US Bank National Assoc. v. McClain, J.

J-A16037-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

US BANK NATIONAL ASSOCIATION, AS IN THE SUPERIOR COURT OF

TRUSTEE FOR SARM 2006-4 PENNSYLVANIA

Appellee

v.

JOHN MCCLAIN AND MITCHELL PRINCE

Appellants No. 3062 EDA 2014

Appeal from the Order Entered October 3, 2014

In the Court of Common Pleas of Montgomery County

Civil Division at No(s): 2009-07709

BEFORE: LAZARUS, J., OLSON, J., and PLATT, J.*

MEMORANDUM BY LAZARUS, J.: FILED OCTOBER 16, 2015

John McClain and Mitchell Prince (Defendants) appeal from the trial

court’s order, entered in the Court of Common Pleas of Montgomery County,

granting Appellee US Bank National Association’s (US Bank) motion for

reconsideration, entering summary judgment1 on all claims in favor of US

____________________________________________

*

Retired Senior Judge assigned to the Superior Court.

1

Our standard of review in cases of summary judgment is well settled. This

court will only reverse the trial court’s entry of summary judgment where

there was an abuse of discretion or an error of law. Merriweather v.

Philadelphia Newspapers, Inc., 684 A.2d 137, 140 (Pa. Super. 1996).

Summary judgment is proper when the pleadings, depositions, answers to

interrogatories, admissions on file, and affidavits demonstrate that there

exists no genuine issue of material fact and the moving party is entitled to

judgment as a matter of law. Pa.R.C.P. 1035.2. In determining whether to

grant summary judgment a trial court must resolve all doubts against the

moving party and examine the record in a light most favorable to the non-

(Footnote Continued Next Page)

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Bank and against Defendants’ counterclaims, reforming a 2005 mortgage in

this consolidated reformation/mortgage foreclosure action, and entering in

rem judgment in the amount of $1,031,639.72, plus interest, against

Defendants. After careful review, we affirm.

In 2005, Defendants purchased the subject property, located at 624

Montgomery School Lane, Wynnewood, Lower Merion Township,

Montgomery County (property), from Michael and Theresa Power (the

Powers) for $1.1 million.2 At the time the Powers purchased the property in

2001, a deed, registered with Lower Merion Township and recorded in

Montgomery County, included a legal description of the property as two

adjoining parcels, “Lot A” (100 ft. by 205 ft.) and “Lot B” (50 ft. by 205 ft.).

Lot A has a house and pool on it and Lot B is vacant. In 2002, the Powers

consolidated the lots into a single lot by deed in order to obtain a swimming

pool permit. The 2002 deed (deed of consolidation) was also registered and

recorded, and contained a proper metes and bounds description of the entire

property. The property was assigned a single tax parcel number and is

known by the single address of 624 Montgomery School Lane. When

Defendants purchased the property from the Powers, the agreement of sale

_______________________

(Footnote Continued)

moving party. Id. Summary judgment may only be granted in cases where

it is clear and free from doubt that the moving party is entitled to judgment

as a matter of law. Id.

2

The Powers purchased the property and acquired title to the property from

the Estate of Rush Donwell Touton, Jr., by deed dated November 15, 2001.

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described the property simply by address and tax parcel number. However,

the 2005 deed conveying the property to the Defendants, which was

prepared by a title agent, contained an error in the legal description of the

property -- the deed only included the metes and bounds description of Lot

B and completely omitted the metes and bounds description of Lot A.

Defendants borrowed $825,000 from Wells Fargo to buy the property. The

legal description of the property in the Wells Fargo mortgage contains the

same error as the 2005 deed, it identifies the correct address and tax parcel

number, but it contains a metes and bounds description of only Lot B. The

Wells Fargo loan application issued to the Defendants for the property

certifies that the Defendants will utilize the property as their primary

residence.

In 2006, Wells Fargo, the original mortgagor of Defendants’ loan,

transferred all rights, title, and interest in the loan to US Bank. As a result

of that transaction, Wells Fargo became the servicer of the loan and US Bank

the trustee, holding an interest in the mortgage loan for the benefit of

investors.3 Defendants failed to make their monthly mortgage payments.

