J-A27038-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

VIRGINIA HUMPHREYS AND BRIAN 

HUMPHREYS

IN THE SUPERIOR COURT OF

PENNSYLVANIA

 v.

WELLS FARGO BANK N.A.

APPEAL OF: BRIAN HUMPHREYS

 No. 2786 EDA 2015

Appeal from the Order Entered August 13, 2015

in the Court of Common Pleas of Northampton County Civil Division

at No(s): C-48-CV-2014-12252

WELLS FARGO BANK N.A. IN THE SUPERIOR COURT OF

PENNSYLVANIA

 v.

VIRGINIA L. HUMPHREYS AND BRIAN C. 

HUMPHREYS

APPEAL OF: BRIAN HUMPHREYS

 No. 2787 EDA 2015

Appeal from the Order Entered August 13, 2015

in the Court of Common Pleas of Northampton County Civil Division

at No(s): C-48-CV-2011-3134

BEFORE: PANELLA, LAZARUS, FITZGERALD,*JJ.

MEMORANDUM BY FITZGERALD, J.: FILED JANUARY 25, 2017

Pro se Appellant, Brian Humphreys, appeals from two separate orders 

entered in the Northampton County Court of Common Pleas respectively 

granting summary judgment in favor of Appellee, Wells Fargo Bank, in a 

 

*

Former Justice specially assigned to the Superior Court.
J-A27038-16

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foreclosure action and dismissing Appellant’s second amended complaint 

against Appellee in a quiet title action.1 Appellant contends, in this 

consolidated appeal, that Appellee was not the proper “note holder” in 

connection with the mortgage at issue and therefore did not have the 

authority to pursue a foreclosure action against him. We affirm.

We adopt the facts and procedural history set forth in the trial court’s 

opinion. See Trial Ct. Op., 3/31/16, at 1-4. On April 6, 2011, Appellee2

filed a mortgage foreclosure action (“foreclosure action”) against the parties 

because Appellee had not received the required monthly payments after 

November 2010. On August 25, 2011, the parties filed an answer consisting 

of general denials and three paragraphs of affirmative defenses. Thereafter, 

on October 17, 2011, the parties filed a motion for summary judgment, 

which the trial court denied on December 7, 2011. Appellee filed its own 

motion for summary judgment on April 27, 2015, which the trial court 

granted via an order and opinion dated August 13, 2015 (“Foreclosure 

Opinion”). Appellant filed a timely notice of appeal on September 10, 2015 

and a court-ordered Pa.R.A.P. 1925(b) statement on October 1, 2015. The 

 

1

Initially, Appellant and his Mother, Virginia L. Humphreys (collectively the 

“parties”) were jointly involved in both actions in this consolidated case. 

After Virginia Humphreys passed away in March 2015, Appellant continued 

to pursue this appeal individually. 

 

2 We note that Appellee is the successor in interest, by way of merger, to 

Wachovia Bank. 
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trial court filed a responsive Pa.R.A.P. 1925(a) statement, referencing the 

court’s Foreclosure Opinion.

Meanwhile, on December 30, 2014, the parties initiated a quiet title 

action against Appellee regarding the same property that is the subject of 

the foreclosure action. Appellee filed timely preliminary objections, and the 

parties filed an amended complaint on February 9, 2015. Appellee filed 

additional preliminary objections on March 2, 2015, and the parties filed a 

second amended complaint. On April 8, 2015, Appellee filed preliminary 

objections in response to the second amended complaint. After the trial 

court conducted oral argument on May 26, 2015, the court ultimately 

sustained Appellee’s objections and dismissed the parties’ second amended 

complaint by order and opinion, also dated August 13, 2015 (“Quiet Title 

Opinion”). Appellant filed a timely notice of appeal on September 10, 2015 

and a court-ordered Pa.R.A.P. 1925(b) statement on October 1, 2015. The 

trial court filed a responsive Pa.R.A.P. 1925(a) statement, referencing the 

court’s Quiet Title Opinion.

 On November 9, 2015, this Court consolidated the two abovereferenced appeals. Appellant filed a single brief incorporating his issues 

regarding both cases. 

Appellant raises the following issues for our review:

On its own accord, should the Court have claimed that the 

argument put forth in PHH Mortgage Corp. v. Powell, 

100 A.3d 611, 619 (Pa. Super. 2014), was 

“indistinguishable” from that presented in the instant case?
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The Appellant’s 2011 Answer to Wells Fargo’s Foreclosure 

Complaint contained general denials; most of which were 

argued in great detail in later pleadings. Did the Court 

unjustly presume that [Appellant’s] Answer was dishonest?

Appellant’s Brief at 3-4.3

The crux of Appellant’s issues is his contention that Appellee was not 

legally permitted to pursue a foreclosure action against him because 

Appellee was not the legal “note holder” in connection with the mortgage at 

issue. No relief is due. 

Regarding summary judgment, our review is guided by the following 

principles:

The standards which govern summary judgment are well 

settled. When a party seeks summary judgment, a court 

shall enter judgment whenever there is no genuine issue of 

any material fact as to a necessary element of the cause of 

action or defense that could be established by additional 

discovery. A motion for summary judgment is based on an 

evidentiary record that entitles the moving party to a 

 

3 Appellant initially raised seventeen issues. Appellant’s Brief at 2-9. 

However, in his reply brief, Appellant indicated his intention to abandon all 

but two issues for purposes of appellate review. Appellant’s Reply Brief at 1. 

