J-A23021-16

2017 PA Super 149

BAYVIEW LOAN SERVICING LLC IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

JAMES BERNARD WICKER AND BERYL G. 

WICKER

Appellants No. 1832 WDA 2015

Appeal from the Judgment Entered November 4, 2015

In the Court of Common Pleas of Jefferson County

Civil Division at No: No. 516-2012-CD

BEFORE: LAZARUS, STABILE, and STRASSBURGER,*JJ. 

OPINION BY STABILE, J.: FILED MAY 17, 2017

Appellants James Bernard and Beryl G. Wicker, husband and wife, 

appeal from the November 4, 2015 judgment entered in the Court of 

Common Pleas of Jefferson County (“trial court”) against them and in favor 

of Appellee Bayview Loan Servicing, LLC (“Bayview”) in this in rem mortgage 

foreclosure action. Upon review, we affirm.

On February 11, 2008, in consideration of a loan in the principal 

amount of $119,000.00, Appellants executed and delivered a note in favor of 

and to Countrywide Bank, FSB (“Countrywide”). To secure the obligations 

under the note, Appellant James Wicker executed and delivered to Mortgage 

____________________________________________

* Retired Senior Judge assigned to the Superior Court.
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Electronic Registration Systems, Inc. (“MERS”) (“solely as nominee for 

Lender . . . and Lender’s successors and assigns”), a mortgage for the 

property located at 643 Highland Park Road, Punxsutawney, Jefferson 

County, Pennsylvania, as security for the note. On September 28, 2011, 

MERS assigned the mortgage to Bank of America, N.A., successor by 

merger to BAC Home Loans Servicing L.P. F/K/A/ Countrywide Home Loans 

Servicing L.P. (“Bank of America”). Bank of America recorded the same on 

November 1, 2011. 

On May 30, 2012, Bank of America filed a mortgage foreclosure 

complaint against Appellants, requesting, inter alia, judgment against them 

for $127,360.74. Bank of America alleged that Appellants had failed to 

make the scheduled payments on the mortgage since September 1, 2010. 

Bank of America also alleged that it complied with the requirements of Act 6 

(41 P.S. § 403) by sending Appellants a written notice of intention to 

foreclose (the “Notice”). See Complaint, 5/30/12, at ¶¶ 10-11. Appellants 

eventually filed an answer to the complaint, generally denying Bank of 

America’s averments and raising new matter.1 

____________________________________________

1 On January 13, 2013, the trial court sustained Bank of America’s 

preliminary objections to Appellants’ counterclaims, dismissing with 

prejudice all but one of them. Appellants filed an amended counterclaim, 

which the trial court dismissed on summary judgment, as discussed infra, 

on December 19, 2014. 
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On October 17, 2014, Bank of America moved for summary judgment, 

arguing that it was entitled to judgment as a matter of law. Specifically, 

Bank of America asserted that Appellants’ general denials in their answer to 

the complaint were sufficient to establish that Appellants defaulted on their 

mortgage obligations. Bank of America also asserted that no factual dispute 

existed as to the amount of the mortgage, and the total amount of 

indebtedness. Following Appellants’ response, the trial court granted in part 

and denied in part Bank of America’s summary judgment motion. In 

particular, the trial court denied in part the summary judgment motion 

because a factual dispute existed as to the date of Appellants’ default, the 

amount of indebtedness, and the date when Appellants received the Notice. 

On July 14, 2015, Bank of America filed a “Praecipe to Substitute 

Plaintiff” (the “Praecipe”), naming Bayview as the substitute plaintiff. Bank 

of America attached to the Praecipe a document titled “Corporate 

Assignment of Mortgage,” indicating that Appellants’ mortgage had been 

assigned to Bayview. On August 3, 2015, Appellants filed a “Motion in 

Limine to Strike Praecipe to Substitute Plaintiff” (“Motion in Limine”), 

claiming that the substitution did not conform with Pa.R.C.P. No. 2352(a) 

because Bayview, as Bank of America’s successor, failed to file “a statement 

of material facts.” Motion in Limine, 8/3/15, at ¶¶ 3-6.

