J-A32008-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

DEUTSCHE BANK TRUST COMPANY 

AMERICAS, FORMERLY KNOWN AS 

BANKERS TRUST COMPANY, AS A 

TRUSTEE OF AMRESCO RESIDENTIAL 

SECURITIES CORPORATION MORTGAGE 

LOAN TRUST 1998-1, UNDER POOLING 

AND SERVICING AGREEMENT DATED AS 

FEBRUARY 1, 1998,

IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

ROBERT BANKS AND JOANNE BANKS,

APPEAL OF: JOANNE BANKS,

Appellant No. 2037 WDA 2014

Appeal from the Judgment Entered December 3, 2014

In the Court of Common Pleas of Allegheny County

Civil Division at No(s): MG-09-001802

BEFORE: SHOGAN, OTT, and STABILE, JJ.

MEMORANDUM BY SHOGAN, J.: FILED FEBRUARY 19, 2016

Appellant, Joanne Banks, appeals from the in rem judgment entered in 

favor of Deutsche Bank Trust Company Americas (“Deutsche Bank”) in this 

mortgage foreclosure action. We affirm. 

The trial court summarized the facts and procedural history as follows:

On March [2], 2007, [Appellee] Deutsche Bank Trust 

Company Americas filed a Complaint in Mortgage Foreclosure 

against [Appellants,] Joanne Banks and Robert J. Banks, 

regarding Property located at 610 Ridge Street, McKeesport, PA 

15132. On March 20, 2008, [the trial court] entered an Order 

dismissing the Complaint, with prejudice. The instant case 
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involves a Complaint and an Amended Complaint in Mortgage 

Foreclosure, filed on [July 15, 2009,] and June 27, 2012,1

respectively. By way of history, on December 10, 1997, in 

consideration of a loan in the principal amount of $36,000, 

[Appellant] Joanne Banks executed and delivered to AMRESCO 

Residential Mortgage Corporation, an adjustable rate note with 

interest, payable as to the principal and interest in equal 

monthly installments of $360.08 commencing February 1, 1998. 

[Appellants] are in default of their obligations pursuant to the 

Note and to the Mortgage because payments of principal and 

interest due May 1, 2006 and monthly thereafter are due and 

have not been paid. [Deutsche Bank] seeks an in rem judgment 

against [Appellants] for foreclosure and sale of the Property.

A non-jury trial was held and a verdict entered on June 12, 

2014 in favor of [Deutsche Bank] in the amount of $39,489.00. 

On June 17, 2014, [Appellant] Joanne Banks filed a Motion for 

Post-Trial Relief and arguments were heard on July 31, 2014. 

Trial Court Opinion, 9/10/14, at 1-2. 

The trial court denied the motion for post-trial relief by order entered 

September 10, 2014. On December 3, 2014, Deutsche Bank filed a praecipe 

for in rem judgment, in favor of Deutsche Bank and against Joanne Banks, 

as “Original Mortgagor and Real Owner.” Praecipe for Judgment, 12/3/14, at 

1. Judgment on the verdict was entered the same day. Appellant timely 

appealed.

Appellant presents the following issues for our review:

[I.] Whether the trial court improperly concluded that 

Deutsche Bank met its burden to establish its standing to 

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1 The record reflects that Deutsche Bank filed the complaint in mortgage 

foreclosure at issue in this case on July 15, 2009. On September 13, 2010, 

Deutsche Bank filed an amended complaint and on June 27, 2012, Deutsche 

Bank filed a second amended complaint. 
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prosecute the instant action where Deutsche Bank failed to prove 

it was the successor in interest to Bankers Trust Company. 

II. Whether the trial court improperly concluded that 

Deutsche Bank met its burden to establish its standing to 

prosecute the instant action where Deutsche Bank failed to prove 

it had acquired the subject note prior to its commencement of 

the instant lawsuit. 

[III.] Whether the trial court improperly concluded that the 

doctrine of res judicata did not bar Deutsche Bank from 

prosecuting the instant mortgage foreclosure action where the 

lower court previously dismissed with prejudice Deutsche Bank’s 

materially identical first complaint in mortgage foreclosure.

