J-A05045-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

WELLS FARGO BANK, N.A. S/I/I/T 

WACHOVIA BANK, N.A.,

IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

JUDITH A. DEVICARIS,

Appellant No. 2072 EDA 2014

Appeal from the Order Entered June 18, 2014

In the Court of Common Pleas of Bucks County

Civil Division at No(s): 2012-03940

WELLS FARGO BANK, NATIONAL 

ASSOCIATION, S/I/I/T TO WACHOVIA 

BANK, N.A.,

IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

JUDITH A. DEVICARIS,

Appellant No. 2281 EDA 2014

Appeal from the Order Entered July 18, 2014

In the Court of Common Pleas of Bucks County

Civil Division at No(s): 2011-03862

BEFORE: GANTMAN, P.J., SHOGAN, and ALLEN, JJ.

MEMORANDUM BY SHOGAN, J.: FILED MARCH 31, 2015

Judith A. DeVicaris (“Appellant”) appeals from two orders entering 

summary judgment in favor of Wells Fargo Bank, N.A. s/i/i/t Wachovia Bank, 
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N.A. (“Wells Fargo”) in these consolidated mortgage foreclosure actions filed 

in Bucks County, Pennsylvania. We affirm.

On December 15, 2004, Appellant’s husband, Louis DeVicaris 

(“Louis”), secured a loan from Wells Fargo’s predecessor, Wachovia Bank, in 

the amount of $166,715.00 for the operation of Adventureland Day Camp 

(“Adventureland”), of which Louis was the sole shareholder. As security for 

the loan, Louis and Appellant executed a mortgage (“First Mortgage”) upon 

their personal residence at 97 Fieldstone Road, Levittown, PA 19056 (“the 

Property”), which they held as tenants by the entireties. About nine months 

later, Wachovia Bank extended a Business Equity Line of Credit in the 

amount of $175,000.00 to Adventureland. As security for payment of the 

line of credit, Louis and Appellant executed an Open End Mortgage upon the 

Property (“Open End Mortgage”). Louis and Adventureland defaulted on 

payments under both mortgages. Louis passed away on February 23, 2010, 

leaving title to the Property vested solely in Appellant. On March 20, 2010, 

Wells Fargo became the successor in interest to Wachovia Bank.

Wells Fargo filed a foreclosure action on the First Mortgage on April 28, 

2011, at Docket No. 2011-03862 (“First Mortgage Action”), and a 

foreclosure action on the Open End Mortgage on April 27, 2012, at Docket 

No. 2012-03940 (“Open End Mortgage Action”). Appellant filed answers and 

new matters in both actions, raising two defenses: Wells Fargo failed to 

aver that it was the current owner of the two mortgages, and Appellant 
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received no consideration for executing the mortgages. In response to the 

second action, Appellant also filed a counterclaim, alleging that Wells Fargo 

breached duties of fair dealing and good faith in extending the loan and line 

of credit to Louis and Adventureland, respectively, when it “knew or should 

have known” that: (1) the loan and line of credit were unlikely to be repaid 

because Adventureland operated at a loss; (2) the total amounts owed on 

the loan and line of credit were significantly more than the value of the 

Property; and (3) Appellant was in her late seventies with no means of 

repaying the loan and line of credit. Counterclaim, 5/30/12, at ¶¶ 7-9, 12.

