anyone to whom the Note is 

transferred.” See Note, Ex. A-1, Motion for 

Summary Judgment, July 10, 2014, Kondaur 

Capital Corp. v. Scott A. Barris and Kelly 

Hanson aka Kelly Barris, BCCCP Docket No. 2012-

03715.

On or about September 7, 2007, Defendants 

also executed a mortgage upon the real property 

located at 115 Sovereign Drive, Warrington, Bucks 

County as collateral for the Note. See Mortgage, 

Exhibit A, Motion for Summary Judgment, 

July 10, 2014, Kondaur Capital Corp. v. Scott A. 

Barris and Kelly Hanson aka Kelly Barris, BCCCP 

Docket No. 2012-03715. The Mortgage was 

executed and recorded in the Bucks County Office of 

the Recorder of Deeds in Book 5580, Page 1273.

The Complaint alleged that the Mortgage was 

“in default because monthly payments of principal 

and interest are due and unpaid for [July 1, 2011] 

and each month thereafter.” Complaint, Kondaur 

Capital Corp. v. Scott A. Barris and Kelly 

Hanson aka Kelly Barris, BCCCP Docket No. 2012-

03715.

The Complaint also alleged that Defendants 

failed to cure the default or otherwise comply with 

the terms of the Mortgage. As of April 10, 2012, the 

total amount due on account of the Mortgage, 

including principal, interest, late charges, and costs 

was $456,899.90. See id.

Subsequent to the filing of the Complaint, a 

Foreclosure Conciliation Conference was scheduled 

pursuant to Bucks County’s Residential Mortgage 

Foreclosure Diversion Program.
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Both parties participated in Conciliation 

Conferences held on August 12, 2012, November 19, 

2012, February 25, 2013, May 22, 2013, July 22, 

2013, and September 23, 2013. On the last 

scheduled conference date of September 23, 2013, 

Defendants failed to appear. See Docket Entry of 

Oct. 7, 2013, Kondaur Capital Corp. v. Scott A. 

Barris and Kelly Hanson aka Kelly Barris, BCCCP 

Docket No. 2012-03715.

On October 7, 2013, the Honorable Susan 

Devlin Scott of this court issued an Order authorizing 

Wells Fargo “to obtain a judgment pursuant to and in 

compliance with [Pennsylvania Rule of Civil 

Procedure] 237.1 and to otherwise proceed with the 

action as provided by rules of court.” Id.

On November 7, 2013, Defendants filed an 

Answer to the Complaint. In their Answer, 

Defendants generally denied that they were in 

default under the terms of the Mortgage. They 

further stated that the allegation of default was a 

“conclusion of law to which no response is required.” 

As to Wells Fargo’s allegations of the amount due 

and owing on the Note and Mortgage, Defendants 

denied “the characterization of the schedule of 

amounts due under the mortgage.” Answer to 

Complaint, Nov. 7, 2013, Kondaur Capital Corp. 

v. Scott A. Barris and Kelly Hanson aka Kelly 

Barris, BCCCP Docket No. 2012-03715.

On November 13, 2013, Wells Fargo filed a 

Praecipe to substitute “U.S. Bank, National 

Association, as Trustee for Stanwich Mortgage Loan 

Trust, Series 2012-9” as successor Plaintiff for the 

originally named Plaintiff. The Assignment of the 

Mortgage to U.S. Bank as trustee (hereinafter 

referred to [as] “U.S. Bank”) was attached as an 

exhibit. Praecipe for Voluntary Substitution of 

Party Plaintiff, Nov. 13, 2013, Kondaur Capital 

Corp. v. Scott A. Barris and Kelly Hanson aka 

Kelly Barris, BCCCP Docket No. 2012-03715.
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On June 26, 2014, U.S. Bank filed a Praecipe 

to substitute “Kondaur Capital Corporation, as 

Separate Trustee of Matawin Ventures Trust Series 

2013-4” as successor Plaintiff. In support of the 

Praecipe, U.S. Bank asserted the following:

Kondaur Capital Corporation, as Separate 

Trustee of Matawin Ventures Trust Series 

2013-4, is the current holder of the 

Mortgage by virtue of that certain 

Assignment of Mortgage, which has been 

recorded March 11, 2014, in the Office of 

the Recorder of Deeds of Bucks County 

as Instrument #2014011458.