As set forth by Appellant, his “core issues” are encapsulated within his two 

remaining issues. Id. We note that on December 14, 2015, Appellee filed a 

motion to quash Appellant’s appeal based upon the many “material” defects 

within Appellant’s Brief. We note that Appellant’s pro se arguments are 

difficult to discern. We remind Appellant that his pro se status does not 

relieve him of his obligation to raise and develop his appellate claims 

properly and this court will not act as appellate counsel. Smathers v. 

Smathers, 670 A.2d 1159, 1160 (Pa. Super. 1996). However, Appellant’s 

brief does provide argument and citation to legal authority regarding his two 

remaining issues. See Pa.R.A.P. 2119. Therefore, we decline to quash his 

appeal. 
J-A27038-16

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judgment as a matter of law. In considering the merits of 

a motion for summary judgment, a court views 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. 

Finally, the court may grant summary judgment only when 

the right to such a judgment is clear and free from doubt. 

An appellate court may reverse the granting of a motion 

for summary judgment if there has been an error of law or 

an abuse of discretion. . . .

Varner-Mort v. Kapfhammer, 109 A.3d 244, 246-47 (Pa. Super. 2015) 

(citation omitted).

This Court’s standard of review of orders sustaining preliminary 

objections in the nature of a demurrer is well-settled: 

In determining whether the trial court properly sustained 

preliminary objections, the appellate court must examine 

the averments in the complaint, together with the 

documents and exhibits attached thereto, in order to 

evaluate the sufficiency of the facts averred. The impetus

of our inquiry is to determine the legal sufficiency of the 

complaint and whether the pleading would permit recovery 

if ultimately proven. This Court will reverse the trial 

court's decision regarding preliminary objections only 

where there has been an error of law or abuse of 

discretion. When sustaining the trial court's ruling will 

result in the denial of claim or dismissal of suit, preliminary 

objections will be sustained only where the case is free and

clear of doubt.

Donaldson v. Davidson Bros., Inc., 144 A.3d 93, 100 (Pa. Super. 2016) 

(citation omitted). The trial court’s decision to grant or deny a demurrer 

involves a matter of law; therefore, “our scope of review is plenary, allowing 

us to review the whole record.” Mistick, Inc. v. Northwestern Nat. Cas. 

Co., 806 A.2d 39, 42 (Pa. Super. 2002) (citation omitted).
J-A27038-16

- 6 -

Integral to this case is the legal precept that “[o]wnership of [a] Note 

is irrelevant to the determination of whether [an entity] is entitled to enforce 

the Note.” PHH Mort. Corp. v. Powell, 100 A.3d 611, 621 (Pa. Super. 

2014) (quotation marks and citation omitted) (holding that holder of 

promissory note had standing to enforce the attendant mortgage regardless 

of petitioner’s claim that another entity, Fannie Mae, owned the note).

After a thorough review of the record, the briefs of the parties, the 

applicable law, and the well-reasoned opinions of the Honorable Anthony S. 

Beltrami, we conclude Appellant’s issues merit no relief. The trial court’s 

opinions comprehensively discuss and properly dispose of the questions 

presented. See Foreclosure Opinion at 6-14; Quiet Title Opinion at 3-6; 

(finding that Appellee had proper standing to pursue a foreclosure action 

against Appellant and, accordingly, Appellant’s quiet title action was legally 

insufficient). Accordingly, we affirm on the basis of the trial court’s opinions.

Orders affirmed. Motion to quash denied. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 1/25/2017
I u 

1 

Complaint on March 2, 2015. Again, rather than rebut the objections, 

February 9, 2015. Defendant filed Preliminary Objections to the Amended 

respond to those objections, Plaintiffs filed an Amended Complaint on 

Plaintiff's Complaint," which were filed on January 20, 2015. Rather than 

The Complaint was met with "Defendant's Preliminary Objections to 

quiet title against Defendant by filing a Complaint on December 30, 2014. 

to Plaintiffs1 Second Amended Cornplalnt." Plaintiffs initiated this action to 

This matter is before the Court on "Defendant's Preliminary Objections 

OPINION OF THE COURT 

WEL'-S FARGO BANK, N.A., 

Defendant 

No.C-48-CV-2014-12252 

) 

) 

) 

) 

) 

) 

) 

) 

v. 

VIRGINIA L. HUMPHREYS and 

BRIAN C. HUMPHREYS, 

Plaintiffs 

• .. .!..") 

