The opinion
J-S77013-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
U.S. BANK N.A., IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
STEPHEN M. SCHWARTZ AND ALMA B.
SCHWARTZ,
Appellants No. 1002 MDA 2017
Appeal from the Order Entered May 17, 2017
In the Court of Common Pleas of Lancaster County
Civil Division at No(s): CI-13-08876
BEFORE: BENDER, P.J.E., LAZARUS, J., and STEVENS, P.J.E.*
MEMORANDUM BY BENDER, P.J.E.: FILED FEBRUARY 20, 2018
Appellants, Stephen M. Schwartz and Alma B. Schwartz, appeal from
the May 17, 2017 order granting summary judgment in favor of Appellee,
U.S. Bank N.A. After careful review, we affirm.
The trial court summarized the relevant facts and procedural
background of this case in its Pa.R.A.P. 1925(a) opinion, as follows:
[Appellants] executed a mortgage and promissory note in
the amount of $181,600.00 on the property at 304 Aletha Lane,
Millersville, PA 17551. This sum was payable in monthly
installments. The original mortgagee was Arlington Capital
Mortgage Corp. (“Arlington”). [Appellee] was made the
mortgagee by assignment on May 18, 2010, when the Mortgage
Electronic Registration Systems, Inc., as nominee for Arlington,
assigned its note and mortgage to [Appellee]. [Appellants]
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* Former Justice specially assigned to the Superior Court.
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failed to make payments due beginning in March 2009, thus
defaulting on the mortgage and note.
[Appellee] filed its complaint in mortgage foreclosure on
September 10, 2013 (“Complaint”). [Appellants] filed
preliminary objections on November 12, 2013. These were
overruled by court order dated August 1, 2014. [Appellants]
appealed to the Pennsylvania Superior Court, but their appeal
was dismissed when they failed to file a supporting brief.
[Appellants] then filed an answer and new matter on September
14, 2015, and [Appellee] filed a reply on September 23, 2015.
On March 22, 2017, [Appellee] filed its motion for summary
judgment. [Appellants] responded on April 21, 2017, and filed a
memorandum of law on May 3, 2017. [Appellee] replied on May
5, 2017. The court issued its order granting [Appellee’s] motion
on May 17, 2017.
Trial Court Opinion (“TCO”), 8/9/17, at 1-2.
On June 13, 2017, Appellants filed a notice of appeal, followed by a
timely, court-ordered Rule 1925(b) concise statement of errors complained
of on appeal. Appellants raise the following issues for our review:
I. Did [Appellants] set forth specific facts demonstrating a
genuine issue of material fact which would make a grant of
summary judgment improper and did [Appellants] plead
those facts with particularity?
II. Were [Appellants’] denials of indebtedness, when read
together with the record as a whole, specific or general
denials[,] and did the trial court err in concluding that
[Appellants] made general denials only?
III. Does [Appellee’s] Motion for Summary Judgment survive
application of the Nanty-Glo Rule?[1]
Appellants’ Brief at 9.
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1 See Nanty-Glo v. American Surety Co., 163 A. 523 (Pa. 1932).
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Our standard of review with respect to a trial court’s decision to grant
or deny a motion for summary judgment is well-settled:
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.
Thompson v. Ginkel, 95 A.3d 900, 904 (Pa. Super. 2014) (citations
omitted).
To begin, we note that although Appellants’ brief lists three issues in
its Statement of Questions Involved, the Argument section of the brief only
contains arguments corresponding with issues two and three. It appears
that Appellants have abandoned their first claim regarding whether specific
facts sufficient to demonstrate a genuine issue of material fact have been
presented. The Argument section of Appellants’ brief is completely devoid of
any discussion or analysis pertaining to the first issue. Pursuant to
Pennsylvania Rules of Appellate Procedure 2119, which governs appellate
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briefs, “[t]he argument shall be divided into as many parts as there are
questions to be argued; and shall have at the head of each part—in
distinctive type or in type distinctively displayed—the particular point treated
therein, followed by such discussion and citation of authorities as are
deemed pertinent.” Pa.R.A.P. 2119(a). “Issues not properly developed or
argued in the argument section of an appellate brief are waived.” Kituskie
v. Corbman, 682 A.2d 378, 383 (Pa. Super. 1996). Thus, we are
constrained to deem this issue waived.