The case proceeded to a bench trial, following which the trial court 

entered a verdict in favor of Bayview, as Bank of America’s successor, and 

against Appellants. On the same day, the trial court denied Appellants’ 
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Motion in Limine, concluding, among other things, that attached to the 

Praecipe was a document titled “Corporate Assignment of Mortgage,” the 

contents of which obviated the need for Bayview to file a statement of 

material facts on which the right to substitution is based under Rule 2352. 

Specifically, the trial court concluded that the “Corporate Assignment of 

Mortgage” “establishes Bayview’s legal interest in the mortgage and the 

factual circumstances.” Trial Court Opinion, 9/4/15, at 1. On September 

14, 2015, Appellants filed a motion for reconsideration, which we, like the 

trial court, treat as a motion for post-trial relief. See Mackall v. Fleegle, 

801 A.2d 577, 580 n.1 (Pa. Super. 2002) (“Despite being improperly styled 

as a motion to reconsider, upon review, it appears that [a]ppellant’s motion 

was actually a motion for post-trial relief, thus preserving the issues raised 

therein”). On September 16, 2015, the trial court denied Appellants’ posttrial relief. 

Appellants timely appealed to this Court. The trial court directed 

Appellants to file a Pa.R.A.P. 1925(b) statement of errors complained of on 

appeal. They complied, raising 33 assertions of error.2 In response, the 

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2 We disapprove of Appellants’ excessive assertions of error. We repeatedly 

have emphasized that a Rule 1925(b) statement must be “sufficiently 

concise and coherent such that the trial court judge may be able to identify 

the issues to be raised on appeal, and the circumstances must not suggest 

the existence of bad faith.” Jiricko v. Geico Ins. Co., 947 A.2d 206, 210 

(Pa. Super. 2008), appeal denied, 958 A.2d 1048 (Pa. 2008).
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trial court issued a Pa.R.A.P. 1925(a) opinion, concluding that Appellants’ 

issues on appeal lacked merit.

On appeal, Appellants raise four issues for our review:

I. Did the trial court err in granting partial summary 

judgment to . . . Bank of America, N.A.?

II. Did the trial court err and abuse its discretion in denying 

[Appellants’] motion in limine to strike substitution of 

Bayview . . . as the party plaintiff and by doing so only 

after trial had concluded?

III. Did the court commit prejudicial error by permitting the 

testimony of a witness without personal knowledge and by 

further receiving exhibits into evidence which did not 

satisfy the requirements of Pa.R.E. 803(6)?

IV. Is the judgment void due to fraud insofar as the 

securitization of the promissory note prior to trial 

obliterated Bayview’s standing and removed all 

controversy before the court including any obligation of 

[Appellants] to repay?

Appellants’ Brief at 19.3

____________________________________________

3 Appellants have waived their fourth issue relating to securitization on 

appeal. Although Appellants initially raised this issue in their pro se

counterclaim against Bank of America, the trial court dismissed with 

prejudice that counterclaim. Appellants thereafter failed to revisit this issue 

until after trial and only in their “Memorandum of Law in Support” of their 

“Motion for Reconsideration.” Tellingly, Appellants also did not raise this 

issue in the Praecipe challenging Bayview’s substitution as plaintiff. Thus, 

because Appellants failed to raise the securitization issue vis-à-vis Bank of 

America or Bayview until after trial, we deem it waived. See, e.g., 

Shelhamer v. Crane, 58 A.3d 767, 771 (Pa. Super. 2012) (reversing an 

order granting a new trial because the ground for post-trial relief had not 

been asserted during trial). Appellants also may not raise this issue for the 

first time on appeal. “Issues not raised in the lower court are waived and 

cannot be raised for the first time on appeal.” Pa.R.A.P. 302(a).
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Appellants first argue that the trial court erred in granting Bank of 

America’s summary judgment motion. Specifically, Appellants argue that a 

factual dispute existed concerning whether they had admitted in their 

pleadings that the mortgage was in default. 