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IN THE COURT OF COMMON PLEAS OF 

NORTHAMPTON COUNTY, PENNSYLVANIA 

CIVIL ACTION 

(_._) 

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Circulated 01 /05/2017 05:00 PM 
2 

The Second Amended Complaint states that Plaintiff Virginia L. Humphreys passed 

away on March 61 2015. (Second Arn. Cornpl. at 1.) The Court will continue to refer to 

"Plaintiffs" in the plural, in accordance with the caption. 

same book at page 170279. (Id. ,i 4(a)-(b).) Plaintiffs then claim that the 

170260 and that the second mortgage was recorded on the same date in the 

in the Northampton County Recorder of Deeds Office at Book 2007-1, page 

in their own pleading, that the first mortgage was recorded on May 8, 2007, 

executed by Plaintiffs on April 16, 2007. (Id. ,i 4.) Plaintiffs go on to aver, 

that Defendant's claimed interest in the Property is based on two mortgages 

or interest whatsoever in or to said [P] roperty." (Id. ,i 3.) Plaintiffs allege 

without any right whatsoever, and Defendant has no estate, right, title, lien, 

lien against said [P]roperty adverse to Plaintiff[s,] Defendant's claim is 

Am. Campi. ,i 2.) Plaintiffs further aver that although "Defendant claims a 

Bethlehem, Northampton County, Pennsylvania (the "Property"). (Second 

Virginia L. Humphreys owned real estate located at 2253 Linden Street, in 

quiet title. In the Second Amended Complaint, Pia intiffs aver that Plaintiff 

that Plaintiffs' Second Amended Complaint fails to state a valid action to 

Defendant's first objection is a demurrer in which Defendant argues 

heard on May 26, 2015, and the matter is now ready for disposition. 

2015, Plaintiffs filed a Brief in opposition to the same. Oral argument was 

Defendant filed a Brief in support of its Preliminary Objections. On May 20, 

2015, Defendant filed the instant Preliminary Objections. On April 28, 2015, 

Plaintiffs filed a Second Amended Complaint on March 19, 2015.1 On April 8, 
3 

mortgages are invalid because "Defendant transferred its enforcement rights 

to others ... and has since acted only in the capacity of servicer of the" 

mortgage accounts. (Id. 11 5.) In their Second Amended Complaint, 

Plaintiffs attempt to establish an action to quiet title by alleging that 

"Defendant is in a position neither to perform its eventual obligation to clear 

the Plaintiff's title to her property, nor to enforce the applicable mortgages." 

(Id. at 1-2.) The Second Amended Complaint spans thirty pages and 

suggests myriad reasons why, in Plaintiffs' opinion, Defendant is not the 

proper entity to enforce the aforementioned mortgages. 

The question presented by a demurrer is whether, on the facts 

pleaded, the law says, with certainty, that no recovery is possible. Orange 

Stones Co. v. City of Reading, 87 A.3d 1014, 1021 n.7 (Pa. Commw. 2014). 

The Court must resolve a demurrer solely on the basis of the pleadings, 

without reference to testimony or other outside evidence. Hill v. Ofalt, 85 

A.3d 540, 546 (Pa. Super. 2014). However, in a case such as this, the Court 

can take judicial notice of public documents, such as recorded mortgages, 

when ruling on a demurrer. See Solomon v. U.S. Healthcare Sys. of Pa., 

Inc., 797 A.2d 346, 352 (Pa. Super. 2002). When considering a demurrer, 

the Court must accept, as true, all material facts averred in the challenged 

pleading, as well as all inferences that can be reasonably deduced 

therefrom. Schemberg v. Smicherko, 85 A.3d 1071, 1073 (Pa. Super. 

2014). 
4 

21 P.S. § 621. 

months of execution. See In re Berry, 11 B.R. 886, 891 (W.D. Pa. 1981); 

is signed by the mortgagor, is notarized, and is duly recorded within six 

dearly states that it is a mortgage, describes the property to be mortgaged, 

A.2d 523, 526 n.3 (Pa. Commw. 2004). A mortgage is valid, on its face, if it 

mortgage to prove its invalidity.'' Pitti v. Pocono Bus. Furniture, Inc., 859 

until the contrary is shown, and the burden is on the party attacking the 

"In Pennsylvania[,] a mortgage duly executed will be presumed to be valid 

Conference Ctr. v. Schuylkill Twp., 597 A.2d 248, 250 (Pa. Commw. 1991). 

is to resolve a conflict over an interest in property." Nat'/ Christian 

land." Pa.R.C.P. No. 1061(b)(2)-(3). "The purpose of an action to quiet title 

document, obligation or deed affecting any right, lien, title or interest in 

satisfy of record, or admit the validity, invalidity or discharge of, any 

in land" or "to compel an adverse party to flle, record, cancel, surrender or 

of any document, obligation or deed affecting any right, lien, title or interest 

right, lien, title or interest in the land or determine the validity or discharge 

An action to quiet title may be brought, inter alia, "to determine any 

Id. 

Preliminary objections which seek the dismissal of a cause of 

action should be sustained only in cases in which it is clear and 

free from doubt that the pleader will be unable to prove facts 

legally sufficient to establish the right to relief. If any doubt 

exists as to whether a demurrer should be sustained, it should 

be resolved in favor of overruling the preliminary objections. 
In their Second Amended Complaint, Plaintiffs specifically identify the 

two mortgages that were executed in Defendant's favor, and Defendant has 

attached copies of the same to its Preliminary Objections. (Second Am. 

