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NON

- PRECEDENTIAL DECISION

- SEE SUPERIOR COURT I.O.P. 65.37

THE BANK OF NEW YORK MELLON

FKA THE BANK OF NEW YORK AS

TRUSTEE

v.

ROBERT J. HENRY AND ANNA MARIE

HENRY

Appellants :

:

:

:

:

:

:

:

:

:

:

: IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 2630 EDA 2017

Appeal from the Judgment Entered February 28 , 201 7 In the Court of Common Pleas of Chester County Civil Division at No(s):

15

- 09694

BEFORE: BOWES, J., OLSON, J., and NICHOLS, J.

MEMORANDUM BY BOWES, J.: FILED SEPTEMBER 1 1 , 2018

Robert J. Henry and Anna Marie Henry appeal the in rem judgment of

mortgage foreclosure entered against them on February 28, 201 7

. 1 We

affirm

.

In 2005, Appellants executed an adjus table rate note (“the Note”) in

the amount of $725,167 .00

, payable in monthly installments of principal and

interest of $2,332.42

, on the ir residential p roperty located at 210 Richards

_________________ __________ ______ ____ _______

1 Appellants purport to appeal from the order entered on June 30

, 201 7 denying their motions for post

- trial relief

. Ordinarily, an appeal properly lies

from the entry of judgment, not from the order denying post

- trial motions.

See Johnston the Flor ist, Inc. v. TEDCO Constr. Corp

. , 657 A.2d 511 (Pa. Super. 1995). Accordingly

, we deem this appeal as taken from the February 28, 201 7 judgment

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Way in Avondale, Chester County, Pennsylvania (“the Property”)

. The le nder

under the Note was America’s Wholesale Lender, and the Note was indorsed

in blank by Countrywide Home Loans, Inc., a New York Corporation Doing

Business as America’s Wholesale Lender. Appellants also executed a

mortgage (hereinafter “the Mortgage”) on the P roperty as security for

payment of the Note. The Mortgage was executed in favor of Mortgage

Electronic Systems, Inc., as nominee for America’s Wholesale Lender.

In December 2009, Appellants defaulted on the M ortgage. In 2011,

the Mortgage wa s assigned to The Bank of New York Mellon, f/k/a The Bank

of New York, as trustee (CWALT 2005

- 82) (hereinafter “BNYM”), and the

assignment was duly recorded. In 2014, BNYM initiated the instant

mortgage foreclosure proceedings seeking an in rem judgment a gainst

Appellants. Following a non

- jury trial, the trial court entered an in rem

judgment in mortgage foreclosure in favor of BNYM on February 28, 2017.

Appellants timely filed a motion for post

- trial relief and an amended motion

for post

- trial relief, b oth of which were denied on June 30 , 2017. Appellants

filed a timely notice of appeal, and a court

- ordered Pa.R.A.P. 1925(b)

concise statement of errors complained of on appeal.

Appellants raise the following issues for our review:

1. Whether the trial co urt erred as a matter of law and abused its discretion in finding that [BNYM] was the holder

in due course of the Note and entitled to enforce the Note indorsed in blank by a different corporate entity than the prior Noteholder was based on insufficient ev idence and against the weight of the evidence to support that finding.J

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2. Whether the trial court erred as a matter of law and abused its discretion in failing to make a finding that the two corporate entities appearing on the Note were separate and distin ctly named corporations with no evidence of any relationship between the two was against the weight and sufficiency of th e evidence.

3. Whether the trial court erred as a matter of law and abused its discretion and the court’s award was against the weight of the evidence by failing to dismiss [ BNYM ’s] complaint because [ BNYM ] was unable to meet its burden in showing it was the legal N oteholder and real party in

interest and the c ourt lacked subject matter jurisdiction.

Appellant’s brief at vii.

When rev iewing the verdict from a bench trial, o ur standard of review

is as follows:

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 evidenc e 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).

