J-A24007-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

FREEDOM MORTGAGE CORPORATION IN THE SUPERIOR COURT OF

PENNSYLVANIA

v.

PATRICIA E. DENNIS

Appellant No. 3423 EDA 2015

Appeal from the Order October 26, 2015

In the Court of Common Pleas of Montgomery County

Civil Division at No(s): 2014-07116

BEFORE: BOWES, OTT AND SOLANO, JJ.

MEMORANDUM BY BOWES, J.: FILED SEPTEMBER 30, 2016

Patricia E. Dennis appeals, pro se, from the October 26, 2015 order 

granting summary judgment in favor of Freedom Mortgage Corporation 

(“Freedom”). We affirm. 

On March 29, 2013, Ms. Dennis executed a mortgage and associated 

promissory note in the amount of $149,469.00, and secured by the real 

property located at 652 Haws Avenue, Norristown, Pennsylvania. The 

mortgage was recorded on April 10, 2013. Ms. Dennis provided the 

mortgage to Mortgage Electronic Registration System (“MERS”) as nominee 

for Freedom, in consideration of her loan, with payments to commence on 

April 1, 2013. MERS assigned the mortgage to Freedom on March 11, 2014, 

and that assignment was properly recorded on March 25, 2014. 
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On September 1, 2013, Ms. Dennis defaulted on the note and 

mortgage by failing to make her monthly payment. Freedom provided her 

with the requisite notice of default, and Act 6 and Act 91 combined notice, 

including notice of its intent to foreclose. Freedom commenced the 

underlying mortgage foreclosure action on April 1, 2014, attaching the note 

and mortgage thereto. Ms. Dennis unsuccessfully attempted to remove the 

case to United States District Court for the Eastern District of Pennsylvania. 

Freedom then obtained a default judgment against Ms. Dennis, but the court 

granted a petition to open default judgment on August 8, 2015. 

Subsequently, Ms. Dennis filed an answer to Freedom’s original complaint 

alleging, inter alia, that Freedom did not possess the original note or 

mortgage, and therefore lacked standing to bring a foreclosure action on her 

property. 

Freedom filed a motion for summary judgment, attaching copies of the 

note, mortgage, assignment, and an affidavit averring that Freedom 

possessed the original note and mortgage encumbering Ms. Dennis’s 

property. The court granted Freedom’s motion for summary judgment, and 

Ms. Dennis filed a timely appeal. The court directed Ms. Dennis to file a Rule 

1925(b) concise statement of errors complained of on appeal, with which 

she complied, and then authored its Rule 1925(a) opinion. 

Ms. Dennis raises seven questions for our review: 

1. Can the Trial Court render in rem judgment for a debt 

collector? 
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2. Did the mortgage get separated from the Note prior to the 

foreclosure action being commence[d]? 

3. Does a mortgage being assigned alone nullif[y] the 

enforceability of it? 

4. Was Government National Mortgage Association the holder of 

the Note? 

5. Is [Freedom] an Approved Document Custodian for 

Government National Mortgage Association? 

6. Is [Freedom] in possession of the original Note? 

7. Can [Freedom] proceed with the foreclosure action? 

Appellant’s brief at 5-6. 

 Our scope and standard of review of a trial court’s order granting 

summary judgment is as follows. 

In reviewing an order granting summary judgment, our 

scope of review is plenary, and our standard of review is the 

same as that applied by the trial court . . . [a]n appellate court 

may reverse the entry of a summary judgment only where it 

finds that the lower court erred in concluding that the matter 

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

clear that the moving party was entitled to judgment as a matter 

of law. In making this assessment, we view the record in the 

light most favorable to the nonmoving party, and all doubts as to 

the existence of a genuine issue of material fact must be 

resolved against the moving party. Where our analysis involves 

solely questions of law, our review is de novo.

Thus, our responsibility as an appellate court is to 

determine whether the record either established that the 

material facts are undisputed or contains insufficient evidence of 

facts to make out a prima facie cause of action, such that there 

is no issue to be decided by the fact finder. 

 
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Gerber v. Piergrossi, 2016 WL 3414993 (Pa.Super. 2016) at *3 (citation 

omitted). 