Compl. 11 4(a)-(b); Prelim. Objections Exs. E, G.) The mortgages were 

originally executed in favor of Wachovia Bank, National Association, to which 

Defendant is the successor in interest by way of merger, a succession 

Plaintiffs concede. (Second Am. Compl. ,1 8; Prelim. Objections Exs. E, G, 

H .) Upon inspection, the mortgages are plainly valid, as they clearly state 

that they are mortgages, describe the Property mortgaged, bear Plaintiffs' 

signatures, which are notarized, and were duly recorded within six months of 

execution in a manner consistent with that described in the Second 

Amended Complaint. Moreover, there are no facts pleaded in the Second 

Amended Complaint that can be fairly characterized as an attack on the 

validity of the mortgages. In fact, Plaintiffs do not really dispute the validity 

of the mortgages. Rather, Plaintiffs' allegations primarily concern 

Defendant's purported lack of authority and/or standing to enforce the 

mortgages. For a discussion of why this argument has no merit, see Wells 

Fargo Bank, N.A, s/i/i/t/ Wachovia Bank v. Humphreys, No. C-48-CV-2011- 

3134, slip op. (C.P. of Northampton Cnty. Aug. *, 2015), an opinion that is 

being filed contemporaneously with this Opinion and that grants summary 

judgment in the related mortgage foreclosure action involving the same 

parties and the first mortgage described above. 

5 
6 

2 For this reason, the Court need not reach Defendant's second objection asserting the 

pendency of a prior action. 

3 It should be noted that Plaintiffs filed an almost identical action at docket number C48-CV-2014-1703. In an Order filed on October 22, 2014, in response to preliminary 

objections, the Honorable Stephen G. Baratta, President Judge, dismissed Plaintiffs' 

Complaint without prejudice. Plaintiffs did not file an amended complaint within twenty 

days in that action, as required by Pennsylvania Rule of Civil Procedure 1028(e). Rather, 

Plaintiffs filed the instant action. Thus, Plaintiffs may not file an amended complaint at 

either docket number. 

WHEREFORE, the Court enters the following: 

there is no reasonable probability that amendment will cure defect). 

557 (leave to amend following sustaining of demurrer may be refused where 

dismiss Plaintiffs' Second Amended Complaint with prejudice and will not 

grant leave to file any further amended complaints.3 See Hill, 85 A.3d at 

summary judgment in the related mortgage foreclosure action, the Court will 

place of legal sufficiency, and in light of the Court's opinion granting 

additional pleading in this matter will vault Plaintiff's purported claims into a 

sustained.2 Finally, because the Court cannot discern any way in which an 

to quiet title is legally insufficient, and Defendant's demurrer will be 

an interest in property." Nat'/ Christian, 597 A.2d at 250. Thus, the action 

valid mortgages, the Second Amended Complaint creates no "conflict over 

Because Plaintiffs have pleaded no facts to rebut the presumptively 
1 

J. 

BY THE COURT: 

March 19, 2015, is hereby DISMISSED, with prejudice. 

are hereby SUSTAINED. Plaintiffs' Second Amended Complaint, filed on 

Objections to Plaintiffs' Second Amended Complaint," filed on April 8, 2015, 

AND NOW, this 13th day of August, 2015, "Defendant's Preliminary 

ORDER OF COURT 

WELLS FARGO BANK, N.A., 

Defendant 

VIRGINIA L. HUMPHREYS and 

BRIAN C. HUMPHREYS, 

Plaintiffs 

) 

) 

) 

) 

) 

) 

) 

) 

v. 

IN THE COURT OF COM MON PLEAS OF 

NORTHAMPTON COUNTY, PENNSYLVANIA 

CIVIL ACTION 
1 

As discussed infra, Wachovia Bank, N.A. merged into Plaintiff and no longer exists. 

located at 2253 Linden Street, in Bethlehem, Northampton County, 

delivered a mortgage ("Mortgage") to Wachovia Bank, N .A.1 on property 

alleges the following facts. On April 16, 2007, Defendants executed and 

On April 6, 2011, Plaintiff filed a Mortgage Foreclosure Complaint that 

Plaintiff's Motion will be granted. 

2015, and the matter is ready for disposition. For the reasons that follow, 

Judgment. Briefs have been filed, oral argument was heard on May 26, 

This matter is before the Court on Plaintiffs Motion for Summary 

OPINION OF THE COURT 

No. C-48-CV-2011-3134 

WELLS FARGO BANK, N.A. s/i/i/t/ ) 

WACHOVIA BANK, N.A., ) 

Plaintiff ) 

) 

v. ) 

) 

BRIAN C. HUMPHREYS and ) 

VIRGINIA L. HUMPHREYS, ) 

Defendants ) 

~ .. ", 

,:.:.·i ~· .: .: •. 

..-- 

- -·- IN THE COURT OF COMMON PLEAS OF .. NORTHAMPTON COUNTY, PENNSYLVANIA 

CIVIL ACTION 

... 

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,.· .. 

,· 

Circulated 01/05/2017 05:00 PM 
2 

2 On the same date, Defendants filed an "Affidavit of Defendant Virginia L. 

Humphreys," which states that Defendant Virginia L. Humphreys did not execute the 

Mortgage and does not owe Plaintiff any money. However, the affidavit was not executed 

by Virginia L. Humphreys. Rather, it was signed by "Brian C. Humphreys, affiant." On the 

same date, Defendants also filed an "Affidavit of Defendant Brian C. Humphreys," which 

states that Defendant Brian C. Humphreys did not execute the Mortgage and does not owe 

Plaintiff any money. However, the affidavit was not executed by Brian C. Humphreys in his 

individual capacity. Rather, it was signed by "Brian C. Humphreys, P.O.A. for Virginia L. 

