J-A03031-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37

DEUTSCHE BANK NATIONAL TRUST 

COMPANY, AS TRUSTEE FOR 

MORGAN STANLEY ABS CAPITAL I 

INC. TRUST 2007-HE2, MORTGAGE 

PASS-THROUGH CERTIFICATES, 

SERIES 2007-HE2

Appellee

v.

KENNETH TAGGART 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

No. 627 EDA 2021

Appeal from the Order Entered March 15, 2021

In the Court of Common Pleas of Bucks County

Civil Division at No(s): No. 2018-05654

BEFORE: KING, J., SULLIVAN, J., and STEVENS, P.J.E.*

MEMORANDUM BY KING, J.: FILED OCTOBER 12, 2023

Appellant, Kenneth Taggart, appeals from the order entered in the Bucks 

County Court of Common Pleas, which granted the motion for summary 

judgment filed by Appellee, Deutsche Bank National Trust Company, as

trustee for Morgan Stanley ABS Capital I Inc. Trust 2007-HE2, Mortgage PassThrough Certificates, Series 2007-HE2, and entered judgment against 

Appellant in the amount of $835,182.13. We affirm. 

The trial court set forth the relevant facts and procedural history of this 

case as follows: 

____________________________________________

* Former Justice specially assigned to the Superior Court.
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On October 1, 2018, [Appellee] initially filed this action in 

mortgage foreclosure against [Appellant] due to an alleged 

payment default and against the United States of America 

due to federal tax liens filed against the mortgaged 

premises. The matter went to mediation at the Bucks 

County Bar Association on October 24, 2018, concluding on 

January 16, 2019. No agreement was reached between the 

Parties and leave was granted for the Parties to proceed with 

this foreclosure action. [Appellant] was represented by his 

counsel of record throughout.

* * *

In 2006, [Appellant] entered into a mortgage and loan 

agreement with Decision One for a loan in the amount of 

$382,500 ("the Decision One mortgage”). As security for 

the loan funds he received, [Appellant] agreed Decision One 

would have a lien on his property located at 45 Heron Road, 

Holland, Bucks County, Pennsylvania 18966. Under the 

terms of the mortgage agreement Decision One named 

Mortgage Electronic Registration Systems, Inc. (“MERS”) as 

its nominee and mortgagee. On July 13, 2010, MERS 

assigned the Decision One mortgage to [Appellee]. Thus, in 

2010, [Appellee] became the mortgagee under the Decision 

One mortgage.

On June 27, 2018, [Appellee] gave notice to [Appellant] of 

its intention to foreclose on the Decision One mortgage 

because of [Appellant]’s default and failure to make timely 

payments in accordance with the loan terms. As of June 27, 

2018, [Appellee] claimed [Appellant] was in default for 

$392,303.52.

(Trial Court Opinion, filed 4/22/21, at 1-3). 

On January 31, 2019, Appellant filed preliminary objections to Appellee’s 

complaint, which the trial court overruled on March 22, 2019. Appellant filed 

an answer with new matter and counterclaims on April 11, 2019. Appellant 

withdrew all his counterclaims on May 31, 2019. Appellant filed a motion to 

dismiss on November 23, 2020, and Appellee filed a motion for summary 
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judgment on December 16, 2020. On February 22, 2021, Appellant filed a 

motion for extension of time to respond to Appellee’s motion for summary 

judgment despite having already filed responses in opposition on January 19, 

2021, February 8, 2021, and February 19, 2021. The court denied Appellant’s 

motion for extension of time on March 2, 2021, and Appellant filed a notice of 

appeal on the same day. Appellant filed an additional response in opposition 

to Appellee’s motion for summary judgment on March 4, 2021. 

The trial court denied Appellant’s motion to dismiss on March 12, 2021,

and Appellant filed a second notice of appeal on the same day. On March 15, 

2021, the court granted Appellee’s motion for summary judgment. Appellant 

filed the instant notice of appeal on March 17, 2021. The court subsequently 

ordered Appellant to file a Pa.R.A.P. 1925(b) concise statement of errors 

complained of on appeal and Appellant complied on March 25, 2021, April 5, 

2021, and April 7, 2021, in relation to each order from which he appealed. On 

June 29, 2021, this Court quashed Appellant’s first two appeals, noting that 

they were taken from interlocutory and unappealable orders. This Court 

specified that Appellant may raise all preserved issues relating to the 

interlocutory orders in the instant appeal taken from the final order granting 

Appellee’s motion for summary judgment. 

Appellant raises the following issues for our review: 

1. Did the court err when it denied an extension of time to

Appellant on March 2, 2021?

2. Did the court err when it denied discovery requests of
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Appellant on June 22, 2019?

3. Did the court err when it [overruled] preliminary 

objections on March 22, 2019? 

