Bear Sterns Asset v. Likens, J. ( 2019 )

J-S34020-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
BEAR STERNS ASSET BACKED IN THE SUPERIOR COURT
SECURITIES 1TRUST 2006-IMI, ASSET- OF PENNSYLVANIA
BACKED CERTIFICES, SERIES 2006-IMI,
U.S. BANK NATIONAL ASSOCIATION, AS
TRUSTEE
Appellee
v.
JOSEPH C. LIKENS AND PATRICIA L.
LIKENS
Appellants No. 1654 WDA 2017
Appeal from the Order Entered October 20, 2017
In the Court of Common Pleas of Washington County
Civil Division at No: 2010-8926
BEFORE: BOWES, STABILE, AND STRASSBURGER,* JJ.
MEMORANDUM BY STABILE, J.: FILED MARCH 22, 2019
Appellants, Joseph C. Likens and Patricia L. Likens, appeal from an order
in this mortgage foreclosure action granting summary judgment to Appellee
Bear Sterns Asset Backed Securities 1Trust 2006-IMI, Asset-Backed
Certificates, Series 2006-IMI, U.S. Bank National Association, As Trustee. We
affirm.
On October 18, 2010, Appellee filed a complaint in mortgage foreclosure
alleging that Appellants were in default under the terms of a note dated
December 21, 2005, in favor of Mortgage Electronic Registration Systems, Inc.
as nominee for American Bank, in the original principal amount of
* Retired Senior Judge assigned to the Superior Court.
J-S34020-18
$412,800.00, and a mortgage securing the note on real property at 213
Arrowhead Lane, Eighty Four, PA 15330. Appellee alleged that it had the right
to foreclose on the mortgage as holder of the note and assignee of the
mortgage. Appellee subsequently filed an amended complaint and second
amended complaint, both of which Appellants answered. Appellee averred in
paragraph 5 of the second amended complaint that it had possession of the
note. Appellee attached a copy of the note as an exhibit along with an allonge1
from IMPAC Funding Corporation (“IMPAC”) endorsing the note without
recourse to Appellee. Appellants claimed in its answer to the second amended
complaint that it was without information sufficient to form a belief as to the
truth of the allegations in paragraph 5.
On April 24, 2017, Appellee filed a motion for summary judgment
attaching an affidavit by Appellee’s second assistant vice president, Michael
Ward, asserting that Appellants were in default of their mortgage payments.
Appellants filed a timely response to the motion.
On October 20, 2017, the trial court granted summary judgment to
Appellee. Appellants filed a timely notice of appeal from this order, and both
Appellants and the trial court complied with Pa.R.A.P. 1925. Appellants raised
the following issues in their Pa.R.A.P.1925 statement:
1 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.” JP Morgan Chase Bank, N.A. v. Murray, [] 63
A.3d at 1259 n.2 (citing Black’s Law Dictionary 76). The note and allonge are
appended as exhibit A to Appellee’s second amended complaint.
-2-
J-S34020-18
1. Whether there were genuine issues of material fact as to
[Appellee]’s standing including the alleged transfer of the Note
and Mortgage when [Appellee] filed the instant lawsuit October
I8, 2010 but was not assigned the mortgage until October 27,
2010.
2. Whether the claimed endorsement was proper in terms of
authority, authenticity and chain of transfer.
3. Whether the trust documents prohibited the alleged transfer of
the Note and Mortgage to the securitization trust of which
[Appellee] is the claimed “Trustee” when the Trust closed in 2006
and the assignment of the mortgage to [Appellee] was in 2010.
4. Whether applicable law prohibited the transfer of the Note and
Mortgage to the securitization trust.
5. Whether [Appellee]’s Affidavit was legally sufficient for
purposes of summary judgment or whether it was improper and
incompetent.
6. Whether MERS as the Mortgagee with no power of attorney
could assign the mortgage under Pennsylvania real estate law.
Appellants’ Pa.R.A.P. 1925(b) Statement.
In this Court, Appellants purport to raise four arguments in their brief
despite stating only one broad and vague question in their Statement of
Questions Presented: “Whether the lower court erred in granting [Appellee’s]
motion for summary judgment?”2 Appellants’ Brief at 2.
2 In reviewing an order granting summary judgment,
[this 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
-3-
J-S34020-18
Appellants first object to the allonge attached to the note in which IMPAC
indorsed the note without recourse to Appellee. Appellants argue that the
allonge is invalid because IMPAC should have inscribed the indorsement on
the note itself. As a result, Appellants argue, Appellee is not the legal holder
of the note and lacks standing to foreclose on the mortgage. Appellants
further complain that Appellants failed to demonstrate that the allonge was
an original.
Appellants have waived their objection to the allonge for multiple
reasons. First, Appellants failed to object to the allonge in their answer to
Appellants’ second amended complaint or new matter. Kituskie v. Corbman,
682 A.2d 378, 383 (Pa. Super. 1996) (failure to raise affirmative defense in
new matter constitutes waiver). Second, Appellants failed to raise this
objection in their response to Appellee’s motion for summary judgment.
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.
J.P. Morgan Chase Bank, N.A. v. Murray, 63 A.3d 1258, 1261-62 (Pa.
Super. 2013).
-4-
J-S34020-18
Walsh v. Borczon, 881 A.2d 1, 6 (Pa. Super. 2005) (quoting Harber
Philadelphia Ctr. City Office Ltd. v. LPCI Ltd. P'ship, 764 A.2d 1100, 1105
(Pa. Super. 2000) (argument that could have been raised in response to
motion for summary judgment but was not is waived). Third, Appellants failed
to make specific reference to the allonge in their Pa.R.A.P. 1925(b) statement.