Humphreys, Affiant." In any event, the Mortgage was signed by Defendants and is 

notarized. (Pl.'s Mot. for Summ. J., Ex. B.) 

for Summary Judgment, Rule 1035.2(a)." Plaintiff filed a Response to 

On October 17, 2011, Defendants filed a "Notice of Motion and Motion 

contained therein as conclusions of law. 

defenses asserted in Defendant's Answer, essentially denying all allegations 

December 6, 2011, Plaintiff filed a reply to the purported affirmative 

"Affirmative Defenses,'' three paragraphs purporting to assert recoupment, 

unjust enrichment, and fraud, as affirmative defenses. 

2 (Answer at 2.) On 

to the allegations in Plaintiff's Complaint and contains, under the heading 

Verified Answer'' ("Answer"). Defendants' Answer consists of general denials 

On August 25, 2011, Defendants filed a "Notice of Verified Answer and 

7.) 

including principal, interest, attorney's fees, late charges, and costs. (Id. ~ 

that Defendants owe $102,042.64 under the terms of the Mortgage, 

to make the required monthly payments. (Id. ,i 6.) The Complaint avers 

default because, beginning on November 15, 2010, Defendants have failed 

1, Page 170260. (Id. 'fl 4.) The Complaint alleges that the Mortgage is in 

Office of the Recorder of Deeds for Northampton County at Deed Book 2007- 

Pennsylvania. (Comp!. <jl,i 4-5, Ex. A.) The Mortgage is recorded in the 
3 

Defendants' Motion for Summary Judgment on November 25, 2011. In an 

Order of Court with Statement of Reasons filed on December 7, 2011, the 

undersigned denied Defendants' Motion for Summary Judgment, without 

prejudice. 

Plaintiff filed their instant Motion for Summary Judgment ("Motion'') on 

April 27, 2015. On May 20, 2015, Defendants filed a Response to Plaintiff's 

Motion ("Response"). Attached to Plaintiff's Motion, as Exhibit A, is a copy of 

the promissory note ("Note") that Defendants signed simultaneously with 

the execution of the Mortgage. In the Note, Defendants promise to repay 

the debt secured by the Mortgage and agree that "[t]he Lender or anyone 

who takes [the] Note and who is entitled to receive payments under [the] 

Note will be called the 'Note Holder."' (Mot. ~ 2, Ex. A at 1.) Plaintiff is in 

possession of the original Note, which passed to it as a result of the merger 

of Wachovia Bank, N.A. into Plaintiff. (Mot. ,i,i 5-6.) Also attached to 

Plaintiff's Motion, as Exhibit F, is Plaintiff's Affidavit in Support of its Motion 

("Plaintiff's Affidavit"), wherein Plaintiff's Vice President of Loan 

Documentation, Stephanie Casarez, states that Plaintiff is in possession of 

the Note, that Defendants' Mortgage is in default as of November 15, 2010, 

and that Defendants have failed to cure the default. (Id. ,i 14, Ex. F.) 
4 

3 Throughout their Response, Defendants often mislabel themselves as "the Plaintiffs." 

This is likely due to Defendants' status as the plaintiffs in Humphreys v, Wells Fargo Bank, 

N.A., an action to quiet title docketed in Northampton County at No. C-48-CV-2014-12252 

(the "Action to Quiet Title"). An Opinion and Order are being filed in that case 

contemporaneously with the flling of the instant Opinion. 

4 Although the Response includes a "Statement of Facts," it does not contain a 

verification or notice to plead. 

the Complaint is intended to offer evidence that [Plaintiff] transferred 

In addition, Defendants assert that an "Experian credit report Exhibited in 

to [Plaintiff] is not an issue in this case." (Resp., Factual Allegations ,i 1.) 

"[s]uccession of [Defendants'] Note from Wachovia Bank, N.A. (Wachovia) 

to Defendants' Brief. Nevertheless, Defendants concede therein that 

Allegations." However, upon further review, this section is actually identical 

Defendants' Response also includes a section entitled "Factual 

mortgage." (Id. ,i 14.) 

2012, from [Fannie Mae] stating that [Fannie Mae] now owns the 

Defendants also claim that they are "in receipt of a letter, dated October 9, 

the Mortgage. has been "transferred" to Fannie Mae. (See id. ,i,i 5-6.) 

Mae"). Defendants claim that Plaintiff has informed them via telephone that 

Note and Mortgage and the Federal National Mortgage Association ("Fannie 

However, Defendants raise concerns about the relationship between the 

making payments on the Mortgage after October 15, 2010, (Id. 'fl 8.) 

Statement of Facts 'fl'fl 1, 9.-) Defendants further admit that they stopped 

Facts," in which they admit that they executed the Mortgage.4 (Resp., 

Defendants, 3 in their Response, include their own "Statement of 
5 

[Defendants'] Equity Account to another lender, and no-longer holds the 

Account. If (Id. 'fl 2.) 

Neither the letter from Fannie Mae informing Defendants that Fannie 

Mae owns the Mortgage nor the Experian credit report appear in the instant 

record, but they are attached to Defendants' Second Amended Complaint in 

the Action to Quiet Title. "[A] court may not ordinarily take judicial notice in 

one case of the records of another case." Gulentz v. Schanno Trensp., Inc., 

513 A.2d 440, 443 (Pa. Super. 1986). Nevertheless, even if the Court could 

consider these materials, they would not be helpful to Defendants in 

opposing summary judgment. 

