J-A04018-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

STEVEN RUBIN, EXECUTOR OF THE 

ESTATE OF MILTON RUBIN

IN THE SUPERIOR COURT

OF PENNSYLVANIA

Appellant

v.

STEPHEN KANYA, A/K/A STEVEN KANYA 

AND INSECTARIUM & BUTTERFLY 

PAVILION, INC.

Appellee No. 2049 EDA 2019

Appeal from the Order Entered May 8, 2019

In the Court of Common Pleas of Philadelphia County

Civil Division at No: 170600979

BEFORE: STABILE, J., KING, J., and PELLEGRINI, J.*

MEMORANDUM BY STABILE, J.: FILED MARCH 1, 2022

In 1989, Milton Rubin loaned Appellee Stephen Kanya $350,000.00 to 

purchase real property (“the Property”) located in Philadelphia. The loan was 

secured by a mortgage that recited material terms of the loan. During the 

1990’s, Kanya defaulted on the loan and Rubin died. In 2010, Kanya filed for 

Chapter 11 bankruptcy in Florida. On July 1, 2011, the Florida bankruptcy

court confirmed a reorganization plan in which Kanya and Rubin’s estate 

agreed that (1) the estate had a mortgage on the Property secured by a lien 

of $350,000.00, (2) the estate would retain its lien and be paid in accordance 

with the terms of Kanya’s “contract,”1 and (3) Kanya would pay over 

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 Kanya’s Confirmation Plan, § 4.9.1.
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$35,000.00 in arrearages on the mortgage. Over the next five years, Kanya 

made sporadic payments to the estate, but in 2016, Kanya transferred the 

property to Appellee Insectarium and Butterfly Pavilion, Inc. (“IBP”). In 2017, 

the estate filed a mortgage foreclosure action against Kanya and IBP. Kanya 

admitted all allegations in the estate’s amended complaint, but IBP vigorously 

defended against the estate’s action. Following a non-jury trial, the court 

entered a decision against the estate and in favor of Kanya and IBP on the 

ground that the statute of limitations expired in 1994. Rubin’s estate appeals 

from the judgment entered on this decision.

We hold that the trial court failed to recognize that the bankruptcy 

court’s confirmation of Kanya’s reorganization plan on July 1, 2011 constituted 

a binding contract. Any breach of this contract could not have taken place 

until after July 1, 2011, and therefore the statute of limitations for any such 

breach could not have begun running until after July 1, 2011. As a result, the 

trial court erred by concluding that the statute of limitations expired in 1994. 

We vacate the judgment and remand for a new trial. 

The trial court summarized the evidence adduced during trial as follows:

[The estate] asserted that on March 14, 1989, Milton Rubin loaned 

Kanya $350,000.00 to purchase the property at 8046 Frankford 

Avenue (the “Property”). This loan was allegedly made pursuant 

to a purchase money note. However, the original note was never 

recorded and no copy was presented at trial. The debt was 

secured by a mortgage on the Property which was also executed 

on March 14, 1989. The mortgage was recorded and referred to 

the alleged note. The mortgage was not executed under seal.
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The mortgage required [Kanya] to make sixty monthly payments 

of interest only commencing on April 1, 1989. The loan was also 

a balloon mortgage, and Kanya was required to make a principal 

payment of $50,000.00 by September 14, 1990 (18 months from 

the date of closing). The entire principal balance of $300,000.00 

with interest2 was due on March 1, 1994. The mortgage provided 

that failure to timely make these payments constituted an event 

of default. Kanya failed to make these payments and therefore 

defaulted on the loan on September 14, 1990.

The mortgage also prohibited the transfer of the Property by the 

mortgagor and provided that such transfer constituted an event 

of default. Kanya transferred the Property twice. On January 15, 

1999, he transferred ownership of the Property from himself solely 

to himself and his wife. On August 18, 2016, Kanya transferred 

the Property to [IBP] by quitclaim deed. Both of these actions 

were further events of default.

Over the next 27 years[,] Kanya allegedly made irregular 

payments to the mortgagee, originally to Milton Rubin and then, 

after Milton Rubin’s death on January 13, 1996, to Rubin’s estate. 

However, no records were presented at trial detailing any 

evidence of the original transaction or of any payments made 

personally by Kanya. [The estate] presented evidence of checks 

it received from Kanya purportedly for mortgage payments but no 

detailed statements were ever produced. There was no way of 

knowing what these payments were for. Nor were they made 

pursuant to a consistent schedule.

