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- A27038

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NON - PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 VIRGINIA HUMPHREYS A ND BRIAN HUMPHREYS IN THE SUPERIOR COURT OF PENNSYLVANIA

v. WELLS FARGO BANK N.A

. APPEAL OF: BRIAN HUM PHREYS 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. HUMPHREY S AND BRIAN C. HUMPHREYS APPEAL OF: BRIAN HUM PHREYS 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
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- 2

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foreclosure action and dismissing Appellant’s second am ended 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 forecl osure 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, Appellee 2 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 (“Foreclosur e 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 individ ually.

2 We note that Appellee is the successor in interest, by way of merger, to Wachovia Bank.J
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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 complain t 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 tr ial 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 conso lidated the two above

referenced 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?J
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- 4
- 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 a gainst 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 wel l 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 abando n 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 p ro 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
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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 suffic iency 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 sustain ing 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. 20 02) (citation omitted).J
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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) (q uotation 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 Plaintiffs 1 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 • .. .!..") •• • T ...... - -· ~
I r

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

CIVIL ACTION (_._) :..... ... : ; · ~

·- · . .:, ·' -·l

__ ; Circulated 01 /05/2017 05:00 PM2 The Second Amended Complaint states that Plaintiff Virginia L. Humphreys passed away on March 6 1 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.
56 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 presumptively1 

### J

. BY THE C OURT: March 

### 19 , 2015, i s h e re by 

### DISMISSED, with prej udice
. are hereby 

### SUSTAINED. P l aintiffs' Seco n d A m e n ded Complai n t, fil e d on Obj ect ions t o P l ai n tiffs ' Seco n d Am e n ded Comp l aint , " fil e d on Apr il 8, 

### 2 015 , A N D N OW , t his 

### 13th day of A u gus t, 

### 20 1 5, " D ef e ndan t 's Pre li minary 

### ORDER OF COURT WELLS FARGO BANK, N.A. , Defendant VIRGINIA L. HUMPHREYS a nd BRIAN C. HUMPHREYS , Pl a intiffs ) ) ) ) ) ) ) ) 

### v. IN THE COURT OF COM MON PLEAS OF NORTHAMPTON COUN T Y , PENNSYLVANI

A CIVIL ACT

I ON1 As discus sed i

nfra, Wachovi a Ba n k , N

.A. m e rge d i nto Plaint i ff a n d n o lon ge r exi st s
. 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 Apri l 6, 2011, Plaintiff filed a Mortgage Foreclosure Complaint that Plaintiff's Motion will be granted. 2015, and the matter is ready fo r 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 . . . r· . - ,.· .. ,· C irculated 01 /05/2017 05 : 00 PM2 2 O n t h e s ame date, Defenda n ts fil ed a n " Affidav i t o f De f e nd an t V irg ini a L. Hu m p h reys , " wh i c h s t at e s t h at Defendant V i rg i n i a L. Humphre ys d i d n o t e x ec u t e t h e M ortgage a n d d o es n ot o we P l a in tiff a n y m one y. H owe ve r, the aff i dav it wa s n ot exe c ute d by Virgin ia L. Hu mp h reys
. Rat h er, it wa s s i g ned by " Bri a n C. H um phre ys , affi a n t

. " O n th e same d at e , De f enda n ts a l s o fil e d a n "Affi d av i t of D e fe n dant Bri an C

. Hu m p h reys, " w hi c h st ates th at Defenda nt B ri an C

. Hu mp h reys d i d not ex ec u t e the M ort g a g e a n d do es n ot ow e P l a i nt i ff a n y mo n ey
. However, the affid av i t wa s n ot ex ecuted by Br i a n C. H u mphreys in h i s ind i vidua l capac ity
. Rath er , it was s igne d by " B r i an C

. H u mphreys, P

. O

. A

. for Virg i n i a L. Hu mphre ys , Affian t. " I n a n y eve nt , t h e Mo rtgag e wa s s ig ned by Defen d a nts an d i s no t a ri zed. (Pl.' s Mo t

. for S u mm
. J

. , Ex

. B

. ) for Summ ary Ju dg m e nt, R ul e 10 35

. 2 ( a ). " P l a inti ff fil e d a Respo n se t o O n O ct obe r 17, 2 0 11 , D e f e n dants fi l e d a "N o ti ce of M ot i on a n d Mo t ion co nt a in e d th e re in as co nclu s i o n s of l aw. d efe n ses as s ert ed in D e f e nd a nt' s A nswer, e sse nti a ll y de n ying a ll a ll egati o n s D ec em ber 6 , 2 011 , Plaint iff fil e d a rep ly t o th e p u rported affi rmat ive " Affi rmat i ve De fen ses, ' ' th ree paragrap h s pu rporti ng t o assert reco u p m en t ,
unj ust e n ri c h me n t, and fra ud, as affirmati ve defe n s e s
. 2 (A n sw e r at 2.) On t o the all e gati o n s in P l a i n t i ff' s Co mplai n t and co nt a ins , un der th e hea din g V eri fi e d An sw e r '' (" An swer" )