4. Did the court err when it concluded it had jurisdiction and

authority to pronounce judgment on March 15, 2021 

pursuant to Pa.R.A.P. 1701 after the order of March 12, 

2021 was “deemed final” and appealed the same day?

5. Did the court err when it concluded it had jurisdiction and

authority to pronounce judgment on March 15, 2021?

a) as Appellee failed to evince admissible evidence of 

debt pursuant to Bayview Loan Servicing LLC v. 

Wicker, [651 Pa. 545,] 206 A.3d 474 [(2019)] and U.S. 

Bank, N.A. v. Pantenis, [118 A.3d 386 (Pa.Super. 

2015)]? 

b) as Appellee failed to produce evidence that they sent 

a “Notice of Intent to Accelerate” the loan pursuant to 15 

and 22 of the mortgage and the Note at 7(c) prior to the 

acceleration of the loan in June 2010?

c) as Appellee failed to produce evidence that they sent 

a “Notice of Intent to Accelerate” the loan pursuant to “Act 

91”?

d) as Appellee failed to produce evidence that they sent 

a “Notice of Intent to Foreclose” the loan pursuant to 15 

and 22 of the mortgage and the Note at 7(c) prior to the 

acceleration of the loan in June 2010?

e) as Appellee failed to produce evidence that they were 

the owner of the note and mortgage despite Appellee’s 

admission that the loan was not in the trust, nor could 

provide evidence of a valid transfer of the note and 

mortgage.

6. Did the court err when it concluded that Appellee’s claims

were not barred by applicable defenses to claims, including 

the statute of limitations, res judicata, collateral estoppel, 

the statute of frauds, defenses under article three of the

Pennsylvania UCC [not a party entitled to enforce] and 
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failure to mitigate claims and rescind loan?

(Appellant’s Brief at 6-7) (sections of repetition omitted and reordered for 

purpose of disposition).

Preliminarily, we recognize that appellate briefs must materially conform 

to the requirements of the Pennsylvania Rules of Appellate Procedure. 

Pa.R.A.P. 2101. Regarding the argument section of an appellate brief, Rule 

2119(a) states:

Rule 2119. Argument

(a) General rule.—The argument shall be divided into 

as many parts as there are questions to be argued; and shall 

have at the head of each part—in distinctive type or in type 

distinctively displayed—the particular point treated therein, 

followed by such discussion and citation of authorities as are 

deemed pertinent.

Pa.R.A.P. 2119(a). Importantly, where an appellant fails to properly raise or 

develop his issues on appeal, or where his brief is wholly inadequate to present 

specific issues for review, a court will not consider the merits of the claims 

raised on appeal. See Butler v. Illes, 747 A.2d 943 (Pa.Super. 2000) 

(holding appellant waived claim where she failed to set forth adequate 

argument concerning her claim on appeal; appellant’s argument lacked 

meaningful substance and consisted of mere conclusory statements; appellant 

failed to cogently explain or even tenuously assert why trial court abused its 

discretion or made error of law). See also Lackner v. Glosser, 892 A.2d 21 

(Pa.Super 2006) (explaining appellant’s arguments must adhere to rules of 

appellate procedure, and arguments which are not appropriately developed 
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are waived on appeal; arguments not appropriately developed include those 

where party has failed to cite any authority in support of contention); Estate 

of Haiko v. McGinley, 799 A.2d 155 (Pa.Super. 2002) (stating rules of 

appellate procedure make clear appellant must support each question raised 

by discussion and analysis of pertinent authority; absent reasoned discussion 

of law in appellate brief, this Court’s ability to provide appellate review is 

hampered, necessitating waiver of issue on appeal). 

Instantly, Appellant’s brief entirely fails to proffer any argument to 

support his first three issues on appeal. Appellant’s brief does not have a 

specific section in his argument addressing these claims, fails to explain how

the trial court abused its discretion or made an error of law in relation to these 

claims, and fails to discuss the merits of these claims or cite to relevant 

authority to support them. Accordingly, Appellant has waived his first three 

issues on appeal. See Pa.R.A.P. 2119(a); Glosser, supra; Estate of Haiko, 

supra; Butler, supra.

In his fourth issue on appeal, Appellant contends that he filed a notice 

of appeal to the court’s March 12, 2021 order denying his motion to dismiss

prior to the court’s grant of summary judgment. Appellant asserts that he 

“filed a praecipe to deem the order as final of March 12, 2021, and a 

contemporaneous appeal the same day.” (Appellant’s Brief at 9). Appellant 

concludes that thereafter, the court lacked jurisdiction to enter summary 

judgment on March 15, 2021 pursuant to Pa.Ra.A.P. 1701, and this Court
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must vacate the court’s grant of summary judgment. We disagree. 

