J-S84033-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

DEUTSCHE BANK NATIONAL TRUST                      IN THE SUPERIOR COURT OF
COMPANY, AS TRUSTEE FOR                                 PENNSYLVANIA
HOLDERS OF THE HARBORVIEW 2006-5
TRUST, NATIONSTAR MORTGAGE, LLC

                      v.

NATASHA BOLIS AND GARY BOLIS, JR.

                             Appellants               No. 1241 EDA 2016


                 Appeal from the Order Entered March 15, 2016
         in the Court of Common Pleas of Chester County Civil Division
                             at No(s): 2014-06455

BEFORE: OLSON, SOLANO, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                      FILED JANUARY 31, 2017

        Appellants, Natasha Bolis and Gary Bolis, Jr., appeal from the order

entered in the Chester County Court of Common Pleas granting Appellee,

Deutsche Bank National Trust Company, as Trustee for Holders of the

Harborview 2006-5 Trust, Nationstar Mortgage, LLC’s, motion for summary

judgment in this mortgage foreclosure action. Appellants contend the trial

court erred in granting Nationstar Mortgage, LLC’s motion for summary

judgment because (1) Appellee Nationstar is not the real party in interest,

(2) there are factual issues regarding the validity of the mortgage

assignment, and (3) there is no evidence that Appellee Nationstar is in

possession of the Note. We affirm.

*
    Former Justice specially assigned to the Superior Court.
J-S84033-16


      The trial court summarized the facts and procedural posture of this

case as follows:

             Deutsche Bank National Trust Company, as Trustee for
         Holders of the Harborview 2006-5 Trust (Original
         Plaintiff)’s Complaint alleged that the mortgage at issue
         was in default because monthly payments of principal and
         interest were due and unpaid from April 1, 2010 and each
         month thereafter.      [Appellants] filed their Answer on
         August 19, 2014. On May 6, 2015 Original Plaintiff filed a
         Praecipe to Substitute Successor Party to substitute
         [Appellee Nationstar Mortgage, LLC]. The substitution was
         based on an assignment of the mortgage recorded with the
         Chester County Recorder of Deeds on July 22, 2014 at
         instrument number 11356593. [Appellee Nationstar] filed
         its Motion for Summary Judgment on January 27, 2016.
         [Appellants] filed their response on February 26, 2016.
         We granted [Appellee Nationstar’s] Motion by Order dated
         March 14, 2016. [Appellants] filed their timely Notice of
         Appeal on April 13, 2016 as well as their timely Concise
         Statement of Matters Complained of on Appeal.

Trial Ct. Op., 6/7/16, at 1.

      Appellants raise the following issue for our review:

         Did the lower court err in concluding that Nationstar
         Mortgage, LLC is the real party in interest where there is
         no evidence of record that Nationstar Mortgage, LLC is in
         possession of a duly endorsed Note and where the issue of
         the validity of the mortgage assignments raised questions
         of fact?

Appellants’ Brief at 2.1


1
 We note that Appellants’ Rule 1925(b) statement contains issues that are
not raised on appeal. See Gurley v. Janssen Pharm., Inc., 113 A.3d 283,
288 n.11 (Pa. Super. 2015) (holding issues raised in Rule 1925(b) and not
addressed in the statement of questions or body of brief are abandoned on
appeal).




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      Appellants argue that “[t]here is no evidence of record that Superior

Home Mortgage Corp. assigned the Note to Bank of America, Deutsche Bank

or Nationstar. . . . Whether the Note has been ‘duly endorsed’ to the benefit

of Nationstar Mortgage is a question of fact which precludes the entry of

summary judgment in [Nationstar’s] favor.” Id. at 7-8. Appellee Nationstar

counters that it “is the current mortgagee, and thus has standing to proceed

with this foreclosure action by virtue of assignment of the Mortgage

executed July 10, 2014, and recorded July 22, 2014.” Appellee’s Brief at 8,

citing R.R. at 30a-31a.2

      Our review is governed by the following principles:

         The standards which govern summary judgment are well
         settled. When a party seeks summary judgment, a court
         shall enter judgment whenever there is no genuine issue of
         any material fact as to a necessary element of the cause of
         action or defense that could be established by additional
         discovery. A motion for summary judgment is based on an
         evidentiary record that entitles the moving party to a
         judgment as a matter of law. In considering the merits of
         a motion for summary judgment, a court views 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.
         Finally, the court may grant summary judgment only when
         the right to such a judgment is clear and free from doubt.
         An appellate court may reverse the granting of a motion
         for summary judgment if there has been an error of law or
         an abuse of discretion. . . .




2 For the parties’ convenience, we refer to the reproduced record where
applicable.




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Varner-Mort v. Kapfhammer, 109 A.3d 244, 246-47 (Pa. Super. 2015)

(citation omitted).

      Rule 1029 of the Pennsylvania Rules of Civil Procedure provides:

         (b) Averments in a pleading to which a responsive pleading
         is required are admitted when not denied specifically or by
         necessary implication. A general denial or a demand for
         proof, except as provided by subdivisions (c) and (e) of
         this rule, shall have the effect of an admission.

         (c) A statement by a party that after reasonable
         investigation the party is without knowledge or information
         sufficient to form a belief as to the truth of an averment
         shall have the effect of a denial.

            Note: Reliance on subdivision (c) does not excuse a
            failure to admit or deny a factual allegation when it
            is clear that the pleader must know whether a
            particular allegation is true or false. See Cercone v.
            Cercone, 254 Pa. Super. 381, 386 A.2d 1 (1978).

      Pa.R.C.P. 1029(b), (c).

         Furthermore, in 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 [on the mortgage] must
         be considered an admission of those facts.          By his
         ineffective denials and improper claims of lack of
         knowledge, [the a]ppellant admitted the material
         allegations of the complaint, which permitted the trial
         court to enter summary judgment on those admissions.

Bank of America, N.A. v. Gibson, 102 A.3d 462, 467 (Pa. Super. 2014),

appeal denied, 112 A.3d 648 (Pa. 2015) (quotations marks and citations

omitted) (emphasis added); accord First Wisconsin Trust Co. v.

Strausser, 653 A.2d 688, 692 (Pa. Super. 1995).




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     It is well-established that “the real party in interest” may prosecute a

legal action. Pa.R.C.P. 2002(a). In CitiMortgage, Inc. v. Barbezat, 131

A.3d 65 (Pa. Super. 2016), the appellant contended appellee was not the

real party in interest and lacked standing to bring the foreclosure action.

The appellant claimed that appellee failed to establish that it possessed a

valid assignment of the mortgage and that the note was assigned or

transferred to appellee. Id. at 68. This Court opined:

           In a mortgage foreclosure action, the mortgagee is the
        real party in interest. This is made evident under our
        Pennsylvania Rules of Civil Procedure governing actions in
        mortgage foreclosure that require a plaintiff in a mortgage
        foreclosure action specifically to name the parties to the
        mortgage and the fact of any assignments. Pa.R.C.P.
        1147. A person foreclosing on a mortgage, however, also
        must own or hold the note.

                                *    *    *

        Here, appellee not only averred, but also produced
        evidence that it was the holder of the mortgage.
        Specifically, appellee alleged in its complaint that
        “[Appellee] is [a] proper party . . . by way of an
        Assignment of Mortgage recorded August 6, 2012 under
        Instrument 2012032210.” Appellee produced copies of the
        original recorded mortgage and its recorded assignment to
        appellee. Where an assignment is effective, the assignee
        stands in the shoes of the assignor and assumes all of his
        rights.