The estate claimed records related to the mortgage, including the 

original note, were lost in a fire in 2004. Kanya also claimed he 

lost his personal records. None [of] these explanations were 

substantiated and the Court found them not to be credible. There 

were no attempts to reconstruct the records of this loan, e.g., 

[through] checks and HUD statements, even with a cooperating 

defendant as Kanya appeared to be. 

On February 22, 2010, Kanya filed for bankruptcy protection in 

Florida in the case styled In Re Stephen Kanya, Bkrtcy. M.D. Fla., 

Chapter 11 Case No. 8:10-bk-03746-CPM. The estate made a 

claim in these proceedings for monies owed under the Mortgage. 

____________________________________________

2 The mortgage stated that the annual interest rate was ten percent. 
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On July 1, 2011, an Order was issued by the Bankruptcy Court 

affirming Kanya’s Amended Plan of Reorganization which admitted 

only $35,000.00 in indebtedness.3 This is not close to the amount 

alleged by the estate. Said plan mentions the “secured claim of 

Steven Rubin” under the mortgage and provides “th[e] creditor 

shall retain its lien and be paid in accordance with the terms of his 

contract, and shall be impaired in the Plan.”

At some point John Cambridge became involved with the 

operation of Kanya’s insect museum which is located at the 

Property subject to the instant mortgage. Cambridge assisted 

with the building of a new butterfly pavilion on the Property which 

was supposed to open in May of 2016 and ultimately opened in 

February of 2017. On August 18, 2016, Kanya and his wife 

executed a quitclaim deed transferring the Property to [IBP]. At 

that time Kanya owned 70% of the corporation and Cambridge 

30%. This deed was recorded on December 2, 2016. Kanya and 

Cambridge later had a falling out and Kanya is no longer an owner 

of [IBP] or the real estate at issue.

On May 2, 2017, Kanya and the estate executed an alleged copy 

of the original note. The Court was convinced this note was a 

fabrication of a document executed 27 years earlier. On May 9, 

2017, the estate sent Kanya a letter constituting a notice of 

default and demand for payment by June 8, 2017. On June 9, 

____________________________________________

3 The pertinent provision of Kanya’s plan stated in its entirety:

4.9 Class IX: Secured Claim of Steven Rubin

4.9.1 The Claim of Steve Rubin consists of a mortgage secured by 

a lien on property located at 8046-48 Frankford Avenue, 

Philadelphia, PA 19136, in the amount of $350,000.00. The 

creditor shall retain its lien and be paid in accordance with the 

terms of his contract, and shall be Impaired in the Plan. Debtor’s 

arrearage on this mortgage in the amount of $35,463.00 shall be 

cured by making equal monthly payments of $1,000.00 until said 

arrearage is cured.

IBP Exhibits at 203 (emphasis added). Read in context, “Steve Rubin” clearly

meant “Steven Rubin in his capacity as personal representative of the estate 

of Milton Rubin,” i.e., the estate herein.
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2017, the estate filed the instant complaint [and later an amended 

complaint]. . . Kanya admitted all of the allegations [in the 

amended complaint].

Trial Court Opinion, 10/4/19, at 2-4 (with minor additions).

The record reflects that Rubin’s estate filed this action against Kanya 

and IBP on June 9, 2017. Subsequently, the estate filed a one-count amended 

complaint seeking foreclosure of the mortgage,4 claiming, inter alia, that 

Kanya defaulted under the 1989 note and mortgage by failing to make all 

required payments and further defaulted by transferring ownership of the 

Property to IBP. The amended complaint averred that the final partial 

payment by Kanya was in late 2016. 

Kanya’s bankruptcy docket5reflects that on February 27, 2018, almost 

nine months after filing suit, Rubin’s estate filed a motion in the Florida 

bankruptcy court seeking relief from the automatic stay in Kanya’s ongoing 

bankruptcy case to prosecute a mortgage foreclosure action against Kanya in 

____________________________________________

4 The amended complaint did not include claims for any other cause of action, 

such as breach of contract.

