Opinion
J. A21022/16 No. 403 EDA 2015
11-15-2016
WELLS FARGO BANK, N.A. SUCCESSOR BY MERGER TO WACHOVIA BANK, N.A., Appellee v. LISA FERRERI A/K/A LISA A. FERRERI, Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Order Entered January 16, 2015
In the Court of Common Pleas of Montgomery County
Civil Division at No.: 2009-42684 BEFORE: BENDER, P.J.E., DUBOW, J., and MUSMANNO, J. MEMORANDUM BY DUBOW, J.:
Appellant purports to appeal from the Order entered on January 15, 2014. We note that the trial court dated its Order granting Summary Judgment in favor of Appellee on January 15, 2015, but the trial court did not file and enter this Order on the docket until the next day on January 16, 2015. We have changed the caption accordingly. See Pa.R.A.P. 108 (entitled "Date of Entry of Orders").
Appellant, Lisa Ferreri, defendant below, appeals from the January 16, 2015 Order entered in the Montgomery County Court of Common Pleas granting Appellee's Motion for Summary Judgment in this mortgage foreclosure action. We affirm.
We adopt the facts as set forth by the trial court. See Trial Court Opinion, filed 10/27/15, at 1-5. In summary, Wachovia Bank, N.A. ("Wachovia") instituted this mortgage foreclosure action after Appellant defaulted on her mortgage for 1516 Surrey Lane in Wynnewood, Pennsylvania, in the amount of $269,015.93. After serving Act 91 notice of its intent to foreclose, Wachovia eventually filed a second Amended Complaint. Appellant responded with an Answer that included general denials, and an admission that she mortgaged the property to Wachovia. Appellant also raised twenty-six affirmative defenses, which the trial court dismissed with prejudice.
Homeowners Emergency Mortgage Assistance Act ("Act 91"), 35 P.S. § 1680.401c et seq.
On April 14, 2014, Wells Fargo Bank, N.A. ("Wells Fargo") became the plaintiff in this action pursuant to Pa.R.C.P. No. 2352 as Wachovia's successor by merger. On July 3, 2014, Wells Fargo filed a Motion for Summary Judgment. On August 1, 2014, Appellant filed her response admitting that she had executed the note and mortgage, that she was in default, and that Wells Fargo merged with Wachovia as its successor generally.
On January 16, 2015, the trial court granted Wells Fargo's Motion for Summary Judgment and entered Judgment on January 22, 2015. On January 26, 2015, Appellant filed a 424-page Motion for Reconsideration. On February 9, 2015, Appellant filed a Notice of Appeal before the trial court had ruled on Appellant's Motion for Reconsideration.
Both Appellant and the trial court complied with Pa.R.A.P. 1925. Appellant presents four issues for our review:
I. This Court has held that a foreclosing bank is not entitled to summary judgment when that bank cannot establish that it was the owner or holder in due course of the relevant promissory note when the mortgage foreclosure action was filed. Here, Wells Fargo has not established that it, or its predecessor in title, was the owner or holder in due course of the relevant promissory note when this mortgage foreclosure action was filed. Did the trial court commit an error of law or abuse its discretion when it granted Wells Fargo's Motion for Summary Judgment?Appellant's Brief at 4.
II. Whether fraud has been committed is a question of fact. Homeowner has alleged that fraud has been committed by Wachovia Bank and Wells Fargo. Did the trial court commit an error of law or abuse its discretion when it granted Wells Fargo's Motion for Summary Judgment despite the existence of disputed issues of fact with respect to Homeowner's fraud claims?
III. An Act 91 Notice is defective if it lists more than just the contact information for the county counseling agency where the property is located or when it is written on the mortgagee's letterhead. A defective Act 91 Notice requires dismissal of the action. The Act 91 Notice received by Homeowner included contact information for counseling agencies in at least five different counties and was written on Wachovia Bank's letterhead. Did the trial court commit an error of law or abuse its discretion when it granted summary judgment in favor of Wells Fargo, despite such evidence that the Act 91 Notice was defective?
