J-S29039-15 

*Retired Senior Judge assigned to the Superior Court. 

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

U.S. BANK NATIONAL ASSOCIATION 

 v. 

RUSSELL G. McCLELLAND and ISAVEL 

HERNANDEZ McCLELLAND 

APPEAL OF: RUSSELL G. McCLELLAND 

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IN THE SUPERIOR COURT OF 

PENNSYLVANIA 

 

 No. 1926 WDA 2014 

Appeal from the Order Entered October 28, 2014, 

in the Court of Common Pleas of Erie County, 

Civil Division, at No: 11390-2013 

BEFORE: PANELLA, MUNDY, and STRASSBURGER,* JJ. 

MEMORANDUM BY STRASSBURGER, J.: FILED JULY 16, 2015 

 Russell G. McClelland (McClelland) appeals pro se from the October 28, 

2014 order which granted summary judgment in favor of U.S. Bank National 

Association (U.S. Bank) in this mortgage foreclosure action.1 We affirm. 

 The trial court summarized the history of this case as follows. 

[U.S. Bank] filed a complaint on May 21, 2013 seeking to 

foreclose on a mortgage. In its complaint, [U.S. Bank] asserted 

the mortgage secures the indebtedness of a note executed by 

Russell G. McClelland on July 29, 2003 and that [U.S. Bank] 

became mortgagee when Flagstar Bank assigned the note and 

mortgage to [it] on April 16, 2004. The complaint also attached 

copies of the note, mortgage, and assignment. 

On June 24, 2013, [McClelland] filed preliminary objections 

contending that [U.S. Bank] failed to timely file original 

documents with the Prothonotary, that Exhibit D attached to the 

complaint incorrectly identified Allegheny Mortgage Corp. as the 

original lender, and that the copies of the mortgage and note do 

 

1

 Isavel Hernandez McClelland, who is listed as a joint tenant with McClelland 

in the mortgage instrument and who was also named as a defendant in the 

foreclosure action, has not appealed to this Court.
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not match those copies provided to [McClelland] by [U.S. Bank] 

in February and March 2013. [McClelland] subsequently filed 

amended preliminary objections on July 8, 2013, stating that 

“failing to exhibit the instrument by the person making 

presentment violates U.C.C. §3501(b)(2).” 

[U.S. Bank] filed its reply to [McClelland’s] preliminary 

objections on August 5, 2013, arguing the law does not require 

[it] to file the original mortgage and note with the Prothonotary. 

[U.S. Bank] represented it would make the original note 

available to [McClelland]. [U.S. Bank] also asserted that while 

there are differences between the two copies of the mortgage, 

those differences stem from the fact that the copy attached to 

the complaint was recorded and thus bore a stamp of the 

recording information and included a legal description of the 

property. [U.S. Bank] averred there are no differences between 

the copy of the note attached to the complaint and that which 

was attached to [McClelland’s] preliminary objections. 

[McClelland’s] preliminary objection[s] and amended

preliminary objections were overruled by order dated February 

7, 2014. [McClelland] filed an answer to the complaint on 

February 27, 2014 in which he admitted that Mortgage Electronic 

Registration Systems, Inc., (MERS) as nominee for Flagstar Bank 

(FSB) assigned the note and mortgage to [U.S. Bank]. 

After the close of discovery, [U.S. Bank] filed a motion for 

summary judgment on August 22, 2014. [McClelland] filed an 

answer to [U.S. Bank’s] motion for summary judgment on 

September 17, 2014. After oral argument afforded the parties 

on October 22, 2014, [U.S. Bank’s] motion for summary 

judgment was granted on October 28, 2014. 

On November 24, 2014, [McClelland] filed a Notice of 

appeal with the Superior Court and subsequently filed a concise 

statement of matters complained of on appeal. ... 

Trial Court Opinion, 1/14/2015, at 1-2 (citation and unnecessary 

capitalization omitted). 
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 McClelland presents one question for this Court’s consideration: “When 

suit is brought against a defendant by a stranger to his contract, is the 

defendant entitled to proof that the plaintiff is the owner of the claim against 

him[?]” McClelland’s Brief at 1. 

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 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 nonmoving 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.... 

Swords v. Harleysville Ins. Companies, 883 A.2d 562, 566-67 (Pa. 

2005) (citations omitted). 

Summary judgment in mortgage foreclosure actions is subject to the 

same rules as any other civil action. See Pa.R.C.P. 1141(b). “In an action 

for mortgage foreclosure, the entry of summary judgment is proper 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. 1998). 
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 McClelland does not dispute that the mortgage is in default and that 

foreclosure is appropriate. His issue, as expressed to the trial court, is as 

follows: “I just want to make sure I’m paying the right people.” Transcript 

of Summary Judgment Argument, 10/22/2014, at 8-9. 

Other than pursuant to exceptions not relevant to this case, “all 

actions shall be prosecuted by and in the name of the real party in interest.” 

Pa.R.C.P. 2002(a). “[T]he mortgagee is the real party in interest in a 

foreclosure action.” Wells Fargo Bank, N.A. v. Lupori, 8 A.3d 919, 922 n. 

3 (Pa. Super. 2010). 

The original mortgage instrument, signed by McClelland and recorded 

with the recorder of deeds on August 5, 2003, clearly states as follows on 

page one: “MERS is the mortgagee under this Security Instrument.” 

Exhibit E to McClelland’s Preliminary Objections, 6/24/2013, at 1 (emphasis 

in original).2 The original mortgage instrument further provides that the 

property in question is mortgaged, granted, and conveyed to MERS “and to 

the successors and assigns of MERS....” Id. at 3. 

 McClelland’s answer to U.S. Bank’s complaint states: “Admitted that 

Mortgage Electronic Registration Systems, Inc. [(MERS)], as nominee for 

Flagstar Bank, FSB, assigned its note and mortgage to [U.S. Bank] on 

 

2

 A copy of the document, different in that it is marked with the stamp of the 

Erie County Recorder of Deeds but otherwise the same, is attached to U.S. 

Bank’s complaint. 
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November 7, 2012 in the Office of the Recorder of Deeds in Erie County.” 

Answer and New Matters, 2/27/2014, at ¶ 3a. 

Therefore, based upon the copy of the mortgage instrument 

acknowledged by McClelland, MERS was the original mortgagee and had the 

express authority to assign its interests. McClelland admitted in his answer 

to the foreclosure complaint that MERS assigned the mortgage to U.S. Bank. 

Accordingly, as a matter of law, U.S. Bank is the real party in interest in this 

foreclosure action. Therefore, the trial court properly granted U.S. Bank’s 

motion for summary judgment. 

 Order affirmed.3 

Judgment Entered. 

Joseph D. Seletyn, Esq. 

Prothonotary 

Date: 7/16/2015 

 

3

 McClelland’s concerns about U.S. Bank’s failure to show him that it 

possesses the original note and mortgage, rather than photocopies, is 

unwarranted. “[A] note secured by a mortgage fits the plain language of the 

UCC’s definition of [a negotiable] instrument.” JP Morgan Chase Bank, 

N.A. v. Murray, 63 A.3d 1258, 1265 (Pa. Super. 2013). “Pursuant to 

[Pennsylvania’s UCC], a debtor who satisfies his obligations under a 

negotiable instrument cannot be required to do so again, even if the 

recipient of the debtor’s performance is not the holder of the note in 

question.” Id. at 1263 (citing 13 Pa.C.S. § 3602(a)).