It is well-settled that 

[o]ur scope of review of a trial court’s order granting or denying 

summary judgment is plenary, and our standard of review is 

clear: the trial court’s order will be reversed only where it is 

established that the court committed an error of law or abused 

its discretion.

Summary judgment is appropriate only when the record clearly 

shows that there is no genuine issue of material fact and that 

the moving party is entitled to judgment as a matter of law. The 

reviewing court must view the record in the light most favorable 

to the nonmoving party and resolve all doubts as to the 

existence of a genuine issue of material fact against the moving 

party. Only when the facts are so clear that reasonable minds 

could not differ can a trial court properly enter summary 

judgment.

Hovis v. Sunoco, Inc., 64 A.3d 1078, 1081 (Pa. Super. 2013) (quoting 

Cassel-Hess v. Hoffer, 44 A.3d 80, 84-85 (Pa. Super. 2012)). Moreover, 

“[w]here the non-moving party bears the burden of proof on an issue, he 

may not merely rely on his pleadings or answers to survive summary 

judgment.” Krauss v. Trane U.S. Inc., 104 A.3d 556, 563 (Pa. Super. 

2014) (citation omitted). “Failure of a non-moving party to adduce sufficient 

evidence on an issue essential to his case and on which he bears the burden 

of proof establishes the entitlement of the moving party to judgment as a 

matter of law.” Id. 
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Instantly, based on our review of the pleadings, we agree with the trial 

court that no dispute existed as to the whether Appellants defaulted on the 

mortgage. As noted earlier, Appellants responded with general denials to 

the material portions of Bank of America’s complaint, especially to paragraph 

7 where default was alleged. In Bank of America, N.A. v. Gibson, 102 

A.2d 462 (Pa. Super. 2014), appeal denied, 112 A.3d 648 (Pa. 2015), we 

explained that “general denials constitute admissions where—like here—

specific denials are required.” Gibson, 102 A.2d at 466-67; see Pa.R.C.P. 

No. 1029(b) (“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.”). Here, Appellants’ general denial relating to mortgage 

default constitutes an admission. Accordingly, we agree with the trial court’s 

decision to enter summary judgment on the issue of default.4, 5

____________________________________________

4 We note that the trial court did not violate the rule of Nanty-Glo v. 

American Surety Co., 163 A. 523 (Pa. 1932), in granting Bank of 

America’s summary judgment motion on the issue of mortgage default 

because the trial court relied on Appellants’ admission as contained in their 

amended answer. See Gibson, 102 A.3d at 466 (noting that the NantyGlo rule may be circumvented when the moving party supports its summary 

judgment motion by using admissions of the opposing party, which may 

include facts admitted in pleadings) (citations omitted).

5 Because we conclude that Appellants’ general denials constituted 

admissions, we need not look to Appellants’ new matter and counterclaims 

to search for admissions on the issue of mortgage default. 
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Appellants next argue that the trial court erred in granting Bank of 

America’s summary judgment motion because Bank of America lacked 

standing to bring the underlying foreclosure action. In support of its 

standing argument, Appellants claim that Bank of America did not establish 

it possessed a valid assignment of the mortgage and that the note was 

never assigned or otherwise transferred to Bank of America. We disagree.

As we recently explained in CitiMortgage, Inc. v. Barbezat, 131 

A.3d 65 (Pa. Super. 2016):

Pennsylvania Rule of Civil Procedure 2002 provides, 

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

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

without distinction between contracts under seal and parol 

contracts.” Pa.R.C.P. No. 2002(a); see also J.P. Morgan 

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

2013) (finding a debtor’s claim that appellee bank was not a real 

party in interest to bring foreclosure action was a challenge to 

appellee’s standing). “[A] real party in interest is a [p]erson 

who will be entitled to benefits of an action if successful. . . . [A] 

party is a real party in interest if it has the legal right under the 

applicable substantive law to enforce the claim in question.” 

U.S. Bank, N.A. v. Mallory, 982 A.2d 986, 993–994 (Pa. 

Super. 2009) (citation and quotation marks omitted; some 

brackets in original).

