J. S52014/16

 

* Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

NATIONSTAR MORTGAGE, LLC :

:

IN THE SUPERIOR COURT OF

PENNSYLVANIA

v. :

:

TRACY BEAVER-McKEON AND 

MICHAEL McKOEN,

:

: No. 3432 EDA 2015

:

 Appellants :

Appeal from the Order Dated October 8, 2015,

in the Court of Common Pleas of Chester County

Civil Division at No. CV-2013-05089-RC

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

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED AUGUST 18, 2016

Tracy Beaver-McKoen and Michael McKoen appeal pro se from the 

October 8, 2015 order entered in the Court of Common Pleas of Chester 

County granting summary judgment in favor of Nationstar Mortgage, LLC 

(“Nationstar”) in its mortgage foreclosure action against appellants. We 

affirm.

The record reflects that on March 14, 2005, appellants jointly made, 

executed, and delivered a mortgage to Mortgage Electronic Registration 

Systems, Inc., and that Tracy Beaver-McKeon solely executed the 

promissory note. Following several assignments, the mortgage was 

ultimately assigned by U.S. Bank National Association, as trustee for the 

benefit of Harborview 2005-3 Trust Fund (U.S. Bank), to Nationstar.
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Appellants stopped making payments on the mortgage on or about 

August 1, 2010. Appellants received the requisite pre-foreclosure notice 

pursuant to Act 91, see 35 P.S. §§ 1680.401c-1680.412c, but took no 

further action.

On May 24, 2013, U.S. Bank filed a complaint in mortgage foreclosure 

against appellants, alleging that the mortgage was in default and that 

appellants owed payments for the amounts due from August 1, 2010, 

forward. In their June 21, 2013 answer with new matter, appellants 

responded to the material portions of the complaint with general denials and 

demands for strict proof at trial. Following assignment of the mortgage to 

Nationstar by U.S. Bank, Nationstar became successor plaintiff to the 

underlying mortgage foreclosure action pursuant to Pa.R.C.P. 2352.

Thereafter, on July 18, 2014, Nationstar filed a motion for summary 

judgment. Appellants filed a timely response. On September 3, 2014, the 

trial court denied Nationstar’s motion for summary judgment, without 

prejudice. Despite the denial, appellants continued to file responses to 

Nationstar’s motion for summary judgment. Appellants also filed a series of 

motions for leave to file amended pleadings, and Nationstar filed several 

motions for continuance.

On March 9, 2015, Nationstar renewed its motion for summary 

judgment. Appellants filed a timely response, followed by additional motions 

for leave to file amended pleadings. Nationstar, once again, filed several 
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motions for continuance. On September 16, 2015, argument on Nationstar’s 

renewed motion for summary judgment took place. On October 9, 2015, the 

trial court granted summary judgment in favor of Nationstar. Appellants 

filed a timely appeal, followed by a court-ordered Pa.R.A.P. 1925(b) concise 

statement of errors complained of on appeal. The trial court filed a 

Rule 1925(a) opinion.

Appellants raise the following issues for our review:

1. The Trial Court committed prejudicial error 

and/or abused its discretion when it granted 

plaintiffs [sic] second motion for summary 

judgment, by refusing to examine the record in 

the light most favorable to the non-moving

party, accept as true all well pleaded facts in 

the non-moving party’s pleadings, and give 

him [sic] the benefit of all reasonable 

inferences drawn there from [sic].

2. The Trial Court committed prejudicial error 

and/or abused its discretion when it granted 

plaintiffs [sic] second motion for summary 

judgment, by failing to apply the correct 

standard to consider said motion when the 

record clearly demonstrates that genuine 

issues of material fact exist and/or not clear of 

doubt, by failing to consider the entire record 

before it. Appellant’s [sic] provided sufficient 

proof and knowledge and proof to be deemed 

genuine issues of material fact as to one 

or [sic] elements of the cause of action in 

mortgage foreclosure.

3. The Trial Court committed prejudicial error 

and/or abused its discretion when it refused to 

acknowledge Nationstar Mortgage LLC failed to 

produce clear, definitive proof of the original 

Consumer Mortgage Services, Inc. mortgage 

note. The Note originator testified at [sic] 
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Summary Judgment hearing the Note 

presented by plaintiff was not genuine, and did 

not contain the signature of Michael McKeon 

(note originator), nor did Tracy Beaver-McKeon 

clarify the signature contained on the 

document was that of the home owner.