Praecipe for Voluntary Substitution of Party 

Plaintiff, June 26, 2014, Kondaur Capital Corp. v. 

Scott A. Barris and Kelly Hanson aka Kelly 

Barris, BCCCP Docket No. 2012-03715.

A copy of the Assignment to Kondaur Capital 

Corporation (hereinafter referred to [as] “Kondaur”) 

was attached to the Praecipe as Exhibit “A”. See id.

On July 10, 2014, Kondaur filed a Motion for 

Summary Judgment, re-asserting that Defendants 

are in default for failing to pay the July 1, 2011 

payment and each monthly payment thereafter. 

Motion for Summary Judgment, Kondaur 

Capital Corp. v. Scott A. Barris and Kelly 

Hanson aka Kelly Barris, BCCCP Docket No. 2012-

03715.

In the Motion for Summary Judgment, Plaintiff 

attached an Affidavit, authored by William Suh, 

Foreclosure Specialist of Kondaur Capital 

Corporation. In the Affidavit, Mr. Suh stated that, he 

has “access to the business records relating to the 

loan at issue herein, which are maintained in the 

regular course of business activities.” Mr. Suh 

further asserted that the Affidavit was made “based 

upon [his] review of the facts contained in those 

records pertaining to the account of Defendants.” 

See id at Ex. B.
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In the Affidavit, Mr. Suh verified that the 

July 1, 2011 payment, and every payment 

thereafter, was due and owing. He further related 

that, as of July 7, 2014, the total amount due upon 

the Mortgage was $494,663.59 including interest 

and late charges. The amount owed was itemized 

and listed in his Affidavit. See id. at Ex. B.

In further support of its assertion of the 

amount due and owing upon the Mortgage, Kondaur 

attached a copy of Defendants’ loan payment 

history. See id. at Ex-B-1.

On August 8, 2014, Defendants filed an 

Answer in Opposition to Plaintiff’s Motion for 

Summary Judgment. In their Answer, and in 

response to Kondaur’s assertion that the mortgage is 

due and owing for the July 1, 2011 payment and 

each payment thereafter, Defendants once again 

stated that these allegations are “conclusions of law 

to which no response is required.” Answer in 

Opposition of Motion for Summary Judgment, 

Aug. 8, 2014, Kondaur Capital Corp. v. Scott A. 

Barris and Kelly Hanson aka Kelly Barris, BCCCP 

Docket No. 2012-03715.

On December 15, 2014, this Court granted 

Plaintiff’s Motion for Summary Judgment.

On January 14, 2015, Defendants filed a Notice 

of Appeal to the Superior Court of Pennsylvania from 

this Court’s Order of December 15, 2014.

This Opinion is filed pursuant to Pennsylvania 

Rule of Appellate Procedure 1925(a).

Trial court opinion, 2/12/15 at 1-4.

Appellants raise the following issues for our review:

I. Whether the trial court erred in granting 

Plaintiff’s Motion for Summary Judgment as the 

Affidavit of William Suh that Plaintiff attached 
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as an exhibit to its Motion for Summary 

Judgment, was legally defective due to its 

failure to comply with the Uniform Business 

Records of Evidence Act and the Pennsylvania 

Rules of Evidence?

II. Whether the trial court abused its discretion by 

relying upon William Suh’s Affidavit, given the 

glaring inconsistencies and lack of explanation 

as to the alleged amounts owing which indicate 

a lack of trustworthiness of the Affidavit?

III. Whether the trial court erred in grating [sic] 

Plaintiff’s motion for Summary Judgment as 

William Suh’s Affidavit violated the Nanty-Glo 

Rule?

IV. Whether the trail [sic] court erred in granting 

Summary Judgment in favor of Plaintiff, 

despite the failure of Plaintiff’s lack of standing 

to foreclose?

Appellants’ brief at 4-5.

Before addressing appellants’ issues on appeal, we begin with our 

well-settled standard of review for challenges of summary judgment:

A proper grant of summary judgment 

depends upon an evidentiary record that 

either (1) shows the material facts are 

undisputed or (2) contains insufficient 

evidence of facts to make out a prima 

facie cause of action or defense and, 

therefore, there is no issue to be 

submitted to the jury. Pa.R.C.P. 1035.2 

Note. Where a motion for summary 

judgment is based upon insufficient 

evidence of facts, the adverse party must 

come forward with evidence essential to 

preserve the cause of action. If the 

non-moving party fails to come forward 

with sufficient evidence to establish or 

contest a material issue to the case, the 
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moving party is entitled to judgment as a 

matter of law. The non-moving party 

must adduce sufficient evidence on an 

issue essential to its case and on which it 

bears the burden of proof such that a 

jury could return a verdict favorable to 

the non-moving party. As with all 

summary judgment cases, the court 

must examine the record in the light

most favorable to the non-moving party 

and resolve all doubts against the 

moving party as to the existence of a 

triable issue.