Ms. Dennis devotes the majority of her brief to her contention that the 

court lacked subject-matter jurisdiction when it granted Freedom’s motion 

for summary judgment. While her statement of the question does not state 

her contention in those words, we construe Ms. Dennis’s issue on appeal as 

encompassing this question. See Ir re Ullman, 995 A.2d 1207, 1211-12 

(Pa.Super. 2010) (“[T]his Court is willing to liberally construe materials filed 

by a pro se litigant, [however] pro se status confers no special benefit upon 

the appellant.”). 

Ms. Dennis first asserts that Freedom is a “debt collector,” as defined 

in the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692 et seq. 

She maintains that since Freedom is a New Jersey-based debt collector 

engaging in interstate commerce, and she is a resident of Pennsylvania, the 

Montgomery County Court of Common Pleas lacked jurisdiction to grant 

summary judgment in favor of Freedom, and the federal courts maintain 

jurisdiction over this dispute. 

Subject matter jurisdiction refers to the court’s competency to hear 

and decide the type of controversy presented. Sheard v. J.J. DeLuca Co., 

Inc., 92 A.3d 68, 75 (Pa.Super. 2014). Jurisdiction over the subject matter 

refers to “the nature of the cause of action and of the relief sought; and this 

is conferred by the sovereign authority which organizes the court, and is to 
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be sought for in the general nature of its powers, or in authority specially 

conferred.” Id. (quoting Mid-City Bank & Trust Co. v. Myers, 23 A.2d 

420, 423 (Pa. 1942)). The question of subject matter jurisdiction may be 

raised at any time, by any party, or by the court sua sponte. In re Estate 

of Ciuccarelli, 81 A.3d 953, 958 (Pa.Super. 2013) (citation omitted). 

Notwithstanding exceptions inapplicable to this matter, our courts of 

common pleas have unlimited jurisdiction over all proceedings in this 

Commonwealth, unless otherwise provided by law. Beneficial Consumer 

Discount Co. v. Vukman, 77 A.3d 547, 552 (Pa. 2013); 42 Pa.C.S. § 

931(a). 

At the outset, we observe that it is unclear whether Ms. Dennis is 

arguing that federal question or diversity subject matter jurisdiction is 

invoked by this matter. Furthermore, she does not reference any legal 

authority indicating how Freedom’s status as a “debt collector” affects state 

jurisdiction. Nonetheless, since the Montgomery County Court of Common 

Pleas exercises jurisdiction over all proceedings arising in that county, 

including complaints in mortgage foreclosure, we find jurisdiction was 

properly within that court. 42 Pa.C.S. § 931(a). 

Additionally, we note Ms. Dennis’s previous attempt to remove this 

matter to federal court under diversity jurisdiction was found to be improper 

since Ms. Dennis, as the defendant in the underlying complaint, is a citizen 

of Pennsylvania. See 28 U.S.C. § 1441(b)(2) (“a civil action otherwise 
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removable solely on the basis of the jurisdiction under [diversity of 

citizenship] may not be removed if any of the parties in interest properly 

joined and served as defendants is a citizen of the State in which the action 

is brought.”). 

Furthermore, despite Freedom’s admission that it is a “debt collector,” 

see Appellee’s brief at 3, Freedom does not meet the definition of that term 

under the FDCPA. The FDCPA defines “debt collector” as:

any person who uses any instrumentality of interstate commerce 

or the mails in any business the principal purpose of which is the 

collection of any debts, or who regularly collects or attempts to 

collect, directly or indirectly, debts owed or due or asserted to be 

owed or due another. Notwithstanding the exclusion provided by 

clause (F) . . . [t]he term does not include--

* * *

(F) any person collecting or attempting to collect any debt 

owed or due or asserted to be owed or due another to the 

extent such activity . . . (ii) concerns a debt which was 

originated by such person[.]

15 U.S.C. § 1692a(6). Freedom, as the original mortgagee of the loan, 

attempted to collect its own debt owed to it by Ms. Dennis. Under the plain 

meaning of the FDCPA, Freedom is not a “debt collector,” as Ms. Dennis’s 

default concerns a debt originated by Freedom. This analysis is consistent 

with the Third Circuit’s interpretation of the FDCPA. See Police v. National 

Tax Funding, L.P., 225 F.3d 379, 403 (3rd Cir. 2000) (quoting Staub v. 