5 We generally cannot take judicial notice of records from other cases,

Hvizdak v. Linn, 190 A.3d 1213, 1218 n.1 (Pa. Super. 2018), but there are 

exceptions to this rule. We can, for example, take judicial notice of other 

proceedings involving the same parties. Id. Here, Appellant and Kanya are 

both parties in Kanya’s Chapter 11 bankruptcy, where Kanya is the debtor and 

Appellant is a creditor who filed a proof of claim against Kanya that was 

recognized under Kanya’s reorganization plan. Furthermore, the record in this 

case includes multiple references by the trial court and the parties to Kanya’s 

bankruptcy proceeding. Accordingly, we take judicial notice of the docket in 

Kanya’s bankruptcy case. 
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Pennsylvania state court. On March 7, 2018, the Bankruptcy Court granted 

the estate relief from the automatic stay to prosecute the foreclosure action 

in Pennsylvania against Kanya. 

Following a two-day non-jury trial in February 2019, the trial court 

entered a decision in favor of Kanya and IBP and against the estate. The 

estate filed timely post-trial motions seeking judgment n.o.v. or, in the 

alternative, a new trial. Before the court decided the post-trial motions, the 

estate filed a notice of appeal to this Court. Shortly thereafter, the court 

denied the estate’s post-trial motions and entered judgment in favor of Kanya 

and IBP. The premature notice of appeal does not affect the validity of the 

appeal due to the subsequent entry of judgment. Pa.R.A.P. 905(a) (“A notice 

of appeal filed after the announcement of a determination but before the entry 

of an appealable order shall be treated as filed after such entry and on the 

day thereof”). Both the estate and the trial court complied with Pa.R.A.P. 

1925.

In its Rule 1925 opinion, the trial court gave the following reasons for 

entering a decision against the estate:

The Court found that Kanya defaulted on the mortgage on 

September 14, 1990, when he failed to make the first of two 

required principal payments under the mortgage contract. [The 

estate] filed the instant suit on June 9, 2017, approximately 27 

years later. The statute of limitations for a mortgage contract not 

under seal is four years. 42 Pa.C.S.[A.] § 5525. Consequently, 

the statute of limitations would have long expired by the time of 

filing of this suit unless the debtor acknowledged the debt.
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The statute of limitations may be tolled by a renewed promise to 

pay the debt. Huntingdon Finance Corp. v. Newtown 

Artesian Water Company, [659 A.2d 1052, 1054 (Pa. Super. 

1995)]. The obligor must make a “clear, distinct and unequivocal” 

acknowledgement of the debt as an existing obligation. Id. In 

addition to acknowledging the debt, the obligor must make a 

promise to pay the debt. Id.

The Court as finder of fact is charged with making determinations 

of credibility and is permitted to believe all, part or none of the 

evidence. The Court found neither Stephen Kanya nor Steven 

Rubin to be credible. Kanya uttered repeated falsehoods and was 

clearly biased against his former business partner, John 

Cambridge, who stands to be harmed if the mortgage is foreclosed 

upon.

The Court found that Kanya failed to unambiguously acknowledge 

the debt. The estate had no documents demonstrating consistent 

continuing payments on the debt after the 1990 default. Steven 

Rubin testified that records relating to the mortgage were 

destroyed in a fire. Rubin was not credible and the Court did not 

believe this explanation. Rubin himself had no personal 

knowledge of the existence of the mortgage at the time of 

execution or default or for that matter any of the details of the 

underlying transaction.

[The estate] submitted documents purportedly showing payments 

from Kanya to Rubin from 2003 and later. However, there were 

no annual statements and no amortization tables. The Court could 

not determine what these payments were for and they did not 

show a promise to pay in accordance with the original mortgage 

contract.

[The estate] also failed to present the original note and the Court 

did not believe the explanation that it was lost in the fire. The 

Court did not accept the legitimacy of the new note which was 

executed only weeks before the filing of this litigation and long 

after the expiration of the statute of limitations. 

[The estate] asserts the Court was required by law to find the 

inclusion of the mortgage on Kanya’s Amended Plan of 

Reorganization after his bankruptcy was an acknowledgement of 

the debt. The Court rejected this argument for two reasons. First, 

the estate failed to enter the entire bankruptcy record into 
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evidence, submitting only the plan of reorganization. Second, the 

decision of the bankruptcy judge was clearly erroneous on its face 

as the trustee should have realized the statute of limitations had 

expired. The Court was not required to accept it.

[The estate] further asserts that the course of conduct between 

the parties shows an oral modification of the terms of the 

agreement which either shows Kanya acknowledged the debt or 

default did not occur in 1990. This was a commercial loan. The 

conduct of the parties made no commercial or economic sense and 

this argument also fails.