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3

Many mortgage lenders securitize their outstanding mortgages through the

sale of Mortgage Backed Securities (MBS) in the capital markets. See

https://www.usbank.com/pdf/.../Role-of-Trustee-Sept2013. Parties

involved in a MBS transaction include the borrower, the originator, the

servicer and the trustee, each with their own distinct roles, responsibilities

and limitations. Id. MBS’s are financial instruments which represent an

ownership in a group of mortgage loans, commonly referred to as pools, and

their corresponding cash flows. Id. Mortgage loans are purchased from

(Footnote Continued Next Page)

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Defendants have been in default for 7 years. In March 2009, US Bank 4 filed

the underlying mortgage foreclosure action (foreclosure action) against

Defendants. During the pendency of the action, US Bank discovered the

errors in the legal description in the 2005 deed and mortgage. As a result,

US Bank filed a quiet title action in June 2010 against Defendants seeking

to: (1) reform the mortgage to include the residential lot and (2) declare

that it held a “valid first position mortgage” against the residential lot even

though the subsequent Wells Fargo home equity loans were actually

recorded first in time against the residential lot. In response, on July 14,

2010, the Powers corrected the error in the 2005 deed’s legal description by

executing a new deed (“deed of correction”) that contained a corrected

metes and bounds description of the entire property, both Lots A and B.

In August 2011, Defendants filed a lawsuit (“reformation action”) in

Delaware County5 against the Powers to compel reformation of the 2005

_______________________

(Footnote Continued)

banks, mortgage companies, and other originators and then assembled into

pools by a governmental, quasi-governmental, or private entity and then

deposited into trusts which issue securities entitling the investors to all

principal and interest payments made by borrowers on the loans in the pool.

Id.

4

According to Defendant McClain, Wells Fargo instituted the first foreclosure

action on the property in January 2009. Subsequently, and for purposes of

this appeal, US Bank instituted the current foreclosure action in March 2009.

N.T. Judge Green Trial, 2/12/13, at 219.

5

The Powers resided in Delaware County at the time the reformation action

was filed.

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deed to include separate legal descriptions for Lots A and B, as well as to

have them convey the property to Defendants as joint tenants with the right

of survivorship.6 After a non-jury trial, the Honorable G. Michael Green

presiding (Judge Green Trial), the trial court determined that the Powers

must record a new deed describing the land as a single consolidated parcel

in conformance with the 2002 deed of consolidation. The Powers complied

with the order and a new deed was recorded in 2013. The 2013 deed

describes the entire property and also lists Defendants as joint tenants with

the right of survivorship. This determination was appealed and our Court

affirmed the trial court’s order. See McClain v. Power, No. 1933 EDA 2013

(filed September 18, 2014) (Pa. Super. 2014).

US Bank filed a motion for summary judgment; oral argument was

held on the motion on May 2, 2013, before the Honorable Rhonda Lee

Daniele. On January 15, 2014, the court denied US Bank’s motion for

summary judgment. US Bank and Defendants filed motions for

reconsideration of the court’s summary judgment order; the court granted

US Bank’s motion and denied Defendants’ motion, after argument, on

October 3, 2014. The court entered summary judgment in favor of US Bank

and against Defendants on their counterclaims. The court specifically

ordered that:

____________________________________________

6

On September 9, 2011, the trial court ordered that the foreclosure action

(No. 09-07709) and reformation action (No. 10-15604) be consolidated.

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 the legal description attached to the mortgage be reformed to include

the metes and bounds of the entire property (both lots);

 the declared mortgage constitutes a valid, first-position mortgage lien

against the entire property; and

 in rem judgment be entered in foreclosure in the amount of

$1,031,639.72.

Trial Court Order, 10/3/14, at 1-2. The trial court concluded, on

reconsideration, that collateral estoppel applied to the case where: (1)

Defendants believed that the property consisted of a single lot at the time of

purchase; (2) the reformation action was decided on the merits; (3)

Defendants were a party to that reformation action before Judge Green; and

(4) Defendants had a full and fair opportunity to litigate the issue of whether

the mortgage applied to both lots in the action before Judge Green. Trial

Court Opinion, 10/3/14, at 4.7 Moreover, the trial court found that because

Defendants admitted they are in default, summary judgment was properly

granted in favor of US Bank in the foreclosure action. Defendants now

appeal the October 3, 2014 order granting reconsideration and entering

judgment in favor of US Bank and against Defendants. On appeal,

Defendants raise the following issues for our consideration:

1. Was summary judgment properly granted in either of the

actions when none of the plaintiff’s pleading or discovery

contained a valid verification?

