Opinion
J-A24001-16 No. 2073 EDA 2015
09-15-2016
THE BANK OF NEW YORK, FKA THE BANK OF NEW YORK AS TRUSTEE FOR THE CERTIFICATE HOLDERS OF CWALT, INC. ALTERNATIVE LOAN TRUST 2007-ITI, MORTGAGE-PASS-THROUGH CERTIFICATES, SERIES 2007-ITI v. JAMES R. DAVIS, JR. SHEILA DAVIS Appellants
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Order Entered June 23, 2015
In the Court of Common Pleas of Montgomery County
Civil Division at No(s): 09791 May Term 2014 BEFORE: BOWES, OTT AND SOLANO, JJ. MEMORANDUM BY BOWES, J.:
James R. Davis, Jr. and Sheila Davis (collectively the "Davises") appeal from June 23, 2015 order granting summary judgment in favor of The Bank of New York, f/k/a the Bank of New York as Trustee for the Certificate Holder of CWALT, Inc. Alternative Loan Trust 2007-1T1, Mortgage-Pass-Through Certificates, Series 2007-1T1 ("BNY"). We affirm.
We summarize the facts as presented by the trial court. See Trial Court Opinion, 12/7/15, at 2-3. The Davises executed a mortgage, which was recorded, securing the real property located at 1503 Grasshopper Road, Huntingdon Valley, Pennsylvania. This mortgage secured a promissory note the Davises provided to Countrywide Home Loans, Inc. ("Countrywide") in consideration of a loan to them in the amount of $420,880.72, with payments to commence on March 1, 2007. On April 1, 2013, the Davises defaulted on the note and mortgage by failing to make their monthly payment. As a result, Countrywide provided them with the requisite notice of default, Act 91 notice, and notice of its intention to foreclose.
On June 21, 2013, the mortgage was assigned to BNY. That assignment was properly recorded, and, on May 2, 2014, BNY commenced the underlying mortgage foreclosure action by the filing of a complaint in mortgage foreclosure. The Davises filed an answer to BNY's complaint, attaching duly-signed copies of the mortgage and the note. Subsequently, BNY filed a motion for summary judgment, which the court granted in its favor. The Davises filed a timely appeal and complied with the court's directive to file a Rule 1925(b) statement of errors complained of on appeal, and the court issued its Rule 1925(a) opinion.
The Davises raise one issue for our consideration: "Did the trial court commit an error of law in granting foreclosing lender's motion for summary judgment when Appellee lacked 'authority' by not holding nor possessing a prejudgment negotiated transfer of note through the chain of loan title?" Appellant's brief at 8.
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.Gerber v. Piergrossi , 2016 WL 3414993 (Pa.Super. 2016) at *3 (citation omitted).
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.
The Davises contend that BNY lacks standing to foreclose on the mortgage since it did not produce a properly endorsed or transferred note. They assert further that, without proof that BNY is in possession of the note, it lacks authority to foreclose. Thus, the Davises maintain, there exists a genuine issue of material fact until BNY provides evidence that it holds their note, and summary judgment is inappropriate.
The Honorable Thomas C. Branca authored a thorough and well-reasoned opinion rejecting the Davises' challenge to BNY's standing to foreclose. After reviewing the certified record and the parties' briefs, we affirm on the basis of the trial court's opinion. See Trial Court Opinion, 12/7/15, at 7-10 (concluding BNY adequately demonstrated its status as real party in interest by attaching copies of the note, endorsed in blank, to its complaint, and by attaching an affidavit to its motion for summary judgment, to the effect that it was in possession of the original note; the trial court observed the Davises did not offer evidence to contradict BNY's averments and did not seek discovery, but rather, attached a copy of the same note to its answer to BNY's complaint, thereby conceding that the holder of the note was entitled to enforcement).
Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 9/15/2016
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