JP Morgan Chase Bank v. Murray, F. ( 2016 )

J-S01005-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
JP MORGAN CHASE BANK, N.A. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
FRANCIS X. MURRAY, :
:
Appellant : No. 615 EDA 2015
Appeal from the Order February 4, 2015
in the Court of Common Pleas of Chester County,
Civil Division, No. 2010-05712
BEFORE: GANTMAN, P.J., MUNDY and MUSMANNO, JJ.
MEMORANDUM BY MUSMANNO, J.:
FILED MARCH 08, 2016
Francis X. Murray (“Murray”) appeals from the Order granting
summary judgment against him and in favor of JP Morgan Chase Bank., N.A.
(“JPM”), in this mortgage foreclosure action. We affirm.
In a prior appeal, this Court summarized the history of this case as
follows:
The original plaintiff that commenced this action on May 6,
2010[,] was Deutsche Bank National Trust Co.[,] as Trustee for
Washington Mutual Mortgage Securities Corp. 2000-1 (“Deutsche
Bank”). The Complaint identified the mortgagee as Great
Western Bank d/b/a Sierra Western Mortgage Company.
Complaint in Mortgage Foreclosure (“Complaint”) at 1 ¶1(a).
The Complaint alleged that the parties entered into the Mortgage
on August 22, 1997. Id. at 1 ¶1(b). The Mortgage was
recorded in Chester County on October 2, 1997. Id. at 2 ¶1(c).
The Complaint listed a pair of assignments of the Mortgage as
follows:
Assignor: Great Western Bank dba Sierra Western Mortgage
Company
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Assignee: Deutsche Bank National Trust Company Americas
Date of Assignment: August 15, 2000
Recording Date: July 27, 2007
Book: 7223
Page: 955
Assignor: Deutsche Bank National Trust Company Americas
Assignee: [Deutsche Bank]. The assignment is in the
process of being formalized.
Id. at 2 ¶1(d) (for sake of convenience, hereinafter we refer to
these assignments, respectively, as the “Deutsche Bank
Assignment” and the “WaMu Assignment”). [Deutsche Bank]
identified itself in the alternative as “either the original
Mortgagee named in the Mortgage, the legal successor in
interest to the original Mortgagee, or . . . the present holder of
the [M]ortgage by virtue of the above-described Assignment(s).”
Id. at 2 ¶2.
The Complaint also averred that “[e]ach Mortgagor named in
paragraph 1 executed a note as evidence of the debt secured by
the Mortgage (the “Note”),” id. at 2 ¶4, and attached the Note
to the Complaint as [E]xhibit B. The Note was executed to the
benefit of “Great Western Bank, a Federal Savings Bank [d]oing
[b]usiness as Sierra Western Mortgage Company.” Id. Exh. B.
In the form in which it was attached to the Complaint, the Note
showed no indorsements, nor was any allonge[FN] attached for
the purpose of noting any indorsements or assignments.
[FN]
An allonge is “[a] slip of paper sometimes attached to a
negotiable instrument for the purpose of receiving further
indorsements when the original paper is filled with
indorsements.” Black’s Law Dictionary 76 (Deluxe 7th ed.).
The Complaint alleged that Murray as mortgagor had defaulted
on his obligations under the Mortgage as of September 1, 2009,
and remained in default through April 30, 2010. Id. at 2 ¶7.
The Complaint alleged damages in default consisting of
installment payments, interest, late charges, escrow advances,
and other costs and fees totaling $763,113.02. The Complaint
further asserted ongoing interest ... with additional fees, costs,
and expenses collectible under the Mortgage and Note. Id. at 3
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¶¶ 8-9.
On June 8, 2010, Murray filed a “Preliminary Objection in the
Form of [a] Motion to Dismiss the Complaint” (“PO”)….
The trial court denied Murray’s PO in its entirety by an order
entered on September 27, 2010. Therein, the trial court denied
Murray’s challenge to standing ….
…
On October 18, 2010, Murray filed his Verified Answer to
Complaint in Mortgage Foreclosure, with New Matter (“Answer &
New Matter”)….
Thereafter, the parties engaged in discovery, following which[,
on January 12, 2012,] [JPM] filed a motion for summary
judgment. Murray filed his response to same. [On March 8,
2012, JPM filed a Praecipe to substitute itself for Deutsche
Bank.] On March 26, 2012, the trial court entered [an] order …
granting [JPM’s] motion for summary judgment and entering the
aforesaid judgment in rem against Murray.
J.P. Morgan Chase Bank. N.A. v. Murray, 63 A.3d 1258, 1258-60 (Pa.
Super. 2013) (footnote in original). Murray filed an appeal of the trial
court’s grant of summary judgment. That appeal, docketed at number 980
EDA 2012 (“the prior appeal”), was assigned to a three-judge panel of this
Court. See id.