The letter from Fannie Mae, which is attached to the Second Amended 

Complaint in the Action to Quiet Title as Exhibit E, does confirm that Fannie 

Mae owns/invests in the Mortgage and that Plaintiff is the servicer. 

However, as will be discussed in greater detail infra, this does nothing to 

inhibit Plaintiff's ability to enforce the Mortgage through foreclosure 

proceedings. As for the Experian credit report, which is attached to the 

Second Amended Complaint in the Action to Quiet Title as Exhibit G, 

Defendants contend that said report indicates that Plaintiff "reported to 

Experian that it had transferred the Account, making it obvious, if correct, 

that [ Plaintiff] is not in a position to litigate over the Account, which they 

apparently admittedly no-longer own." (Resp. Factual Allegations ~ 2.) 

Again, Defendants conflate the concepts of ownership of the Mortgage and 
6 

moving party is entitled to judgment as a matter of law. Summers v, 

the record clearly shows that no genuine issue of material fact exists and the 

Under either avenue, summary judgment may only be granted when 

Lance v. Wyeth, 85 A.3d 434, 449-450 (Pa. 2014). 

two main avenues per which summary relief may be granted. 

Employing the first of these, a movant may rely on 

uncontroverted facts, and/or allow that the factual allegations 

made by the non-moving party could be true, while contending 

that, even accepting such facts, judgment should be rendered 

for the movant as a matter of law. See Pa.R.C.P. No. 1035.2(1). 

Alternatively, after discovery, a party may challenge the ability 

of the non-moving party to adduce evidence of facts material to 

establishing a claim or defense. See id. No. 1035.2(2). 

Pa.R.C.P. No. 1035.2. These two prongs represent the 

(2) 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. 

(1) 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, or 

After the relevant pleadings are closed, but within such 

time as not to unreasonably delay trial, any party may move for 

summary judgment in whole or in part as a matter of law 

of review for a motion for summary judgment as follows: 

Pennsylvania Rule of Civil Procedure 1035.2 establishes the standard 

be shown infra, is fatal to Defendants' argument. 

the right to enforce the same through foreclosure, a distinction that, as will 
7 

verdict in its favor establishes the entitlement of the moving party to 

and on which it bears the burden of proof such that a jury could return a 

moving party to adduce sufficient evidence on an issue essential to its case 

Pa.R.C.P. No. 1035.3(a)(1)-(2). In other words, the "[f]ailure of a non- 

(2) evidence in the record establishing the facts 

essential to the cause of action or defense which the 

motion cites as not having been produced. 

(1) one or more issues of fact arising from 

evidence in the record controverting the evidence 

cited in support of the motion or from a challenge to 

the credibility of one or more witnesses testifying in 

support of the motion, or 

may not rest upon the mere allegations or denials of the 

pleadings but must file a response within thirty days after 

service of the motion identifying 

The party opposing a motion for summary judgment 

Baxter, 719 A.2d 733, 740 n.10 (Pa. 1998). 

entered if the facts can support conflicting inferences. Washington v. 

Even where the facts are agreed upon, summary judgment cannot be 

moving party. Ario v. Ingram Micro, Inc., 965 A.2d 1194, 1200 (Pa. 2009). 

existence of a genuine issue of material fact must be resolved against the 

light most favorable to the non-moving party, and any doubt as to the 

deciding a motion for summary judgment, the record must be viewed in the 

exists. Barnish v. KWI Bldg. Co., 916 A.2d 642, 645 (Pa. Super. 2007). In 

bears the burden of proving that no genuine issue of material fact 

Certainteed Cotp., 997 A.2d 1152, 1159 (Pa. 2010). The moving party 
8 

5 "Averments in a pleading to which a responsive pleading is required are admitted 

when not denied specifically or by necessary implication. A general denial or a demand for 

proof ... shall have the effect of an admission." Pa.R.C.P. No. 1029(b). Generally 

speaking, "for a denial to be specific, it must deny what is averred and then must 

affirmatively aver what did occur in place of the facts that are denied." 5 STANDARD 

PENNSYLVANIA PRACTICE 2d § 26:41. General denials by mortgagors in a foreclosure action, 

"as to the principal and interest owing[,] must be considered an admission of those facts." 

First Wisconsin Trust Co. v. Strausser, 653 A.2d 688, 692 (Pa. Super. 1995). In this case, 

Defendants' Answer simply states "the allegation ... is denied" in response to each relevant 

averment contained in Plaintiff's Complaint. (Answer ,i,i 5-11.) Thus, paragraphs five 

through eleven of Plaintiff's Complaint are deemed admitted. 

of merger, and that the Mortgage is in default. In addition to the deemed 

favor of Wachovia Bank, to which Plaintiff is the successor in interest by way 

As a result, there is no dispute that Defendants executed the Mortgage in 

act as admissions to all of the relevant allegations in Plaintiff's Complaint.5 

requisite elements, because the general denials contained in their Answer 

(M.D. Pa. Jan. 30, 2015). In the instant case, Defendants admit these 

In a mortgage foreclosure action, summary judgment is 

appropriate 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." 

