J-A16037-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

US BANK NATIONAL ASSOCIATION, AS 

TRUSTEE FOR SARM 2006-4

IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

JOHN MCCLAIN AND MITCHELL PRINCE

Appellants No. 3062 EDA 2014

Appeal from the Order Entered October 3, 2014

In the Court of Common Pleas of Montgomery County

Civil Division at No(s): 2009-07709

BEFORE: LAZARUS, J., OLSON, J., and PLATT, J.*

MEMORANDUM BY LAZARUS, J.: FILED OCTOBER 16, 2015

John McClain and Mitchell Prince (Defendants) appeal from the trial 

court’s order, entered in the Court of Common Pleas of Montgomery County, 

granting Appellee US Bank National Association’s (US Bank) motion for 

reconsideration, entering summary judgment1on all claims in favor of US 

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 Our standard of review in cases of summary judgment is well settled. This 

court will only reverse the trial court’s entry of summary judgment where 

there was an abuse of discretion or an error of law. Merriweather v. 

Philadelphia Newspapers, Inc., 684 A.2d 137, 140 (Pa. Super. 1996). 

Summary judgment is proper when the pleadings, depositions, answers to 

interrogatories, admissions on file, and affidavits demonstrate that there 

exists no genuine issue of material fact and the moving party is entitled to 

judgment as a matter of law. Pa.R.C.P. 1035.2. In determining whether to 

grant summary judgment a trial court must resolve all doubts against the 

moving party and examine the record in a light most favorable to the non-

(Footnote Continued Next Page)
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Bank and against Defendants’ counterclaims, reforming a 2005 mortgage in 

this consolidated reformation/mortgage foreclosure action, and entering in 

rem judgment in the amount of $1,031,639.72, plus interest, against 

Defendants. After careful review, we affirm.

In 2005, Defendants purchased the subject property, located at 624 

Montgomery School Lane, Wynnewood, Lower Merion Township, 

Montgomery County (property), from Michael and Theresa Power (the 

Powers) for $1.1 million.2 At the time the Powers purchased the property in 

2001, a deed, registered with Lower Merion Township and recorded in 

Montgomery County, included a legal description of the property as two 

adjoining parcels, “Lot A” (100 ft. by 205 ft.) and “Lot B” (50 ft. by 205 ft.). 

Lot A has a house and pool on it and Lot B is vacant. In 2002, the Powers 

consolidated the lots into a single lot by deed in order to obtain a swimming 

pool permit. The 2002 deed (deed of consolidation) was also registered and 

recorded, and contained a proper metes and bounds description of the entire 

property. The property was assigned a single tax parcel number and is 

known by the single address of 624 Montgomery School Lane. When 

Defendants purchased the property from the Powers, the agreement of sale 

(Footnote Continued) _______________________

moving party. Id. Summary judgment may only be granted in cases where 

it is clear and free from doubt that the moving party is entitled to judgment 

as a matter of law. Id. 

2 The Powers purchased the property and acquired title to the property from 

the Estate of Rush Donwell Touton, Jr., by deed dated November 15, 2001. 
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described the property simply by address and tax parcel number. However, 

the 2005 deed conveying the property to the Defendants, which was 

prepared by a title agent, contained an error in the legal description of the 

property -- the deed only included the metes and bounds description of Lot 

B and completely omitted the metes and bounds description of Lot A. 

Defendants borrowed $825,000 from Wells Fargo to buy the property. The 

legal description of the property in the Wells Fargo mortgage contains the 

same error as the 2005 deed, it identifies the correct address and tax parcel 

number, but it contains a metes and bounds description of only Lot B. The 

Wells Fargo loan application issued to the Defendants for the property 

certifies that the Defendants will utilize the property as their primary 

residence.

In 2006, Wells Fargo, the original mortgagor of Defendants’ loan, 

transferred all rights, title, and interest in the loan to US Bank. As a result 

of that transaction, Wells Fargo became the servicer of the loan and US Bank 

the trustee, holding an interest in the mortgage loan for the benefit of 

investors.3 Defendants failed to make their monthly mortgage payments. 