Trial Court Opinion, 10/4/19, at 5-6.

In its brief as Appellant in this Court, the estate failed to provide a 

Statement of Questions Presented, a Statement of Jurisdiction, a Statement 

of the Scope and Standard of Review, and a Statement of the Case. Although

we do not condone these omissions, no sanction is necessary, because we are 

able to discern the estate’s position through review of the arguments in its

brief. The estate argues the following: (1) the statute of limitation does not 

apply, because it ran from July 1, 2011, the date the bankruptcy court 

confirmed Kanya’s plan, but was tolled by Kanya’s partial payments of money 

owed under the note between July 1, 2011 and 2016; (2) alternatively, neither 

Kanya nor IBP could raise the statute of limitations because Kanya waived the 

right to raise the statute in his reorganization plan; and (3) IBP could not 

raise the statute of limitations as a defense, because IBP was not a bona fide 

purchaser of the Property, but was instead controlled by Kanya, so Kanya’s

failure to raise the statute of limitations in his answer to the estate’s complaint 
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precluded IBP from raising it. IBP filed a brief in this Court in response to 

the estate’s brief. Kanya did not file any brief in this Court.

In effect, the estate requests that we reverse the post-trial order 

denying judgment n.o.v. and enter judgment in its favor. Our standard of 

review of an order denying judgment n.o.v. is whether, viewing the record in 

the light most favorable to the verdict winner and granting the benefit of every 

favorable inference, “there is sufficient competent evidence to support the 

verdict.” Tillery v. Children’s Hosp. of Philadelphia, 156 A.3d 1233, 1240 

(Pa. Super. 2017). Any conflict in the evidence is resolved in the verdict 

winner’s favor. Id. Judgment n.o.v. may be granted “only where the movant 

is entitled to judgment as a matter of law . . . or [where] the evidence was 

such that no two reasonable minds could disagree that the outcome should 

have been rendered in favor of the movant.” Quinby v. Plumsteadville 

Family Practice, Inc., 907 A.2d 1061, 1074 (Pa. 2006). We will disturb a 

trial court’s grant or denial of judgment n.o.v. “only for an abuse of discretion 

or an error of law.” Id. 

The central question in this appeal is whether the trial court committed 

an error of law by concluding that the statute of limitations expired in the mid1990’s. We conclude the court erred. The statute began running no earlier 

than an event of default after July 1, 2011, the date of confirmation of Kanya’s 

reorganization plan. 
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The proper starting point for our analysis is to study the effect of 

confirmation of Kanya’s bankruptcy plan on this case. We take this step in 

accordance with the precept that “property interests are created and defined 

by state law . . . [u]nless some federal interest requires a different result.” 

Butner v. United States, 440 U.S. 48, 55 (1979). The “federal interest” that 

requires our attention is the effect of confirmation of Kanya’s plan under 

federal bankruptcy law, because confirmation materially affects the date that 

the statute of limitations began running herein on this foreclosure action.

The United States Constitution authorizes Congress to establish

“uniform Laws on the subject of Bankruptcies throughout the United States.” 

U.S. Const., Art. I, § 8, cl. 4. Under this grant of authority, Congress enacted 

the Bankruptcy Code in 1978, which is codified at Title 11 of the United States 

Code and which has been amended several times since its enactment. The 

bankruptcy statute relating to confirmation, 11 U.S.C. § 1141, provides in 

pertinent part that except in circumstances not relevant here, 

the provisions of a confirmed plan bind the debtor, any entity 

issuing securities under the plan, any entity acquiring property 

under the plan, and any creditor, equity security holder, or general 

partner in the debtor, whether or not the claim or interest of such 

creditor, equity security holder, or general partner is impaired 

under the plan and whether or not such creditor, equity security 

holder, or general partner has accepted the plan.

11 U.S.C. § 1141(a). Under this provision, the confirmation of Kanya’s plan 

was binding on both Kanya (the “debtor”) and on the estate (a “creditor”).
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Kanya’s reorganization plan was confirmed in the Eleventh Circuit.

“Although a confirmed plan is a judgment rendered by a federal court, the 

Chapter 11 plan itself is essentially a contract between a debtor and the 

creditors of the bankruptcy estate.” In Re Westport Holdings Tampa, 

Limited Partnership, 614 B.R. 918, 921-22 (Bkrtcy. M.D.Fl., Tampa Div. 

