J-S11016-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

U.S. BANK NATIONAL ASSOCIATION, AS 

TRUSTEE SUCCESSOR IN INTEREST TO 

BANK OF AMERICA NATIONAL 

ASSOCIATION AS TRUSTEE SUCCESSOR 

TO MERGER TO LASALLE BANK 

NATIONAL ASSOCIATION AS TRUSTEE 

FOR STRUCTURED ASSET INVESTMENT 

LOAN TRUST MORTGAGE PASSTHROUGH CERTIFICATES, SERIES 2004-

4

IN THE SUPERIOR COURT

OF

PENNSYLVANIA

Appellee

v.

JACQUELINE BLOUNT AND/OR 

OCCUPANTS

APPEAL OF JACQUELINE BLOUNT

No. 2056 EDA 2017

Appeal from the Order Entered May 23, 2017

In the Court of Common Pleas of Monroe County

Civil Division at No: 735 CV 2017

BEFORE: OTT, STABILE, and MUSMANNO, JJ.

MEMORANDUM BY STABILE, J.: FILED JULY 09, 2018

Appellant, Jacqueline Blount, appeals pro se from an order entering 

summary judgment in favor of Appellee, U.S. Bank National Association, in its 

action for ejectment and against Appellant on her counterclaims. We affirm.

In January 2004, Appellant and her husband, now deceased, entered 

into a mortgage with BNC Mortgage, Inc., relating to real property owned by 

the Blounts at 198 Scenic Drive, Blakeslee, Pennsylvania (“the Property”). 

Subsequently, the mortgage was assigned to Appellee, which commenced a 
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mortgage foreclosure action against Appellant in early 2014 and obtained a 

default judgment against Appellant in mid-2014. Appellant filed a petition to 

open judgment, which the trial court denied on July 21, 2015. Appellee 

purchased the Property at sheriff’s sale on September 23, 2015 and recorded 

the sheriff’s deed on October 23, 2015.

On February 2, 2017, Appellee filed a complaint in ejectment, the action 

that presently is before us for review. On February 21, 2017, Appellant filed 

an answer to the ejectment complaint with counterclaims against Appellee 

alleging, inter alia, violations of the Due Process Clause of the Fifth 

Amendment and the federal Fair Debt Collection Practices Act, 15 U.S.C. 

§§ 1692-1692p. 

On April 18, 2017, Appellee filed a motion seeking summary judgment 

in its favor on the ejectment action and against Appellant on her 

counterclaims. Appellee argued that Appellant’s counterclaims were barred 

by res judicata due to Appellant’s failure to raise them in the underlying 

foreclosure action. On May 23, 2017, the trial court entered an order granting 

Appellee’s motion for summary judgment and entering summary judgment in 

ejectment in favor of Appellee and against Appellant. The order, however, did 

not expressly resolve Appellant’s counterclaims.

On June 19, 2017, Appellant appealed to this Court. On August 9, 2017, 

the trial court filed a Pa.R.A.P. 1925(a) opinion concluding that Appellant’s 

counterclaims belonged in the underlying foreclosure action and could not be 

raised in the present ejectment action.
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On June 5, 2018, we remanded this case to the trial court for entry of a 

final order, i.e., an order that expressly disposes of Appellee’s claims and 

Appellant’s counterclaims. On June 7, 2018, the trial court entered an order 

granting summary judgment to Appellee on its ejectment action and against 

Appellant on her counterclaims. The order provides with regard to Appellant’s 

counterclaims:

Pa.R.C.P. 1056 prohibits counterclaims which do not arise from 

the same transaction or occurrence from which the cause of action 

arose. [Appellant’s] Counterclaims do not assert a superior title 

and are therefore not permitted in this case. To the extent that 

[Appellant] alleges defects in the mortgage foreclosure 

proceedings which led to [Appellee’s] sheriffs deed, they were 

concluded by the final judgment in the mortgage foreclosure case.

Order, 6/7/18, at 1.

As promised in our June 5, 2018 order, we now treat Appellant’s appeal 

as filed in accordance with Pa.R.A.P. 905(a)(5). See id. (“[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”).