In the prior appeal, Murray claimed that JPM lacked standing to
continue the foreclosure action and that JPM’s verification of the Complaint
was defective pursuant to Pa.R.C.P. 1024(c). Murray, 63 A.3d at 1261.
Upon review, the panel reversed the grant of summary judgment in favor of
JPM, concluding that
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[JPM] has failed to establish possession of the original Note,
indorsed in blank, and therefore has failed to establish that it or
any of its putative predecessor holders of the Note have or had
the right to maintain an action in foreclosure upon Murray’s
alleged default of his obligations under the Note. The parties
disagree as to whether the Note produced for Murray’s
inspection in fact was the original Note, and, if so, whether the
loose allonge also provided for Murray’s inspection was, itself, an
original, and in fact purported to indorse the original Note in
blank. This presents a genuine issue of material fact that,
absent further discovery sufficient to resolve the conflict as a
matter of law (upon whatever basis might apply), must be
resolved by a fact-finder following the presentation of the
available documentary and testimonial evidence. Accordingly,
we reverse the trial court’s entry of summary judgment in favor
of [JPM] and remand for further proceedings.
…
[I]in addition to reversing the trial court’s order granting [JPM]
summary judgment, we must vacate the trial court’s order
permitting [JPM] to substitute itself as a party for the alleged
predecessor holders of the Mortgage and Note, without prejudice
to [JPM] to seek Rule 2352(a) substitution thereafter upon due
confirmation that [JPM] is the party in interest in this action,
whether by succession or otherwise.
Id. at 1268-69 (footnote omitted). Regarding Murray’s challenge to the
verification attached to the Complaint, the panel concluded as follows:
[T]he verification’s omission of all material requirements of Rule
1024(c) not only is deficient, but approaches the level of
deficiency identified in [Atlantic Credit & Finance v.]
Giuliana[, 829 A.2d 340 (Pa. Super. 2003),] as perhaps not
even warranting an opportunity to amend the pleading to correct
the error, based upon the fact that no effort whatsoever was
made to satisfy Rule 1024(c). However, given the various
uncertainties in this case, and even in the presence of such an
obvious violation of both the letter and the spirit of Rule 1024,
we are loath to deny ex cathedra [JPM’s] opportunity to amend
its verification. Thus, on remand the trial court may, in its
discretion, furnish any plaintiff deemed proper in this matter the
opportunity to offer a new verification under Rule 1024, either by
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a representative of the duly named plaintiff or by any other
person who is qualified to attest to the satisfaction of Rule
1024(c)’s precisely delineated requirements. However, the
Complaint must duly be verified if this litigation is to proceed.
Id. at 1270. Thus, the panel reversed the Order of the trial court and
remanded the matter for further proceedings. Id. at 1271.
Upon remand, on June 28, 2013, the original plaintiff, Deutsche Bank
petitioned to substitute JPM as the plaintiff. Murray filed an Answer to the
Petition. After an evidentiary hearing,1 the trial court granted Deutsche
Bank’s Petition, substituting JPM as the plaintiff in the mortgage foreclosure
action.
On January 29, 2014, JPM filed a Petition for leave to amend the
Complaint (“Petition to Amend”) to correct the verification and revise the
amounts claimed due and owing by Murray. Murray filed an Answer to the
Petition to Amend. On April 29, 2014, the trial court granted the Petition to
Amend, after which JPM filed its Amended Complaint and verification.
On October 16, 2014, JPM filed a Motion for Summary Judgment. On
February 4, 2015, the trial court granted JPM’s Motion, and entered an in
rem judgment against Murray in the amount of $1,056,222.96, plus interest,
1
In its Opinion, the trial court explained that “[t]he original collateral file
was in court for the [evidentiary] hearing, was used by the witnesses during
testimony, and was inspected by Murray and his attorney. The original
collateral file was identified and admitted as [Exhibit] P-2, but was returned
to JPM’s attorney at the end of the hearing.” Trial Court Opinion, 4/13/15,
at 4 n.9. This file included the original Note and Mortgage. Id. at 4. The
trial court further observed that “[t]he original allonge, indorsed in blank,
was stapled to the original Note at the hearing.” Id. at 4 (footnote omitted).
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costs and charges. Thereafter, Murray filed the instant timely appeal,
followed by a court-ordered Pa.R.A.P. 1925(b) Concise Statement of matters
complained of on appeal.
Murray now presents the following issues for our review:
A. Did the trial court follow the Superior Court’s instruction to
require [JPM] to duly verify its Complaint in conformance to
Pa.R.C.P. 1024 before the case could move forward?
B. Because [Deutsche Bank] did not duly verify its Complaint
before making its Petition to Substitute, should [Deutsche
Bank’s] Petition to Substitute have been dismissed because its
averments were new, and as such, required [v]erification
pursuant to Pa.R.C.P. 206.3?