____________________________________________

3 Many mortgage lenders securitize their outstanding mortgages through the 

sale of Mortgage Backed Securities (MBS) in the capital markets. See 

https://www.usbank.com/pdf/.../Role-of-Trustee-Sept2013. Parties 

involved in a MBS transaction include the borrower, the originator, the 

servicer and the trustee, each with their own distinct roles, responsibilities 

and limitations. Id. MBS’s are financial instruments which represent an 

ownership in a group of mortgage loans, commonly referred to as pools, and 

their corresponding cash flows. Id. Mortgage loans are purchased from 

(Footnote Continued Next Page)
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Defendants have been in default for 7 years. In March 2009, US Bank4filed 

the underlying mortgage foreclosure action (foreclosure action) against 

Defendants. During the pendency of the action, US Bank discovered the 

errors in the legal description in the 2005 deed and mortgage. As a result, 

US Bank filed a quiet title action in June 2010 against Defendants seeking 

to: (1) reform the mortgage to include the residential lot and (2) declare 

that it held a “valid first position mortgage” against the residential lot even 

though the subsequent Wells Fargo home equity loans were actually 

recorded first in time against the residential lot. In response, on July 14, 

2010, the Powers corrected the error in the 2005 deed’s legal description by 

executing a new deed (“deed of correction”) that contained a corrected 

metes and bounds description of the entire property, both Lots A and B.

In August 2011, Defendants filed a lawsuit (“reformation action”) in 

Delaware County5against the Powers to compel reformation of the 2005 

(Footnote Continued) _______________________

banks, mortgage companies, and other originators and then assembled into 

pools by a governmental, quasi-governmental, or private entity and then 

deposited into trusts which issue securities entitling the investors to all 

principal and interest payments made by borrowers on the loans in the pool. 

Id. 

4 According to Defendant McClain, Wells Fargo instituted the first foreclosure 

action on the property in January 2009. Subsequently, and for purposes of 

this appeal, US Bank instituted the current foreclosure action in March 2009. 

N.T. Judge Green Trial, 2/12/13, at 219. 

5 The Powers resided in Delaware County at the time the reformation action 

was filed.
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deed to include separate legal descriptions for Lots A and B, as well as to 

have them convey the property to Defendants as joint tenants with the right 

of survivorship.6 After a non-jury trial, the Honorable G. Michael Green 

presiding (Judge Green Trial), the trial court determined that the Powers 

must record a new deed describing the land as a single consolidated parcel 

in conformance with the 2002 deed of consolidation. The Powers complied 

with the order and a new deed was recorded in 2013. The 2013 deed 

describes the entire property and also lists Defendants as joint tenants with 

the right of survivorship. This determination was appealed and our Court 

affirmed the trial court’s order. See McClain v. Power, No. 1933 EDA 2013 

(filed September 18, 2014) (Pa. Super. 2014).

US Bank filed a motion for summary judgment; oral argument was 

held on the motion on May 2, 2013, before the Honorable Rhonda Lee 

Daniele. On January 15, 2014, the court denied US Bank’s motion for 

summary judgment. US Bank and Defendants filed motions for 

reconsideration of the court’s summary judgment order; the court granted 

US Bank’s motion and denied Defendants’ motion, after argument, on 

October 3, 2014. The court entered summary judgment in favor of US Bank 

and against Defendants on their counterclaims. The court specifically 

ordered that:

____________________________________________

6 On September 9, 2011, the trial court ordered that the foreclosure action 

(No. 09-07709) and reformation action (No. 10-15604) be consolidated.
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 the legal description attached to the mortgage be reformed to include 

the metes and bounds of the entire property (both lots);

 the declared mortgage constitutes a valid, first-position mortgage lien 

against the entire property; and

 in rem judgment be entered in foreclosure in the amount of 

$1,031,639.72.

Trial Court Order, 10/3/14, at 1-2. The trial court concluded, on 

reconsideration, that collateral estoppel applied to the case where: (1) 

Defendants believed that the property consisted of a single lot at the time of 

purchase; (2) the reformation action was decided on the merits; (3) 

Defendants were a party to that reformation action before Judge Green; and 

(4) Defendants had a full and fair opportunity to litigate the issue of whether 

the mortgage applied to both lots in the action before Judge Green. Trial 

Court Opinion, 10/3/14, at 4.7 Moreover, the trial court found that because 

Defendants admitted they are in default, summary judgment was properly 

granted in favor of US Bank in the foreclosure action. Defendants now 

appeal the October 3, 2014 order granting reconsideration and entering 

judgment in favor of US Bank and against Defendants. On appeal, 

Defendants raise the following issues for our consideration:

1. Was summary judgment properly granted in either of the 

actions when none of the plaintiff’s pleading or discovery 

contained a valid verification?