In a mortgage foreclosure action, the mortgagee is the real 

party in interest. See Wells Fargo Bank, N.A. v. Lupori, 8 

A.3d 919, 922 n. 3 (Pa. Super. 2010). This is made evident 

under our Pennsylvania Rules of Civil Procedure governing 

actions in mortgage foreclosure that require a plaintiff in a 

mortgage foreclosure action specifically to name the parties to 

the mortgage and the fact of any assignments. Pa.R.C.P. No. 

1147. A person foreclosing on a mortgage, however, also must 

own or hold the note. This is so because a mortgage is only the 

security instrument that ensures repayment of the indebtedness 

under a note to real property. See Carpenter v. Longan, 83 

U.S. 271, 275, 16 Wall. 271, 21 L.Ed. 313 (1872) (noting “all 
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authorities agree the debt is the principal thing and the 

mortgage an accessory.”). A mortgage can have no separate 

existence. Id. When a note is paid, the mortgage expires. Id. 

On the other hand, a person may choose to proceed in an action 

only upon a note and forego an action in foreclosure upon the 

collateral pledged to secure repayment of the note. See Harper 

v. Lukens, 112 A. 636, 637 (Pa. 1921) (noting “as suit is 

expressly based upon the note, it was not necessary to prove the 

agreement as to the collateral.”). For our instant purposes, this 

is all to say that to establish standing in this foreclosure action, 

appellee had to plead ownership of the mortgage under Rule 

1147, and have the right to make demand upon the note 

secured by the mortgage.[FN]

[FN] The rules relating to mortgage foreclosure actions do not 

expressly require that the existence of the note and its holder be 

pled in the action. Nonetheless, a mortgagee must hold the note 

secured by a mortgage to foreclose upon a property. “The note 

and mortgage are inseparable; the former as essential, the latter 

as an incident.” Longan, 83 U.S. at 274.

Barbezat, 131 A.3d at 68.

Instantly, based upon our review of the record evidence produced by 

Bank of America in support of its summary judgment motion, we reject 

Appellants’ standing argument. Bank of America not only averred, but also 

produced evidence that it was indeed the holder of the mortgage. 

Specifically, Bank of America alleged in its complaint that it “is the 

Mortgagee by Assignment by virtue of an Assignment of Mortgage recorded 

on November 1, 2011 in the Office of Recorder of Deeds of Jefferson County 

on Book: 597, Page 0413.” Complaint, 5/30/12, ¶ 3. Bank of America 

produced copies of the original recorded mortgage and its recorded 

assignment to Bank of America. As we noted in Barbezat, “[w]here an 

assignment is effective, the assignee stands in the shoes of the assignor and 
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assumes all of his rights.” Barbezat, 131 A.3d at 69 (citations omitted). 

Thus, the undisputed evidence of record, as recited earlier, indicates that 

Bank of America properly held the mortgage by way of assignment from 

MERS. 

To the extent Appellants argue that Bank of America cannot establish 

ownership of the note because it was never assigned or otherwise 

transferred to it, we reject such argument for want of merit. It is wellsettled that when the original mortgage company merges with another 

company, the surviving corporation becomes the mortgagee under the 

mortgage agreement, as it “succeeds to both the rights and obligations of 

the constituent corporations.” See Park v. Greater Delaware Valley Sav. 

& Loan Ass’n, 523 A.3d 771, 775-76 (Pa. Super. 1987). As a result, the 

surviving corporation becomes the real party in interest in a mortgage 

foreclosure action. See 12 U.S.C.A. § 215a(e).6 No assignment or 

____________________________________________

6 Section 215a(e) of the Bank Act provides:

The corporate existence of each of the consolidating banks or 

banking associations participating in such consolidation shall be 

merged into and continued in the consolidated national banking 

association and such consolidated national banking association 

shall be deemed to be the same corporation as each bank or 

banking association participating in the consolidation. All rights, 

franchises, and interests of the individual consolidating banks or 

banking associations in and to every type of property (real, 

personal, and mixed) and choses in action shall be transferred to 

and vested in the consolidated national banking association by 

virtue of such consolidation without any deed or other transfer. 