C. Do the following constitute disputed or established issues of
fact which preclude summary judgment: 1) [JPM’s] Petition
[that] states the captioned plaintiff trust is incorrect; 2) [t]he
purported original Note provided for Murray’s inspection was not
indorsed in blank; 3) [n]o evidence [that] a loose allonge
provided for Murray’s inspection is [the] original or appurtenant
to the purported original Note; 4) [c]ounsel spoliated Note
evidence, representing [an] invalid endorsement; 5) [t]he copy
of the Note attached to the Complaint …, and[] and three other
pleadings, represented in each case to be a true and correct
copy of the original, is not indorsed in blank and not identical to
the purported original Note presented to the trial court at the
hearing … ;] and[] 6) [a] non-party was in possession of the
purported original Note on the date of the Complaint? Further,
do the following constitute errors of law which preclude summary
judgment: [(a) t]he [trial c]ourt found an allonge affixed by
[c]ounsel following Murray’s inspection (and prior to the
evidentiary hearing) constituted a valid indorsement of the Note,
making JPM [the] holder of the Note, and [(b) t]he [trial c]ourt
found, alternatively, JPM was [a] non[-]holder with the rights of
a holder?
Brief for Appellant at 4-5.
Initially, we are cognizant of our scope and standard of review:
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A reviewing court may disturb the order of the trial court only
where it is established that the court committed an error of law
or abused its discretion. As with all questions of law, our review
is plenary.
In evaluating the trial court’s decision to enter summary
judgment, we focus on the legal standard articulated in the
summary judgment rule. Pa.R.C.P. 1035.2. The rule states that
where there is no genuine issue of material fact and the moving
party is entitled to relief as a matter of law, summary judgment
may be entered. 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. Failure of a
non-moving party to adduce sufficient evidence on an issue
essential to his case and on which it bears the burden of proof
establishes the entitlement of the moving party to judgment as a
matter of law. Lastly, we will view the record in the light most
favorable to the non-moving party, and all doubts as to the
existence of a genuine issue of material fact must be resolved
against the moving party.
Murray, 63 A.3d at 1261-62 (citation omitted).
Judicial discretion requires action in conformity with law on facts
and circumstances before the trial court after hearing and
consideration. Consequently, the court abuses its discretion if,
in resolving the issue for decision, it misapplies the law or
exercises its discretion in a manner lacking reason. Similarly,
the trial court abuses its discretion if it does not follow legal
procedure.
DeArmitt v. New York Life Ins. Co., 73 A.3d 578, 586 (Pa. Super. 2013).
Murray first claims that the trial court, on remand, ignored this Court’s
directives. Brief for Appellant at 7. Murray asserts that the Superior Court
had directed the then-named plaintiff, Deutsche Bank, to correct its deficient
verification. Id. According to Murray, the trial court improperly entertained
JPM’s Motion to Substitute, conducting an evidentiary hearing “to determine
the rights of a non-party[, JPM,] whose substitution foundation is an alleged
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transaction occurring nine months after this action was filed[.]” Id. Murray
contends JPM’s Petition to Substitute should not have been considered prior
to Deutsche Bank filing a new verification and, accordingly, the case should
have been dismissed. Id.
Our review of the record of the prior appeal discloses no such narrow
directive from this Court. In fact, the panel expressly anticipated further
development of the record, so as to establish the appropriate plaintiff, and to
allow the appropriate plaintiff to establish possession of the original Note and
the original allonge, indorsed in blank.2 Murray, 63 A.3d at 1268. The
panel reversed the Order granting summary judgment, “without prejudice to
[JPM]’s right to seek summary judgment following further development of
the record.” Id. (emphasis added). Further, the panel explained that
a question necessarily remains as to whether [JPM] properly was
permitted to substitute itself as plaintiff-successor in the
underlying action pursuant to Pa.R.C.P. 2352(a). A successor is
“anyone who by operation of law, election or appointment has
succeeded to the interest or office of a party to an action.”
Pa.R.C.P. 2351. If [JPM] were unable to establish its possession
of the Note on remand, it would have to establish successor
status by other means. Accordingly, in addition to reversing the
trial court’s order granting [JPM] summary judgment, we must
vacate the trial court’s order permitting [JPM] to substitute itself
as a party for the alleged predecessor holders of the Mortgage
and Note, without prejudice to [JPM] to seek Rule 2352(a)
substitution thereafter upon due confirmation that [JPM] is the
party in interest in this action, whether by succession or
otherwise.
2
As this Court concluded in the prior appeal, the Note at issue is a
negotiable instrument governed by Pennsylvania’s Uniform Commercial
Code, 1101-9809 (“PUCC”). Murray, 63 A.2d at 1266.
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Id. at 1268-69 (footnote omitted).