Nevertheless, even if Appellants’ first claim had been properly
preserved, we would deem it meritless. The trial court found that Appellee
is the holder of the note and mortgage. TCO at 5. It is well-established that
“[t]he holder of a mortgage has the right, upon default to bring a foreclosure
action.” Bank of America, N.A. v. Gibson, 102 A.3d 462, 464 (Pa. Super.
2014).2 In an action for mortgage foreclosure, the entry of summary
judgment is proper if the mortgagors admit: (1) the mortgage is in default;
(2) they have failed to pay interest on the obligation; and (3) the recorded
mortgage is in the specified amount. Cunningham v. McWilliams, 714
A.2d 1054, 1057 (Pa. Super. 1998). “This is so even if the mortgagors have
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2 A promissory note endorsed “in blank,” as in the instant matter, is a bearer
instrument. The person in possession of such an instrument is the holder
with the exclusive right to enforce the instrument to the exclusion of all
others. Id. (citing 13 Pa.C.S. §§ 3109(a), 3205(b), and 3301). The record
reflects that Appellee held the note prior to and at the time of instituting the
foreclosure proceedings. Id.
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not admitted the total amount of the indebtedness in their pleadings.” Id.
Instantly, the trial court held that Appellee established each of the
aforementioned elements. TCO at 3.3 After careful review of the record, we
discern no error of law or abuse of discretion by the trial court.
Next, Appellants aver that the trial court erred in determining that only
general denials were made regarding their indebtedness. Unfortunately,
Appellants have failed to properly develop their argument. “The Rules of
Appellate Procedure state unequivocally that each question an appellant
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3 More specifically, the trial court opined:
[Appellants] denied paragraph 7 of [Appellee’s] complaint,
[which avers that the mortgage is in default due to Appellants’
failure to make payments and states the amounts due and
owing, including interest,] but they failed to set forth any facts
supporting their denials. Rather than adducing facts showing
that the mortgage was not in default, that the amount claimed
by [Appellee] was incorrect, or that they had not failed to pay
upon their obligation, [Appellants] instead made a legal attack
upon [Appellee’s] status as a real party in interest and holder of
the note and mortgage of record. The court found this argument
entirely unpersuasive…. As such, no genuine issues of material
fact remain. See Ertel v. Patriot-News Co., 674 A.2d 1038,
1042 (Pa. 1996) (“[W]e hold that a non-moving party must
adduce sufficient evidence on an issue essential to his case and
on which he bears the burden of proof such that a jury could
return a verdict in his favor. Failure to adduce this evidence
establishes that there is no genuine issue of material fact and
the moving party is entitled to judgment as a matter of law.”)
(emphasis added).
Id.
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raises is to be supported by discussion and analysis of pertinent authority.”
Estate of Haiko v. McGinley, 799 A.2d 155, 161 (Pa. Super. 2002);
Pa.R.A.P. 2119(b). We have clearly stated:
“Appellate arguments which fail to adhere to these rules may be
considered waived, and arguments which are not appropriately
developed are waived. Arguments not appropriately developed
include those where the party has failed to cite any authority in
support of a contention.” Lackner v. Glosser, 892 A.2d 21,
29–30 (Pa. Super. 2006) (citations omitted). This Court will not
act as counsel and will not develop arguments on behalf of an
appellant. Irwin Union National Bank and Trust Company
v. Famous…, 4 A.3d 1099, 1103 (Pa. Super. 2010) (citing
Commonwealth v. Hardy, 918 A.2d 766, 771 (Pa. Super.
2007)). Moreover, we observe that the Commonwealth Court,
our sister appellate court, has aptly noted that “[m]ere issue
spotting without analysis or legal citation to support an assertion
precludes our appellate review of [a] matter.” Boniella v.
Commonwealth, 958 A.2d 1069, 1073 n. 8 (Pa. Cmwlth. 2008)
(quoting Commonwealth v. Spontarelli, 791 A.2d 1254, 1259
n. 11 (Pa. Cmwlth. 2002)).
Coulter v. Ramsden, 94 A.3d 1080, 1088-89 (Pa. Super. 2014).