The consolidated national banking association, upon the 

(Footnote Continued Next Page)
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endorsement is necessary to confer upon the surviving bank the status of 

the real party in interest to enforce a debt owed to its predecessor. Id. The 

surviving corporation, however, has only the same rights with respect to the 

debt that its predecessor had at the time of merger. If the predecessor in 

interest was entitled to enforce the note at the time of merger, then the 

surviving corporation may do the same. Differently put, unless the 

predecessor in interest has the right to enforce the note, the successor by 

merger does not acquire the right to enforce the note. See Murray, 63 

A.3d at 1267-68 n.6 (implying that succession by merger is sufficient proof 

to show ownership of note and mortgage); see also 13 Pa.C.S.A. § 3302(c). 

Here, Appellants do not argue that Bank of America is not the holder in 

due course of the note or that the note attached to the complaint was less 

(Footnote Continued) _______________________

consolidation and without any order or other action on the part 

of any court or otherwise, shall hold and enjoy all rights of 

property, franchises, and interests, including appointments, 

designations, and nominations, and all other rights and interests 

as trustee, executor, administrator, registrar of stocks and 

bonds, guardian of estates, assignee, and receiver, and in every 

other fiduciary capacity, in the same manner and to the same 

extent as such rights, franchises, and interests were held or 

enjoyed by any one of the consolidating banks or banking 

associations at the time of consolidation, subject to the 

conditions hereinafter provided. 

12 U.S.C.A. § 215a(e). The record here indicates that, on April 27, 2009, 

Countrywide converted to a national bank under the name Countrywide 

Bank, National Association. See Bank of America’s Motion for Summary 

Judgment, 10/17/14, at Exhibit “I.”
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than genuine. Rather, Appellants argue only that Bank of America could not 

enforce the note because Countrywide never assigned or otherwise 

transferred the note to Bank of America. As explained above, given the fact 

that Bank of America is the surviving corporation that succeeded 

Countrywide, it stands in the shoes of Countrywide to collect the debt owed 

to Countrywide, including the mortgage at issue here.7 

In sum, given Bank of America’s uncontested ownership of the 

mortgage and possession of the note by way of merging with Countrywide, 

the trial court did not err in concluding that Bank of America had standing as 

a real party in interest to bring the underlying foreclosure action. 

Appellants next argue that the trial court abused its discretion in 

denying their Motion in Limine.8 In support of this argument, Appellants 

____________________________________________

7 With respect to Bayview, our review of the record reveals that it also had 

standing to pursue the foreclosure action because it held the note. 

Specifically, Bank of America endorsed the note in blank. N.T. Trial, 

10/29/15, at 74-76; see Barbezat, 131 A.3d at 69 (“A note endorsed in 

blank becomes payable to bearer and may be negotiated by transfer of 

possession alone until specifically endorsed.”). Also, Appellants’ suggestion 

that ownership of the note cannot be established in Bayview because there 

was no formal assignment or transfer is unavailing because “the chain of 

possession by which a party comes to hold the note is immaterial to its 

enforceability by the party.” Murray, 63 A.3d at 1266.

8 To the extent Appellants argue that the trial court erred in denying their 

Motion in Limine until after trial, such argument is waived because 

Appellants failed to raise it in their motion for post-trial relief. See

Sovereign Bank v. Valentino, 914 A.2d 415, 426 (Pa. Super. 2006) 

(stating that issues not raised in a post-trial motion are waived for appeal 

purposes); see also Pa.R.A.P. 302(a) (providing that “issues not raised in 

(Footnote Continued Next Page)
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point out that Bayview failed to comply with the requirements of Rule 

2352(a) because they failed to file a statement of material facts. See

Appellants’ Brief at 42. 

Rule 2352, relating to substitution of successor, provides in relevant 

part, that “[t]he successor may become a party to a pending action by filing 

of record a statement of the material facts on which the right to substitution 

is based.” Pa.R.C.P. No. 2352(a). 