In addressing the sufficiency of Deutsche Bank’s verification, the panel
again recognized that the appropriate plaintiff must be ascertained on
remand:
[O]n remand the trial court may, in its discretion, furnish any
plaintiff deemed proper in this matter the opportunity to
offer a new verification under Rule 1024, either by a
representative of the duly named plaintiff or by any other
person who is qualified to attest to the satisfaction of Rule
1024(c)’s precisely delineated requirements. However, the
Complaint must duly be verified if this litigation is to proceed.
Murray, 63 A.3d at 1271 (emphasis added).
Thus, this Court expressly recognized that on remand, the trial court
must ascertain the appropriate plaintiff, and that further proceedings may be
necessary to do so. See id. The trial court’s consideration of the Petition to
Substitute in no way violated this Court’s directive upon remand. As we
discern no error or abuse of discretion by the trial court in this regard, we
cannot grant Murray relief on his claim.
Murray next claims that the trial court improperly granted summary
judgment where Deutsche Bank’s Petition for substitution was “deficiently
verified.” Brief for Appellant at 23. Murray presents a circular argument in
this regard: “Because Deutsche Bank did not duly verify its Complaint
before filing its Petition [to Substitute], the averments in its Complaint are
mere narration and amount to nothing, making averments in its Petition
technically new.” Id. Murray argues that he preserved this issue by filing
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an Answer denying that JPM had the right to pursue substitution or to move
the litigation forward. Id. at 25.
In its Opinion, the trial court addressed this claim and concluded that
it lacks merit. Trial Court Opinion, 4/13/15, at 6-8. We agree with the
sound reasoning of the trial court, as expressed in its Opinion, and affirm on
this basis with regard to Murray’s claim.3 See id.
Finally, Murray challenges the trial court’s grant of summary judgment
in favor of JPM. Murray claims that the chain of mortgage assignments is
“irregular.” See Brief for Appellant at 32. Murray asserts that the allonge
was loose during his inspection of the Note in 2011, see id. at 36; there is
no evidence that the allonge existed before his December 2011 inspection,
see id. at 42; the re-stapling of the allonge to the Note by JPM’s counsel is
spoliation of the evidence, see id. at 46; JPM is a non-holder in possession
of the Note, see id. at 50; the Note in the collateral file is not identical to
the Note attached to Deutsche Bank’s Complaint, see id. at 53-54; and that
on the date of Deutsche Bank’s Complaint, it did not hold the Note, see id.
at 56.
3
Our review of the record discloses that Murray did not object to the
verification attached to the Petition to Substitute, or raise this issue in his
Answer to the Petition. Rather, Murray first raised this specific objection in
his Pa.R.A.P. 1925(b) Concise Statement. We therefore discern no error by
the trial court in concluding that this issue is waived. See Pa.R.A.P. 302(a)
(stating that an issue cannot be raised for the first time on appeal).
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In its Opinion, the trial court addressed this claim and concluded that
it lacks merit. Trial Court Opinion, 4/13/15, at 4-6. We agree with the
sound reasoning of the trial court, as set forth in its Opinion, and affirm on
this basis. See id. We additionally observe the following.
As this Court previously held, the Note in this case is a negotiable
instrument and subject to the PUCC. Murray, 63 A.3d at 1265. “The note
as a negotiable instrument entitles the holder of the note to enforcement of
the obligation.” CitiMortgage, Inc. v. Barbezat, 2016 Pa. Super. 7, 2016
Pa. Super. LEXIS 8, *9 (citing 13 Pa.C.S.A. §§ 3109(a), 3301).
Should [JPM] successfully establish that it holds the original
Note, and that it is indorsed in blank [or specially indorsed],
under the [PUCC] it will be entitled to enforce the Note [as a
negotiable instrument] ... even if there remain questions as to
the chain of possession of the [n]ote from the time of its making
to its arrival in [JPM’s] figurative hands.
Murray, 63 A.3d at 1268. Therefore, Murray’s challenges to the chain of
possession and assignments of the Note are immaterial to the Note’s
enforceability. Id. at 1266.
At the evidentiary hearing on the Petition to Substitute, William
Rodriguez (“Rodriguez”) the lending research officer for JPM, testified
regarding the original Note and the allonge. N.T., 10/25/13, at 8.
Rodriguez testified that he had inspected the “collateral file,” which included
the original Note and original Mortgage. Id. at 9. The collateral file
presented to Murray and examined by the trial court included the original
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Note. Id. at 12-13. Further, an audit form in the collateral file identified the
Note in the collateral file as the original Note. Id. at 13.
Rodriguez explained that the contents of the collateral file are
scanned, and that the allonge could not be scanned unless detached from
the original Note. Id. at 14. Rodriguez testified that an allonge in a
collateral file belongs with the Note in that file. Id.