IV. The federal Real Estate Settlement Procedures and Truth In Lending Acts required Wells Fargo to provide certain information to Homeowner that was not provided in this case. Did the trial court commit an error of law or abuse its discretion when it granted summary judgment in favor of Wells Fargo, despite Homeowner's claims that Wells Fargo violated these federal laws?
Each of Appellant's four issues challenge the trial court's Order granting summary judgment in favor of Appellee. Our Supreme Court has clarified our role as the appellate court as follows:
On appellate review, then, an appellate court may reverse a grant of summary judgment if there has been an error of law or an abuse of discretion. But the issue as to whether there are no genuine issues as to any material fact presents a question of law, and therefore, on that question our standard of review is de novo. This means we need not defer to the determinations made by the lower tribunals. To the extent that this Court must resolve a question of law, we shall review the grant of summary judgment in the context of the entire record.Summers v. Certainteed Corp., 997 A.2d 1152, 1159 (Pa. 2010) (citations and quotation omitted).
A trial court may grant summary judgment "only in those cases where the record clearly demonstrates that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law." Id. (citation and quotation omitted); see also Pa.R.C.P. No. 1035.2(1). "When considering a motion for summary judgment, the trial court must take all facts of record and reasonable inferences therefrom in a light most favorable to the non-moving party." Summers , supra at 1159 (citation omitted). "In so doing, the trial court must resolve all doubts as to the existence of a genuine issue of material fact against the moving party, and, thus, may only grant summary judgment where the right to such judgment is clear and free from all doubt." Id. (citation and internal quotation marks omitted).
"Where the non-moving party bears the burden of proof on an issue, he may not merely rely on his pleadings or answers in order to survive summary judgment." Truax v. Roulhac , 126 A.3d 991, 997 (Pa. Super. 2015), appeal denied , 129 A.3d 1244 (Pa. 2015) (citation and quotation omitted). "Further, 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. (citation and internal quotation marks omitted). "If there is evidence that would allow a fact-finder to render a verdict in favor of the non-moving party, then summary judgment should be denied." Id. (citation and quotation omitted).
A trial court properly grants summary judgment in a mortgage foreclosure action "where the defendant[/mortgagor] admits that he had failed to make the payments due and fails to sustain a cognizable defense to the plaintiff's claim." Gateway Towers Condominium Ass'n v. Krohn , 845 A.2d 855, 858 (Pa. Super. 2004); see also Bank of America , N.A. v. Gibson , 102 A.3d 462, 465 (Pa. Super. 2014), appeal denied , 112 A.3d 648 (Pa. 2015) (holding that entry of summary judgment is proper if the mortgagor admits that: (1) the mortgage is in default; (2) the mortgagor has failed to pay the obligation; and (3) the recorded mortgage is in the specified amount). Where specific denials are required, general denials to averments in a Complaint constitute admissions. Pa.R.C.P. No. 1029(b); see , e.g., Bank of America , supra at 466-67.
In her first issue, Appellant avers the trial court improperly granted Wells Fargo's Motion for Summary Judgment because Wells Fargo failed to prove it was the "owner or holder in due course of the relevant promissory note when the mortgage foreclosure action was filed." Appellant's Brief at 4. Appellant's claim essentially challenges Appellee's standing to proceed with the mortgage foreclosure action.
Insofar as Appellant relies on Nanty-Glo v. American Surety Co., 163 A. 523 (Pa. 1932), for the first time on appeal, Appellant has waived such an argument by failing to present it in the lower court. Pa.R.A.P. 302(a).
The law is clear that only "the real party in interest" may prosecute a legal action. Pa.R.C.P. No. 2002(a). "[T]he mortgagee is the real party in interest in a foreclosure action." PHH Mortgage Corp. v. Powell , 100 A.3d 611, 619 (Pa. Super. 2014) (citation omitted). Generally, when the original mortgagee 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," rendering the surviving corporation the real party in interest in a mortgage foreclosure action. See Park v. Greater Delaware Valley Sav. & Loan Ass'n , 523 A.2d 771, 775-76 (Pa. Super. 1987); 12 U.S.C. § 215a(e); 7 P.S. § 1606.