4. The Trial Court committed prejudicial error 

and/or abused its discretion when it found that 

Nationstar Mortgage LLC had “standing to sue” 

and bring the foreclosure action when 

Nationstar Mortgage LLC is not entitled to 

enforce the note as a “holder in due course”.

5. The Trail [sic] Court committed prejudicial 

error and/or abused its discretion when it 

refused to acknowledge mortgagors denied 

specifically and disputed the allegations made 

by plaintiff in their [sic] complaint referencing 

the amount owed and due. The mortgagors

adduced evidence in the record controverting 

the evidence provided by plaintiff. 

Plaintiffs [sic] failed to present complete, 

accurate and trustworthy records evincing the 

actual amount due and owing from 

defendant [sic]. A judgment in mortgage 

foreclosure action must be in sum certain or it 

cannot be executed. Defendants dispute the 

Trail [sic] Courts [sic] finding that the amount 

due and owing from defendant [sic] is 

$823,524.28 and interest.

6. The Trial Court committed prejudicial error 

and/or abused its discretion to permit the 

admission of the assignment of mortgage 

plaintiff proffered into evidence and 

determined it to be a valid assignment.

7. The Trail [sic] Court committed prejudicial 

error and/or abused its discretion when it did 

not apply Rule 803(6) and 42 Pa.C.S.A. in its 

determination of the plaintiffs [sic] exhibits or 

the plaintiffs [sic] corporate designee to be a 

‘qualified witness’ to establish circumstantial 
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trustworthiness. The records themselves are 

not admissible under Rule 803(6).

8. The Trial Court committed prejudicial error 

and/or abused its discretion when it failed to 

recognize the defendants specifically denied 

plaintiff’s assertion, supported in the motion 

for summary judgment with the affidavit of 

plaintiff’s officer and defendants [sic] loan 

history, that defendant [sic] has not made 

payments on the mortgage for any months 

after July 1, 2010 but offered proof refuting 

plaintiff’s evidence.

9. The Trial Court committed prejudicial error 

and/or abused its discretion when it failed to 

consider defendants [sic] six (6) counterclaims 

against the plaintiff under Pa.R.C.P. 1148.

Appellants’ brief at 6-8.

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

well-settled standard and scope of review for challenges to summary 

judgment:

[This court’s] 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.

Summary judgment is appropriate only when the 

record clearly shows that there is no genuine issue of 

material fact and that the moving party is entitled to 

judgment as a matter of law. The reviewing court 

must view the record in the light most favorable to 

the nonmoving party and resolve all doubts as to the 

existence of a genuine issue of material fact against 

the moving party. Only when the facts are so clear 

that reasonable minds could not differ can a trial 

court properly enter summary judgment.
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CitiMortgage, Inc. v. Barbezat, 131 A.3d 65, 67 (Pa.Super. 2016) 

(citations omitted). “Summary judgment in mortgage foreclosure actions is 

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

For ease of discussion, we will address appellants’ issues in the most 

logical order.

Appellants’ Issues 1 and 2 challenge the trial court’s entry of summary 

judgment based on their contention that they raised genuine issues of 

material fact which the trial court either ignored or applied an incorrect legal 

standard to when making its determination.

. . . A party bearing the burden of proof at trial is 

entitled to summary judgment “whenever there is no 

genuine issue of any material fact as to a necessary 

element of the cause of action or defense which 

could be established by additional discovery or 

expert report[.]” Pa.R.C.P. No. 1035.2(1). In 

response to a summary judgment motion, the 

nonmoving party cannot rest upon the pleadings, but 

rather must set forth specific facts demonstrating a 

genuine issue of material fact. Pa.R.C.P. No. 1035.3.

The holder of a mortgage has the right, upon 

default, to bring a foreclosure action. 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.

. . . .

. . . General denials [to averments in a complaint] 

constitute admissions where . . . specific denials are 

required. See Pa.R.C.P. No. 1029(b). 

Furthermore, “in mortgage foreclosure actions, 
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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, 653 A.2d 688, 692 

([Pa.Super.] 1995); see Pa.R.C.P. No. 1029(c) 

Note. . . .