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7

The trial court adopted the October 3, 2014 memorandum opinion in the

event of an appeal. Thus, we have no separate Pa.R.A.P. 1925(a) opinion in

the matter.

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2. Was summary judgment properly granted when the facts

reveal that US Bank has no standing to bring either action?

3. Was summary judgment properly granted in the Foreclosure

Action when there was a genuine issue of material fact regarding

the assignment of the mortgage and note to the plaintiff at the

time the Plaintiff instigated its foreclosure action?

4. Was summary judgment properly granted in the Foreclosure

Action when the plaintiff is not the named mortgagee and it

failed to file an Assignment of Mortgage?

5. Was summary judgment properly granted in the Foreclosure

Action enlarging the mortgage lien to include the additional

100x205' Residential Lot when the plaintiff never requested this

relief in its pleadings?

6. Was summary judgment in the Foreclosure Action properly

granted enlarging the mortgage lien to include the additional

100x205' Residential Lot when the plaintiff judicially admitted

that the lien only encompassed the 50x205 Vacant Lot.

7. Did the court have jurisdiction to grant summary judgment in

the Quiet Title Action when there was a failure to name all

necessary and indispensable parties?

8. Was summary judgment in the Quiet Title Action properly

granted when there was no credible evidence of a mutual

mistake?

9. Was summary judgment in the Foreclosure Action properly

granted when there was no credible evidence of the default?

10. Was summary judgment in the Quiet Title Action properly

granted despite the fact that the Defendants' bankruptcies

granted bona fide purchaser status to the Trustee in bankruptcy

which, in turn, deprived the court to grant the equitable relief

requested to the plaintiff?

11. Did the court properly apply the doctrine of collateral

estoppel when the finding in the prior action was not essential to

the outcome?

Defendants first claim that summary judgment was improperly entered

in favor of US Bank where it never properly verified, swore or attested to

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any pleadings or discovery. Instead, the Defendants claim that US Bank’s

attorneys or representatives from Wells Fargo, its servicing agent, submitted

the verifications which are insufficient under the rules of civil procedure.

Pennsylvania Rule of Civil Procedure 1024, that governs the rules

applicable to verification, states in pertinent part:

(a) Every pleading containing an averment of fact not appearing

of record in the action or containing a denial of fact shall state

that the averment or denial is true upon the signer's personal

knowledge or information and belief and shall be verified. The

signer need not aver the source of the information or

expectation of ability to prove the averment or denial at the trial.

A pleading may be verified upon personal knowledge as to a part

and upon information and belief as to the remainder.

...

(c) The verification shall be made by one or more of the

parties filing the pleading unless all the parties (1) lack

sufficient knowledge or information, or (2) are outside the

jurisdiction of the court and the verification of none of

them can be obtained within the time allowed for filing

the pleading. In such cases, the verification may be made

by any person having sufficient knowledge or information

and belief and shall set forth the source of the person's

information as to matters not stated upon his or her own

knowledge and the reason why the verification is not

made by a party.

Pa.R.C.P. 1024 (emphasis added). Our Court has held that a complaint's

verification "must not be transferred into an offensive weapon designed to

strike down an otherwise valid petition". Monroe Contract Corp. v.

Harrison Square, Inc., 405 A.2d 954, 958 (Pa. Super. 1979). Moreover,

before a court dismisses a pleading on the basis of a defective verification, it

should first permit the party to amend. Id. However, where the failure to

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comply with Rule 1024 results in an error of a de minimus technical nature

that did not prejudice the substantive rights of the opposing party, it is not

necessary to remand the case for amendment where it would serve no

practical purpose. Id.