Here, Appellants contend that they have not admitted default under
the note. The relevant argument section of their brief, however, consists of
a mere two paragraphs - the first of which contains solely general
statements of law regarding the entry of summary judgment in a mortgage
foreclosure action. See Appellants’ Brief at 14-15. In the second
paragraph, Appellants simply assert they have not admitted default under
the note and state that, rather, “no indebtedness accrued to them at time of
closing….” Id. at 15. Appellants provide no further analysis and fail to cite
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to any authority in support of their contentions. Accordingly, we deem
Appellants’ second claim waived.
Regardless, even if this claim had been properly preserved, we note
that it is wholly without merit. As the trial court acknowledged, Appellants
denied the default averred in paragraph 7 of the complaint, but failed to set
forth any facts supporting their denial. TCO at 6. Moreover, the court found
that Appellants responded with only general denials to the relevant
allegations in Appellee’s motion for summary judgment.4 See id.
Specifically, the court stated:
In paragraph 6, [Appellee] avers that “the Mortgage is due for
the March 1, 2009 payment, a period in excess of seven (7)
years and nine (9) months.” [Appellants] respond in relevant
part that they are “without sufficient knowledge to confirm or
deny the statement of the affiant.” In paragraph 7 of the
complaint, [Appellee] avers that “[Appellants’] default is also
evidenced by [Appellee’s] loan history, a copy of which is
attached hereto, made party hereof, and marked as Exhibit C.”
[Appellants] respond in relevant part that they are “without
sufficient knowledge to confirm or deny the statements of the
affiant.” As [Appellants] possess information regarding any loan
payments they may have made subsequent to March of 2009
and not reflected in the loan history supplied by [Appellee], their
denials are merely general, and the court did not err in
concluding so. See Cercone v. Cercone, 386 A.2d 1 (Pa.
Super. 1978).[5]
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4General denials constitute admissions where specific denials are required.
Gibson, 102 A.3d at 466; Pa.R.C.P. 1029(b).
5 More recently, this Court has stated: “[I]n mortgage foreclosure actions,
general denials by mortgagors that they are without information sufficient to
form a belief as to the truth of averments as to the principal and interest
owing must be considered an admission of those facts.” U.S. Bank, N.A. v.
(Footnote Continued Next Page)
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TCO at 6 (citations to record omitted). Based on the foregoing, we
ascertain no error of law or abuse of discretion by the trial court.
Additionally, we note that Appellants’ argument is largely based on its
view that the assignment of the mortgage to Appellee was invalid.
Appellants’ argument is not cognizable, however, because Appellants do not
have standing to challenge the validity of the assignment. In Pennsylvania,
a mortgagor has no standing to challenge the assignment or transfer of a
note and mortgage. See J.P. Morgan Chase Bank, N.A. v. Murray, 63
A.3d 1258, 1264 (Pa. Super. 2013). The transfer of a note is a matter
between the transferor and the transferee and a mortgagor cannot rely on
defenses belonging to the transferor. Bookmyer v. Davies, 69 Pa. Super.
240, 242 (1918). Such defenses are not relevant to a mortgage foreclosure
action because once a debt is satisfied, the debtor cannot be required to
satisfy the debt again, “even if the recipient of the debtor’s performance is
not the holder of the note in question.” Murray, 63 A.3d at 1263.
Accordingly, this Court has consistently stressed that the chain of possession
of a note is immaterial to its enforceability. CitiMortgage, Inc. v.
(Footnote Continued) _______________________
Pautenis, 118 A.3d 386, 396 (Pa. Super. 2015). In reaching this
conclusion, we referenced a prior opinion wherein this Court stated:
“Unquestionably, apart from the mortgagee, the mortgagors are the only
parties who would have sufficient knowledge on which to base a specific
denial[.]” Id. (citing New York Guardian Mortgage Corp. v. Dietzel, 524
A.2d 951, 952 (Pa. Super. 1987)).
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Barbezat, 131 A.3d 65, 72 (Pa. Super. 2016). See also Gerber v.
Peirgrossi, 142 A.3d 854, 862-63 (Pa. Super. 2016) (citing Murray, 63
A.3d at 1266).