Here, we agree with the trial court that Appellants’ argument lacks 

merit because the documents appended to the Praecipe served as a 

“sufficient statement of material facts on which the right to substitution 

[was] based.” Trial Court Opinion, 1/26/17, at 6. As the trial court found, 

the attachment to the Praecipe referenced Bayview’s receipt of the 

“mortgage” and the “promissory note.” Id. In other words, the trial court 

found that the Praecipe sufficiently stated the material facts upon which 

Bayview’s substitution was based in accord with Rule 2352(a). Therefore, 

Appellants’ argument does not merit any relief. 

Lastly, Appellants argue that the trial court abused its discretion in 

allowing Bayview to present the testimony of Terrence Schonleber 

(“Schonleber”). Appellants argue that Schonleber lacked personal 

knowledge to authenticate business records Bayview introduced at trial and 

(Footnote Continued) _______________________

the lower court are waived and cannot be raised for the first time on 

appeal.”).
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that Schonleber’s testimony about those records was hearsay. Appellants’ 

Brief at 46. 

As we explained in U.S. Bank, N.A. v. Pautenis, 118 A.3d 386 (Pa. 

Super. 2015):

“Hearsay” is an out of court statement offered in court for the 

truth of the matter asserted. Pa.R.E. 801(c). A writing 

constitutes a “statement” as defined by Rule 801(a). See

Pa.R.E. 801(a). Subject to certain exceptions, hearsay is 

inadmissible at trial. Pa.R.E. 802. One such exception is 

contained in Rule 803(6), which permits the admission of a 

recorded act, event or condition if:

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

information transmitted by—someone with knowledge;

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

conducted activity of a “business”, which term includes 

business, institution, association, profession, occupation, 

and calling of every kind, whether or not conducted for 

profit;

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

activity;

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

custodian or another qualified witness, or by a certification 

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

permitting certification; and

(E) neither the source of information nor other 

circumstances indicate a lack of trustworthiness.

Pa.R.E. 803(6) []. Furthermore, the Uniform Business Records 

as Evidence Act states:

A record of an act, condition or event shall, insofar as 

relevant, be competent evidence if the custodian or other 

qualified witness testifies to its identity and the mode of its 

preparation, and if it was made in the regular course of 

business at or near the time of the act, condition or event, 

and if, in the opinion of the tribunal, the sources of 
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information, method and time of preparation were such as 

to justify its admission.

42 Pa.C.S.A. § 6108(b). “As long as the authenticating witness 

can provide sufficient information relating to the preparation and 

maintenance of the records to justify a presumption of 

trustworthiness for the business records of a company, a 

sufficient basis is provided to offset the hearsay character of the 

evidence.” Boyle v. Steiman, 631 A.2d 1025, 1032–33 (Pa. 

Super. 1993) (internal citations omitted), appeal denied, 649 

A.2d 666 (Pa. 1994).

Pautenis, 118 A.3d at 401. In other words,

[i]t is not essential under the Uniform Business Records as 

Evidence Act to produce either the person who made the entries 

or the custodian of the record at the time the entries were made. 

Moreover, the law does not require that a witness qualifying 

business records even have a personal knowledge of the facts 

reported in the business record. As long as the authenticating 

witness can provide sufficient information relating to the 

preparation and maintenance of the records to justify a 

presumption of trustworthiness for the business records of a 

company, a sufficient basis is provided to offset the hearsay 

character of the evidence.

Boyle, 631 A.2d at 1032-33 (internal citations omitted). 

With the foregoing in mind, we agree with the trial court’s conclusion 

that Schonleber’s testimony falls within the exception to hearsay and that he 

was qualified to authenticate the business records produced at trial. Relying 

on Pautenis, the trial court reasoned that Schonleber “could authenticate 

and verify the accuracy of the relevant records such that the [trial court] did 

not need to find that he had personal knowledge of the underlying facts in 

order to testify.” Trial Court Opinion, 1/26/17, at 7. Accordingly, we discern 

no abuse of discretion by the trial court. 
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Judgment affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 5/17/2017