Bank of America, N.A. v. Gibson, 102 A.3d 462, 464-467 (Pa.Super. 

2014), appeal denied, 112 A.3d 648 (Pa. 2015) (citation omitted; 

emphasis added) (determining entry of summary judgment proper where 

mortgagor effectively admitted material allegations of complaint with 

ineffective denials and improper claims of lack of knowledge). In a 

mortgage foreclosure action, “[u]nquestionably, apart from 

appellee[/mortgagee], appellants[/mortgagors] are the only parties who 

would have sufficient knowledge on which to base a specific denial.” 

Strausser, 653 A.2d at 692.

Here, appellants responded to the averments of default and the 

amount of the mortgage in the foreclosure complaint with nothing more than 

general denials. In the complaint, U.S. Bank averred as follows:

5. The mortgage is in default because the 

monthly payments of principal and interest are 

due and unpaid for August 01, 2010 and each 

month thereafter and by the terms of the 

Mortgage, upon default in such payments for a 

period of one month or more, the entire 

principal balance and all interest due and other 

charges are due and collectible.

6. The following amounts are due to Plaintiff on 

the Mortgage:
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Principal Balance . . . . . . . $722,424.89

Variable Interest from

 07/01/2010 through

 01/02/2013 . . . . . . . . . $52,206.95

Late Charges . . . . . . . . . . $345.77

Escrow Advances . . . . . . . $48,406.67

Fee Due Advances . . . . . . $140.00

$823,524.28

Complaint, 5/24/13 at ¶¶ 5 & 6.

Appellants answered with the following general denials:

5. Denied. Strict Proof is demanded at Trial.

6. Denied. Strict Proof is demanded at Trial.

Answer, 6/21/13 at 1, at ¶¶ 5 & 6.

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

the foreclosure complaint, especially pertaining to their default and the 

amount 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).
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Therefore, we find that appellants’ general denials concerning their 

default on the mortgage and the amount due on the mortgage constitute 

admissions to the facts averred in the foreclosure complaint. As a result, 

appellants failed to sustain their burden of presenting material facts in 

dispute, and the trial court properly granted summary judgment. See 

Gibson, 102 A.3d at 465 (Pa.Super. 2014) (holding that the mortgage 

holder is entitled to summary judgment when 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). Accordingly, 

appellants’ first two issues lack merit.

In their Issues 5 and 8, appellants contend that they specifically 

denied the allegations set forth in the foreclosure complaint with respect to 

their default and the amount owed and due. Their answer to the complaint, 

however, belies their contentions because their answer fails to plead specific 

facts in response to the foreclosure complaint. (Answer, 6/21/13 at 1.) As 

discussed above, a failure to do so constitutes an admission. See

Strausser, 653 A.2d at 692; Dietzel, 524 A.2d at 952; Cercone, 386 A.2d 

at 3; see also Pa.R.C.P. 1029. Therefore, appellant’s fifth and eighth issues 

lack merit.

In their Issues 4 and 6, appellants challenge the standing of U.S. 

Bank, which instituted the underlying foreclosure action and subsequently 

assigned the mortgage to Nationstar. Appellants contend that “U.S. Bank 
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cannot overcome its lack of standing by offering into evidence an unoriginal 

version of the note.” (Appellants’ brief at 15.) Appellants additionally claim 

that a 2011 assignment of the note was “robo-signed” and “fraudulent” and 

that appellants “[stand] to lose a home to a party who comes to court with 

unclean hands; a party who has not demonstrated its standing to sue and 

committed fraud upon the court.” (Appellants’ brief at 16-17.)

This court has held that under the Uniform Commercial Code, a debtor 

lacks standing to challenge defects in the chain of possession of a valid note. 

See JP Morgan Chase Bank, N.A. v. Murray, 63 A.3d 1258, 1266 

(Pa.Super. 2013). This is due to the fact that the debtor’s liability under the 

note is completely discharged by paying the holder, even if another party is 

ultimately determined to be the real party in interest. See id. at 1265.

Appellants further contend that the promissory note was defective 

because it “was missing the required signature of the defendant and note 

maker Michael McKeon.” (Appellants’ brief at 14.) Appellants also raise this 

claimed defect, which bears on the note’s validity, in their Issue 3. We will, 

therefore, also dispose of Issue 3 here.