Upon appellate review, we are not bound 

by the trial court’s conclusions of law, 

but may reach our own conclusions. In 

reviewing a grant of summary judgment, 

the appellate court may disturb the trial 

court’s order only upon an error of law or 

an abuse of discretion. The scope of 

review is plenary and the appellate court 

applies the same standard for summary 

judgment as the trial court.

McCarthy v. Dan Lepore & Sons Co., Inc., 724 

A.2d 938, 940-41 (Pa.Super.1998), appeal denied, 

560 Pa. 707, 743 A.2d 921 (1999) (some internal 

citations omitted). See also Moses v. T.N.T. Red 

Star Exp., 725 A.2d 792 (Pa.Super. 1999), appeal 

denied, 559 Pa. 692, 739 A.2d 1058 (1999).

Petrongola v. Comcast-Spectacor, L.P., 789 A.2d 204, 208-209 

(Pa.Super. 2001), appeal denied, 803 A.2d 736 (Pa. 2002).

We shall address appellants’ first three issues simultaneously, as all 

three relate to Mr. Suh’s affidavit. Appellants’ first issue for our review is 

whether Mr. Suh’s affidavit is in compliance with the Uniform Business 

Records of Evidence Act (hereinafter “the Records of Evidence Act”) and the 
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Pennsylvania Rules of Evidence. Specifically, appellants aver that the 

affidavit is facially defective because it lacks certain elements required by 

the Act: (1) that the affidavit fails to state that the making of records was a 

regular practice of that business activity; (2) that the affidavit lacks any 

statement as to when the records in question were made; (3) that Mr. Suh 

has no personal knowledge of the records in question; and (4) that Mr. Suh 

lacks familiarity with the process in which the records in question were 

produced. (See appellants’ brief at 15-17.) Under their second issue, 

appellants aver that the trial court abused its discretion by relying on 

Mr. Suh’s affidavit, despite defects in violation of the Records of Evidence 

Act and the Pennsylvania Rules of Evidence. (See id. at 19.) Finally, 

appellants allege that Mr. Suh’s affidavit is in violation of the Nanty-Glo 

rule.

We begin with an analysis of the Nanty-Glo rule. In Borough of 

Nanty-Glo v. American Surety Co. of New York, 163 A. 523 (Pa. 1932), 

our supreme court held that oral testimony alone is insufficient to warrant an 

entry of summary judgment. Id. at 524. “An exception to this rule exists, 

however, where the moving party supports the motion by using admissions 

of the opposing party . . .” Bank of America, N.A. v. Gibson, 102 A.3d 

462, 466 (Pa.Super. 2014), appeal denied, 112 A.3d 648 (Pa. 2015), 

quoting Sherman v. Franklin Regional Med. Ctr., 660 A.2d 1370, 1372 

(Pa.Super. 1995), appeal denied, 670 A.2d 142 (Pa. 1995). 
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General denials constitute admissions where—like 

here—specific denials are required. See Pa.R.C.P. 

No. 1029(b). Furthermore, “in mortgage foreclosure 

actions, general denials by mortgagors that they are 

without information sufficient to form a belief as to 

the truth of averments as to the principal and 

interest owing [on the mortgage] must be 

considered an admission of those facts.” First Wis. 

Tr. Co. v. Strausser, 439 Pa.Super. 192, 653 A.2d 

688, 692 (1995); see Pa.R.C.P. No. 1029(c) Note. 

By his ineffective denials and improper claims of lack 

of knowledge, Appellant admitted the material 

allegations of the complaint, which permitted the 

trial court to enter summary judgment on those 

admissions.

Gibson, 102 A.3d at 466-467. See also Buckno v. Penn Linen & 

Uniform Service, Inc., 631 A.2d 674, 676 (Pa.Super. 1993), appeal 

denied, 647 A.2d 895 (Pa. 1994) (“A party seeking to avoid the entry of 

summary judgment against him or her may not merely rest on averments in 

the pleadings. The party must show that there is a genuine issue for trial 

once a properly supported summary judgment motion confronts him or her.” 