Wells Fargo filed preliminary objections to the counterclaim on June 

18, 2012, which the trial court sustained on August 30, 2012, dismissing the 

counterclaim. Wells Fargo then filed a motion for summary judgment in the 

First Mortgage Action on September 12, 2013. In response to a request by 

Appellant on October 4, 2013, the trial court consolidated the two actions on 

December 6, 2013, with all subsequent pleadings to be filed under the First 

Mortgage Action. Wells Fargo filed a motion for summary judgment in the 

Open End Mortgage Action on April 28, 2014, alleging there were no genuine 

issues of material fact because Appellant admitted that the line of credit and 

Open End Mortgage were in default. In her response, Appellant again raised 

issues of standing, lack of consideration, and breaches of fiduciary duty and 

duty of good faith.
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The trial court entered summary judgment in favor of Wells Fargo on 

June 18, 2014, in the Open End Mortgage Action. In response, Appellant 

filed a motion entitled “Motion for Arrest and Vacation of Order Granting 

Motion for Summary Judgment in 2012-03940 only.” Therein, Appellant 

asserted that the trial court did not rule on Wells Fargo’s motion for 

summary judgment in the First Mortgage Action, which was filed before 

consolidation of the two actions. The trial court realized that, due to a filing 

error, it had not received the motion for summary judgment in the First 

Mortgage Action. Upon investigation and review of the outstanding motion, 

the trial court entered summary judgment in favor of Wells Fargo on July 18, 

2014, in the First Mortgage Action. Appellant timely appealed from both 

orders. The trial court and Appellant complied with Pa.R.A.P. 1925.

Appellant presents the following questions for our consideration:

1. Should summary judgment be reversed where the Court 

ordering such relief relied on (a) facts not of record and 

inferences drawn from such facts and (b) inferences from 

the pleadings of record which were favorable to the 

movant for judgment rather than drawing appropriate 

inferences favorable to the opposing party?

2. Where a bank lending money to a corporation and its 

owner, which loans it knew or would have known on 

proper investigation could not and would not be repaid by 

the borrowers, required as security for such loans 

mortgages on a residence owned by the owner of the 

corporation and his wife, did its requirement of such 

mortgages and its failure to advise the wife of the 

likelihood of foreclosure constitute such breach of fiduciary 

duty and duty of good faith to preclude foreclosure of the 

mortgages on the wife, now the residence’s sole owner?
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3. Does the failure of the mortgagee bank now seeking 

foreclosure to offer the proof demanded of it by the 

mortgagor that it now holds the mortgages, i.e. has not 

assigned them, preclude it from obtaining judgments of 

foreclosure?

Appellant’s Brief at 5.

Our standard of review is well settled:

We review an order granting summary judgment for an 

abuse of discretion. Our scope of review is plenary, and we view 

the record in the light most favorable to the nonmoving party. A 

party bearing the burden of proof at trial is entitled to summary 

judgment “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[.]” Pa.R.C.P. No. 1035.2(1). 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. Pa.R.C.P. No. 1035.3.

The holder of a mortgage has the right, upon default, to 

bring a foreclosure action. The holder of a mortgage is entitled 

to summary judgment if the mortgagor admits that the 

mortgage is in default, the mortgagor has failed to pay on the 

obligation, and the recorded mortgage is in the specified 

amount.

Bank of America, N.A. v. Gibson, 102 A.3d 462, 465 (Pa. Super. 2014) 

(some internal citations omitted).

Appellant seeks reversal of the orders granting summary judgment 

because the trial court relied on facts not of record to support inferences 

that were favorable to Wells Fargo and not to Appellant, the non-moving 

party. Appellant’s Brief at 18. Specifically, Appellant challenges: (a) the 

trial court’s reliance on the fact not of record that Appellant took full 

ownership of the corporation upon Louis’ death to support an inference that 
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Appellant benefitted from the loan and line of credit, and (b) the trial court’s 

reliance on the fact not of record that she was employed by Adventureland 

as its treasurer to support an inference that Appellant signed, executed, and 

delivered the mortgages with full knowledge. Id. at 20–21. According to 

Appellant, the trial court should have drawn inferences favorable to her, i.e., 

she did not know that Louis and Adventureland would not be able to repay 

the loan and line of credit and that executing the mortgages would 

ultimately deprive her of her home. Id. at 22. In response to Appellant’s 

argument, Wells Fargo acknowledges that the trial court relied on facts not 

of record, but claims the error does not warrant reversal of the orders 

granting summary judgment. Wells Fargo’s Brief at 16–17. 