. Def e nd a nt s' An swer co n s i s t s o f ge n era l de nial s O n A ugu s t 2 5, 2 01 1 , D e f en dant s fil e d a " No ti ce of V erified A nswer and 

### 7.) i ncl uding p ri nc ip a l, int e re st, att o rne y's f e e s, lat e ch arg es , a nd cos t s. 

### (I d

. ~ that Def e ndants owe $ 10 2, 04 2. 64 und er th e t er m s of th e Mortg a ge, t o m ake t h e re qui re d m o nthly pay me nt s
. 

### (Id

. ,i 6 .) Th e Com pl a int ave rs d e fault b eca us e , be g inning o n N ove mb e r 15, 2 010 , D ef enda n t s h ave f a il ed 1 , Pa g e 170 26 0

. 

### (Id

. 

### 'fl 4.) Th e Co m p l a int a ll e g es th at th e Mort gag e i s i n O ff i ce of the Reco rde r o f D ee ds fo r No rth amp t o n Cou nty at D eed Book 2 0 07- P e nn sylvan ia

. ( C o m p!. <jl ,i 4-5 , E x
. A. ) The Mortg age i s re c ord e d i n th e3

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 Th ro u g hout thei r Res p o n s e, De fend a nt s oft e n m is label them s el ve s as "t h e Pla i ntiffs
. " This i s li kely du e t o Def e ndant s' st at us as the pl a inti ffs in Hum phreys v , W

e ll s F argo Ban k, N

.A

. , a n a cti o n t o qui e t titl e d o c ke ted in North am pt o n C ounty at No. C-48- CV- 2 014-122 52 (the " Acti o n to Quiet Titl e " )

. An Opinion a nd Order a re being filed i n th at ca s e co ntempora neou s ly with the flling of the in st ant O pinio n
. 4 A l th o ugh the R e s pon s e in cl ude s a " Stateme n t of F act s , " i t do es not co ntain a v erification o r no t ice to plead

. th e Comp l aint i s intended t o offer evid enc e that [ P laintiff] t ran s ferre d In additi o n, Def e ndants a s sert that an "E xpe rian credit rep o rt E x hi b ited in t o [Plaintiff] i s not an is s ue in th i s ca s e." ( Resp

. , Fa ctual Allegation s ,i 1.) "[ s ]u cc e s si o n of [Defendants ' ] Not e from Wa c hov i a Bank, N

. A. (Wach ovia) Neve rthe l ess, Def e ndant s c onc e d e th e re in that to Defendant s' B ri e f

. All e gat i on s ." H o weve r , up o n fu rther review, this secti o n i s actually identi c al D e f e ndants' Respons e a l so in c lud e s a secti o n entitled "Fa ctual mo rtgage." 

### (Id

. ,i 14.) 

### 201 2 , fro m [Fanni e Mae] stat i ng that [Fannie Mae] now owns the D e f e ndants also claim that they a re "in re c e ipt of a letter, dated October 9, the Mortgage

. has been "t ransf e rre d" t o Fanni e Ma e
. (See i d. ,i,i 5-6

. ) Mae"). Defendant s claim that Plaintiff has informed them via teleph o ne that No t e and M o rtgage and th e Fed e ral Nationa l Mortgage As s o ci ati o n ( " Fannie However, Defendants raise con c erns about the relation s hip betw e en the ma k ing payments on the M o rtgage after Octo b er 

### 1 5, 2010 , (Id

. 

### 'fl 8. ) Statement of Facts 

### 'fl'fl 1, 9 .-) Defendants further admit that th ey stopped Fa cts," in which they admit that the y ex ecut e d the Mortgage

. 4 (Resp

. , Defendants, 3 in their R es p onse, include thei r own "Statement of5

[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 and6

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 will7

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). T he moving party8 5 "Averments in a pleading to which a responsive pleading is required are admitted when not denied specifically or by necessary i mplication. 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 evidence11

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 case13

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); Nationstar14

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 : D e cember 8, 2014, and for foreclosure and sale of the mo rtgaged prem i ses
. $137,770.28, plus c osts and interest, at the per 

### diem rate of $17.67, fro m entered in favo r of Plaint i ff 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 ) ) ) ) ) ) ) ) ) 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