(citation omitted)). 

In the instant appeal, appellants responded to appellee’s averments of 

default and the amount of the mortgage in the foreclosure complaint with 

nothing more than general denials. Wells Fargo, in its original foreclosure 

complaint, averred the following:

5. The Mortgage is in default because monthly 

payments of principal and interest are due and 

unpaid for 7/1/11 and each month thereafter. 

By the terms of the Mortgage, upon failure of 

Mortgagor(s) to make such payments after a 

date specified in written notice sent to 
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Mortgagor(s), the entire principal balance and 

all interest due and other charges are due and 

collectible.

6. The total amount due Plaintiff through 4/10/12 

is $456,899.90, which breaks down as follows:

Principal: 443,396.12

Interest @ variable rate(s) 

 from 6/1/11 to 4/10/12: 7,632.86

Pre-Acceleration Late Charges: 704.90

Unapplied Funds Credit: (102.06)

Escrow Advance: 5,268.08

TOTAL: 456,899.90

Per diem interest in the amount of $24.30 will 

accrue on the principal from 4/11/12 to the 

next interest rate change date and accrue 

thereafter with the variable rate.

Complaint, 4/20/12 at 1; R.R. at 11a.

Appellants answered with the following general denials:

5. Denied. The allegations set forth in 

Paragraph 5 constitute conclusions of law to 

which no response is required. To the extent a 

response is required, the allegations are 

denied.

6. Denied. Defendant denies the characterization 

of the schedule of amounts due under the 

mortgage and strict proof thereof is demanded 

at trial. Plaintiff alleges an escrow advance of 

$5,268.08 but does not set forth an itemization 

whatsoever for Defendant to be able to answer 

whether that amount is true or correct. 

According, Defendant requests that Plaintiff 

provide an itemized statement of the alleged 

escrow advance.

Answer, 11/7/13 at 2; R.R. at 20a. 
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Appellants failed to make any reference to what they believe is the 

correct amount due on the mortgage, nor do they articulate why they 

believe that the escrow advance of $5,268.08 alleged by appellee may be in 

error. Due to their failure to include pleadings of specific facts in response 

to appellee’s foreclosure complaint, especially pertaining to the amount of 

principal and interest due on the mortgage, appellants are deemed to have 

admitted the allegations pursuant to Strausser. See also New York 

Guardian Mortg. Corp. v. Dietzel, 524 A.2d 951, 952 (Pa.Super. 1987) 

(mortgagors’ general denial of mortgagee’s averment as to the principal and 

interest due is deemed an admission of those facts because the mortgagor 

and the mortgage holder are the only parties “who would have sufficient 

knowledge on which to base a specific denial”); Cercone v. Cercone, 386 

A.2d 1, 3 (Pa.Super. 1978) (a demand for proof without a reasonable 

investigation by a nonmoving party is deemed to be an admission).

Therefore, we find that appellants’ general denials of the amount of 

principal and interest due on the mortgage and their general denial of the 

fact that the mortgage is in default constitute admissions to the facts 

averred in appellee’s foreclosure complaint. As a result, appellants failed to 

sustain their burden of presenting material facts in dispute, and summary 

judgment was proper. Accordingly, appellants’ first three issues are without 

merit.
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In their fourth issue for our review, appellants challenge whether 

appellee has proper standing to bring an action in foreclosure. When 

determining standing in a foreclosure action, we are governed by the 

following standard:

Pennsylvania Rule of Civil Procedure 2002 provides, 

“[e]xcept as otherwise provided . . . all actions shall 

be prosecuted by and in the name of the real party 

in interest, without distinction between contracts 

under seal and parol contracts.” Pa.R.C.P. 2002(a); 

see also J.P. Morgan Chase Bank, N.A. v. Murray, 

63 A.3d 1258, 1258 (Pa.Super. 2013) (finding a 

debtor’s claim that appellee bank was not a real 

party in interest to bring foreclosure action was a 

challenge to appellee’s standing). “[A] real party in 

interest is a [p]erson who will be entitled to benefits 

of an action if successful . . . . [A] party is a real 

party in interest if it has the legal right under the 

applicable substantive law to enforce the claim in 

question.” U.S. Bank, N.A. v. Mallory, 982 A.2d 

986, 993-994 (Pa.Super. 2009) (citation and 

quotation marks omitted; some brackets in original).