The trial court’s reference to unsupported facts arose in response to 

Appellant’s argument that the loan and line of credit lacked consideration:

[Appellant] next argues that because the loans were made 

to Louis DeVicaris for financing Adventureland (Docket No. 2011-

03862) or to the corporation itself (Docket No. 2012-03940), 

there is a failure of consideration to [Appellant].

It is clear that the consideration for both mortgages in this 

case was the loan to Louis DeVicaris in the amount of 

$166,715.00 and a Business Equity Line of Credit in the amount 

of $175,000.00. [Appellant] believes that because she did not 

derive any “personal benefit” from these loans she cannot be 

held to their terms. We disagree.

[Appellant] was married to Louis DeVicaris and although 

she was not a shareholder of Adventureland, she certainly had 

an interest in its success and profitability. Indeed, [Appellant] 

was employed by Adventureland as its Treasurer. Upon 

the death of Louis DeVicaris, [Appellant] took full 

ownership of the corporation. Moreover, [Appellant] signed, 
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executed, and delivered the mortgage to Wachovia Bank with 

the full knowledge of its purpose, as well as the consequences if 

[Appellant] defaulted on the mortgages – i.e. it was collateral 

and security for the loans provided to Louis DeVicaris and 

Adventureland. There is absolutely no evidence of duress, 

coercion, or any other indication that the negotiations or 

transactions did not take [sic] occur at arms-length.

Further, even if there was no personal benefit to 

[Appellant], the element of a benefit to the promisor is not 

necessary to the sufficiency of the consideration. A benefit to a 

third party, in this case, Louis DeVicaris and Adventureland, is 

sufficient consideration for a promise. Restatement (2nd) of 

Contracts, §71, Comment e (1981) (Consideration moving from 

or to a third person[)]. It matters not from whom the 

consideration moves or to whom it goes. If it is bargained for 

and given in exchange for the promise, the promise is not 

gratuitous). Section 71 of the Restatement (2nd) of Contracts 

has been implicitly adopted by our courts and has been cited 

with approval. See e.g. Vitow v. Robinson, 823 A[.]2d 973, 977 

(Pa. Super. 2003); Eighth North-Val, Inc. v. William L. 

Parkinson, D.D.S., P.C., 773 A.2d 1248, 1253 (Pa. Super. 2000).

Also, under Section 79 of the Restatement (2nd) of 

Contracts, “if the requirement of consideration is met, there is 

no additional requirement of a) a gain, advantage or benefit to 

the promisor or loss, disadvantage or detriment to the promisor; 

or b) equivalence in the values exchanged; or c) mutuality of 

obligation.” Id.; see also Greene v. Oliver Realty, Inc., 526 A.2d 

1192, 1195-97 (Pa. Super. 1987).

It is clear that [Appellant] received precisely what she and 

her husband bargained for. [Wells Fargo] benefitted from 

[Appellant’s] mortgaging of her home, and these mortgages 

benefitted [Appellant] by enabling her husband to finance 

Adventureland, in which she had a direct interest. It is of no 

moment that the deal ended badly for [Appellant] and 

Adventureland. It is not this court’s duty to pass judgment upon 

the value of the consideration, or the likelihood of success of a 

contract entered without duress or bad faith on behalf of one of 

the parties.

Trial Court Opinion, 7/25/14, at 13–14 (bold emphasis supplied).
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Upon review, we conclude that the trial court’s reference to 

unsupported facts was not dispositive of the consideration issue. Regardless 

of Appellant’s ownership and employment status with Adventureland, the 

record supports an inference that Appellant derived a benefit from the 

success of her late husband’s business venture. As the trial court opined:

[T]here is no dispute that [Appellant] and her late husband, 

Louis DeVicaris, signed and executed both mortgages. . . . It is 

also undisputed that [Appellant] failed to make payments upon 

the Business Equity Line of Credit or either of the mortgages at 

issue in this case. By the plain language of the terms and 

conditions of the mortgages and Line of Credit, [Appellant] is in 

default. See Business Equit Line of Credit Agreement, p. 4; see 

also Mortgage, dated Sept. 16, 2005; Mortgage, dated Dec. 15, 

2004.