Harris, 626 F.2d 275, 277 (3rd Cir. 1980) (“The [FDCPA] does not apply to 

persons or businesses collecting debts on their own behalf.”)). As Freedom’s 
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attempts to recover its debt from Ms. Dennis did not implicate the FDCPA, 

no federal question of law arises in this matter, and federal jurisdiction is not 

invoked on that ground. See 28 U.S.C. § 1331 (“The district courts shall 

have original jurisdiction of all civil actions arising under the Constitution, 

laws, or treaties of the United States.”). Hence, Ms. Dennis’s arguments 

that the federal courts have jurisdiction over this dispute are without merit. 

When liberally construed, Ms. Dennis’s second, fourth, and fifth claims 

all contest the trial court’s finding that Freedom held the mortgage and note 

at all relevant times during this proceeding. As her second and third issues 

are also interrelated, we will discuss these four issues jointly. 

The following principles apply to courts reviewing summary judgments 

in mortgage foreclosure proceedings. Specifically, upon default, a mortgage 

holder has the right to pursue a mortgage foreclosure action. Bank of 

America, N.A. v. Gibson, 102 A.3d 462, 464 (Pa.Super. 2013) (citation 

omitted). The mortgage holder: 

is entitled to summary judgment if the mortgagor admits that 

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

the obligation, and the recorded mortgage is in the specified 

amount. 

Id. at 465 (citations omitted). 

Ms. Dennis’s contentions in this regard focus on Freedom’s purported 

possession of the mortgage and note, thereby implicating its authority to 

bring a foreclosure action against her. Ms. Dennis presented a letter from 

Freedom’s loan servicer, LoanCare, that, as of October 23, 2013, the 
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Government National Mortgage Association (“Ginnie Mae”) held her note. 

She claims that, on March 11, 2014, MERS assigned the mortgage to 

Freedom. She further argues that Freedom is not in possession of the 

original note, and since the documents have been separated, they are no 

longer enforceable. Thus, she contends, genuine issues of material fact 

remain that should have precluded the entry of summary judgment. 

First, we reject Ms. Dennis’s assertion that the assignment of the 

mortgage alone rendered the note unenforceable. She cites no persuasive 

authority in support of this claim. Instantly, Freedom presented evidence 

that Ms. Dennis defaulted on her obligations under the note on September 1, 

2013. It demonstrated that MERS assigned Freedom the mortgage on March 

10, 2014, with that assignment being recorded on March 25, 2014. Thus, 

Freedom had the right to bring a foreclosure action when it filed its 

complaint in foreclosure on April 1, 2014. Gibson, supra. 

Freedom moved for summary judgment on June 3, 2015. In its 

motion for summary judgment, Freedom confirmed its status as the 

assignee of the mortgage by appending a copy of that assignment from 

MERS. Significantly, Freedom also attached an affidavit averring it was in 

possession of the original note. Although Ms. Dennis provided evidence that 

Ginnie Mae held the note as of October 23, 2013, she provided no evidence 

that it remained in Ginnie Mae’s possession on June 3, 2015, the day 

Freedom moved for summary judgment. Hence, upon review of the 
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evidence of record, Freedom was entitled to enforce Ms. Dennis’s obligations 

under the note. See JP Morgan Chase Bank, N.A. v. Murray, 63 A.3d 

1258, 1265-66 (Pa.Super. 2013) (finding that a note secured by a mortgage 

is a negotiable instrument, and the possessor thereof has the right to 

enforce it). 

Finally, we observe that Ms. Dennis’s fifth and seventh issues were not 

asserted before the trial court or included in her Rule 1925(b) concise 

statement of matters complained of on appeal. It is axiomatic that “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); Pa.R.A.P. 1925(b)(4)(vii) (”Issues not 

included in the Statement and/or not raised in accordance with the 

provisions of this paragraph (b)(4) are waived.”). Therefore, these issues 

are waived. 

In sum, Ms. Dennis failed to produce any evidence of record to 

demonstrate a genuine issue of material fact as to the holder of the note and 

mortgage. Therefore, the trial court properly granted summary judgment in 

favor of Freedom. 

Order affirmed. 
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 9/30/2016