Cunningham v. McWilliams, 714 A.2d 1054, 1057 (Pa. Super. Ct. 

1998) (citing Landau v. W. Pa. Nat'/ Bank, 445 Pa. 217, 282 

A. 2d 335, 340 (Pa. 1971) ). Summary judgment may be granted 

"even if the mortgagors have not admitted the total amount of 

the indebtedness in their pleadings." Id. 

U.S. Bank, Nat. Ass'n v. Zimmer, No. 3: 12-CV-644, 2015 WL 412389, at *2 

1035.1. 

pleadings, discovery materials, affidavits, and expert reports. Pa.R.C.P. No. 

judgment, the "record" available for the court's examination includes the 

744 A.2d 1276, 1277 (Pa. 2000). In deciding a motion for summary 

judgment as a matter of law." Young v. Commonwealth, Dep 't of Transp., 
9 

Defendants have adduced no evidence in response to Plaintiff's Motion to 

support this argument. Rather, Defendants reply upon bald assertions in 

their unverified Response to the Motion and documents contained in the 

record of the Action to Quiet Title which suggest that Fannie Mae has 

invested in or owns the Note. As noted above, a party opposing a motion 

for summary judgment may not rest upon the mere allegations or denials of 

Further, response to Plaintiff's Complaint to support this argument. 

admissions, Defendants affirmatively admit the relevant allegations of 

Plaintiff in their Response. (Resp., Statement of Facts ~«Jl 1, 8, 9.) Despite 

this, Defendants oppose the entry of summary judgment on a ground that is 

quickly becoming a tired one in this Commonwealth-that Plaintiff is not 

entitled to enforce the Mortgage and/or is not the real party in interest. 

To begin with, this argument is, in essence, a claim that Plaintiff lacks 

the capacity to sue. "[P]reliminary objections [are] the appropriate method 

by which to challenge a [plaintiff's] capacity to sue. 11 In re Adoption of 

S.P. T., 783 A.2d 779, 782 (Pa. Super. 2001); Pa.R.C.P. No. 1028(a)(S). 

"Lack of capacity to sue is waived if not raised on preliminary objections. 11 

Carroll v. Exeter Twp., No. 1580 C.D.2013, 2014 WL 3812323, at *6 n. 18 

(Pa. Commw. Aug. 4, 2014). Defendants did not file preliminary objections. 

Thus, Defendants have waived this argument. 

Even if this argument had not been waived, it is without merit. 

Initially, the Court notes that there are no facts pleaded in Defendants' 
10 

The Powells' claim that PHH does not possess the original 

Note and Allonge is based solely on their insistence that the 

documents in PHH's possession cannot be the originals because 

they produced evidence showing that Fannie Mae possesses the 

originals. Specifically, the Powells attached to their response to 

PHH's second motion for summary judgment an affidavit from 

Mary Gutowski ("Gutowski"), in which she represents that she 

has expertise in searching for, obtaining, and understanding 

business and corporate records. According to Gutowski, two 

documents (one obtained from the office of Congressman Mike 

Kelly and another from a search of a Fannie Mae database) 

describe Fannie Mae as the "investor" and "owner" of the 

Powells' loan. Gutowski concludes that these documents call into 

question PH H's "claim of ownership" of the Powells' Note. 

court's response to this argument is necessary and is as follows: 

instead [have] be[en] in the possession of Fannie Mae." A recitation of the 

Note because they ha[d] presented evidence that the original Note must 

in [the appellee mortgage company]'s possession [could not] be the original 

(Pa. Super. 2014), the appellant mortgagors "insist[ed] that the document 

the Superior Court. In PHH Mortgage Corp. v. Powell, 100 A.3d 611, 619 

the one to enforce it. However, a similar argument was recently rejected by 

allegation that Fannie Mae is the true owner of the Note and, thus, must be 

Defendants' argument lacks merit. Defendants' argument is focused on an 

and substantively considered the record in the Action to Quiet Title, 

Finally, even if the Court accepted Defendants' bald assertions as true 

defense. Defendants have done neither. 

in the record which establishes an issue of material fact or supports a valid 

the pleadings, nor the record in a collateral case, but must identify evidence 
11 

Powell, 100 A.3d at 620-21 (citations omitted) (emphasis added). 

In its Second Motion for Summary Judgment, including its 

affidavits and other exhibits (e.g., the Note, Allonge, Mortgage, 

and Assignment), PHH has established as a matter of law that it 

is a holder in due course of the Powells' Note and thus is 

"entitled to enforce" it pursuant to section 3301 of the PUCC. 

Evidence that some other entity may be the "owner" or an 

"investor" in the Note 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. The Powells have produced no evidence that 

creates a genuine issue of material fact with respect to PHH's 

claim of entitlement to enforce the Note, including no evidence 

that Fannie Mae (rather than PHH) has possession of the original 

Note. 

13 Pa.C.S.A. § 3203 Comment. 

The right to enforce an instrument and ownership of 

the instrument are two different concepts. A thief 

who steals a check payable to bearer becomes the 

holder of the check and a person entitled to enforce 

it, but does not become the owner of the check .... 

Ownership rights in instruments may be determined 

by principles of the law of property, independent of 

Article 3, which do not depend upon whether the 

instrument was transferred under Section 3-203. 