[Appellant] does not challenge that she is in default, nor 

does she challenge the amount due and owing upon the 

mortgages and Line of Credit.

Trial Court Opinion, 7/25/14, at 9–10. 

Our review of the record confirms that summary judgment in the First 

Mortgage Action was based on Appellant’s admission that she executed the 

First Mortgage and defaulted on the loan. Answer and New Matter, 9/14/11, 

at ¶¶ 2–7.1 Similarly, the record confirms that summary judgment in the 

____________________________________________

1

 Appellant did not include in her Answer a response to Wells Fargo’s 

averment of default: “The mortgage is in default because monthly 

payments of principal and interest upon said mortgage due October 13, 

2010 and each month thereafter are due and unpaid, and by the terms of 

said mortgage, upon default in such payments for a period of one month, 

the entire principal balance and all interest due thereon are collectible 

forthwith.” Complaint, 4/28/11, at ¶ 6. As the trial court observed, 

(Footnote Continued Next Page)
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Open End Mortgage Action was based on Appellant’s admission that she 

executed the Open End Mortgage and did not make payments on the line of 

credit. Answer, New Matter, and Counterclaim, 5/30/12, at ¶¶ 4, 6. 

Contrarily, the inferences Appellant proffers are not supported by the record. 

Because there were no genuine issues of material fact regarding the defaults 

and the amounts due and owing upon the mortgages, the trial court’s 

reference to unsupported facts did not undermine its disposition of Wells 

Fargo’s motions for summary judgment. Thus, we conclude that Appellant’s 

first issue lacks merit.

Next, Appellant contends that the trial court erred in granting 

summary judgment because Wachovia Bank breached a fiduciary duty and a 

duty of good faith. According to Appellant, her argument presents a case of 

first impression. Appellant’s Brief at 23. In response, Wells Fargo contends 

that, under established Pennsylvania law, a mortgagee is not a fiduciary to 

Appellant and, therefore, Wachovia Bank did not breach any duties. Wells 

Fargo’s Brief at 19. 

The trial court disposed of Appellant’s argument as follows:

Specifically, [Appellant] contends that [Wachovia] knew or 

should have known from a review of the perilous financial 

situation of Adventureland that the loans were not likely to be 

repaid. She further avers that since [Wachovia] had a “superior 

(Footnote Continued) _______________________

Appellant’s “failure to admit or deny this averment is . . . an admission that 

the mortgage is in default.” Trial Court Opinion, 7/25/14, at 2 (citing 

Pa.R.C.P. 1029(b)).
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and objective” ability to analyze Adventureland’s financial 

situation, it therefore had a fiduciary obligation and duty of good 

faith to [Appellant] to at least warn her of the likelihood of 

mortgage default and “possibly a duty not to solicit or accept her 

execution of a mortgage on her home.” See Response to Motion 

for Summary Judgment, May 14, 2014, Wells Fargo Bank, N.A. 

v. DeVicaris, BCCCP Docket No. 2011-03862.

Under Pennsylvania law, a commercial lender is ordinarily 

not a fiduciary of the borrower. Federal Land Bank of Baltimore 

v. Fetner, 410 A.2d 344, 348 (Pa. Super. 1979); Buczek v. First 

National Bank, 531 A.2d 1122, 1124 (Pa. Super. 1987). “This 

principle stems from the presumption that the relationship 

between lenders and borrowers is conducted at arms-length and 

the parties are each acting in their own interest.” Temp-Way 

Corp. v. Continental Bank, 139 B.R. 299, 317 (E.D. Pa. 1992) 

(citing Frowen v. Blank, 425 A.2d 412, 416 (Pa. 1981)[)].