No assignment or indorsement is necessary to bestow upon the surviving bank the status of the real party in interest to enforce a debt owed to its predecessor. 12 U.S.C. § 215a(e); 7 P.S. § 1606. This assumes, however, that the predecessor in interest was, at the time of the merger, itself entitled to enforce the note. 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. 13 Pa.C.S. § 3302(c). See also J.P. Morgan Chase , N.A. v. Murray , 63 A.3d 1258, 1267-68 n.6 (Pa. Super. 2013) (implying that succession by merger is sufficient proof to show ownership of note and mortgage).
As the trial court noted in its Opinion, Appellant admitted that she obtained a loan from Wachovia and executed a note and mortgage in favor of Wachovia. See Answer to Second Amended Complaint, R.R. at 26a; Response in Opposition to Motion for Summary Judgment, R.R. at 70a-71a. When Appellant defaulted, Wachovia, as the original mortgagee, commenced the instant mortgage foreclosure action by filing a Complaint in 2009. Docket Entry from 12/11/2009, R.R. at 1a. As a result of Wachovia's merger with Appellee Wells Fargo, Wells Fargo became the plaintiff as Wachovia's successor, pursuant to Pa.R.C.P. No. 2352. See also Docket Entry from 4/14/2014, R.R. at 2a. Appellant admitted that Wells Fargo is Wachovia's successor by merger "in general" and that it acquired Wachovia's assets in 2010. Response in Opposition to Motion for Summary Judgment, R.R. at 71a.
By virtue of statutory authority and case law, and most significantly Appellant's own admissions, there is no question that Wells Fargo had standing to enforce the note. Appellant's assertions to the contrary are baseless.
In her second issue, Appellant avers that the trial court improperly granted Wells Fargo's Motion for Summary Judgment because there is a question of fact as to Appellant's fraud claims that she asserted in her Response to the Motion for Summary Judgment, her Motion for Reconsideration, and her Pa.R.A.P. 1925(b) Statement.
In order to raise a genuine issue of material fact at summary judgment, a defendant must do more than rest on the pleadings; he or she must meet the burden of producing facts to counter the plaintiff's averments. N.Y. Guardian Mortg. Corp. v. Dietzel , 524 A.2d 951, 952-53 (Pa. Super. 1987); Pa.R.C.P. No. 1035.3 ("adverse party may not rest upon the mere allegations or denials of the pleadings but must file a response...identifying (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 (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.").
In addressing this issue, the trial court concluded as follows:
[Appellant's] fourteenth assignment of error lacks merit. It presumes, falsely, that [Appellant] presented to this court in opposition to the [Appellee]'s [M]otion for [S]ummary [J]udgment competent evidence to support the assertions now made on appeal that loan application information was fabricated, that the loan made was predatory, or any other of the assertions [Appellant] now makes by her fourteenth assignment of error. [Appellant's] fourteenth assignment of error lacks merit.Trial Court Opinion at 12-13, 16. We agree.
Appellant did not attach any affidavits to her Response in opposition to Appellee's Motion for Summary Judgment or her "Sur-Sur Reply[.]" Instead, Appellant relied exclusively on averments or denials contained in her Response to the Motion for Summary Judgment. She failed to attach any evidence to support her opposition to Wells Fargo's Motion for Summary Judgment. Although Appellant included several exhibits related to Fannie Mae, the merger between Wachovia and Wells Fargo, and Wachovia's Act 91 Notice in her "Sur-Sur Reply[,]" these exhibits did not relate to or support her fraud claims.