The Pennsylvania Rules of Appellate Procedure set forth the authority of 

the trial court after an appeal is filed as follows: 

Rule 1701. Effect of Appeal Generally

(a) General rule.—Except as otherwise prescribed by 

these rules, after an appeal is taken or review of a 

quasijudicial order is sought, the trial court or other 

government unit may no longer proceed further in the 

matter.

(b) Authority of a trial court or other government unit 

after appeal.—After an appeal is taken or review of a 

quasijudicial order is sought, the trial court or other 

government unit may:

* * *

(6) Proceed further in any matter in which a nonappealable interlocutory order has been entered, 

notwithstanding the filing of a notice of appeal or a 

petition for review of the order.

Pa.R.A.P. 1701(a), (b)(6). Therefore, the trial court retains jurisdiction to 

enter judgment if an appeal is taken from a non-appealable interlocutory 

order. See Melani v. Northwest Engineering, Inc., 909 A.2d 404, 406 

(Pa.Super. 2006) (holding that appeal before entry of judgment did not divest 

trial court of jurisdiction where appeal was from interlocutory order).

An appeal may be taken from: (1) a final order or an order certified as 

a final order; (2) an interlocutory order as of right; (3) an interlocutory order 

by permission; or (4) a collateral order. See Pa.R.A.P. 341, 311, 312, and 

313, respectively. An appeal may be taken as of right from an order sustaining 
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jurisdiction over the person or over real property if: “(1) the plaintiff, 

petitioner, or other party benefiting from the order files of record within ten 

days after the entry of the order an election that the order shall be deemed 

final; or (2) the court states in the order that a substantial issue of venue or 

jurisdiction is presented.” Pa.R.A.P. 311(b)(1), (2). 

Instantly, Appellant attached to his notice of appeal from the court’s 

March 12, 2021 order a notice stating that Appellant deemed the order 

denying Appellant’s motion to dismiss as final pursuant to Pa.R.A.P. 311(b)(1)

and (2). Nevertheless, Appellant has no authority to deem an order final 

pursuant to Section 311(b)(1), as it only permits an appeal as of right if the 

plaintiff, petitioner or other party benefiting from the order files an election 

that the order shall be deemed final. Appellant did not benefit from the March 

12, 2021 order denying his motion to dismiss in any way and as such, his 

attempted election to deem the order final did not perfect our jurisdiction. 

Additionally, the court did not state in its order that a substantial issue of 

jurisdiction was presented. See Pa.R.A.P. 311(b)(2). As Appellant does not

assert that the March 12, 2021 order was appealable on any other grounds,

we agree with the trial court’s assessment that the March 12, 2021 order was 

a non-appealable interlocutory order. Accordingly, the court retained 

jurisdiction to pronounce judgment on March 15, 2021, notwithstanding 

Appellant’s filing of a notice of appeal on March 12, 2021. See Pa.R.A.P. 

1701(b)(6); Melani, supra.
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In his fifth and sixth issues combined, Appellant asserts that the court

did not have jurisdiction to enter summary judgment because Appellee failed 

to establish that it was the successor in interest of the debt, failed to present 

admissible evidence of payment history, and failed to send the required 

notices prior to filing the foreclosure action. Specifically, Appellant argues

that a genuine issue of material fact exists as to whether Appellee is the 

successor in interest to the mortgage because Appellee did not produce any 

evidence to demonstrate that a valid transfer of the mortgage took place in 

compliance with the pooling and servicing agreement. Appellant further 

contends that a genuine issue of fact exists regarding whether Appellee owns 

the note because the note was transferred after Decision One Mortgage, LLC, 

the originator of the note, was no longer in business. Additionally, Appellant 

alleges that Appellee failed to present any reliable evidence of the amount of 

indebtedness because Appellee was unable to authenticate the documents 

containing payment history and the records on their face were untrustworthy 

and incomplete. Appellant also alleges that Appellee failed to send notices to 

Appellant as required by the mortgage, note, and pursuant to Act 6, Act 91, 

and 13 Pa.C.S.A. 3503. 

Appellant also contends that the court failed to consider the affirmative 

defenses that he raised as new matter in his complaint and in opposition to 

Appellee’s motion for summary judgment. Appellant asserts that Appellee’s 

claims are barred by the statute of limitations, res judicata, collateral estoppel, 
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the statute of frauds, the doctrine of laches, and defenses pursuant to 13 

Pa.C.S.A. § 3202(b). Appellant concludes the court erred in granting 

summary judgment when Appellee failed to establish standing and Appellant 

raised genuine issues of material fact and applicable defenses, and this Court 

should vacate the order granting summary judgment. We disagree. 