Cobbs v. SEPTA, 985 A.2d 249, 256 (Pa. Super. 2009) (citing Pa.R.A.P.
1925(b)(4)(vii)) (issue that was not raised in appellant’s statement of matters
complained of on appeal was waived). Fourth, in their appellate brief,
Appellants failed to make specific reference to the allonge in their Statement
of Questions Presented. Southcentral Employment Corporation v.
Birmingham Fire Insurance Corporation of Pennsylvania, 926 A.2d 977,
983 n.5 (Pa. Super. 2007) (citing Pa.R.A.P. 2116) (issue that was not explicitly
raised in appellant's statement of the questions involved was waived).
Next, Appellants argue that Appellee, as trustee of a securitized
mortgage loan trust, lacks standing to enforce the note because the
assignment was untimely. According to Appellants, (1) the asset pool in the
trust closed on April 25, 2006, thus precluding addition of mortgages after
that date, and (2) the mortgage in question was untimely assigned to the trust
in 2010. This alleged untimeliness does not deprive Appellee of standing. We
have repeatedly held that a party has standing to foreclose on a mortgage if
it (1) originated the mortgage, (2) was assigned the mortgage, or (3) is the
holder of the note specially indorsed to it or indorsed in blank. Gerber v.
-5-
J-S34020-18
Piergrossi, 142 A.3d 854, 859-60 (Pa. Super. 2016) (citing Murray, 63 A.3d
at 1267–68 n.6). The record establishes that Appellee is the holder of the
note. Appellee averred in its second amended complaint that it was the holder
of the note. As an exhibit to this pleading, Appellee attached the note along
with an allonge endorsing the note from IMPAC to Appellee. Appellants did
not deny this averment in its answer to the second amended complaint; it
merely alleged that it was without information sufficient to form a belief as to
the truth of this averment. Appellants could not claim lack of information
under these circumstances, because the inclusion of the note and allonge as
an exhibit provided sufficient information with which to answer the second
amended complaint. Com. by Preate v. Rainbow Associates, Inc., 587
A.2d 357, 360 (Pa. Cmwlth. 1991)3 (defendants are not excused from
answering allegation in complaint based on lack of information when they have
sufficient information at their disposal to answer allegation). Consequently,
Appellee’s averment that it is the holder of the note is deemed admitted.
Pa.R.C.P. No. 1029(b) (“averments in a pleading to which a responsive
pleading is required are admitted when not denied specifically or by necessary
implication”). Furthermore, Appellee asserted in its motion for summary
judgment that it was the holder of the note, and Appellants failed to provide
3 “This Court is not bound by decisions of the Commonwealth Court. However,
such decisions provide persuasive authority, and we may turn to our
colleagues on the Commonwealth Court for guidance when appropriate.”
Petow v. Warehime, 996 A.2d 1083, 1088 n.1 (Pa. Super. 2010).
-6-
J-S34020-18
any contrary evidence. See Pa.R.C.P. No. 1035.3 (respondent to summary
judgment motion must identify one or more issues of fact arising from
evidence in record controverting evidence cited in support of the motion).
Accordingly, Appellants’ challenge to Appellee’s standing is devoid of merit.
In their next argument, Appellants claim that the affidavit of second
assistant vice president Ward in Appellee’s motion for summary judgment is
invalid, because he based his affidavit on information compiled by others and
has no personal knowledge of the matters in the record or their accuracy.
Appellants waived this argument by failing to raise it in their response to
Appellee’s motion for summary judgment, Walsh, 881 A.2d at 806, or in their
Statement of Questions Presented in their appellate brief. Southcentral
Employment Corporation, 926 A.2d at 983 n.5. Even if Appellants did not
waive this argument, it is devoid of substance. Affidavits4 are admissible to
establish a moving party’s right to summary judgment. Pa.R.C.P. No.
1035.1(2). Affidavits are useful tools to non-natural parties such as Appellee
who can only “speak” through its officers, directors, or other agents. Such
parties typically designate spokespersons to review documents gathered
4 An affidavit is “a statement in writing of a fact or facts, signed by the person
making it, that either (1) is sworn to or affirmed before an officer authorized
by law to administer oaths, or before a particular officer or individual
designated by law as one before whom it may be taken, and officially certified
to in the case of an officer under seal of office, or (2) is unsworn and contains
a statement that it is made subject to the penalties of 18 Pa.C.S. § 4904
relating to unsworn falsification to authorities.” Pa.R.C.P.A. 76. Ward’s
affidavit was sworn to before a notary public and complies with the
requirements of Rule 76.
-7-
J-S34020-18
through the ordinary course of business and assert the party’s construction of
these documents through affidavits or other discovery mechanisms. Cf.
Petrina v. Allied Glove Corporation, 46 A.3d 795, 801 (Pa. Super. 2012)
(corporation’s answers to discovery interrogatories were admissible in
summary judgment proceedings because they “constituted the firsthand
knowledge of the corporation with respect to the questions posed as
communicated through its chosen spokesperson”). That is what happened
here. Ward reviewed Appellants’ loan history report, a series of documents
gathered through Appellee’s ordinary course of business, and averred in an
affidavit that the loan history reflected Appellants’ failure to pay the loan.
Ward’s affidavit was entirely valid.
Finally, Appellants argue: “Genuine issues of material fact were present
as to Appellee’s alleged status as the creditor in view of the legally infirm
[a]llonge and the hearsay matters in [Ward’s] [a]ffidavit. The [trial] court
was legally bound to resolve all genuine issues of material fact in favor of
Appellants, which it did not.” As discussed above, Appellants have waived
these arguments.
For these reasons, the trial court properly granted summary judgment
to Appellee.
Order affirmed.
-8-
J-S34020-18
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/22/2019
-9-