Rodriguez expressly testified that the allonge at issue “has always
been affixed to the [N]ote in different forms [and] in different fashions.” Id.
at 29-30. Rodriguez explained that in all scans, the Note included the
allonge. Id. at 32. Rodriguez testified, “[a]ll our systems show all copies of
the [N]ote are with the allonge. So when they were scanned, they were
scanned together…. When [JPM was] in possession of the file, the allonge
was affixed according to the scanning of the loan.” Id.
Murray disputes whether the allonge was always stapled or attached to
the Note, but has presented no evidence disputing that the Note and allonge
in the collateral file are the original Note and allonge. Further, Murray does
not dispute that the allonge in the collateral file is indorsed in blank. Our
review discloses no evidence disputing that JPM is the holder of the Note
indorsed in blank. See Murray, 63 A.3d at 1266-67 (stating that, in a
foreclosure action, where a plaintiff establishes that it is the holder of a
promissory note, indorsed in blank, it has standing to enforce the note and
any accompanying mortgage). As there remained no genuine issue of
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material fact, and because the trial court’s legal conclusions are sound, we
discern no abuse of discretion or error by the trial court in granting summary
judgment in favor of JPM.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/8/2016
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S E !Nl if'
JPMORGAN CHASE BANK, N.A. IN THE COURT OF COMMON PLEAS
Plaintiff
CHESTER COUNTY, PENNSYLVANIA
v.
NO. 2010-05712-CO
FRANCIS X. MURRAY ~
Defendant CIVIL ACTION - LAW ~· "''i~,.
q~;'<- · ~ .,.,:;:~
Attorneys for Plaintiff: Brett L. Messing~r, Esq., Arthur R. Armstrong, Esq., KasS:f)::
Defendant, Francis X. Murray ("Murray"), appeals from our Order dated February
4, 2015, which granted summary judgment in this mortgage foreclosure action to
Plaintiff, JPMorgan Chase Bank, N.A. ("JPM"). This case had been remanded by
Superior Court on March 18, 2013.
By way of background, on August 22, 1997, Murray executed a promissory note
to Great Western Bank, F.S.B., d/b/a Sierra Western Mortgage Company ("Great
Western") in the amount of $868,000 ("the Note").1 (Exh. P-1)2 In conjunction with the
Note, Murray executed a mortgage in favor of Great Western ("the Mortgage"). (Exh. P-
3)
The Note and Mortgage were securitized. On or about March 1, 2000, the Note
became an asset in a trust known as the Washington Mutual Mortgage Loan Trust
Mortgage Pass-Through Certificates, Series 2000-1 as evidenced by a Pooling and
Servicing Agreement entered into by Washington Mutual Bank, FA, as seller and
servicer. (N.T. 20:3-21 :4, 21 :20-22:1, 23:2-23:20; Exhs. P-5, P-6) Great Western Bank,
Murray's lender, had merged with Washington Mutual Bank.3 (N.T. 15:15-19)
On August 15, 2000, the Mortgage was assigned by Washington Mutual Bank,
successor by merger to Great Western, to Deutsche Bank Trust Company Americas
1
The Note recites that the lender is "GREAT WESTERN BANK, A FEDERAL SAVINGS
BANK DOING BUSINESS AS SIERRA WESTERN MORTGAGE COMPANY".
2
Citation to exhibits and testimony herein refer to the October 25, 2013 evidentiary
hearing.
3
Washington Mutual Bank was formerly known as Washington Mutual Bank, FA.
4
("the First Assignment"). This assignment was recorded on July 27, 2007 in the
Chester County Recorder of Deeds Book No. 7223, Page 955, as Document Number
10774737.
JPM purchased Washington Mutual Bank's servicing business on September 25,
2008 and began servicing the Note immediately thereafter. (N.T. 22: 19-24:6) JPM
received the original Note and Mortgage from Washington Mutual Bank on July 17,
2009. (N.T. 12:19-13:10, 17:24-18:11; Exhs. P-2, P-4)
On and after September 1, 2009, Murray was in default of his payment
obligations, having failed from September 1, 2009 to make loan payments when due.
On March 23, 2010, the Mortgage was assigned by Deutsche Bank National
Trust Company Americas to Deutsche Bank National Trust Company, as Trustee for
Washington Mutual Mortgage Securities Corp. 2000-1 ("the Second Assignment"). 5·6
This Assignment was recorded on May 28, 2010 in the Chester County Recorder of
Deeds Book No. 7924, Page 1070, as Document 11015905.
On May 6, 2010, in the interim between the signing and recording of the Second
Assignment, Deutsche Bank National Trust Company as Trustee for Washington Mutual
Mortgage Securities Corp. 2000-1 ("Plaintiff") commenced this foreclosure action.