Defendants rely upon J.P. Morgan Chase Bank, N.A. v. Murray, 63

A.3d 1258 (Pa. Super. 2013), to argue that Wells Fargo, as a mortgage

servicer, is not the proper party to execute verifications in this case. In

Murray, the underlying mortgage foreclosure action was filed by Deutsche

Bank National Trust Company as trustee for Washington Mutual Mortgage

Securities Corporation. JP Morgan Chase Bank was later substituted as

plaintiff, as an agent of Deutsche Bank. When a vice president of JP Morgan

signed the complaint’s verification “on behalf of” JP Morgan, mortgagee-

defendants argued that, as a representative of JP Morgan, she could only

verify the complaint if she “certified satisfaction of the requirements of Rule

1024(c).” Id. at 1270. In finding the verification deficient, and remanding

the case to permit amendment, our Court reiterated that any person,

including an attorney for a party, could verify on behalf of another party,

provided that the person does so “only in those cases in which the conditions

delineated in Rule 1024 are present.” Id. In Murray, the Court determined

that the verification was not only deficient, but “no effort was made satisfy

Rule 1024(c).” Id. at 1271.

Here, the mortgage foreclosure complaint was filed on March 18,

2009, solely in the name of US Bank National Association as Trustee for

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SARM 2006-4.8 The verification to the complaint, made by US Bank’s

attorney,9 provides that because US Bank, as plaintiff, is outside the

jurisdiction of the Court and/or the verification could not be obtained within

the time allowed for the filing of the complaint, US Bank’s attorney is

authorized to make the verification pursuant to Pa.R.C.P. 1024(c), and that

the statements made in the foreclosure action are based upon

information supplied by US Bank and are true and correct to the best of

his knowledge. Complaint Verification, 3/20/05 (emphasis added).

Subsequently, on July 29, 2009, US Bank praecipied to reinstate the

mortgage foreclosure complaint/action against Defendants. Plaintiff’s

attorney filed a praecipe to substitute the verification to the complaint. The

____________________________________________

8

SARM is the acronym for a structured adjustable rate mortgage.

9

Instantly, US Bank’s original verification includes the requisite Rule 1024(c)

language that explains why US Bank did not make the verification in its own

stead. Cf. Atlantic Credit & Finance, Inc. v. Giuliana, 829 A.3d 340 (Pa.

2003) (verification, signed by paralegal of plaintiff corporation, stating that

s/he “reviewed the averments of the attached pleading [and] verifie[d] that

the pleading is based on information furnished to counsel . . . [which] has

been gathered . . . in the course of [the] lawsuit” and that the “language of

the pleading is that of counsel and not of the [signer paralegal]” was wholly

defective under Rule 1024(c) and inadequate to support entry of judgment

against appellants). Counsel may verify a pleading for his or her client when

the conditions delineated in Rule 1024(c) are present. Lewis v. Erie Ins.

Exchange, 421 A.2d 1214, 1217 n.2 (Pa. Super. 1980). Moreover, the

source of information need only be indicated for those matters not stated to

be within the signer's own knowledge. See Monroe Contract, supra

(where all information pertinent to petition was within counsel's knowledge

and failure to state where other information was derived was inconsequential

error which was not prejudicial).

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substituted verification is signed by a Wells Fargo vice president of loan

documentation on behalf of US Bank; at the time, Wells Fargo was still

acting as the servicing agent for US Bank. In the substituted verification,

the vice president verifies that she is authorized to execute the verification

on behalf of the Plaintiff and that the facts set forth “in the foregoing Civil

Action in Mortgage Foreclosure are true and correct to the best of his/her

knowledge, information and belief.” Verification, 3/20/09.

Thereafter, on July 27, 2010, US Bank filed an amended complaint

attaching a verification from Herman Kennerty, another vice president of

loan documentation for Wells Fargo. In his verification, Kennerty states that

he is authorized to execute the verification on behalf of US Bank and that

“the facts set forth in the foregoing Amended Complaint in Equity are true

and correct to the best of [his] knowledge, information and belief.”

Verification, 7/27/10.

Defendants filed preliminary objections, seeking dismissal of US Bank’s

amended complaint, claiming that the Bank’s verification was defective

because it: (1) was not taken by one of the parties; (2) does not state the

reason why the verification is not or could not be taken by one of the

plaintiffs; (3) does not set forth the source of the information as to the

matters contained in the complaint; and (4) does not state that the Plaintiff

is outside the jurisdiction of the court and its verification could not be

obtained within the time allowed for filing the pleading. Defendants’

Preliminary Objections to Plaintiff’s Amended Complaint, 8/16/10, at 3. In

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its response to Defendants’ preliminary objections, US Bank averred that the

amended complaint “was properly verified by a representative of the

attorney-in-fact for [US Bank], and complies with Pennsylvania law.”