This presumption can be rebutted, however, if the 

borrow[er] can show that the lender gained substantial control 

over the borrower’s business affairs. [Temp-Way, 139 B.R.] at 

318. “Control over the borrower is demonstrated when there is 

evidence that the lender was involved in the actual day-to-day 

management and operations of the borrower or that . . . the 

lender had the ability to compel the borrower to engage in 

unusual transactions.” Bohm v. Commerce Union Bank of 

Tennessee, 794 F.Supp. 158, 164 (W.D. Pa. 1992). “The mere 

monitoring of the borrower’s operations and the proffering of 

management advice by lenders, without more, does not 

constitute control.” Temp-Way Corp, 139 B.R. at 318. 

“Moreover, action taken by the creditor to minimize the risk does 

not constitute total and absolute control.” James E. McFadden, 

Inc. v. Baltimore Contractors, Inc., 609 F.Supp. 1102, 1105 

(E.D.Pa. 1985).

In the case sub judice, there is no evidence that 

[Wachovia] was involved in the actual day-to-day management 

of the finances of either [sic] Adventureland, Louis DeVicaris, or 

[Appellant]. In support of her argument, [Appellant] contends 

that [Wachovia] had “objective” and “superior” knowledge of the 

finances of Adventureland. There is no evidence of this of 

record, and even assuming [Wachovia] did have “superior” or 

“objective” knowledge of the finances of Adventureland and 
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[Appellant], this per se is not sufficient to establish a fiduciary 

relationship. See Bohm, 794 F.Supp. at 164.

Further, merely monitoring the finances of Adventureland 

or [Appellant] is insufficient to constitute control and therefore 

does not establish a fiduciary relationship between [Wachovia] 

and [Appellant]. [Wachovia] requested, and [Appellant] 

acquiesced to the execution of mortgages to secure various 

loans made to Louis DeVicaris and Adventureland. The purpose 

of such a transaction was to minimize [Wachovia’s] risk in its 

financial dealings with [Appellant]. As previously stated, this 

does not constitute control to sufficiently establish any fiduciary 

duty to [Appellant]. See id. at 1105.

* * *

Regarding [Appellant’s] claim of a breach of a duty of good 

faith, our Supreme Court has refused to impose a duty of good 

faith which would modify or defeat the legal rights of a creditor. 

Heights v. Citizens National Bank, 342 A.2d 738, 742 (Pa. 1975). 

Further, 

a lending institution does not violate a separate duty 

of good faith by adhering to its agreement with the 

borrower or by enforcing its legal and contractual 

right as a creditor. The duty of good faith imposed 

upon contracting parties does not compel a lender to 

surrender rights which it has been given by statute 

or by the terms of its contract. Similarly, it cannot be 

said that a lender has violated a duty of good faith 

merely because it has negotiated terms of a loan 

which are favorable to itself.

Creeger Brick and Bldg. Supply Inc. v. Mid-State Bank and Trust 

Co., 560 A.2d 151, 154 (Pa. Super. 1989).

[Appellant] argues that the holding in Creeger is 

inapplicable to the facts of this case. Specifically, she argues 

that the relationship here is similar to that of a 

franchisor/franchisee or insurer/insured, rather than that of a 

lender borrower. In those relationships, the courts have 

recognized a separate duty of good faith. See Creeger, 560 A.2d 

at 153-[1]54.
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Despite [Appellant’s] contention, the facts of Creeger are 

almost identical to the facts of this case. In Creeger, Creeger 

Brick and Building Supply Inc., a closely held corporation, 

purchased a refractory plant with the intention of rehabilitating 

the facility and reopening it as a brick manufacturing plant. The 

financing for this project was provided in part by obtaining a loan 

from Mid-State Bank and Trust Company in the amount of 

$250,000.00. This loan was secured by a mortgage upon the 

plant itself and upon three (3) residential properties owned by 

Donald Creeger, the president and sole shareholder of the 

company, and his wife, Marjorie Creeger. See id. at 152.