E ach of Appellant’s issue s are premised upon the same essential

argument. They contend that BNYM is not entitled to enforce the Note

because the endorsement in blank i s invalid for the sole reason that the

entity identified as the indorse r on the Note bears a different name than the

entity identified as the lender on the Note

. . Specifically, Appellants claim

that the Note was not validly indorse d in blank because the lender isJ

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identified as “ America’s Wholesale Lender, ” whereas the indorsement in

blank was made by “ Countrywide Home Loans, Inc., a New York Corporation

Doing Business as America’s Wholesale Lender

. ” Based on the difference in

the phrasing of the names of the lender and indorser, Appellants posit that

the trial court was “left to speculate as to whether or not there was a

relationship between the two corporate entities named on the Note.”

Appellants’ brief at 8. Appellants contend that , because BNYM did not

demonstrate a connection between “America’s Wholesale Lender” and

“Countrywide Home Loans, Inc., a New York Corporation Doing Business as

America’s Wholesale Lender ,” the evidence is insufficient as a matter of law

to establish that BNYM is a holder in due course of the Note , and the trial

court lacked subject matter jurisdiction over the matter.

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 ). A person foreclosing on a mortgage, however, also must

own or hold the note. See Gerber v. Piergrossi , 142 A.3d 854 859

(Pa.Super. 2016). This is so because a mortgage is only the security

instrument that ensures repayment of the indebtedness under a note to real

property. Id

. Under the Pennsylvania Uniform Commercial Code, the note

securing a mortgage is a negotiable instrument. J.P. Morgan Chase Bank,

N

. A. v. Murray

, 63 A.3d 1258, 126 6 (Pa.Super. 2013). A note i ndorsed in

blank is a “ bearer note, ” payable to anyone on demand regardless of whoJ

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previously held the note. 13 Pa.C.S. §§ 3109(a), 3301 ; see also Gibson

,

supra at 466; 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 [n] ote 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. ” ).

Here, Appellants do not dispute that they executed the Note and the

Mortgage, or that they defaulted on their payments due under the Mortgage.

Appellants concede that the Mortgage was properly assigned to BNYM , and

that it is the hold er of the Mortgage. Appellants do not dispute that B NYM

presented the original Note indorsed in blank at trial . Rather, they claim

that the Note’s indorsement in blank is in valid because the lender is

identified as “America’s Wholesale Lender,” whereas the indorsement in

blank was made by “Countrywide Home Loans, Inc., a New York Corporation

Doing Business as America’s Wholesale Lender .” Appellants posit that

, due

to this difference in names, the lender and indorser are two separate

entities, thereby invalidating the indorsement in blank.

Appellant s provide no relevant authority to support their assertion that

the addition of “doing business as” in a signature o perates to bind only the

signing entity and not the designated entity

. The use of “ doing business as ”

is commonly understood to alert interested parties to the fact that the

person or entity so designated, is known for business purposes underJ

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another or f ictitious name. See Black ’ s Law Dictionary (10th ed. 2014) (The

abbreviation “ d/b/a ” “ signals that the business may be licensed or

incorporated under a different name. ” ). As such, “ doing business as ” carries

no implication of representative capacity of a former individual or entity to

act on behalf of a latter entity ; r ather, akin to “ a/k/a ” ( “ also known as ” ),

“ doing business as ” identifies an equivalency or single identity between the

appellations. Hazer v. Zabala , 26 A.3d 1166, 1170 (Pa.Super. 2011).

Because the law recognizes “Countrywide Home Loans, Inc., a New

York Corporation Doing Business as America’s Wholesale Lender ” as a single

entity identifiable under either appellation, we find no meri t to Appellants

arguments that it is an entirely different entity than “ America’s Wholesale

Lender .” See id . For this reason, Appellants claim that the indorsement in

blank is invalid must fail

. The record in this case reveals that BNYM holds

the N ote validly i ndorsed in blank, and the mortgage. As holder of the N ote

and mortgage, BNYM has standing to pursue this foreclosure action as the

proper party in interest. Gibson

, supra at 466. Appellant ’ s assertions to

the contrary are baseless.

Judgment aff irmed.J

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 9/11/18