Our standard of review of an order granting summary judgment requires 

us to determine whether the trial court abused its discretion or committed an 

error of law. Mee v. Safeco Ins. Co. of America, 908 A.2d 344, 347 

(Pa.Super. 2006). Our Supreme Court has clarified our role on appellate 

review as follows:

[T]he issue as to whether there are no genuine issues as to 

any material fact presents a question of law, and therefore, 

on that question our standard of review is de novo. This 

means we need not defer to the determinations made by 

the lower tribunals. To the extent that this Court must 

resolve a question of law, we shall review the grant of 

summary judgment in the context of the entire record.

Valley National Bank v. Marchiano, 221 A.3d 1220, 1222 (Pa.Super. 2019) 

(quoting Summers v. Certainteed Corp., 606 Pa. 294, 307, 997 A.2d 1152, 

1159 (2010)). Our scope of review is plenary. Pappas v. Asbel, 564 Pa. 

407, 418, 768 A.2d 1089, 1095 (2001), cert. denied, 536 U.S. 938, 122 S.Ct. 

2618, 153 L.Ed.2d 802 (2002). 

In reviewing a trial court’s grant of summary judgment,

[W]e apply the same standard as the trial court, reviewing 

all the evidence of record to determine whether there exists 

a genuine issue of material fact. We view the record in the 

light most favorable to the non-moving party, and all doubts 
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as to the existence of a genuine issue of material fact must 

be resolved against the moving party. Only where there is 

no genuine issue as to any material fact and it is clear that 

the moving party is entitled to a judgment as a matter of 

law will summary judgment be entered. All doubts as to the 

existence of a genuine issue of a material fact must be 

resolved against the moving party.

Motions for summary judgment necessarily and directly 

implicate the plaintiff’s proof of the elements of [a] cause of 

action. Summary judgment is proper if, after the 

completion of discovery relevant to the motion, including 

the production of expert reports, an adverse party who will 

bear the burden of proof at trial has failed to produce 

evidence of facts essential to the cause of action or defense 

which in a jury trial would require the issues to be submitted 

to a jury. In other words, 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 and the moving party 

is entitled to judgment as a matter of law, summary 

judgment is appropriate. Thus, a record that supports 

summary judgment either (1) shows the material facts are 

undisputed or (2) contains insufficient evidence of facts to 

make out a prima facie cause of action or defense.

Upon appellate review, we are not bound by the trial court’s 

conclusions of law, but may reach our own conclusions.

Chenot v. A.P. Green Services, Inc., 895 A.2d 55, 61 (Pa.Super. 2006) 

(internal citations and quotation marks omitted). 

In an action for mortgage foreclosure, the mortgagee is entitled to 

summary judgment if:

the mortgagors admit that the mortgage is in default, that 

they have failed to pay interest on the obligation, and that 

the recorded mortgage is in the specified amount. This is 

so even if the mortgagors have not admitted the total 

amount of the indebtedness in their pleadings. 

Cunningham v. McWilliams, 714 A.2d 1054, 1057 (Pa.Super. 1998), appeal 
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denied, 557 Pa. 653, 734 A.2d 861 (1999) (internal citations omitted). 

“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.” Bank of Am., N.A. v. 

Gibson, 102 A.3d 462, 465 (Pa.Super. 2014), appeal denied, 631 Pa. 722, 

112 A.3d 648 (2015). General denials of averments in a pleading have the 

effect of an admission. Pa.R.C.P. 1029(b). Additionally, “in mortgage 

foreclosure actions, 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 must be considered an admission of those facts.” 

First Wisconsin Tr. Co. v. Strausser, 653 A.2d 688, 692 (Pa.Super. 1995).

Additionally:

Pennsylvania Rule of Civil Procedure 2002 provides, 

“[e]xcept as otherwise provided ... all actions shall be 

prosecuted by and in the name of the real party in interest, 

without distinction between contracts under seal and parol 

contracts.” Pa.R.C.P.2002(a); see also J.P. Morgan 

Chase Bank, N.A. v. Murray, 63 A.3d 1258, 1258 

(Pa.Super. 2013) (finding a debtor’s claim that appellee 

bank was not a real party in interest to bring foreclosure 

action was a challenge to appellee’s standing)...

In a mortgage foreclosure action, the mortgagee is the real 

party in interest. This is made evident under our 

Pennsylvania Rules of Civil Procedure governing actions in 

mortgage foreclosure that require a plaintiff in a mortgage 

foreclosure action specifically to name the parties to the 

mortgage and the fact of any assignments. Pa.R.C.P. 1147. 

A person foreclosing on a mortgage, however, also must 

own or hold the note.... [T]o establish standing in [a]

foreclosure action, [the mortgagee] ha[s] to plead 

ownership of the mortgage under Rule 1147, and have the 
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right to make demand upon the note secured by the 

mortgage.

CitiMortgage, Inc. v. Barbezat, 131 A.3d 65, 68 (Pa.Super. 2016) (some 

internal citations omitted).