The plant project thereafter suffered financial collapse for a 

variety of reasons unimportant to our analysis. Upon this 

collapse, Creeger Brick and Building Supply, Inc. as well as 

Donald Creeger and his wife, Marjorie Creeger, who executed the 

mortgages upon their residential properties to secure the loan, 

filed suit against Mid-State Bank alleging that although the Bank 

did not breach any specific provision of the loan agreement, they 

nevertheless failed to deal with the borrowers in good faith. See

id. at 153.

Upon these set of facts, the Court in Creeger held that the 

borrowers failed to state a legally enforceable cause of action 

against Mid-State Bank for failing to deal with them in good faith 

as such a duty is not recognized in a borrower-lender setting. 

See id. at 153-[1]55.

The facts of this case are almost identical. [Wachovia] 

provided loans in the form of a Business Equity Line of Credit for 

the purpose of financing Adventureland, a closely held 

corporation. As in Creeger, [Appellant], along with her late 

husband, Louis DeVicaris, mortgaged their home as security for 

the financing. Adventureland suffered economically and 

[Appellant] and Louis DeVicaris were unable to repay the loans. 

Although the borrowers in Creeger were the plaintiffs, the 

facts relied upon by the Creeger Court in its analysis remain the 

same. Under the same factual scenario, the Creeger Court held 

that there was no separate duty of good faith. Thus, we adhere 

to the holding of Creeger and find that [Appellant] has failed to 

state a legally enforceable cause of action against [Wells Fargo 

as successor in interest] based upon a breach of a duty of good 

faith.
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Trial Court Opinion, 7/25/15, at 14–17.

Upon review of the record in the light most favorable to Appellant as 

the nonmoving party, we discern no abuse of the trial court’s discretion. The 

record supports the trial court’s findings. The relationship between 

Wachovia Bank and Appellant was arms-length. Moreover, we do not 

consider this a case of first impression, as Wachovia Bank and Appellant

engaged in a standard mortgage transaction. Appellant presented no 

evidence that Wachovia Bank gained substantial control over the business 

affairs of Louis DeVicaris and Adventureland by being involved in the actual 

day-to-day management and operations of Adventureland. Similarly, 

Appellant presented no evidence that Wachovia Bank had the ability to 

compel Louis DeVicaris, Adventureland, or Appellant to engage in unusual 

transactions. Thus, Wachovia Bank was not in a fiduciary relationship with 

Appellant and, as such, did not owe her any specialized duty. Moreover, 

contrary to Appellant’s assertions, we agree with the trial court that this 

case is factually similar to, and therefore controlled by, Creeger. 

Appellant’s attempt to reframe this generic mortgage transaction in a 

franchise or insurance context is unavailing. Hence, we conclude there is no 

genuine issue of fact regarding the nature of Wachovia Bank’s and, as 

successor, Wells Fargo’s relationship to Appellant. In reaching this 

conclusion, we adopt as our own the well-reasoned analysis of the trial court 

set forth above.
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Appellant’s final question challenges Wells Fargo’s standing to obtain 

judgment on the mortgages. According to Appellant, Wells Fargo failed to 

provide proof through requested discovery that it owned the mortgages at 

issue in both foreclosure actions. Appellant’s Brief at 34. In response, Wells 

Fargo insists that it pleaded sufficient facts and provided sufficient 

documentary evidence of its merger with Wachovia Bank to establish its 

status as current holder of the mortgages and its standing to foreclose on 

the mortgages. Wells Fargo’s Brief at 13.