Lastly, Appellants argue that the Nanty-Glo rule precluded entry of
summary judgment in favor of Appellee, because the court relied solely on
oral testimony. Appellants further allege that because the mortgage
originated in 2005 but was not assigned to Appellee until 2010, that
Appellee relies on the prior servicer’s loan records for the first five years
and, thus, the loan history does not satisfy the business records exception to
the hearsay rule.6 See Appellants’ Brief at 15-18. After careful review, we
conclude that Appellants’ claim is without merit.
Nanty-Glo prohibits entry of summary judgment based exclusively on
the moving party’s oral testimony, either through testimonial affidavits or
deposition testimony, to establish absence of genuine issue of material fact.
Porterfield v. Trustees of Hosp. of University of Pennsylvania, 657
A.2d 1293, 1294-95 (Pa. Super. 1995). However, an exception to this rule
exists “where the moving party supports the motion by using admissions of
the opposing party or the opposing party’s own witness.” Id. at 1295. We
agree with the trial court that this matter falls within the exception to the
Nanty-Glo Rule.
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6 See Pa.R.E. 801(c), 803(6).
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As noted by the trial court:
In this case, [Appellee] relies upon its own testimonial affidavit
but also [Appellants’] admissions. Admissions include facts
admitted in pleadings. See Durkin v. Equine Clinics, Inc.,
546 A.2d 665, 670 (Pa. Super. 1988). “Averments in a pleading
to which a responsive pleading is required are admitted when
not denied specifically or by necessary implication.” Pa.R.C.P.
1029(b). “[I]n mortgage foreclosure actions, general denials by
mortgagors that they are without information sufficient to form a
belief as to the truth of averments as to the principal and
interest owning [sic] must be considered an admission of those
facts.” First Wis. Trust Co. v. Strausser, 653 A.2d 688, 692
(Pa. Super. 1995). [Appellants] made only general denials to
[Appellee’s] motion for summary judgment, specifically
[Appellee’s] averments of default and amount due….
[Appellee’s] motion for summary judgment therefore clearly falls
within the exception to Nanty-Glo.
TCO at 5-6. By their ineffective denials and improper claims of lack of
knowledge, Appellants admitted the material allegations of the complaint,
which permitted the trial court to enter summary judgment on those
admissions.
Finally, insofar as Appellants contend that Appellee’s affidavit
constitutes hearsay, we note that the referenced loan history documents
appear to be records of regularly conducted activity, or business records,
and would be admissible at trial with proper foundation. See Pa.R.E.
803(6); 42 Pa.C.S. § 6108.7 In response to Appellants’ misguided assertion
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7Similar to the business records exception to the hearsay rule, the Uniform
Business Records as Evidence Act states:
A record of an act, condition or event shall, insofar as relevant,
be competent evidence if the custodian or other qualified witness
(Footnote Continued Next Page)
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that Appellee must produce an affidavit “from someone with knowledge from
the prior servicer as to those servicing records dating from year 2005 to the
date of assignment[,]” Appellants’ Brief at 18, we emphasize the following:
It is not essential under the Uniform Business Records as
Evidence Act to produce either the person who made the entries
or the custodian of the record at the time the entries were
made…. [T]he law does not require that a witness qualifying
business records even have a personal knowledge of the facts
reported in the business record. As long as the authenticating
witness can provide sufficient information relating to the
preparation and maintenance of the records to justify a
presumption of trustworthiness for the business records of a
company, a sufficient basis is provided to offset the hearsay
character of the evidence.
Bayview Loan Servicing LLC v. Wicker, 163 A.3d 1039, 1048 (Pa. Super.
2017) (quoting Boyle v. Steiman, 631 A.2d 1025, 1032-33 (Pa. Super.
1993)). With the foregoing in mind, we discern that the affidavit and loan
history produced by Appellee are sufficient to satisfy the business records
exception to the hearsay rule.
As Appellants failed to establish a genuine issue of material fact, we
conclude that the trial court did not commit an error of law or abuse its
discretion when it granted Appellee’s motion for summary judgment.
(Footnote Continued) _______________________
testifies to its identity and the mode of its preparation, and if it
was made in the regular course of business at or near the time
of the act, condition or event, and if, in the opinion of the
tribunal, the sources of information, method and time of
preparation were such as to justify its admission.
42 Pa.C.S. § 6108(b).
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Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/20/2018
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