Appellant’s Brief at 4 (full capitalization omitted).2

Our standard of review is as follows:

When reviewing the verdict from a bench trial, we must review 

the evidence of record in the light most favorable to the verdict 

winner to determine whether competent evidence supports the 

trial court’s findings and whether it erred in reaching its 

conclusions of law. We afford the same weight to the trial 

court’s findings of fact as we do a jury’s verdict. We will only 

reverse if the trial court’s findings of fact are unsupported by 

competent evidence or if it erred as a matter of law.

Newman Dev. Grp. of Pottstown, LLC v. Genuardi’s Family Mkt., Inc., 

98 A.3d 645, 652 (Pa. Super. 2014) (en banc) (internal citations omitted).

We first address whether the trial court improperly concluded that 

Deutsche Bank had standing to bring this mortgage foreclosure action. 

Appellant’s Brief at 52. Appellant asserts that the original mortgage was 

____________________________________________

2 We have renumbered Appellant’s issues raised on appeal for ease of 

disposition and for purposes of first addressing Appellant’s claims regarding 

Deutsche Bank’s standing to bring this foreclosure action.
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executed in favor of AMRESCO and was subsequently assigned to Bankers 

Trust Company. Id. at 55. Appellant maintains that because Bankers Trust 

Company was the sole assignee of the subject mortgage, and because 

Deutsche Bank has failed to establish any legal relationship between it and 

Bankers Trust Company, Deutsche Bank lacks standing to prosecute this 

action. Id. 

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

foreclosure action. Bank of Am., N.A. v. Gibson, 102 A.3d 462, 464 (Pa. 

Super. 2014), appeal denied, 112 A.3d 648 (Pa. 2015). In a foreclosure 

action, the plaintiff can prove standing either by showing that it (1) 

originated or was assigned the mortgage, or (2) is the holder of the note 

specially indorsed to it or indorsed in blank. J.P. Morgan Chase Bank, NA. 

v. Murray, 63 A.3d 1258, 1267-1268 & n.6 (Pa. Super. 2013). 

In this case, Deutsche Bank proved standing both ways. First, 

Deutsche Bank owns Appellant’s mortgage via assignment. The complaint in 

a mortgage foreclosure action must allege “the parties to and the date of the 

mortgage, and of any assignments, and a statement of the place of record of 

the mortgage and assignments.” Pa.R.C.P. 1147(a)(1). Here, Deutsche 

Bank’s second amended complaint set forth the original parties and date of 
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Appellant’s mortgage. It further asserted that the mortgage was assigned 

from the original lender, AMRESCO, to Bankers Trust Company.3 

The record includes evidence and testimony that Deutsche Bank was 

“formerly known as Bankers Trust Company” and owned Appellant’s 

mortgage via assignment. Specifically, Deutsche Bank produced a limited 

power of attorney indicating that Deutsche Bank, formerly known as Bankers 

Trust Company, contracted with Wendover Financial Services Corporation 

(“Wendover”) to service its loans and mortgages. Stipulated Supplement to 

Record: Trial Exhibits Pertinent to the Issues raised on appeal; Plaintiff 

Exhibit 1. At trial, Allison Bielby testified that she worked for LoanCare LLC, 

which is a sub-servicer for Wendover and that she had been servicing 

Appellant’s loan. N.T., 6/2/14, at 7-9. Ms. Bielby, on behalf of LoanCare 

LLC, identified a record of payments and documented history of the 

mortgage executed by Appellant. Id. at 10-19. Additionally, her testimony 

revealed that a modification was offered on this loan, and that Appellant 

interacted with LoanCare, LLC in its capacity as Appellant’s mortgage 

servicer. Id. at 51-52. 

Thus, the record established that LoanCare LLC, on behalf of Deutsche 

Bank, has been servicing Appellant’s loan. Further, Appellant engaged with 

____________________________________________

3 The complaint also included a statement of the place of record of the 

mortgage and assignment. The note, mortgage and assignment were 

attached to Deutsche Bank’s second amended complaint.
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LoanCare LLC as her loan servicer without objection prior to initiation of this 

litigation. Accordingly, the record reflects an unbroken chain from the 

original lender, AMRESCO, to Deutsche Bank. Because Deutsche Bank is the 

current mortgage owner via assignment, it has standing to enforce the 

mortgage.