The trial court disposed of Appellant’s standing challenge as follows:

In the Complaint filed at Docket No. 2011-03862, [Wells 

Fargo] asserted that it was the “successor-in-interest-to” 

Wachovia Bank, N.A. The mortgage, recorded in the Bucks 

County Office of the Recorder of Deeds at Mortgage Book 4311, 

Page 1061, clearly indicates that Louis DeVicaris and [Appellant] 

made, executed and delivered a mortgage upon the premises at 

97 Fieldstone Road, Levittown, PA to Wachovia Bank, N.A. on 

December 15, 2004.

Clearly, Wachovia Bank, N.A. was the owner and legal 

holder of the mortgage at the time it was executed by 

[Appellant]. Upon the merger, [Wells Fargo], took ownership 

and control of Wachovia Bank, N.A.’s assets, including the 

mortgage at issue here. Complaint, April 28, 2011, Wells Fargo 

Bank, N.A. v. DiVicaris, BCCCP Docket No. 2011-03862.

In response to [Appellant’s] Preliminary Objections to the 

Complaint filed at Docket No. 2011-03862, [Wells Fargo] 

attached a letter from the United States Comptroller of Currency 

evidencing the merger of Wachovia Bank, N.A. into [Wells 

Fargo]. See Exhibit A, Response to Preliminary Objections, May 

27, 2011, Wells Fargo Bank[,N.A.] v. DiVicaris, BCCCP Docket 

No. 2011-03862.

Further, after [Appellant] averred in her New Matter that 

[Wells Fargo] did not offer proof that it is the current owner of 
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the mortgage, [Wells Fargo] replied that it “is the current holder 

and legal owner of the subject Mortgage by virtue of a merger in 

which Wells Fargo Bank, NA acquired Wachovia Bank, NA.” 

[Wells Fargo] again filed documentation of the merger with its 

Reply. See Exhibit A, Reply to New Matter, October 24, 2011, 

Wells Fargo Bank[,N.A.] v. DiVicaris, BCCCP Docket No. 2011-

03862.

In its motion for Summary Judgment, [Wells Fargo] again 

asserted that “[o]n March 20, 2010, Wachovia Bank, National 

Association merged into Wells Fargo Bank, N.A.” [Wells Fargo] 

also stated that it is “the current holder of the Mortgage by 

succession and is in possession of the Note with the right to 

enforce it.” See Motion for Summary Judgment, Sept. 12, 2013, 

Wells Fargo Bank, N.A. v. DiVicaris, BCCCP Docket No. 2011-

03862[.]

In the Complaint filed at Docket No. 2012-03940, [Wells 

Fargo] stated the following: “Wells Fargo Bank, N.A. . . . is a 

national banking association . . . and as successor by merger to 

Wachovia Bank, stands its stead (sic).” Complaint, April 27,

2012, Wells Fargo Bank, N.A. v. DiVicaris, BCCCP Docket No. 

2012-03940.

In its Motion for Summary Judgment as to the action 

originally filed at Docket No. 2012-03940, [Wells Fargo] asserted 

that it is the “original payee of the Business Line of Credit or the 

Business Line of Credit has been duly indorsed.” Motion for 

Summary Judgment, April 28, 2014, Wells Fargo Bank, N.A. v. 

DeVicaris, BCCCP Docket No. [2012-03940].

Every pleading indicates that Plaintiff, Wells Fargo Bank, 

N.A., is the successor in interest to Wachovia Bank, N.A., the 

original mortgagee, as a result of the merger of these two 

banks. [Wellso Fargo] provided documentation of this merger as 

exhibits to its pleadings. See supra.

The effect of a merger of two or more corporations with 

regard to property rights is clearly enunciated in Title 15, Section 

1929(b) [of the Pennsylvania Consolidated Statutes]:

(b) Property rights.--All the property, real, personal, and 

mixed, and franchises of each of the corporations parties 

to the merger or consolidation, and all debts due on 
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whatever account to any of them, including subscriptions 

for shares and other choses in action belonging to any of 

them, shall be deemed to be vested in and shall belong to 

the surviving or new corporation, as the case may be, 

without further action, and the title to any real estate, or 

any interest therein, vested in any of the corporations shall 

not revert or be in any way impaired by reason of the 

merger or consolidation. . . .