In a mortgage foreclosure action, the mortgagee is 

the real party in interest. See Wells Fargo Bank, 

N.A. v. Lupori, 8 A.3d 919, 922 n.3 (Pa.Super. 

2010). This is made evident under our Pennsylvania 

Rules of Civil Procedure governing actions in 

mortgage foreclosure that require a plaintiff in a 

mortgage foreclosure action specifically to name the 

parties to the mortgage and the fact of any 

assignments. Pa.R.C.P. 1147. A person foreclosing 

on a mortgage, however, also must own or hold the 

note. This is so because a mortgage is only the 

security instrument that ensures repayment of the 

indebtedness under a note to real property. See 

Carpenter v. Longan, 83 U.S. 271, 275 (1872) 

(noting “all authorities agree the debt is the principal 

thing and the mortgage an accessory.”). A mortgage 

can have no separate existence. Id. When a note is 

paid, the mortgage expires. Id. On the other hand, 
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a person may choose to proceed in an action only 

upon a note and forego an action in foreclosure upon 

the collateral pledged to secure repayment of the 

note. See Harper v. Lukens, 112 A. 636, 637 (Pa. 

1921) (noting “as suit is expressly based upon the 

note, it was not necessary to prove the agreement 

as to the collateral.”). For our instant purposes, this 

is all to say that to establish standing in this 

foreclosure action, appellee had to plead ownership 

of the mortgage under Rule 1147, and have the right 

to make demand upon the note secured by the 

mortgage.

CitiMortgage, Inc. v. Barbezat, 2016 WL 99772, A.3d , at *2-3

(Pa.Super. 2016).

Here, appellants aver that under the Pennsylvania Uniform Commercial 

Code,

Wells Fargo is the only entity that can negotiate the 

Note. Wells Fargo did not indorse the Note over to 

another entity nor did it indorse the note in blank. 

Therefore, Wells Fargo as the holder of the Note is 

the only party [which] has standing to enforce the 

Note.

Appellants’ brief at 25 (emphasis in original) (footnote omitted).

Appellants’ assertion that Wells Fargo did not indorse the note in blank 

is inaccurate.

Pursuant to section 3205(a), a special indorsement is 

one made by the holder of an instrument that 

identifies a person to whom it makes the instrument 

payable. 13 Pa.C.S.A. § 3205(a). Pursuant to 

section 3205(b), a blank indorsement is an 

indorsement made by the holder of a negotiable 

instrument that is not a special indorsement. Id.

§ 3205(b). When indorsed in blank, an instrument 

becomes payable to bearer and may be negotiated 
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by transfer of possession alone until specially 

indorsed. Murray, 63 A.3d at 1266.

PHH Mortg. Corp. v. Powell, 100 A.3d 611, 617 n.6 (Pa.Super. 2014). 

Wells Fargo indorsed the note subject to the instant appeal as follows:

WITHOUT RECOURSE

PAY TO THE ORDER OF

WELLS FARGO BANK, N.A., SUCCESSOR BY MERGER 

TO WACHOVIA MORTGAGE F.S.B., FORMERLY 

KNOWN AS WORLD SAVINGS BANK, F.S.B.

R.R. at 89a. By indorsing the note to itself, Wells Fargo indorsed the note in 

blank and preserved its right to transfer possession of the note and 

accompanying mortgage, as it did by transferring the note and mortgage to 

U.S. Bank on February 20, 2013. Subsequently, U.S. Bank transferred its 

interest in the note and mortgage to Kondaur on March 11, 2014. Both 

transfers were recorded with the Bucks County Recorder of Deeds. As a 

result, appellee has complied with Pa.R.C.P. 1147, which requires a 

mortgagee to plead ownership in a foreclosure proceeding. In the motion 

for summary judgment,1appellee pled ownership of the mortgage by 

detailing the assignment from U.S. Bank. (See motion for summary 

judgment, 7/9/14 at 4; R.R. at 45a.) Therefore, appellants’ fourth issue is 

without merit. 

Order affirmed. 

 

1 As noted above, Wells Fargo filed the original foreclosure complaint. While 

this case was pending, Wells Fargo assigned the mortgage to U.S. Bank. 

U.S. Bank subsequently assigned the mortgage to appellee.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 2/23/2016