While appellant Michael McKeon may not have signed the promissory 

note, he co-signed the mortgage. (Nationstar’s Motion for Summary 

Judgment, 3/9/15, at Exhibit B, Mortgage, 3/14/05 (“Mortgage”).) The 

mortgage secures the repayment of the note. (Id. at 3, ¶ 2.) Specifically, 

under the terms of the mortgage, both appellants, as “Borrowers,” incurred 
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the obligation to pay the debt evidenced by the note. (Id. at 1, ¶ (B) 

(defining appellants as “Borrowers”).) Nationstar has not released the 

mortgage or the lien on the mortgaged property. Accordingly, when 

appellants defaulted on the mortgage, the mortgagee’s remedy was to seek 

foreclosure and the sale of the property to satisfy the outstanding debt. (Id.

at 9, ¶ 22.)

The Pennsylvania Rules of Civil Procedure govern actions in mortgage 

foreclosure, which are strictly in rem proceedings. See Strausser, 653 

A.2d at 693 n.4 (stating that an action on a promissory note seeks an 

in personam judgment, whereas a mortgage foreclosure action is strictly 

in rem). Rule 1147 provides that the complaint must plead the following 

elements:

(a) The plaintiff shall set forth in the complaint:

(1) 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;

(2) a description of the land subject to 

the mortgage; the names, 

addresses and interest of the 

defendants in the action and that 

the present real owner is unknown 

if the real owner is not made a 

party;

(4) a specific averment of default;

(5) an itemized statement of the 

amount due; and
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(6) a demand for judgment for the 

amount due.

Pa.R.C.P. 1147(a). As this action is in rem only, Nationstar is not seeking 

to hold appellants personally liable for the debt. Accordingly, because the 

mortgage is in default, Nationstar can proceed in rem to foreclose on the 

mortgage and force a sale of the property. The record reflects that 

Nationstar satisfied the requirements of Rule 1147. Therefore, appellants’ 

Issues 3, 4, and 6 lack merit.

In their Issue 7, appellants complain that Pa.R.E. 803(6) (Exceptions 

to the Rule Against Hearsay, Records of Regularly Conducted Activity) 

precluded the trial court from admitting into evidence certain of Nationstar’s 

evidence. A review of the record, however, reveals that appellants failed to 

raise this claim with the trial court. Therefore, appellants waive this issue on 

appeal. Pa.R.A.P. 302(a) (providing that “[i]ssues not raised in the lower 

court are waived and cannot be raised for the first time on appeal[]”); see 

also Moranko v. Downs Racing LP, 118 A.3d 1111, 1115-1116 (Pa.Super. 

2015) (en banc) (stating that “[a]rguments not raised initially before the 

trial court in opposition to summary judgment cannot be raised for the first 

time on appeal[]” (citations and internal quotation marks omitted)).

Finally, in their Issue 9, appellants complain that the trial court abused 

its discretion by failing to consider their counterclaims against Nationstar. In 

support, appellants set forth the following two-sentence argument: “A 
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defendant may state in his answer in a section titled ‘Counterclaim’, any 

claim he has against the plaintiff at the time the answer is filed. Pa.R.C.P. 

1031(a). [Appellants] did in fact list the Counterclaim in its brief for the 

lower court to consider.” (Appellants’ brief at 19.)

Appellants waive this issue for lack of development in the argument 

section of their brief. Pa.R.A.P. 2119(a) (an appellate brief must contain 

“discussion and citation of authorities” to each issued raised); see also 

Butler v. Illes, 747 A.2d 943, 944 (Pa.Super. 2000) (“When issues are not 

properly raised and developed in briefs, when briefs are wholly inadequate to 

present specific issues for review, [this] court will not consider the merits 

thereof.” (citations omitted)). We also note that the record reflects that 

appellants failed to set forth counterclaims against Nationstar in their answer 

to Nationstar’s complaint. (See answer, 6/21/13.) See Pa.R.C.P. 1031(a) 

(“The defendant may set forth in the answer under the heading 

‘Counterclaim’ any cause of action cognizable in a civil action which the 

defendant has against the plaintiff at the time of filing the answer.”). As 

such, even if appellants had not waived this claim, their contention that they 

“list[ed] the Counterclaims in [their] brief” would lack merit because 

counterclaims must be raised in an answer.

Order affirmed.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 8/18/2016