15 Pa.C.S. §1929(b). Further, a “successor in interest” is an 

entity “who follows another in ownership or control of property” 

and “retains the same rights as the original owner, with no 

change in substance.” Black’s Law Dictionary, 3d Pocket Edition 

(1996).

Clearly, when corporations merge, the surviving/acquiring 

corporation, as [Wells Fargo] is here, succeeds to both the rights 

and liabilities of the constituent corporation. See LTV Steel Co. 

v. W.C.A.B. (Mozena), 754 A.2d 666, 677 (Pa. 2000).

It is clear that when Wachovia Bank, N.A. merged with 

[Wells Fargo], [Wells Fargo] obtained the assets of Wachovia 

Bank, N.A., which included the mortgages executed by 

[Appellant] as well as the Line of Credit. See Mozena, supra.

[Appellant] cites Wells Fargo Bank v. Lupori, 8 A.3d 919 

(Pa. Super. 2010) for the proposition that [Wells Fargo] must 

prove that it has not previously assigned the mortgage in order 

to demonstrate that it is the current owner of the mortgage.

[Appellant] misstates the holding in Lupori. The Lupori

Court only held that a mortgagee must identify itself as the 

owner of the mortgage upon which it seeks foreclosure; it does 

not state or hold that in every case a mortgagee must 

demonstrate that it did not assign the mortgage. Id. at 921–22. 

Further, this court is unaware of any “evidence of absence” 

requirement that a plaintiff must plead or otherwise demonstrate 

that there has been no assignment of a mortgage upon which it 

seeks foreclosure. Indeed, proving that the mortgages at issue 

were not assigned would be a fruitless exercise as there would 

be no evidence of an event or transaction that did not occur. 

The lack of an assignment of the mortgage is implicit in [Wells 

Fargo’s] assertion that it is the current owner of the mortgage.
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This court is, however, cognizant of the affirmative 

requirement that, if a plaintiff is an assignee of a mortgage, it 

must plead as much in its Complaint. See U.S. Bank, N.A. v. 

Mallory, 982 A.2d 986 (Pa. Super. 2009). This is not the case 

here. [Wells Fargo] is not an assignee of the mortgages in 

question, nor have they indicated that there has been any 

assignment of the mortgages or Line of Credit by either [Wells 

Fargo] or Wachovia Bank, N.A. There is also no evidence of any 

assignments. Thus, Mallory is inapplicable in this case.

[Wells Fargo] asserted and demonstrated that it is the 

current holder of the mortgages in question as successor in 

interest to the original mortgagee, Wachovia Bank, N.A. 

[Appellant] has not proffered any evidence to dispute this fact. 

Thus, there is no genuine issue of material fact as to [Wells 

Fargo’s] standing to bring [these] foreclosure action[s].

Trial Court Opinion, 7/25/14, at 10–13.

Upon review of the record in the light most favorable to Appellant as 

the nonmoving party, we discern no abuse of the trial court’s discretion. The 

record supports the trial court’s finding that Wells Fargo currently holds the 

subject mortgages. Wells Fargo’s complaint sufficiently put Appellant on 

notice of Wells Fargo’s claim of interest with regard to the mortgages. 

Moreover, Wells Fargo’s documentary evidence sufficiently established its 

ownership of the mortgages as successor in interest to Wachovia Bank. 

Appellant’s attempt to defeat Wells Fargo’s standing lacks support in the 

record and in Pennsylvania’s law of corporate merger. Thus, we conclude 

there is no genuine issue of fact regarding Wells Fargo’s standing to file the 

underlying foreclosure actions. In reaching this conclusion, we adopt as our 

own the well-reasoned analysis of the trial court set forth above.

Orders affirmed.
J-A05045-15

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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/31/2015