Plaintiff’s Response to Defendants’ Preliminary Objections, 8/17/10, at 5.

At all times relative to the verification issue, Wells Fargo was acting as

the servicing agent for US Bank. Counsel for US Bank noted at an

evidentiary hearing on Defendant Prince’s motion for sanctions that, as the

servicer of the loan, Wells Fargo has continued to maintain possession of the

mortgage note and that no official at US Bank, as trustee, would be capable

of answering specific questions regarding the mortgage documents kept in

the ordinary course of business. N.T. Hearing on Motion for Sanctions,

2/18/14, at 6-8.10

____________________________________________

10

Prior to disposition of Defendants’ original preliminary objections,

Defendants moved to file amended preliminary objections on October 13,

2010, rendering all prior preliminary objections withdrawn or moot. In their

amended objections, Defendants no longer raised a Rule 1024 verification

issue. On October 25, 2010, prior to ruling on Defendants’ motion to file

amended preliminary objections, the court dismissed Defendants’

preliminary objections for failure to file a brief after US Bank praecipied for

argument. See Montgomery County Local Rule of Civil Procedure

1028(c)(4). However, the court vacated its order, as improvidently granted,

and directed the court administrator to list the motion for leave to file

amended preliminary objections to the amended complaint for argument

upon praecipe. On March 4, 2011, the trial court entered an order and

accompanying stipulation from the parties granting Defendants leave to file

amended preliminary objections to Plaintiff’s amended complaint. After filing

their amended preliminary objections, the trial court denied the objections in

July 2011. Therefore, we could alternatively find that Defendants have

abandoned this claim on appeal.

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Defendants are correct that US Bank did not state in its verifications

that Wells Fargo, original mortgagor and current servicer and holder of the

note, was in the best position to verify pleadings or answer any questions

regarding the mortgage documents. However, this exact position was

clearly advanced to the court at the motion for sanctions hearing.

Defendants were unable to advance any colorable argument as to how the

omission of this language prejudiced them in defending this case that is now

more than six years stale. Therefore, because amendment of the

verifications at this stage of the proceedings would serve no practical

purpose and the error is of such a de minimus technical nature that it did

not prejudice Defendants’ substantive rights, Defendants are not entitled to

relief on this claim. Monroe Contract, supra.

Next, Defendants claim that summary judgment was improperly

granted on the following related bases: (1) US Bank does not have standing

to bring either the reformation or foreclosure actions; (2) there was a

genuine issue regarding the Wells Fargo assignment of the mortgage to US

Bank at the time the foreclosure action was instituted; (3) US Bank is not a

named mortgagee; and (4) there was no credible evidence of Defendants’

default on the mortgage.

This case involves a discrepancy in the legal description of the

property found in the Powers’ 2002 deed and the Defendants’ 2005 deed.

The former describes the property as consolidated Lots A and B, the latter

completely omits any description of Lot A. Moreover, the original deed

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executed when the Powers purchased the property in 2001 lists the lots

separately. Despite these varying legal descriptions, the record reveals that

when Defendants purchased the instant property from the Powers in 2005,

they intended to buy the entire property identified as 624 Montgomery

School Lane, with its corresponding tax parcel number. Defendant McClain

conceded that neither the agreement of sale nor the Powers’ disclosure

statement made any specific reference to Parcels A and B or the property's

metes and bounds description, nor was there anything in writing promising

to convey a deed that specifically referenced Lot A and Lot B. See N.T.

Judge Green Trial, 2/12/13, at 155-58, 230, 297. In fact, Defendant

McClain did not notice the legal description error in the 2005 deed until

October 2009. Id. at 70. Additionally, Defendant Prince acknowledged that

when he signed the agreement of sale he was unaware that there had been

two lots identified separately as Premises “A” and Premises “B”; he, too, was

unaware of the separate A and B Lot descriptions until he was served with

the foreclosure lawsuit in 2009. Id. at 343.

As purchasers of land, Defendants are charged with “constructive

notice of every matter connected with or affecting their title, which appears

by description of the parties, by recital, by reference, or otherwise, on the

face of any deed, or upon any public record, which forms an essential link in

the chain of instruments through which [they] take[] title[.]” Volk v.