On June 8, 2010, Murray preliminarily objected to the Complaint and challenged,
inter alia, Plaintiff's standing and the verification that Plaintiff had appended to the
Complaint. On September 27, 2010, we entered an order overruling Murray's
4
The First Assignment recites that the assignment is from "WASHINGTON MUTUAL
BANK, F/K/A WASHINGTON MUTUAL BANK, FA, F/K/A AMERICAN SAVINGS BANK,
FA S/B/M TO GREAT WESTERN BANK, D/B/A SIERRA WESTERN MORTGAGE CO."
to "DEUTSCHE BANK TRUST COMPANY AMERICAS".
5
The Second Assignment recites that the assignment is from "Deutsche Bank National
Trust Company Americas" to "Deutsche Bank National Trust Company, as Trustee for
Washington Mutual Mortgage Securities Corp. 2000-1". After the identification of the
assignor, the words "as Trustee", have been written by hand on the page; however,
when or by whom this addition was made has not been addressed. We note also the
discrepancy between the name of the assignee of the First Assignment, Deutsche Bank
Trust Company America, and the name of the assignor of the Second Assignment,
Deutsche Bank National Trust Company Americas.
6
It is evident that the trust was improperly designated on the Second Assignment. The
correct designation is the "Washington Mutual Mortgage Loan Trust Mortgage Pass-
Through Certificates, Series 2000-1". (Exhs. P-5, P-6)
2
preliminary objections: On October 18, 2010, Murray answered the Complaint setting
forth counterclaims and raising as affirmative defenses, inter a/ia, the same challenges
to standing and the verification as he had previously raised in his preliminary objections.
Separate from the ongoing litigation, on February 25, 2011, JPM entered into a
Plan of Liquidation related to the Trust and purchased certain assets from the FDIC as
receiver for Washington Mutual Bank. Included in these assets was the Note. Therefore,
JPM became the owner of the Note on February 25, 2011. (N.T. 24:17-25:23; Exh. P-7)
JPM has since remained servicer and owner of the Note. (N.T. 25:24-26:5)
Meanwhile, the parties engaged in discovery. On December 22, 2011, Murray
inspected a mortgage file at the office of JPM's attorney.7 The file contained, inter alia,
the Note, Mortgage and a loose allonge. (N.T. 57:10-59:5)
On January 30, 2012, JPM moved for summary judgment, which Murray
opposed based on, inter alia, JPM's standing and failure to properly verify the Complaint.
On March 1, 2012, Murray moved for summary judgment.
On March 8, 2012, JPM filed a praecipe and caused itself to be substituted as
plaintiff, asserting its status as owner of the Note.
On March 26, 2012 we entered an order that granted JPM summary judgment,
denied Murray summary judgment and entered judgment in rem against Murray.
Murray appealed from the March 26, 2012 Order, but did not challenge the
judgment entered in regard to his counterclaims, nor did he dispute that he had failed to
make payments under the Note and Mortgage. Superior Court restated Murray's issues
on appeal as:
1. Whether [JPM] had standing to continue the instant foreclosure action, or
whether genuine issues of material fact remain concerning the same, where
[JPM] failed to substantiate the alleged underlying assignments by which
[JPM] came to hold the right to pursue this action; the underlying liquidation of
[Deutsche Bank National Trust Co. as Trustee for Washington Mutual
Mortgage Securities Corp. 2000-1] was supported only by oral testimony;
[JPM] failed to establish that it was a holder in due course of the Mortgage
and Note, and [JPM] failed to meet the substitution requirements of Pa.R.C.P.
2352(a)?
7
Murray's Affidavit filed 12/30/11.
3
2. Whether the Complaint's verification was defective pursuant to Pa.R.C.P.
1024(c), thus precluding summary judgment[?]
Op. p. 7.
Superior Court concluded that summary judgment was improper because
genuine issues of material fact remained concerning JPM's standing. Superior Court
also found the Complaint's verification to be defective. In an Opinion and Order filed
March 18, 2013, Superior Court vacated summary judgment and remanded the case for
further proceedings.
On June 28, 2013, Plaintiff petitioned to permit JPM to be substituted as plaintiff
as a real party in interest. On July 17, 2013, Murray answered the petition. On October
25, 2013, we held an evidentiary hearing to consider the petition. In ruling on Murray's
first appeal, Superior Court had held that the Note is a negotiable instrument governed
by the PUCC, 13 Pa. C.S. §3104. Op. 16, 18. Accordingly, the chain of possession by
which JPM came to hold the Note is immaterial to JPM's ability to enforce the Note. Op.
18. However, JPM must prove possession of the original Note. Op. 18, 21.
At the evidentiary hearing, William Rodriguez, a home lending research officer
with JPM, testified on behalf of JPM. (N.T. 8:16-19) Rodriguez was familiar with the
Murray collateral file maintained by JPM. (N.T. 9:4-10:3; Exh. P-2) The collateral file
was received by JPM from Washington Mutual Bank on July 17, 2009 and contained
original documents, consisting of the Note, the Mortgage, the appraisal of the property,
an internal audit form showing when the Note was "prepped, imaged and audited", and
a shipping label from Deutsche Bank to Washington Mutual." (N.T. 12: 19-13:10, 17:24-
18: 11; Exhs. P-2, P-4) Murray conceded that the original Note and Mortgage were in
JPM's collateral file when shown to him at the hearing.9 (N.T. 64:12-65:9) Therefore,
JPM established that it has had possession of the original Note since July 17, 2009.