____________________________________________

7 The trial court adopted the October 3, 2014 memorandum opinion in the 

event of an appeal. Thus, we have no separate Pa.R.A.P. 1925(a) opinion in 

the matter.
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2. Was summary judgment properly granted when the facts 

reveal that US Bank has no standing to bring either action?

3. Was summary judgment properly granted in the Foreclosure 

Action when there was a genuine issue of material fact regarding 

the assignment of the mortgage and note to the plaintiff at the 

time the Plaintiff instigated its foreclosure action?

4. Was summary judgment properly granted in the Foreclosure 

Action when the plaintiff is not the named mortgagee and it 

failed to file an Assignment of Mortgage?

5. Was summary judgment properly granted in the Foreclosure 

Action enlarging the mortgage lien to include the additional 

100x205' Residential Lot when the plaintiff never requested this 

relief in its pleadings?

6. Was summary judgment in the Foreclosure Action properly 

granted enlarging the mortgage lien to include the additional 

100x205' Residential Lot when the plaintiff judicially admitted 

that the lien only encompassed the 50x205 Vacant Lot.

7. Did the court have jurisdiction to grant summary judgment in 

the Quiet Title Action when there was a failure to name all 

necessary and indispensable parties?

8. Was summary judgment in the Quiet Title Action properly 

granted when there was no credible evidence of a mutual 

mistake?

9. Was summary judgment in the Foreclosure Action properly 

granted when there was no credible evidence of the default?

10. Was summary judgment in the Quiet Title Action properly 

granted despite the fact that the Defendants' bankruptcies 

granted bona fide purchaser status to the Trustee in bankruptcy 

which, in turn, deprived the court to grant the equitable relief 

requested to the plaintiff?

11. Did the court properly apply the doctrine of collateral 

estoppel when the finding in the prior action was not essential to 

the outcome?

Defendants first claim that summary judgment was improperly entered 

in favor of US Bank where it never properly verified, swore or attested to 
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any pleadings or discovery. Instead, the Defendants claim that US Bank’s 

attorneys or representatives from Wells Fargo, its servicing agent, submitted 

the verifications which are insufficient under the rules of civil procedure.

Pennsylvania Rule of Civil Procedure 1024, that governs the rules 

applicable to verification, states in pertinent part:

(a) Every pleading containing an averment of fact not appearing 

of record in the action or containing a denial of fact shall state 

that the averment or denial is true upon the signer's personal 

knowledge or information and belief and shall be verified. The 

signer need not aver the source of the information or 

expectation of ability to prove the averment or denial at the trial. 

A pleading may be verified upon personal knowledge as to a part 

and upon information and belief as to the remainder.

. . .

(c) The verification shall be made by one or more of the 

parties filing the pleading unless all the parties (1) lack 

sufficient knowledge or information, or (2) are outside the 

jurisdiction of the court and the verification of none of 

them can be obtained within the time allowed for filing 

the pleading. In such cases, the verification may be made 

by any person having sufficient knowledge or information 

and belief and shall set forth the source of the person's 

information as to matters not stated upon his or her own 

knowledge and the reason why the verification is not 

made by a party.

Pa.R.C.P. 1024 (emphasis added). Our Court has held that a complaint's 

verification "must not be transferred into an offensive weapon designed to 

strike down an otherwise valid petition". Monroe Contract Corp. v. 

Harrison Square, Inc., 405 A.2d 954, 958 (Pa. Super. 1979). Moreover, 

before a court dismisses a pleading on the basis of a defective verification, it 

should first permit the party to amend. Id. However, where the failure to 
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comply with Rule 1024 results in an error of a de minimus technical nature 

that did not prejudice the substantive rights of the opposing party, it is not 

necessary to remand the case for amendment where it would serve no 

practical purpose. Id.