Second, Deutsche Bank is in possession of the promissory note which 

was endorsed in blank.4 

Under the Pennsylvania Uniform Commercial Code (PUCC), the 

note securing a mortgage is a negotiable instrument. J.P. 

Morgan Chase Bank, N.A. v. Murray, 63 A.3d 1258 

(Pa.Super.2013). A note endorsed in blank is a “bearer note,” 

payable to anyone on demand regardless of who previously held 

the note. 13 Pa.C.S.A. §§ 3109(a), 3301. 

Gibson, 102 A.3d at 466; see also PHH Mortg. Corp. v. Powell, 100 A.3d 

611, 621 (Pa. Super. 2014) (“Evidence that some other entity may be the 

“owner” or an “investor” in the Note is not relevant to this determination, as 

the entity with the right to enforce the note may well not be the entity 

entitled to receive the economic benefits from payments received thereon.”). 

The record in this case reveals that Deutsche Bank holds the note 

endorsed in blank, and therefore the mortgage. As holder of the note and 

mortgage, Deutsche Bank has standing to pursue this foreclosure action as 

____________________________________________

4 Appellant does not dispute the fact that Deutsche Bank possesses the 

original note. Appellant’s Brief at 46-48. 
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the proper party in interest. Gibson, 102 A.3d at 466. Appellant’s 

assertions to the contrary are baseless.

In her next claim, Appellant contends that Deutsche Bank lacks 

standing to prosecute this foreclosure action where it failed to prove that it 

had acquired the promissory note prior to its commencement of the instant 

lawsuit. Appellant’s Brief at 35. Notably, Appellant does not allege that 

Deutsche Bank does not possess the original promissory note.5 Instead, 

Appellant argues that the promissory note attached to the complaint differs 

from the original note produced at trial. Id. at 48. Specifically, Appellant 

contends that the allonge6to the promissory note attached to the complaint 

differs from the allonge to the original note because the original note’s 

allonge includes a name stamp of “Aurora P. Cosme, Assistant [Secretary],” 

and the copy does not. Id. Thus, Appellant argues that Deutsche Bank did 

not possess the original note and allonge prior to the inception of the instant 

foreclosure action and therefore, has failed to establish its standing as the 

real party in interest to prosecute the instant foreclosure action. Id. at 51-

52. 

____________________________________________

5 Both the copy and the original promissory note were introduced at trial. As 

noted, Appellant does not dispute this fact. 

6 An allonge is “[a] slip of paper sometimes attached to a negotiable 

instrument for the purpose of receiving further indorsements when the 

original paper is filled with indorsements.” Black’s Law Dictionary 88 (9th 

ed. 2009).
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This Court recently held that a complaint in mortgage foreclosure does 

not need to include the original promissory note. Bank of N.Y. Mellon v. 

Johnson, 121 A.3d 1056, 1063 (Pa. Super. 2015). In Johnson, default 

judgment had been entered against the appellant in a mortgage foreclosure 

action. Id. at 1058-1059. The appellant argued that the default judgment 

should have been struck on the basis that the complaint in foreclosure was 

deficient because the bank did not attach the promissory note to the 

complaint. Id. at 1062. The appellant further argued that the bank failed to 

allege that a promissory note even existed or that it legally owned the 

mortgage. Id. In affirming the trial court’s decision, this Court concluded 

that a complaint in mortgage foreclosure does not need to include the 

original promissory note. Id. at 1063. This Court emphasized that the 

bank’s complaint fully complied with the requirements of Pa.R.C.P. 1147(a): 

the complaint listed the parties to the mortgage, the date of execution, and 

the assignment to the bank; an attachment to the complaint described the 

land subject to the mortgage; the complaint set forth the name, address, 

and interest of the appellant; the bank included a specific averment of 

default, explaining that the appellant had failed to make her required 

monthly payments; the bank also provided an itemized statement of the 

amount due, and it demanded judgment for that amount. Id. at 1063. 