Eaton, 69 A. 91 (Pa. 1908) (citation omitted). Therefore, Defendants were

imputed with knowledge of the consolidated description of the two lots

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comprising 624 Montgomery School Lane. The trial court found that the

2002 deed was registered with Lower Merion Township and properly

recorded in the Montgomery County Recorder of Deeds Office. Defendants

presented no evidence to contradict this finding.

Instantly, the evidence presented at the reconsideration hearing on

the Bank’s motion for summary judgment conclusively established both US

Bank’s standing to bring the instant mortgage foreclosure action, as well as

the fact that the Defendants were in default and had not paid the mortgage

on the property since June 2008. See N.T. Reconsideration Hearing,

5/28/14, at 65-73; see also J.P. Morgan Chase Bank v. Murray, 63 A.3d

1258 (Pa. Super. 2013) (citing 13 Pa.C.S. § 3205(b) of Pennsylvania’s

Uniform Commercial Code, stating when note indorsed in blank, instrument

becomes payable to bearer and may be negotiated by transfer or possession

alone until specially indorsed); Cunningham v. McWilliams, 714 A.2d

1054 (Pa. Super. 1998) (in mortgage foreclosure action, summary judgment

proper if mortgagors admit mortgage is in default, that they have failed to

pay interest on obligation, and that recorded mortgage is in specified

amount).

Defendants also claim that the court improperly granted summary

judgment where US Bank did not request enlarging the mortgage lien to

include the additional 100x205' Residential Lot (Lot A), and where US Bank

judicially admitted, by attaching an incomplete legal description of the

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property in its mortgage foreclosure complaint, that the lien only

encompassed the 50x205 Vacant Lot (Lot B).

Instantly, US Bank’s summary judgment motion specifically requested

the “substitu[tion of] the incomplete legal description attached to the

Mortgage with a full and complete legal description describing the entire

property.” Motion for Summary Judgment, 6/29/12, at ¶3. Therefore, the

motion does specifically ask the court to reform the deed to include the

entire property, Lots A and B, in its description.

Next, while the legal description of the property attached to US Bank’s

mortgage foreclosure complaint only includes the metes and bounds

description for Lot B, it also includes the county parcel number and lot

address (624 Montgomery School Lane) which refers to the entire property

(Lots A and B). For an averment to qualify as judicial admission, it must be

clear and unequivocal admission of fact. John V. Conomos, Inc. v. Sun

Co., 831 A.2d 696 (Pa. Super. 2003)). Moreover, an admission is not

conclusively binding when “the statement is indeterminate, inconsistent, or

ambiguous.” Greater Valley Terminal Corp. v. Goodman, 176 A.2d 408,

410 (Pa. 1962). Accordingly, the legal description of the property, which

includes the metes and bounds description as well as the property address

and county parcel number, contains internal inconsistencies. Thus, we do

not find that US Bank judicially admitted that the Defendants’ mortgage only

pertains to Lot B due to the lack of a clear and unequivocal admission of

fact. Conomos, supra; Greater Valley, supra.

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Defendants next assert that the trial court did not have jurisdiction to

grant summary judgment in the Quiet Title Action because “all necessary

and indispensable parties” were not named. Specifically, Defendants claim

that Wells Fargo, as a predecessor in interest to the loan, should have been

given the opportunity to be heard before the court declared US Bank to have

a valid first-position mortgage lien against the property.

Pursuant to Pa.R.C.P. 1061(b)(3), an action to quiet title may be

instituted in order to “compel an adverse party to file, record, cancel,

surrender or satisfy of record, or admit the validity, invalidity or discharge

of, any document, obligation or deed affecting any right, lien, title or interest

in land.” Additionally, Pa.R.C.P. 2227, the compulsory joinder rule, states,

“[p]ersons having only a joint interest in the subject matter of an action

must be joined on the same side as plaintiffs or defendants.” Pa.R.C.P.

2227(a).

Historically, Wells Fargo originated the loan on Defendants’ property

and currently holds two junior mortgages against the property. However, it

no longer possesses any rights in the mortgage such that it could be

impacted by the outcome of this consolidated reformation and foreclosure

case. See N.T. Summary Judgment Hearing, 5/2/13, at 46. Moreover,

Wells Fargo, as servicer of the loan, verified the complaint and amended

complaint in the reformation action. If it had competing interests such that

it opposed the action brought by US Bank, it certainly had the opportunity to

voice or raise those objections. Thus, we find no merit to this claim.