Next we considered whether JPM has the right to enforce the Note. Op. 21. To
be a 'holder' entitled to enforce the Note under the PUCC, JPM must be able to
8
Allonges are not separately tracked within the collateral file. (N.T. 29:2-8)
9
The original collateral file was in court for the hearing, was used by the witnesses
during testimony, and was inspected by Murray and his attorney. (N.T. 11 :16-20, 12:10-
15) The original collateral file was identified and admitted as Exh. P-2, but was returned
to JPM's attorney at the end of the hearing. (N.T. 12:7-18, 55:13-18, 56:12-13)
4
demonstrate an indorsement of the Note. Op. 21, 13 Pa.C.S. §§1201 (b)(21 ), 3201. At
issue is the status of the allonge. If JPM has established that the Note was indorsed in
blank, then, under the PUCC, JPM can enforce the Note against Murray. 13 Pa.C.S.
§3109(a).
The original allonge, indorsed in blank, was stapled to the original Note at the
hearinq."" (N.T. 14:8-10; Exhs. P-1, P-2) Rodriguez testified that "the allonge has
always been affixed to the note in different forms in different fashions." (N.T. 29:23-30: 1)
Rodriguez explained that in the normal course of handling the Note and allonge
internally, the documents are separated to be scanned and then re-stapled. (N.T. 14:2-7,
14:11-14, 14:24-15:2, 41:2-7) This happens multiple times as scans are needed. (N.T.
30: 1-4) Rodriguez was certain the allonge was affixed to the Note because scanning
records showed the Note and allonge together and because the allonge was stored in
the collateral file with the Note. (N.T. 14:15-22, 32:3-18) On June 14, 2011, the
collateral file was transferred by JPM from its vault to the office of its attorney. (N.T.
19:17-20:2, 31:7-33:4; Exh. P-4) Murray testified that when he examined the "the
mortgage file" at JPM's counsel's office, the allonge was loose and found within some
appraisal related papers. (N.T. 57:6-14, 58:18-59:5) The allonge had been re-stapled to
the Note sometime prior to the hearing.
We credited Rodriguez's testimony and found that the allonge, indorsed in blank,
was affixed to the Note at the time the Note came into JPM's possession and while
stored by JPM in its vault. Therefore, JPM established that it is a holder under the
10
The allonge has the following appearance:
ALLONGE
Pay the note affixed to this allonge to the order of
---------------------· without recourse.
WASHINGTON MUTUAL BANK, FA
Successor in interest to
Great Western Bank, a FSB
[Signature]
Name: Jess Almanza
Title: Assistant Vice President
5
PUCC and is entitled to enforce the Note against Murray. Op. 21, citing 13 Pa.C.S.
§3109(a). However, given that the Note and allonge were later separated while in
counsel's office and not immediately reattached, we have also considered whether JPM
may be qualified to enforce regardless of whether or not JPM is a holder, an alternate
path suggested by Superior Court. Op. 17.
In In re Walker, 466 B.R. 271 (Bankr. E.D.Pa. 2012), a case cited by Superior
Court, the debtor had no right to refuse to pay a note when demand was made by "a
nonholder in possession who has the rights of a holder". JJi at 280. In other words, "[a]
negotiable note can be transferred without being negotiated. That transfer would be
effected by the physical delivery of the note. In that circumstance, the transferee would
not be a holder, as that term is used in the UCC. Such a transferee, however, would
still have the right to enforce the note." Bank of N.Y. v. Raftogianis, 13 A.3d 435, 439
(N.J.Super.Ct. 2010); Op. 17. "This method of becoming a person with a right to
enforce a note arises when a party obtains possession of a note by means of a
'transfer,' rather than a 'negotiation."' Walker, 466 B.R. at 280, FN19, referencing PUCC
§§3203, 3301 (2) and In re Veal, 450 B.R. 897, 911 (91h Cir. BAP 2011 ). "[T]ransfer
occurs when the instrument is delivered for the purpose of giving the person receiving
the instrument the right to enforce it."' Raftogianis, 13 A.3d at 440. JPM has
demonstrated possession of the original Note and the purpose of delivery, and is
therefore entitled to enforce the Note against Murray.
In summary, we concluded that JPM is a 'holder' of the Note and entitled to
enforce the same against Murray. However, if the temporary separation of the allonge
from the Note is fatal to JPM's claim to be a 'holder' of the Note, then JPM still retains
the right to enforce the Note as a non-holder in possession with the rights of a holder.