Defendants rely upon J.P. Morgan Chase Bank, N.A. v. Murray, 63 

A.3d 1258 (Pa. Super. 2013), to argue that Wells Fargo, as a mortgage 

servicer, is not the proper party to execute verifications in this case. In 

Murray, the underlying mortgage foreclosure action was filed by Deutsche 

Bank National Trust Company as trustee for Washington Mutual Mortgage 

Securities Corporation. JP Morgan Chase Bank was later substituted as 

plaintiff, as an agent of Deutsche Bank. When a vice president of JP Morgan 

signed the complaint’s verification “on behalf of” JP Morgan, mortgageedefendants argued that, as a representative of JP Morgan, she could only 

verify the complaint if she “certified satisfaction of the requirements of Rule 

1024(c).” Id. at 1270. In finding the verification deficient, and remanding 

the case to permit amendment, our Court reiterated that any person, 

including an attorney for a party, could verify on behalf of another party, 

provided that the person does so “only in those cases in which the conditions 

delineated in Rule 1024 are present.” Id. In Murray, the Court determined 

that the verification was not only deficient, but “no effort was made satisfy 

Rule 1024(c).” Id. at 1271.

Here, the mortgage foreclosure complaint was filed on March 18, 

2009, solely in the name of US Bank National Association as Trustee for 
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SARM 2006-4.8 The verification to the complaint, made by US Bank’s 

attorney,9 provides that because US Bank, as plaintiff, is outside the 

jurisdiction of the Court and/or the verification could not be obtained within 

the time allowed for the filing of the complaint, US Bank’s attorney is 

authorized to make the verification pursuant to Pa.R.C.P. 1024(c), and that 

the statements made in the foreclosure action are based upon 

information supplied by US Bank and are true and correct to the best of 

his knowledge. Complaint Verification, 3/20/05 (emphasis added).

Subsequently, on July 29, 2009, US Bank praecipied to reinstate the 

mortgage foreclosure complaint/action against Defendants. Plaintiff’s 

attorney filed a praecipe to substitute the verification to the complaint. The 

____________________________________________

8 SARM is the acronym for a structured adjustable rate mortgage.

9

Instantly, US Bank’s original verification includes the requisite Rule 1024(c) 

language that explains why US Bank did not make the verification in its own 

stead. Cf. Atlantic Credit & Finance, Inc. v. Giuliana, 829 A.3d 340 (Pa. 

2003) (verification, signed by paralegal of plaintiff corporation, stating that 

s/he “reviewed the averments of the attached pleading [and] verifie[d] that 

the pleading is based on information furnished to counsel . . . [which] has 

been gathered . . . in the course of [the] lawsuit” and that the “language of 

the pleading is that of counsel and not of the [signer paralegal]” was wholly 

defective under Rule 1024(c) and inadequate to support entry of judgment 

against appellants). Counsel may verify a pleading for his or her client when 

the conditions delineated in Rule 1024(c) are present. Lewis v. Erie Ins. 

Exchange, 421 A.2d 1214, 1217 n.2 (Pa. Super. 1980). Moreover, the 

source of information need only be indicated for those matters not stated to 

be within the signer's own knowledge. See Monroe Contract, supra

(where all information pertinent to petition was within counsel's knowledge 

and failure to state where other information was derived was inconsequential 

error which was not prejudicial). 
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substituted verification is signed by a Wells Fargo vice president of loan 

documentation on behalf of US Bank; at the time, Wells Fargo was still 

acting as the servicing agent for US Bank. In the substituted verification, 

the vice president verifies that she is authorized to execute the verification 

on behalf of the Plaintiff and that the facts set forth “in the foregoing Civil 

Action in Mortgage Foreclosure are true and correct to the best of his/her 

knowledge, information and belief.” Verification, 3/20/09.

Thereafter, on July 27, 2010, US Bank filed an amended complaint 

attaching a verification from Herman Kennerty, another vice president of 

loan documentation for Wells Fargo. In his verification, Kennerty states that 

he is authorized to execute the verification on behalf of US Bank and that 

“the facts set forth in the foregoing Amended Complaint in Equity are true 

and correct to the best of [his] knowledge, information and belief.” 

Verification, 7/27/10.

Defendants filed preliminary objections, seeking dismissal of US Bank’s 

amended complaint, claiming that the Bank’s verification was defective 

because it: (1) was not taken by one of the parties; (2) does not state the 

reason why the verification is not or could not be taken by one of the 

plaintiffs; (3) does not set forth the source of the information as to the 

matters contained in the complaint; and (4) does not state that the Plaintiff 

is outside the jurisdiction of the court and its verification could not be 

obtained within the time allowed for filing the pleading. Defendants’ 

Preliminary Objections to Plaintiff’s Amended Complaint, 8/16/10, at 3. In 
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its response to Defendants’ preliminary objections, US Bank averred that the 

amended complaint “was properly verified by a representative of the 

attorney-in-fact for [US Bank], and complies with Pennsylvania law.” 