Because the complaint fully complied with Rule 1147(a), this Court 

determined that the appellant was not entitled to relief on her claim. Id.
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Thus, as this Court held in Johnson, there is no requirement that 

Deutsche Bank attach the original note to the complaint. Furthermore, as in 

Johnson, here Deutsche Bank’s complaint fully complied with the 

requirements of Pa.R.C.P. 1147(a). Therefore, we cannot agree with 

Appellant’s assertion that Deutsche Bank lacks standing to prosecute the 

instant action and that the judgment entered against Appellant should be 

vacated. Moreover, as noted, Deutsche Bank possesses the original 

promissory note in this case. For reasons explained previously, it is of no 

merit that the note was not attached to the complaint. Thus, Appellant’s 

second claim challenging Deutsche Bank’s standing to proceed in this 

foreclosure action lacks merit. 

In her final issue, Appellant asserts that the trial court erred in 

concluding that the doctrine of res judicata does not bar Deutsche Bank from 

prosecuting the instant mortgage foreclosure action. Appellant’s Brief at 19. 

Appellant contends that the order entered by the trial court on March 20, 

2008, dismissing with prejudice Deutsche Bank’s first complaint in 

foreclosure against Appellant “constitutes res judicata and operates as a bar 

against any subsequent lawsuit by Deutsche Bank against [Appellant] on the 

same cause of action.” Id. at 23. 

“Pursuant to the doctrine of res judicata, a final judgment on the 

merits by a court of competent jurisdiction will bar any future suit between 

the parties or their privies in connection with the same cause of action.” 
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Radakovich v. Radakovich, 846 A.2d 709, 715 (Pa. Super. 2004) (quoting 

Yamulla Trucking & Excavating Co. v. Justofin, 771 A.2d 782, 784 (Pa. 

Super. 2001)). This Court has previously explained the impact of a 

judgment of non pros on the doctrine of res judicata:

It is settled law that where plaintiff has suffered a 

judgment of non pros, he may later commence a new action 

between the selfsame parties and alleging the selfsame cause of 

action so long as the second action is commenced within the 

applicable statute of limitations. Since a non pros is not a 

judgment on the merits, it cannot have res judicata effect. 

Hatchigian v. Koch, 553 A.2d 1018, 1020 (Pa. Super. 1989) (internal 

citations omitted). Additionally, our Commonwealth Court has held that “a 

dismissal, even with prejudice, for failure to prosecute a claim is not 

intended to be res judicata of the merits to the controversy.” Municipality 

of Monroeville v. Liberatore, 736 A.2d 31, 34 (Pa. Cmwlth. 1999) 

(emphasis added).7 See also Moore v. John A. Luchsinger, P.C., 862 

A.2d 631, 634 n.3 (Pa. Super. 2004) (“A non pros against a plaintiff is not 

res judicata, and therefore, does not bar the plaintiff from commencing 

another action based upon the same cause of action within the applicable 

statute of limitations period.”); Gutman v. Giordano, 557 A.2d 782, 783 

(Pa. Super. 1989) (“[A] non pros for failure to answer a trial listing is not an 

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7 We note that “[t]his Court is not bound by decisions of the Commonwealth 

Court. However, such decisions provide persuasive authority, and we may 

turn to our colleagues on the Commonwealth Court for guidance when 

appropriate.” Haan v. Wells, 103 A.3d 60, 68 n.2 (Pa. Super. 2014).
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adjudication on the merits and thus may not form the basis for application of 

res judicata.”).

As noted, Appellant defaulted on the mortgage in May 2006. Deutsche 

Bank initiated its first action in foreclosure against Appellant on March 2, 

2007. That action was dismissed “with prejudice” by court order dated 

March 20, 2008, as a result of “Plaintiffs not responding or appearing.” 

Order, 3/20/08. Thus, Deutsche Bank’s initial action was dismissed due to 

the failure to prosecute the claim. Because the first action was dismissed for 

non pros, there was no final judgment on the merits. Accordingly, the 

doctrine of res judicata does not bar the filing of the instant foreclosure 

action.8 

Judgment affirmed.

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8 This second action, filed July 15, 2009, was commenced within the 

applicable statute of limitations. Hatchigan, 533 A.2d at 1020 (“It is 

settled law that where plaintiff has suffered a judgment of non pros, he may 

later commence a new action between the selfsame parties and alleging the 

selfsame cause of action so long as the second action is commenced within 

the applicable statute of limitations.”). An action under seal must be 

commenced within twenty years. 42 Pa.C.S. § 5529(b)(1); In re Estate of 

Snyder, 13 A.3d 509, 513 (Pa. Super. 2011).
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 2/19/2016