2020). “For that reason, the Eleventh Circuit follows principles of contract 

interpretation when interpreting a confirmed plan of reorganization.” Id. at 

922. The confirmed plan becomes a binding contract between the debtor and 

his creditors. Id. In addition, a bankruptcy court’s confirmation order that is 

final and no longer subject to appeal becomes “res judicata to the parties and 

those in privity with them.” Travelers Indemnity Co. v. Bailey, 557 U.S. 

137, 152 (2009). The res judicata effect of a confirmation order bars litigation 

of claims that were or could have been raised in a prior action. In Re FFS 

Data, Inc., 776 F.3d 1299, 1306 (11th Cir. 2015).

Kanya’s bankruptcy plan provided that (1) the estate held a mortgage 

on the Property secured by a lien of $350,000.00, (2) the estate must be paid

in accordance with this “contract,” and (3) Kanya would pay arrearages of 

over $35,000.00 to the estate. IBP Exhibits at 203; see also n.4, supra.

The bankruptcy court’s confirmation of this plan made these terms a binding 

contract between Kanya and Rubin’s estate. Westport Holdings, 614 B.R. 

at 921-22.
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The trial court declined to find that the bankruptcy court’s confirmation 

of Kanya’s reorganization plan created a binding contract between Kanya and 

the estate, reasoning that (1) the estate “failed to enter the entire bankruptcy 

record into evidence, submitting only the plan of reorganization,” and (2) “the 

decision of the bankruptcy judge was clearly erroneous on its face . . .” Trial 

Court Opinion at 6. We find both of these rationales faulty. The estate’s 

“failure” to enter the entire bankruptcy record into evidence is of no moment 

in light of the fact that the confirmed plan, or the contract itself, was 

introduced into evidence. The confirmation of the plan was a fact the court 

could have taken judicial notice of from Kanya’s bankruptcy docket. See n.5, 

supra. More importantly, the court was not free to disregard the bankruptcy 

court’s confirmation as erroneous, because the confirmation order was entitled 

to full faith and credit, and the plan established and acknowledged that a 

“contract” existed between Kanya and the estate that was binding under the 

doctrine of res judicata. Travelers Indemnity Co., 557 U.S. at 152; see 

also Holz v. Holz, 850 A.2d 751, 757-58 (Pa. Super. 2004) (federal district 

court judgment in wife’s declaratory judgment action that her waiver of 

pension rights in property settlement agreement was void under Employee 

Retirement Income Security Act was binding on state court in divorce 

proceeding under doctrine of res judicata, where federal district court was 

court of competent jurisdiction and its final judgment on merits was entitled 
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to full faith and credit, and same parties appeared in state and federal court 

actions).

The confirmation of Kanya’s bankruptcy plan renders erroneous the trial 

court’s determination that Kanya defaulted on his loan in 1990 and that the 

four-year statute of limitations expired in 1994. Regardless of whether Kanya 

defaulted on his debt in 1990, the fact remains that the Bankruptcy Court’s 

confirmation of Kanya’s reorganization plan created a binding contract

between Kanya and the estate as of the date of confirmation, July 1, 2011. 

Westport Holdings, 614 B.R. at 921-22. Consequently, any breach of this 

agreement had to have taken place after July 1, 2011, so the statute of 

limitations on the estate’s foreclosure action had to have begun running after 

July 1, 2011 as well.

Having determined that the statute of limitations expired in the mid1990’s when it did not begin running until after July 1, 2011, we turn to the 

next question, whether the statute expired prior to commencement of this 

action. Unfortunately, we cannot answer this question due to several 

unresolved questions of fact. For instance, we cannot ascertain the date(s) 

after July 1, 2011 when or if Kanya failed to make mortgage payment(s) to 

the estate under the “contract”, thus causing an event of default and the 

commencement of the statute of limitation period. See Bank of Am., N.A. 

v. Gibson, 102 A.3d 462, 464 (Pa. Super. 2014) (right to bring foreclosure 

action accrues upon default by mortgagor). Nor can we tell whether the 
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statute may have been tolled after July 1, 2011 by some principle of law such 

as a forbearance, a promise to pay the debt, or part payment of the debt. 