Plaintiff’s Response to Defendants’ Preliminary Objections, 8/17/10, at 5.

At all times relative to the verification issue, Wells Fargo was acting as 

the servicing agent for US Bank. Counsel for US Bank noted at an 

evidentiary hearing on Defendant Prince’s motion for sanctions that, as the 

servicer of the loan, Wells Fargo has continued to maintain possession of the 

mortgage note and that no official at US Bank, as trustee, would be capable 

of answering specific questions regarding the mortgage documents kept in 

the ordinary course of business. N.T. Hearing on Motion for Sanctions, 

2/18/14, at 6-8.10 

____________________________________________

10 Prior to disposition of Defendants’ original preliminary objections, 

Defendants moved to file amended preliminary objections on October 13, 

2010, rendering all prior preliminary objections withdrawn or moot. In their 

amended objections, Defendants no longer raised a Rule 1024 verification 

issue. On October 25, 2010, prior to ruling on Defendants’ motion to file 

amended preliminary objections, the court dismissed Defendants’ 

preliminary objections for failure to file a brief after US Bank praecipied for 

argument. See Montgomery County Local Rule of Civil Procedure 

1028(c)(4). However, the court vacated its order, as improvidently granted, 

and directed the court administrator to list the motion for leave to file 

amended preliminary objections to the amended complaint for argument 

upon praecipe. On March 4, 2011, the trial court entered an order and 

accompanying stipulation from the parties granting Defendants leave to file 

amended preliminary objections to Plaintiff’s amended complaint. After filing 

their amended preliminary objections, the trial court denied the objections in 

July 2011. Therefore, we could alternatively find that Defendants have 

abandoned this claim on appeal.
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Defendants are correct that US Bank did not state in its verifications 

that Wells Fargo, original mortgagor and current servicer and holder of the 

note, was in the best position to verify pleadings or answer any questions 

regarding the mortgage documents. However, this exact position was 

clearly advanced to the court at the motion for sanctions hearing. 

Defendants were unable to advance any colorable argument as to how the 

omission of this language prejudiced them in defending this case that is now 

more than six years stale. Therefore, because amendment of the 

verifications at this stage of the proceedings would serve no practical 

purpose and the error is of such a de minimus technical nature that it did 

not prejudice Defendants’ substantive rights, Defendants are not entitled to 

relief on this claim. Monroe Contract, supra. 

Next, Defendants claim that summary judgment was improperly 

granted on the following related bases: (1) US Bank does not have standing 

to bring either the reformation or foreclosure actions; (2) there was a 

genuine issue regarding the Wells Fargo assignment of the mortgage to US 

Bank at the time the foreclosure action was instituted; (3) US Bank is not a 

named mortgagee; and (4) there was no credible evidence of Defendants’ 

default on the mortgage.

This case involves a discrepancy in the legal description of the 

property found in the Powers’ 2002 deed and the Defendants’ 2005 deed. 

The former describes the property as consolidated Lots A and B, the latter 

completely omits any description of Lot A. Moreover, the original deed 
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executed when the Powers purchased the property in 2001 lists the lots 

separately. Despite these varying legal descriptions, the record reveals that 

when Defendants purchased the instant property from the Powers in 2005, 

they intended to buy the entire property identified as 624 Montgomery 

School Lane, with its corresponding tax parcel number. Defendant McClain 

conceded that neither the agreement of sale nor the Powers’ disclosure 

statement made any specific reference to Parcels A and B or the property's 

metes and bounds description, nor was there anything in writing promising 

to convey a deed that specifically referenced Lot A and Lot B. See N.T. 

Judge Green Trial, 2/12/13, at 155-58, 230, 297. In fact, Defendant 

McClain did not notice the legal description error in the 2005 deed until 

October 2009. Id. at 70. Additionally, Defendant Prince acknowledged that 

when he signed the agreement of sale he was unaware that there had been 

two lots identified separately as Premises “A” and Premises “B”; he, too, was 

unaware of the separate A and B Lot descriptions until he was served with 

the foreclosure lawsuit in 2009. Id. at 343. 

As purchasers of land, Defendants are charged with “constructive 

notice of every matter connected with or affecting their title, which appears 

by description of the parties, by recital, by reference, or otherwise, on the 

face of any deed, or upon any public record, which forms an essential link in 

the chain of instruments through which [they] take[] title[.]” Volk v. 