A note secured by a mortgage is a negotiable instrument, as that term 

is defined by the Pennsylvania Uniform Commercial Code (“PUCC”). See J.P. 

Morgan Chase Bank, N.A. v. Murray, 63 A.3d 1258, 1263 (Pa.Super.

2013). “Pursuant to the PUCC, a debtor who satisfies his obligations under a 

negotiable instrument cannot be required to do so again, even if the recipient 

of the debtor’s performance is not the holder of the note in question.” Id. 

(citing 13 Pa.C.S.A. § 3602(a)). “Under the PUCC, a borrower is not in peril 

of double liability or injury by an allegedly defective assignment, for if the 

assignment to the foreclosing party had been defective, the borrower would 

not have to pay on the note to another party. Thus, ... a borrower lacks 

standing to challenge the validity of the assignment.” Gerber v. Piergrossi, 

142 A.3d 854, 862 (Pa.Super. 2016), appeal denied, 641 Pa. 179, 166 A.3d 

1215 (2017) (holding that mortgagee was entitled to summary judgment 

despite mortgagor’s claim that assignment of mortgage and note were invalid

when mortgagee averred that it was the holder of mortgage and produced 

copies of recorded mortgage, note, and recorded assignment).

Instantly, the trial court found that Appellee was entitled to summary 

judgment based on the following findings:

The evidentiary record showed [Appellant] entered into a 
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mortgage agreement with Decision One on September 16, 

2006 for $382,500. There was also an accompanying 

promissory note in which [Appellant] promised to pay back 

the $382,500 loan. Additionally, [Appellant] agreed to pay 

a yearly interest rate of 7.94% on the loan and a late charge 

fee of 5% of the overdue principal and interest. Initially, 

Decision One named MERS as the assignee of the Decision 

One mortgage. However, on July 13, 2010, MERS assigned 

the Decision One mortgage to Deutsche Bank. Thus, the 

evidentiary record clearly proved that as of July 13, 2010, 

[Appellant] was the mortgagor under the Decision One 

mortgage and [Appellee] was the mortgagee.

On June 27, 2018, [Appellee] sent [Appellant] a Notice of 

Intention to Foreclose the Mortgage because of [Appellant]

defaulting on the payments due under the terms of the 

mortgage. According to the evidentiary record, 

[Appellant]’s last mortgage payment was on February 27, 

2009. Furthermore, the evidence showed [Appellant] had 

accumulated substantial late fee charges and unpaid 

interest because of his failure to make timely payments on 

his mortgage. Thus, the evidentiary record clearly showed 

[Appellant] had defaulted on the Decision One mortgage by 

virtue of failure to make the required monthly payments due 

from 2009 to the present. As of this appeal, [Appellant] has 

not paid the mortgage payments due for over twelve years.

(Trial Court Opinion at 9-10).

The court’s findings are supported by the record. Appellant does not 

allege that the documents proffered by Appellee are forgeries. Rather, 

Appellant denies Appellee’s claim of ownership to the mortgage and note 

based on allegations that the assignment was invalid. Nevertheless, Appellant 

lacks standing to challenge the validity of the assignment.1 See Gerber, 

____________________________________________

1 On March 4, 2023, Appellant filed an application for relief with this Court 

requesting that we take judicial notice that the challenge raised by Appellant 

(Footnote Continued Next Page)
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supra. Accordingly, Appellant’s general denials and allegations of deficiencies 

in the assignment are insufficient to overcome Appellee’s averments and offer 

of proof establishing that Appellee rightfully holds the mortgage and note and 

as such, has standing to pursue this foreclosure matter. See CitiMortgage, 

Inc., supra; Gibson, supra; Cunningham, supra; First Wisconsin Tr. 

Co., supra. 

Regarding Appellant’s claim that Appellee did not proffer any 

trustworthy evidence of the amount of indebtedness, Appellant cites to

Bayview Loan Servicing LLC v Wicker, supra and U.S. Bank, N.A. v. 

Pantenis, supra to support his argument. In both cases, this Court 

considered the extent of knowledge required for a witness to authenticate a 

mortgagee’s records of loan history to satisfy the business records exception 

____________________________________________

to the assignment of the mortgage and note is a matter of first impression. 

To support this claim, Appellant asserts that his challenge is distinguishable 

to that in Gerber because Appellant is claiming that the transfer of the 

mortgage and note was an impossibility. Nevertheless, Appellant fails to 

distinguish this Court’s holding in Gerber in any meaningful way. Appellant 

further fails to explain how he would be in peril of double liability or injury as 

a result of an invalid assignment, which was the basis for this Court’s 

conclusion that a mortgager lacked standing to challenge the assignment of a 

mortgage. Additionally, in support of its holding in Gerber, this Court cited 

with approval In re Walker, 466 B.R. 271 (Bankr.E.D.Pa. 2012), in which the 

Bankruptcy court specifically held that a borrower lacks standing to “request 

a judicial determination that a loan assignment is invalid due to noncompliance 

with a pooling and servicing agreement, when the borrower is neither a party 

to nor a third party beneficiary of the securitization agreement.” Id. at 285. 