See Crispo v. Crispo, 909 A.2d 308, 313 (Pa. Super. 2006) (“clear, distinct 

and unequivocal acknowledgement of a debt as an existing obligation, such 

as is consistent with a promise to pay, is sufficient to toll the statute”); Cole 

v. Lawrence, 701 A.2d 987, 990 (Pa. Super. 1997) (“there can be no more 

clear and unequivocal acknowledgement of a debt than payment”). Since fact 

questions remain as to when or if a default occurred after July 1, 2011, and 

thus whether or when the statute of limitations began to run, the proper 

remedy is to remand this case for a new trial.

We recognize that it is somewhat unusual to remand for a new trial 

when, as here, the only relief requested in this Court is judgment n.o.v. 

Nevertheless, some precedent exists for this remedy. In McGuire v. 

Schneider, Inc., 534 A.2d 115 (Pa. Super. 1987), the parties disputed 

whether the discharge of an employee constituted a breach of his employment 

agreement. The jury entered a verdict in favor of an employee, and following 

the denial of the employer’s posts-trial motions, the employer argued in this 

Court that it was entitled to judgment n.o.v. Although we held that the trial 

court committed an error of law by instructing the jury to apply the wrong 

legal standard, we declined the employer’s request for judgment n.o.v. and 

ordered a new trial instead, reasoning, “[O]n the record of this case we cannot 

say that at a new trial [the employee] will be unable to prove that his 
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discharge was improper under the [employment] agreement.” Id., 534 A.2d 

at 120. We believe that a similar remedy is appropriate here. Although the 

trial court committed legal error in determining that the statute of limitations 

expired in the mid-1990’s, we cannot say that in a new trial, IBP will be unable

to prove that the statute of limitations expired at some point after July 1, 

2011. Accordingly, a new trial is the proper remedy instead of judgment n.o.v. 

in favor of the estate.

Ordinarily, the grant of a new trial “means a new trial generally; it 

restores a case to the status it had before the trial took place and is fully open 

to be tried de novo as to all parties and all issues.” Rivera v. Philadelphia 

Theological Seminary of Saint Charles Borromeo, Inc., 507 A.2d 1, 11 

(Pa. 1986). In this case, however, trial de novo is not permissible on several 

issues because of the res judicata effect of the confirmation of Kanya’s 

bankruptcy plan. Confirmation of the plan requires the trial court to find, 

without trial de novo, that a contract existed between Kanya and Rubin’s

estate as of July 1, 2011, the date of plan confirmation, for Kanya to pay a 

mortgage of $350,000.00 as well as arrearages of $35,463.00 in equal 

monthly payments of $1,000.00. Westport Holdings, 614 B.R. at 921-22; 

Travelers Indemnity Co., 557 U.S. at 152. 

All other issues are subject to litigation de novo. Among those that we 

anticipate may be raised are (1) material terms of the “contract”, if any, not

specifically addressed in the confirmation order (e.g., the interest rate) or (2) 
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material terms of the lost note, if any, not already reflected in the mortgage. 

See 13 Pa.C.S.A. § 3309 (“Enforcement of Lost, Destroyed or Stolen 

Instrument”).

6

Assuming IBP raises the affirmative defense of the statute of limitations, 

it will bear the burden of proof on this issue. Pa.R.C.P. 1030 (listing statute 

____________________________________________

6 Section 3309 provides:

(a) Enforcement.--A person not in possession of an instrument 

is entitled to enforce the instrument if:

(1) the person was in possession of the instrument 

and entitled to enforce it when loss of possession 

occurred;

(2) the loss of possession was not the result of a 

transfer by the person or a lawful seizure; and

(3) the person cannot reasonably obtain possession of 

the instrument because the instrument was 

destroyed, its whereabouts cannot be determined or 

it is in the wrongful possession of an unknown person 

or a person that cannot be found or is not amenable 

to service of process.

(b) Proof.--A person seeking enforcement of an instrument 

under subsection (a) must prove the terms of the instrument and 

the person's right to enforce the instrument. If that proof is made, 

[13 Pa.C.S.A. §] 3308 (relating to proof of signatures and status 

as holder in due course) applies to the case as if the person 

seeking enforcement had produced the instrument. The court 

may not enter judgment in favor of the person seeking 

enforcement unless it finds that the person required to pay the 

instrument is adequately protected against loss that might occur 

by reason of a claim by another person to enforce the instrument. 

Adequate protection may be provided by any reasonable means.