Moreover, a person who has an ownership right in an 

instrument might not be a person entitled to enforce 

the instrument. ... · Although [a] document may be 

effective to give Y a claim to ownership of the 

instrument, Y is not a person entitled to enforce the 

instrument until Y obtains possession of the 

instrument. 

PHH, however, does not claim to be the "owner" of the 

Note, but rather avers that it is a "person entitled to enforce" the 

Note because it is the holder in due course based upon its 

possession of the original Note and Allonge. Ownership of the 

Note is irrelevant to the determination of whether PHH is a 

"person entitled to enforce" the Note, as the Comment to section 

3203 of the PUCC makes clear: 
12 

The Powell court went 011 to affirm the trial court's entry of summary 

judgment in favor of the appellee mortgage company. Id. at 621. Here, like 

the Powells, Defendants argue that "[t] he facts in the record prove that 

Wachovia transferred [Defendants'] Note to [Fannie Mae] before Wachovia's 

merger with [Plaintiff]." (Defs.' Br. at 4.) But the instant record does not 

reveal any evidence in support of that contention, and Defendants have 

produced none. Continuing on, Defendants argue that the proper parties to 

enforce the Note may well be the "investors who purchased shares of Fannie 

Mae." (Id. at 5.) In line with Powell, this argument is meritless. 

Defendants additionally argue, "The [Uniform Commercial] Code is clear: A 

person either owns the instrument, with all of its associated rights, or does 

not own the instrument, and has none of the associated rights." (Id. at 7.) 

Again, even assuming, arguendo, that Fannie Mae is the true owner of the 

Note/debt, Powell makes clear that the concepts of ownership and 

enforcement rights are wholly distinct. That is, an entity can enforce a 

mortgage debt without owning it, and vice versa. As Defendants' array of 

arguments and sub-arguments continue, they begin to trip themselves up by 

acknowledging that "there is nothing in the record to indicate that the Note 

was ever held by any singular entity other than [Plaintiff]." (Id. at 8.) 

Defendants are correct in at least that respect. The Note is payable to 

Plaintiff's predecessor by merger, as the original lender, and has not been 

assigned to another servicer as in Powell, making this an even stronger case 
13 

than Powell when it comes to any a_lleged claim that Fannie Mae must be the 

one to enforce the Note. 

Quite simply, Plaintiff has attached a copy of the Note to its Motion, 

and the Note is clearly signed by Defendants. The fact that the section of 

the Note labeled "Endorsement" is completely blank is irrelevant because 

there is no evidence that anyone other than Pia inti ff or its predecessor by 

merger ever held the Note. Furthermore, the Court sees no material 

difference between Powell, where the mortgagee produced the original note, 

and this case, where Plaintiff has produced a copy bearing Defendants' 

signatures and an affidavit stating that it possesses the original, especially 

when there are no issues in this case, as there were in Powell, concerning 

any assignments, transfers, or endorsements of payment rights to any entity 

other than the original lender. Keeping in mind that Defendants, in opposing 

a motion for summary judgment, bear the burden of coming forward with 

evidence that rebuts the evidence in support of Plaintiff's Motion, it is clear 

that the instant case is indistinguishable from Powell, as well as an evergrowing list of similar cases where mortgage debtors fail to deny the prime 

facie elements of a mortgage foreclosure action yet oppose the entry of 

judgment due to an allegedly faulty chain of possession of the pertinent 

mortgage documentation. See Bank of America, N.A. v. Gibson, 102 A.3d 

462 (Pa. Super. 2014); see also Jobe v. Wells Fargo Bank, N.A., Civil Action 

No. 3:10-1710 2014 WL 271654 (M.D. Pa. Jan. 23, 2014); Nationstar 
14 

Mortgage LLC v. Masucci, No. 201303627 2014 WL 7896604 (C.P. of 

Montgomery Cnty. Feb. 3, 2014); BAC Home Loans Servicing, L.P. v. Viola, 

No. 00101 2014 WL 786387 (C.P. of Phila. Cnty. Jan. 28, 2014). For all of 

the above reasons, even if the issue Defendants now raise had not been 

waived, it would not assist Defendants in demonstrating that Plaintiff is not 

entitled to judgment as a matter of law. 

As all of the elements of Plaintiff's claim have been established, and 

since Defendants have not identified any genuine issue of material fact 

arising from evidence in the record, Plaintiff is entitled to judgment as a 

matter of law. 

WHEREFORE, the Court enters the following: 
], 

1 

BY THE COURT: 

December 8, 2014, and for foreclosure and sale of the mortgaged premises. 

$137,770.28, plus costs and interest, at the per diem rate of $17.67, from 

entered in favor of Plaintiff and against Defendants in the amount of 

Summary Judgment is hereby GRANTED. An in rem judgment is hereby 

r--' C::::> 

No.C-48-CV-2011-3134 

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ORDER OF COURT 

BRIAN C. HUMPHltEYS and 

VIRGINIA L. HUMPHREYS, 

Defendants 

v. 

WELLS FARGO BANK, N,A. s/i/i/t/ 

WACHOVIA BANK, N.A., 

Plaintiff 

IN THE COURT OF COMMON PLEAS OF 

NORTHAMPTON COUNTY, PENNSYLVANIA 

CIVIL ACTION