After the trial court granted Appellee's Motion for Summary Judgment, Appellant filed a 424-page Motion for Reconsideration and annexed affidavits from a certified fraud examiner and a securitization analyst, and a letter from a second certified fraud examiner to support her averment that "the bank was taking advantage of the limited understanding of interest rates of an elderly woman and using predatory and deceptive practices." Appellant's Motion for Reconsideration, Exhibit A, R.R. at 191a. This was the first and only "evidence" of fraud or predatory lending practices presented to the trial court to support her opposition to the Motion for Summary Judgment. Appellant filed her Notice of Appeal before the trial court ruled on her Motion for Reconsideration, and the trial court never permitted Appellant to supplement her Response to the Motion for Summary Judgment with these additional exhibits. The trial court committed no error of law and did not abuse its discretion in concluding that Appellant had presented no issue of fact that would preclude summary judgment. Appellant's argument to the contrary lacks merit.
In her third issue, Appellant avers that because the Act 91 Notice was defective, the trial court improperly refused to dismiss the mortgage foreclosure action. Appellant contends that the Notice violated Act 91 because it was printed on Wachovia letterhead, failed to accurately summarize the balance due, and included a list of numerous counseling agencies rather than just the agency in Appellant's county. This issue lacks merit.
Act 91 requires a mortgagee pursuing foreclosure to send notice to a mortgagor advising her of the delinquency and providing 30 days to have a face-to-face meeting with the mortgagee or with a consumer credit counseling agency to attempt to resolve the delinquency. 35 P.S. § 1680.403c(a), (b)(1). The purpose of Act 91 Notice is "to instruct the mortgagor of different means [s]he may use to resolve [her] arrearages in order to avoid foreclosure on [her] property and also [to give] a timetable in which such means must be accomplished." Wells Fargo Bank , N.A. v. Monroe , 966 A.2d 1140, 1142 (Pa. Super. 2009).
In the instant case, Appellee filed a copy of the Act 91 Notice as an Exhibit to its Motion for Summary Judgment. See Appellee's Motion for Summary Judgment, 7/3/14, Exhibit D; R.R. at 826a. In addressing Appellant's challenge to the Notice, the trial court observed:
First, [Appellant] failed to present [] the notices that she actually received and she failed to present any evidence to show how the notices presented by the [Appellee] were at variance with the amounts she actually owed on her mortgage. Second, [Appellant] failed to challenge the notices she received on the ground that too many [counseling] agencies were listed. [] In any event, the [Appellant] failed to respond to the [Appellee's] [M]otion for [S]ummary [J]udgment with any evidence that the notices she received in any way confused her or otherwise caused her to default on her mortgage. [Appellant]'s [] assignment of error lacks merit.Trial Court Opinion at 12 (citation omitted).
Based on our thorough review of the record, we discern no abuse of discretion or error of law in the trial court's disposition of this issue. Accordingly, Appellant's third claim does not merit relief.
In her fourth issue, Appellant contends that Wells Fargo violated (1) the Truth In Lending Act ("TILA") by failing to respond to her request to identify the owner of the mortgage; and (2) the Real Estate Settlement Procedures Act ("RESPA") by failing to respond to a request for information about the note and the mortgage. This issue is waived.
As noted supra , issues not raised in the trial court are waived for purposes of appeal. Pa.R.A.P. 302(a). This Court has previously held that "a non-moving party's failure to raise grounds for relief in the trial court as a basis upon which to deny summary judgment waives those grounds on appeal." Harber Philadelphia Center City Office Ltd. v. LPCI Ltd. P'ship , 764 A.2d 1100, 1105 (Pa. Super. 2000). These strategic choices in the lower court are consequential because the "decision to pursue one argument over another carries the certain consequence of waiver for those arguments that could have been raised but were not." Id.
The trial court here concluded that Appellant waived her TILA and RESPA claims pursuant to Pa.R.A.P. 302(a) because Appellant did not present these arguments in the lower court in her Response to the Motion for Summary Judgment. See Trial Court Opinion at 1; Appellee's Brief at 53. Instead, Appellant presented only a general objection to the calculation of finance charges based on TILA. She failed to present any issues related to Wells Fargo's failure to respond under TILA or any issues related to RESPA. As a result, Appellant has waived this fourth claim of error on appeal.
In summary, we discern no abuse of discretion or error of law and affirm the trial court's January 16, 2015 Order granting Summary Judgment in favor of Wells Fargo.
Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 11/15/2016
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