Id.
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of limitations as affirmative defense). The estate may respond to this defense 

with evidence such as whether the statute was tolled by a promise to pay the 

debt or part payment of the debt. Pennsylvania’s statute of limitation is the 

governing law, even though some of the conduct pertaining to this case, such 

as Kanya’s bankruptcy, took place in Florida. The Uniform Statute of 

Limitations on Foreign Claims Act (“USLFCA”), 42 Pa.C.S.A. § 5521, provides 

in relevant part:

(b) General rule.--The period of limitation applicable to a claim 

accruing outside this Commonwealth shall be either that provided 

or prescribed by the law of the place where the claim accrued or 

by the law of this Commonwealth, whichever first bars the claim.

(c) Definition.--As used in this section “claim” means any right 

of action which may be asserted in a civil action or proceeding and 

includes, but is not limited to, a right of action created by statute.

Id. Assuming the estate’s “claim” arose in Florida due to the confirmation of 

Kanya’s bankruptcy plan in Florida or some other consideration, the USLFCA 

requires application of Pennsylvania’s four-year statute, because the statute 

of limitations for foreclosure actions when the mortgage is not under seal is 

four years in Pennsylvania and five years in Florida. Compare 42 Pa.C.S.A.

§ 5525(a)(7) (Pennsylvania) with F.S.A. § 95.11(2)(c) (Florida). The same 

result occurs by comparing Pennsylvania’s statute for contract actions, 42 

Pa.C.S.A. § 5525 (four years), with Florida’s statute for contract actions, 

F.S.A. § 95.11(2)(b) (five years).

We further observe that IBP, as transferee of the quitclaim deed to the 

Property, stands in the shoes of the transferor, Kanya, on remand. Levitt v. 
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Patrick, 976 A.2d 581, 591 (Pa. Super. 2009) (when property subject to 

mortgage is transferred without payment of mortgage, property in hands of 

transferee continues to be security for performance of obligation, and for any 

default the mortgagee may seize and sell the property in hands of transferee).

IBP claims in its appellate brief that the mortgage on the Property 

already has been satisfied. We leave this issue for the trial court to determine 

on remand whether both the mortgage of $350,000.00 and the arrears of 

$35,463.00 have been fully paid. 

We briefly address two other arguments in the estate’s appellate brief. 

The estate claims that Kanya and IBP are precluded from raising the statute 

of limitations either because of the bankruptcy court’s confirmation of Kanya’s 

reorganization plan or because of Kanya’s failure to raise the statute of 

limitations in his answer to the amended complaint. Neither argument has 

merit. First, Kanya’s reorganization plan only precludes defenses that were 

or could have been raised at or before the confirmation of the plan. FFS Data, 

776 F.3d at 1306. Implicit in this principle is that confirmation does not 

preclude post-confirmation defenses. Here, the statute of limitations could 

not have begun to run earlier than the date of plan confirmation, thus 

rendering the statute of limitations a post-confirmation defense. Second, we 

reject the estate’s argument that, since Kanya failed to raise the statute of 

limitations as an affirmative defense in his answer to the estate’s complaint, 

IBP, whom the estate suggests is Kanya’s alter ego, could not raise it either. 
J-A04018-21

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We do not know of any rule, nor does the estate cite any, that prevents one 

defendant from raising affirmative defenses that another defendant fails to 

raise. Further, the evidence does not support IBP as an alter ego of Kanya. 

While Kanya at some point owned seventy percent of IBP and was chairman 

of the board, he no longer is an owner of IBP or of the real property in 

question. IBP was represented by its own counsel during trial, presented its 

own evidence, filed its own pleadings and motions, and is a separate legal 

entity. Moreover, as the trial court observed, Kanya and IBP are on 

antagonistic terms.7 

We vacate the judgment entered in favor of Kanya and IBP and remand 

for further proceedings consistent with our instructions in this memorandum. 

Judgment vacated. Case remanded for new trial in accordance with this 

memorandum. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/1/2022

____________________________________________

7

It is not clear to us how the estate may pursue a foreclosure action against 

Kanya, the only action alleged in the amended complaint, since Kanya 

transferred the Property to IBP. “Mortgage foreclosure in Pennsylvania is 

strictly an in rem or ‘de terris’ proceeding.” Nicholas v. Hoffman, 158 A.3d 

675, 697 (Pa. Super. 2017).