This is precisely the issue that Appellant raises in this matter. Accordingly, 

Appellant has failed to establish that the instant matter is outside of the 

purview of this Court’s holding in Gerber and we deny Appellant’s request for 

relief. 
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to the hearsay rule under Pa.R.E. 803(6).

2

 In both cases, the mortgagee 

attempted to authenticate loan history documents that were created by a prior 

servicer with an authenticating witness who was a representative of the 

current servicer. In Pantenis, the authenticating witness testified that he 

had no knowledge of how the prior servicer maintained their records and 

whether those records were reliable and could not account for records that

were missing for a period of over a year and an unexplained increase of 

$6,000.00 in the principal amount. The mortgager also testified that she 

made payments that were unaccounted for in the records presented. On those 

____________________________________________

2 Rule 803(6) provides an exception to the general exclusion of hearsay 

evidence in permitting the admission of a recorded act, event or condition if:

(A) the record was made at or near the time by—or from 

information transmitted by—someone with knowledge;

(B) the record was kept in the course of a regularly 

conducted activity of a “business,” which term includes 

business, institution, association, profession, occupation, 

and calling of every kind, whether or not conducted for 

profit;

(C) making the record was a regular practice of that activity;

(D) all these conditions are shown by the testimony of the 

custodian or another qualified witness, or by a certification 

that complies with Rule 902(11) or (12) or with a statute 

permitting certification; and

(E) neither the source of information nor other 

circumstances indicate a lack of trustworthiness.

Pa.R.E. 803(6). 
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facts, this Court held that the records were untrustworthy and excluded the 

records as hearsay. In Bayview Loan Servicing, our Supreme Court 

confirmed that a third-party witness outside of the organization that created 

the loan records could provide sufficient testimony to demonstrate the 

trustworthiness of the records depending on the specific facts of the matter. 

In that case, the loan history documents presented were admitted because 

the authenticating witness testified that he was familiar with the recording 

process used by the prior servicer, that the records went through an extensive 

“boarding” process when acquired by the current servicer, and the mortgagor 

did not identify any facial lapses or errors in the documents. 

Here, Appellant deposed Giovanni Amaya and Nicholas Raab, both of 

whom were designated record custodians of Specialized Loan Servicing, LLC 

(“SLS”), the servicer of the loan at the time of the foreclosure proceedings. 

Mr. Amaya and Mr. Raab testified that the loan was originated by Decision 

One and subsequently serviced by Wells Fargo until February 1, 2017, when 

SLS became the servicer. Mr. Amaya and Mr. Raab stated that the archived 

loan data from Wells Fargo underwent an extensive “boarding” process when 

SLS received the data, which involved multiple reviews to ensure accuracy. 

Mr. Amaya and Mr. Raab further testified that although SLS does not use the 

same recording system as Wells Fargo, they were very familiar with the 

system that Wells Fargo used and interacted with it quite often. Mr. Raab 

elaborated that Wells Fargo’s recording system is substantially similar to the 
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system used by SLS.

Both parties acknowledged that they did not have loan history data from 

Decision One, which spans approximately the first four months after the loan’s 

origination. During this time period, one loan payment would have become

due. Mr. Raab testified that although they do not have Decision One’s record 

of this payment, the archived loan data from Wells Fargo, which begins at the 

second payment that became due, demonstrates that the first payment was 

paid without the accumulation of any fees or credits to the account. On this 

record, we find no error in the trial court’s reliance on the payment history 

documents submitted by Appellee to grant summary judgment. Appellee’s 

record custodians testified to facts that were similar to those our Supreme 

Court deemed sufficient to satisfy the business records exception to hearsay

in Bayview Loan Servicing. Although Appellee’s records are missing data 

of one payment, the subsequent data showed that the payment was made,

and Appellant does not allege any facial errors in the payment history or allege 

that any specific payments were unaccounted for. Accordingly, we find no 

error in the court’s reliance on the payment history produced by Appellee. 

See Bayview Loan Servicing LLC, supra; Cunningham, supra.