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Defendants next argue that because there was no credible evidence of

mutual mistake, summary judgment was improperly granted in favor of US

Bank. We disagree.

It is well known that:

A court of equity has the right to reform a deed where mutual

mistake appears. The right to reformation of a deed in equity, if

mutual mistakes appear, is unquestionable where the purpose is

to correct the inaccurate description given therein, and make it

conform to the intention of the parties; also that where a mutual

mistake in the description appears, reformation of the deed will

be directed notwithstanding an express denial by the defendant

that an error was made.

Armstrong County Bldg. & Loan Ass’n v. Guffyb, 200 A. 160, 163 (Pa.

Super. 1938). See Dudash v. Dudash, 460 A.2d 323 (Pa. Super. 1983)

(when court reforms deed on basis of mutual mistake, it must reform deed

to reflect intent of parties).

As we have already discussed, the evidence demonstrates that the

Defendants intended to purchase and mortgage the entire property,

including both Lots A and B, and to solely reside on Lot A. Moreover, the

court correctly concluded that the mortgagor would not have intended to

issue a mortgage to cover only the vacant lot, Lot B, of the property.

Because Lot A’s metes and bounds description was not included on the deed

or mortgage when Defendants acquired the property, the trial court and our

Court properly determined that a mutual mistake in the description existed

and that reformation of the deed was required in order to rectify the

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inaccurate property description. We see no error in this judicial action.

Dudash, supra.

Defendants next claim that the court did not have the authority to

grant US Bank the equitable remedy of deed reformation because when

Defendants declared bankruptcy the trustee became a bona fide purchaser

of the property by operation of law.

Section 544 of the United States Bankruptcy Code allows a trustee in

bankruptcy to avoid certain claims against a debtor’s estate. See 11 U.S.C.

§544(a)(3). Specifically, the statute permits the trustee to stand in the

shoes of a lien or judgment creditor, or bona fide purchaser, of the debtor’s

real property. Id. However, for a trustee to exercise his or her rights to the

property, he or she must affirmatively commence an adversary action,

within the applicable statute of limitations, to perfect the lien under section

544. Where a trustee does not timely commence the action, the creditor

retains its unperfected lien.

Because no trustees involved in the Defendants’ bankruptcy

proceedings (which are now closed)11 commenced any proceedings to attack

US Bank’s mortgage lien, the trial court had the authority to grant US Bank’s

requested equitable relief to reform the deed. See also Johnson v. Home

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11

Pursuant to 11 U.S.C § 546(a), “an action or proceeding under . . .

section 544 . . . may not be commenced after the earlier of . . . the time the

case is closed or dismissed.”

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State Bank, 501 U.S. 78, 83 (1991) (no violation of section 524 occurs

where judgment creditor seeks in rem relief in post-bankruptcy reformation

action).

Finally, Defendants assert that the trial court improperly applied the

doctrine of collateral estoppel because nothing regarding the deed in the

prior Delaware County reformation action was essential to the outcome of

the current mortgage foreclosure action. We disagree.

Collateral estoppel operates to “prevent a question of law or issue of

fact which has once been litigated and adjudicated finally in a court of

competent jurisdiction from being relitigated in a subsequent suit.” Day v.

Volkswagenwerk Aktiengesellschaft, 464 A.2d 1313, 1318 (Pa. Super.

1983) (citations omitted). Moreover, collateral estoppel will bar any issue of

fact previously litigated and determined by a valid and final judgment even if

the subsequent action involves different causes of action and/or parties. Id.

at 1319.

The trial court concluded that Defendants did not intend to purchase

the property as two separate lots and that there was an error, a result of

mutual mistake, in the legal description of the property contained in the

2005 deed. In coming to this conclusion, the court examined the

Defendants’ actions and dealings with Wells Fargo regarding the loan and

mortgage. These determinations were clearly essential to the current

mortgage foreclosure action involving Defendants and US Bank. Therefore,

we find no merit to this claim.

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J-A16037-15

Order affirmed.

Judge Platt joins the Memorandum.

Judge Olson concurs in the result.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/16/2015

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