Appellant raises the following issues in her appeal:

1. Can [the trial court] issue an order outside [its] authority that

deprives Appellant of a federal “Private Right of Action” of 

rescission and consumer protections, pursuant to Article 3 Section 

2 of the Constitution for the United States of America and the laws 

enacted by the United States Congress, as it relates to Appellant’s

private property?

2. Can [the trial court] issue an order outside [its] authority that 

deprives Appellant of federally protected rights pursuant to the 
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Consumer Protection Laws, Federal Judicial Authority ---Article 3 

Section 2, in the laws enacted by the United States Congress, and 

issue orders that give rise to the taking of Appellant’s private 

property for public use without just compensation, Constitution for 

the United States of America (Amendment 5, the Bill of Rights)?

3. Can [the trial court] issue any order concerning the taking of 

Appellant’s private property when that order was “voidable” from 

the beginning, by operation of law, due to fraudulent 

misrepresentation of the contract (Promissory Note and 

Mortgage), and Fraud upon the Court?

When reviewing a trial court’s grant of summary judgment, our standard 

and scope of review are as follows:

Our scope of review is plenary, and our standard of review is the 

same as that applied by the trial court . . . An appellate court may 

reverse the entry of a summary judgment only where it finds that 

the lower court erred in concluding that the matter presented no 

genuine issue as to any material fact and that it is clear that the 

moving party was entitled to a judgment as a matter of law. In 

making this assessment, we view the record in the light most 

favorable to the non-moving party, and all doubts as to the 

existence of a genuine issue of material fact must be resolved 

against the moving party. As our inquiry involves solely questions 

of law, our review is de novo.

Reinoso v. Heritage Warminster SPE, LLC, 108 A.3d 80, 84 (Pa. Super. 

2015) (en banc).

Although Appellant’s argument is difficult to follow, she appears to claim 

that Appellee cannot eject her from the Property because she rescinded the

underlying mortgage pursuant to the Truth in Lending Act (“TILA”), 15 U.S.C. 

§§ 1601-1667f. We agree with Appellee that this argument lacks merit. 

“Generally, attacks on a sheriff’s sale cannot be made in a collateral

proceeding.” Dime Savings Bank v. Greene, 813 A.2d 893, 895 (Pa. Super. 
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2002). “An ejectment action is a proceeding collateral to that under which 

the land was sold.” Id. Further, when there is a final judgment in a 

foreclosure action, res judicata bars a separate action by an occupant to 

rescind a mortgage based on the TILA. Stuart v. Decision One Mortgage 

Co., LLC, 975 A.2d 1151, 1152 (Pa. Super. 2009). Thus, Appellant’s 

counterclaim under the TILA in this ejectment action is barred as a matter of 

law. 

Appellant also claims that Appellee violated the Takings Clause in the 

Fifth Amendment by taking the Property without just compensation. Appellee 

responds that Appellant fails to present any evidence of a Takings Clause 

violation. We agree with Appellee. To prove a Takings Clause violation, the 

occupant must show that the private acting entity intends to use the property 

in question for public use. Kelo v. City of New London, 545 U.S. 469 

(2005). Here, Appellee is not a government actor, and Appellant has failed to 

provide any evidence that Appellee intends to use the Property for any public 

use or purpose. 

Finally, Appellant claims that her ejectment and/or the underlying 

sheriff’s sale are precluded by Appellee’s fraud and its violation of the Fair 

Debt Collection Practices Act (“FDCPA”), 15 U.S.C. §§ 1692-1692p. Appellant 

bases this argument on allegations that the note and mortgage were assigned 

in 2004 to MERS, “an entity not registered in Pennsylvania to conduct any 

form of business,” and the note was rescinded in 2000 when the original 
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mortgagee, BNS, went out of business. Appellant’s Brief at 5. This does not 

amount to a fraud or FDCPA claim; instead, it is a challenge to Appellee’s 

standing to pursue the underlying mortgage foreclosure action due to defects 

in the chain of title. As such, the proper time to raise this challenge was in 

the underlying foreclosure action, and res judicata bars Appellant from raising 

it in this action. Compare Bayview Loan Servicing LLC v. Wicker, 163 

A.3d 1039 (Pa. Super. 2017) (standing raised as defense by mortgagor in 

mortgage foreclosure action). 

Order affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/9/18