Regarding Appellant’s claim that Appellee failed to send notices required 

by the note, mortgage, Act 6, Act 91, and 13 Pa.C.S.A. § 3503, Appellee 

averred and provided payment history documents to show that the mortgage 

has been in default since March 1, 2009. Accordingly, Appellee was not 
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required to send an Act 91 notice because the loan has been in default for 

more than 24 months. See 35 P.S. § 1680.403c(f)(1) (stating that notice 

under Act 91 is not required “to any mortgagor who is more than twenty-four 

(24) consecutive or nonconsecutive months in arrears on the residential 

mortgage in question, no matter what the reason therefor”).3 Additionally, 

Appellant failed to provide any authority to demonstrate that Appellee was 

required to send a notice of dishonor pursuant to 13 Pa.C.S.A. § 3503 prior to 

initiating a foreclosure proceeding.4 Appellant further failed to rebut 

____________________________________________

3 On February 28, 2023, Appellant filed an application for relief in this Court

requesting that we take judicial notice of the adjudicative facts in In re 

Whitfield, 578 B.R. 273 (Bankr.E.D.Pa. 2017). Specifically, Appellant 

requests this Court to take notice that the court in In re Whitfield found that 

an Act 91 notice was a condition precedent to a mortgage foreclosure action. 

Based on our determination that an Act 91 notice was not required in this case 

due to the length of time the loan was in default, In re Whitfield is not

applicable here and as such, we deny Appellant’s application for relief. 

4 13 Pa.C.S.A. § 3503 provides in relevant part:

§ 3503. Notice of dishonor

(a) Requirement of notice.—The obligation of an indorser

... and the obligation of a drawer ... may not be enforced 

unless:

(1) the indorser or drawer is given notice of dishonor of 

the instrument complying with this section; or

(2) notice of dishonor is excused under section 3504(b) 

(relating to excused presentment and notice of 

dishonor).

(Footnote Continued Next Page)
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Appellee’s claim that it sent a notice as required by Act 6 and the provisions 

of the mortgage and note by certified mail on June 27, 2018. Appellee 

attached a copy of the notice to its complaint. The notice gives a breakdown 

of the total amount due, informs Appellant of his right to cure the default, and 

discloses that Appellee intends to initiate foreclosure proceedings if the default 

is not cured within the allotted time period. Appellant’s unsubstantiated denial 

that the notice was sent is insufficient to create a genuine issue of material 

fact. See Gibson, supra; Chenot, supra.

Additionally, we see no merit to Appellant’s claims that the June 27, 

2018 notice was insufficient because Appellee sent the notice after it 

accelerated the loan. In support of this claim, Appellant notes that Appellee 

previously initiated two foreclosure proceedings against Appellant based on 

the same mortgage and note in 2010. In both prior complaints, Appellee 

alleged that it accelerated the loan in 2010. Appellant claims that the loan 

was never deaccelerated after the prior proceedings were withdrawn and/or 

dismissed because Appellee never sent Appellant a notice of deacceleration. 

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(b) Manner of notice.—Notice of dishonor may be given 

by any person; may be given by any commercially 

reasonable means, including an oral, written or electronic 

communication; and is sufficient if it reasonably identifies 

the instrument and indicates that the instrument has been 

dishonored or has not been paid or accepted. Return of an 

instrument given to a bank for collection is sufficient notice 

of dishonor.

13 Pa.C.S.A. § 3503. 
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Nevertheless, Appellant fails to provide any authority to support his contention 

that Appellee was required to send a notice of deacceleration. 

Additionally, all the evidence of record suggests that Appellee 

deaccelerated the loan. Mr. Raab stated during his deposition that the loan 

was deaccelerated after the prior proceedings were withdrawn and/or 

dismissed. The payment history shows that the payments continued to 

become due and late fees continued to accumulate after the prior proceedings 

were concluded. Additionally, the notice sent on June 27, 2018 states that

Appellant has the ability to cure the default for an amount less than the total 

amount demanded in the instant complaint when Appellee claims the loan was 

accelerated. Appellee failed to present any evidence to demonstrate that the 

loan was not deaccelerated and as such, has failed to raise a genuine issue of 

material fact. See Gibson, supra; Chenot, supra. Accordingly, we see no 

error with the court’s conclusion that Appellee’s June 27, 2018 notice was 

properly sent. See Mee, supra.

With respect to Appellant’s affirmative defenses, Appellant failed to 

allege any meritorious defenses to prevent the entry of summary judgment.

Appellant’s claim that the instant action is barred by res judicata and collateral 

estoppel based on the prior two actions filed by Appellee merits no relief

because Appellant failed to establish that the prior actions were adjudicated 

on the merits. See Matternas v. Stehman, 642 A.2d 1120, 1123 (Pa.Super. 