Eaton, 69 A. 91 (Pa. 1908) (citation omitted). Therefore, Defendants were 

imputed with knowledge of the consolidated description of the two lots 
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comprising 624 Montgomery School Lane. The trial court found that the 

2002 deed was registered with Lower Merion Township and properly 

recorded in the Montgomery County Recorder of Deeds Office. Defendants 

presented no evidence to contradict this finding.

Instantly, the evidence presented at the reconsideration hearing on 

the Bank’s motion for summary judgment conclusively established both US 

Bank’s standing to bring the instant mortgage foreclosure action, as well as 

the fact that the Defendants were in default and had not paid the mortgage 

on the property since June 2008. See N.T. Reconsideration Hearing, 

5/28/14, at 65-73; see also J.P. Morgan Chase Bank v. Murray, 63 A.3d 

1258 (Pa. Super. 2013) (citing 13 Pa.C.S. § 3205(b) of Pennsylvania’s 

Uniform Commercial Code, stating when note indorsed in blank, instrument 

becomes payable to bearer and may be negotiated by transfer or possession 

alone until specially indorsed); Cunningham v. McWilliams, 714 A.2d 

1054 (Pa. Super. 1998) (in mortgage foreclosure action, summary judgment 

proper if mortgagors admit mortgage is in default, that they have failed to 

pay interest on obligation, and that recorded mortgage is in specified 

amount).

Defendants also claim that the court improperly granted summary 

judgment where US Bank did not request enlarging the mortgage lien to 

include the additional 100x205' Residential Lot (Lot A), and where US Bank 

judicially admitted, by attaching an incomplete legal description of the 
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property in its mortgage foreclosure complaint, that the lien only 

encompassed the 50x205 Vacant Lot (Lot B).

Instantly, US Bank’s summary judgment motion specifically requested 

the “substitu[tion of] the incomplete legal description attached to the 

Mortgage with a full and complete legal description describing the entire 

property.” Motion for Summary Judgment, 6/29/12, at ¶3. Therefore, the 

motion does specifically ask the court to reform the deed to include the 

entire property, Lots A and B, in its description. 

Next, while the legal description of the property attached to US Bank’s 

mortgage foreclosure complaint only includes the metes and bounds 

description for Lot B, it also includes the county parcel number and lot 

address (624 Montgomery School Lane) which refers to the entire property 

(Lots A and B). For an averment to qualify as judicial admission, it must be 

clear and unequivocal admission of fact. John V. Conomos, Inc. v. Sun 

Co., 831 A.2d 696 (Pa. Super. 2003)). Moreover, an admission is not 

conclusively binding when “the statement is indeterminate, inconsistent, or 

ambiguous.” Greater Valley Terminal Corp. v. Goodman, 176 A.2d 408, 

410 (Pa. 1962). Accordingly, the legal description of the property, which 

includes the metes and bounds description as well as the property address 

and county parcel number, contains internal inconsistencies. Thus, we do 

not find that US Bank judicially admitted that the Defendants’ mortgage only 

pertains to Lot B due to the lack of a clear and unequivocal admission of 

fact. Conomos, supra; Greater Valley, supra.
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Defendants next assert that the trial court did not have jurisdiction to 

grant summary judgment in the Quiet Title Action because “all necessary 

and indispensable parties” were not named. Specifically, Defendants claim 

that Wells Fargo, as a predecessor in interest to the loan, should have been 

given the opportunity to be heard before the court declared US Bank to have 

a valid first-position mortgage lien against the property.

Pursuant to Pa.R.C.P. 1061(b)(3), an action to quiet title may be 

instituted in order to “compel an adverse party to file, record, cancel, 

surrender or satisfy of record, or admit the validity, invalidity or discharge 

of, any document, obligation or deed affecting any right, lien, title or interest 

in land.” Additionally, Pa.R.C.P. 2227, the compulsory joinder rule, states, 

“[p]ersons having only a joint interest in the subject matter of an action 

must be joined on the same side as plaintiffs or defendants.” Pa.R.C.P. 

2227(a).

Historically, Wells Fargo originated the loan on Defendants’ property 

and currently holds two junior mortgages against the property. However, it 

no longer possesses any rights in the mortgage such that it could be 

impacted by the outcome of this consolidated reformation and foreclosure 

case. See N.T. Summary Judgment Hearing, 5/2/13, at 46. Moreover, 

Wells Fargo, as servicer of the loan, verified the complaint and amended 

complaint in the reformation action. If it had competing interests such that 

it opposed the action brought by US Bank, it certainly had the opportunity to 

voice or raise those objections. Thus, we find no merit to this claim.
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Defendants next argue that because there was no credible evidence of 

mutual mistake, summary judgment was improperly granted in favor of US 

Bank. We disagree.