13 Pa.C.S. § 3301. Accordingly, JPM is a real party in interest and we entered our order
on October 25, 2013 permitting JPM to substitute for Plaintiff.
On January 29, 2014, JPM petitioned for leave to amend the Complaint to correct
the verification and to revise the amounts claimed due. On February 14, 2014, Murray
answered and opposed the amendment. On April 29, 2014, we granted the petition and
on May 19, 2014, JPM filed an amended complaint duly verified by a vice president of
JPM.
6
On October 16, 2014, JPM filed a motion for summary judgment. On November
13, 2014, Murray answered in opposition. On February 4, 2015, we entered an order
granting JPM an in rem judgment in the amount of $1,056,222.96, together with interest
from September 1, 2014 at the rate of $87.77 per day, plus costs and charges.
On February 26, 2015, Murray filed an appeal from our February 4, 2015 Order.
On March 24, 2015, Murray filed a Statement of Errors Complained of on Appeal
Pursuant to Pa. R.C.P. 1925(b) claiming that 1.) we erred by holding an evidentiary
hearing to determine whether JPM was a proper party in interest without first requiring
Plaintiff to verify the Complaint; 2.) the Complaint remains deficient having never been
verified and JPM's Petition to Substitute was similarly deficient having not been verified;
and 3.) we erred by finding JPM to be a proper party in interest inasmuch as we failed to
follow Superior Court's directive to consider whether the Note and allonge provided to
Murray for inspection were original documents and whether the allonge indorsed the
Note in blank.
Superior Court directed that:
on remand the trial court may, in its discretion, furnish any plaintiff deemed
proper in the matter the opportunity to offer a new verification under Rule
1024, either by a representative of the duly named plaintiff or by any other
person who is qualified to attest to the satisfaction of Rule 1024(c)'s
precisely delineated requirements. However, the Complaint must be duly
verified if this litigation is to proceed .... Should the trial court determine
that a fact question remains concerning the proper party in interest to seek
to foreclose on the mortgage at issue, it must submit the issue to a fact-
finder. Moreover, it is incumbent on [JPM], with the guidance of the trial
court, to cure the above-identified deficiency in the verification of the
Complaint.
Op. 29-30. Murray seems to read the directive that "the Complaint must be duly verified
if this litigation is to proceed" in isolation. Reading that directive in the context of the
surrounding paragraph, we understood that we had discretion to determine how best to
proceed. It was necessary to identify the proper party in interest as plaintiff before
obtaining a verification. The sequence in which Superior Court issued its directive
suggests that we first deem a proper plaintiff and then permit that plaintiff to offer a
verification. Superior Court warned that the litigation could go no further until those two
steps, identification of a proper plaintiff and filing of a verification, had occurred. We
7
could not identify a proper party in interest as plaintiff without conducting an evidentiary
hearing. Superior Court seemed to anticipate this necessity, suggesting that if a fact
question remained as to the identity of a proper party in interest,. it must be submitted to
a fact-finder, which is precisely what we did.
Once JPM was identified as the proper party in interest, JPM was substituted as
plaintiff and permitted to file an Amended Complaint, which was duly verified. Here,
again, Superior Court seemed to anticipate this procedure, observing in a footnote, that
the competency of the signatory to the original verification may be moot, "depending
upon the trial court's consideration of who the proper plaintiff is in this matter, if any, and
its determination of how the complaint must be amended if the case is to proceed." Op.
28-29, FN 9. The original Complaint is no longer operational and its status as verified or
unverified is immaterial.
JPM failed to verify the Petition to Substitute; however, Murray failed to bring this
deficiency to our attention until he filed his Statement of Matters Complained of on
Appeal. Had Murray filed preliminary objections to the petition or otherwise timely raised
the deficiency, it could have been addressed and a verification obtained. Errors must
be brought to the court's attention expediently so that they can be corrected and any
prejudice mitigated. State Farm Mut. Auto. Ins. Co. v. Dill, 108 A.3d 882, 885
(Pa.Super.,2015). Murray has waived this issue, having failed to timely raise it.
Furthermore, the determination that JPM was a proper party in interest was made on
evidence received at hearing, and was not based on the unverified petition. Cf. Atlantic
Credit & Finance v. Giuliana, 829 A.2d 340 (Pa.Super. 2003)(error to enter default
judgment on unverified complaint).
The final error claimed by Murray appears to go to our failure to address the
quality of the Note and allonge inspected by Murray in counsel's office. However, the
issue is either whether JPM has possession of the original Note and allonge, if the Note
was negotiated, or whether JPM has possession of the original Note, if the Note was
8
transferred but not negotiated. Based upon the evidence discussed infra, we concluded
that JPM has possession of both original documents.
For all of the reasons stated, we entered our order.
BY THE COURT:
DATE: t../. /;/ '} I /_(-
9