1994) (explaining that doctrines of res judicata and collateral estoppel serve 
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to preclude litigation, respectively, of claims and issues for which final 

judgment on merits has previously been entered by court of competent 

jurisdiction). Additionally, the instant action is based on an additional period 

of default with a new sum for damages. See U.S. Bank Nat'l Ass'n as Tr. 

for Citigroup Mortg. Loan Tr. 2006-WFHE3, Asset-Backed PassThrough Certificates, Series 2006-WFHE3 v. Davis, 232 A.3d 952, 958

(Pa.Super. 2020) (holding that mortgagee’s subsequent foreclosure action 

was not barred by res judicata because new action was based on different 

span of time and different period of default). Appellant also failed to establish 

that he is entitled to relief based on the doctrine of laches because Appellant 

did not plead any specific prejudice suffered as a result of the delay. See

Fulton v. Fulton, 106 A.3d 127, 131 (Pa.Super. 2014) (stating: “The party 

asserting laches as a defense must present evidence demonstrating prejudice 

from the lapse of time. Such evidence may include establishing that a witness 

has died or become unavailable, that substantiating records were lost or 

destroyed, or that the defendant has changed his position in anticipation that 

the opposing party has waived his claims”).

Additionally, there is no merit to Appellant’s claim that he is entitled to 

rescind on the loan pursuant to 13 Pa.C.S.A. § 3202 because the original 

lender failed to disclose all the terms of the loan within three days.5 Section 

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5 13 Pa.C.S.A. § 3202 provides:

(Footnote Continued Next Page)
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3202(b) specifically states that this remedy cannot be asserted against a 

subsequent holder in due course. See 13 Pa.C.S.A. § 3202(b). Appellant also

failed to establish that Appellee’s claims are barred by the statute of frauds 

because Appellant merely reasserts his argument that Appellee failed to 

present reliable documents to demonstrate that it owned the mortgage and 

note. Finally, Appellant’s claim that the action is barred by the statute of 

limitations also fails. The statute of limitations for a negotiable instrument 

under seal is 20 years and Appellee filed the instant action within that 

proscribed time period.

6

 See 42 Pa.C.S.A. § 5529(b)(1) (stating: “an action 

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§ 3202. Negotiation subject to rescission

(a) General rule.—Negotiation is effective even if 

obtained:

(1) from an infant, a corporation exceeding its powers or 

a person without capacity;

(2) by fraud, duress or mistake; or

(3) in breach of duty or as part of an illegal transaction.

(b) Rescission or other remedies.—To the extent 

permitted by other law, negotiation may be rescinded or 

may be subject to other remedies, but those remedies may 

not be asserted against a subsequent holder in due course 

or a person paying the instrument in good faith and without 

knowledge of facts that are a basis for rescission or other 

remedy.

6 Appellant filed an application for relief with this Court on June 7, 2023. 

Therein, Appellant asks this Court to dismiss the action because the applicable 

(Footnote Continued Next Page)
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upon an instrument in writing under seal must be commenced within 20 

years”). See also Valley Nat'l Bank v. Marchiano, 221 A.3d 1220, 1223 

(Pa.Super. 2019) (holding that mortgage with acknowledgement that it was 

signed, sealed and delivered was constructively under seal). Based on the 

foregoing, we agree with the trial court that Appellant failed to raise any

genuine issues of material fact to rebut Appellee’s foreclosure claim.

7

 See

Gibson, supra; Chenot, supra. Accordingly, we affirm. 

Order affirmed. 

____________________________________________

statute of limitations to this matter is four years, pursuant to 42 Pa.C.S.A. § 

5525(a)(8), which sets the statute of limitation for an action upon a contract, 

obligation or liability founded upon a writing not otherwise specified at four 

years. Appellant alleges that the mortgage and note in this matter are not 

subject to the 20-year statute of limitations as set forth in 42 Pa.C.S.A. § 

5529(b) because at the time the contract was entered into on September 15,

2006, the 20 year statute of limitation was set to expire on June 27, 2018, 

under the version of the statute then in effect. See 42 Pa.C.S.A. § 5529(b)(2) 

(stating this subsection shall expire June 27, 2018) (effective until June 24, 

2018). Appellant acknowledges that the statute was amended on June 25, 

2018, deleting the portion of the statute which set forth an expiration date. 

Nevertheless, Appellant insists that because the expiration date was in place 

at the time Appellant entered into the mortgage, the 20-year statute of 

limitation “expired” for purposes of the enforcement of this mortgage and 

reverted to the four-year statute of limitation set forth in Section 5525(a)(8). 

Nevertheless, a plain interpretation of our legislature’s action in removing the 

expiration provision indicates that the 20-year statute of limitations was in 

place at the time Appellant entered into the mortgage and continues to be in 

effect today. Accordingly, we deny Appellant’s application for relief. 

7 On February 16, 2023, this Court entered an order denying Appellant’s

application to stay proceedings or supersedes pending resolution of this 

appeal. On March 1, 2023, Appellant filed an application for reconsideration 

of this order. In support of his request, Appellant reiterates the same claims 

he raised on appeal regarding the impropriety of the trial court’s entry of 

summary judgment. Based on our disposition, we deny Appellant’s request. 
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Date: 10/12/2023