It is well known that:

A court of equity has the right to reform a deed where mutual 

mistake appears. The right to reformation of a deed in equity, if 

mutual mistakes appear, is unquestionable where the purpose is 

to correct the inaccurate description given therein, and make it 

conform to the intention of the parties; also that where a mutual 

mistake in the description appears, reformation of the deed will 

be directed notwithstanding an express denial by the defendant 

that an error was made.

Armstrong County Bldg. & Loan Ass’n v. Guffyb, 200 A. 160, 163 (Pa. 

Super. 1938). See Dudash v. Dudash, 460 A.2d 323 (Pa. Super. 1983) 

(when court reforms deed on basis of mutual mistake, it must reform deed 

to reflect intent of parties).

As we have already discussed, the evidence demonstrates that the 

Defendants intended to purchase and mortgage the entire property, 

including both Lots A and B, and to solely reside on Lot A. Moreover, the 

court correctly concluded that the mortgagor would not have intended to 

issue a mortgage to cover only the vacant lot, Lot B, of the property. 

Because Lot A’s metes and bounds description was not included on the deed 

or mortgage when Defendants acquired the property, the trial court and our 

Court properly determined that a mutual mistake in the description existed 

and that reformation of the deed was required in order to rectify the 
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inaccurate property description. We see no error in this judicial action. 

Dudash, supra.

Defendants next claim that the court did not have the authority to 

grant US Bank the equitable remedy of deed reformation because when 

Defendants declared bankruptcy the trustee became a bona fide purchaser 

of the property by operation of law.

Section 544 of the United States Bankruptcy Code allows a trustee in 

bankruptcy to avoid certain claims against a debtor’s estate. See 11 U.S.C. 

§544(a)(3). Specifically, the statute permits the trustee to stand in the 

shoes of a lien or judgment creditor, or bona fide purchaser, of the debtor’s 

real property. Id. However, for a trustee to exercise his or her rights to the 

property, he or she must affirmatively commence an adversary action, 

within the applicable statute of limitations, to perfect the lien under section 

544. Where a trustee does not timely commence the action, the creditor 

retains its unperfected lien.

Because no trustees involved in the Defendants’ bankruptcy 

proceedings (which are now closed)11 commenced any proceedings to attack 

US Bank’s mortgage lien, the trial court had the authority to grant US Bank’s 

requested equitable relief to reform the deed. See also Johnson v. Home 

____________________________________________

11 Pursuant to 11 U.S.C § 546(a), “an action or proceeding under . . . 

section 544 . . . may not be commenced after the earlier of . . . the time the 

case is closed or dismissed.”
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State Bank, 501 U.S. 78, 83 (1991) (no violation of section 524 occurs 

where judgment creditor seeks in rem relief in post-bankruptcy reformation 

action).

Finally, Defendants assert that the trial court improperly applied the 

doctrine of collateral estoppel because nothing regarding the deed in the 

prior Delaware County reformation action was essential to the outcome of 

the current mortgage foreclosure action. We disagree.

Collateral estoppel operates to “prevent a question of law or issue of 

fact which has once been litigated and adjudicated finally in a court of 

competent jurisdiction from being relitigated in a subsequent suit.” Day v. 

Volkswagenwerk Aktiengesellschaft, 464 A.2d 1313, 1318 (Pa. Super. 

1983) (citations omitted). Moreover, collateral estoppel will bar any issue of 

fact previously litigated and determined by a valid and final judgment even if 

the subsequent action involves different causes of action and/or parties. Id. 

at 1319.

The trial court concluded that Defendants did not intend to purchase 

the property as two separate lots and that there was an error, a result of 

mutual mistake, in the legal description of the property contained in the 

2005 deed. In coming to this conclusion, the court examined the 

Defendants’ actions and dealings with Wells Fargo regarding the loan and 

mortgage. These determinations were clearly essential to the current 

mortgage foreclosure action involving Defendants and US Bank. Therefore, 

we find no merit to this claim.
J-A16037-15

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Order affirmed.

Judge Platt joins the Memorandum.

Judge Olson concurs in the result.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/16/2015