                                *    *    *

        A note endorsed in blank becomes payable to “bearer” and
        may be negotiated by transfer of possession alone until
        specially endorsed.    See 13 Pa.C.S.A. §§ 3109(a),
        3205(b). The note as a negotiable instrument entitles the
        holder of the note to enforcement of the obligation. See
        13 Pa.C.S.A. §§ 3109(a), 3301.         Thus, appellant's


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        argument that ownership of the note cannot be established
        in appellee because there was no formal assignment or
        transfer is unavailing, because “the chain of possession by
        which [a party] c[o]me[s] to hold the [n]ote [is]
        immaterial to its enforceability by [the party].”      [The
        a]ppellee, as the holder of the note, . . . was entitled to
        make demand upon and to enforce the obligations under
        the note.     Accordingly, given appellee’s uncontested
        ownership of the mortgage and possession of the note, the
        trial court did not err in concluding that appellee had
        standing as a real party in interest to bring the underlying
        foreclosure action.

Id. at 68-69 (some citations and footnote omitted).

     Instantly, the trial court opined:

        With regard to the Mortgage, the original mortgagee,
        Mortgage Electronic Registration Systems, Inc., as
        nominee for Superior Home Mortgage Mortgage Corp.
        assigned the Mortgage to Bank of America, N.A., successor
        by merger to BAC Home Loans Servicing, LP, f/k/a
        Countrywide Home Loans Servicing LP (Bank of America),
        This assignment was recorded at book number 8274, page
        number 1834.         Bank of America then assigned the
        Mortgage to Deutsche Bank National Trust Company, as
        Trustee for Holders of the Harborview 2006-5 Trust
        (Original Plaintiff). This assignment was recorded at book
        number 8491, page number 2229.           As stated above,
        Original Plaintiff assigned the Mortgage to [Nationstar
        Mortgage, LLC]. This assignment is recorded at page [sic]
        number 8956, page number 2239. For some reason, Bank
        of America also assigned the Mortgage to [Nationstar
        Mortgage, LLC] and that assignment was recorded at book
        number 8834, page number 1143.                Nevertheless,
        [Nationstar Mortgage, LLC] is the assignee of the
        Mortgage.

        [I]n their Answer to the Complaint, [Appellants] denied the
        averments of the default and the amount of the default.
        However, those responses amount to improper general
        denials. . . . Finally, pursuant to Pa.R.C.P. 1035.3(a), the
        non-moving party may not rest upon the mere allegations
        in the pleadings, but must, in an answer to the motion,


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         provide evidence to controvert the averments in the
         motion. [Appellants] have failed to provide evidence to
         controvert the affidavit supplied by [Appellee Nationstar]
         in its Motion for Summary Judgment.

Trial Ct. Op. at 2-3. We agree no relief is due.

      In the case sub judice, as in Barbezat, Appellants, in their brief in

support of their reply to Appellee’s motion for summary judgment, attached

the summary of the assignments of the mortgage from January 31, 2006, to

the assignments to Nationstar. See Brief in Support of Defendants’ Reply to

Plaintiff’s Motion for Summary Judgment, 2/26/16, at Ex. “A”. 3          The

assignment of the mortgage to Nationstar was included by Appellants in

their reproduced record. See R.R. at 30a-31a. Appellee was the real party

in interest with standing to bring the in rem mortgage foreclosure action.

See Barbezat, 131 A.3d 68-69.

      Appellants signed the Adjustable Rate Note which provided, inter alia,

that “I understand that Lender may transfer this Note.    Lender or anyone

who takes this Note by transfer and who is entitled to receive payments

under this Note is called the ‘Note Holder.’” R.R. at 14a, 17a. The Affidavit

in Support of Motion for Summary Judgment states: “Nationstar Mortgage,

LLC directly or through an agent, has possession of the promissory note and

held the note at the time of filing the foreclosure complaint. The promissory



3
  We note that the trial court’s recitation of the assignments mirrors the
contents of Appellants’ Exhibit. See Trial Ct. Op. at 2.



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note has been duly indorsed.” Id. at 89a. Appellee was the holder of the

note. See Barbezat, 131 A.3d 68-69.

      In the mortgage foreclosure complaint, at paragraph 7, Appellee

averred that it “is the current Mortgagee.”         Id. at 10a.    Appellants

responded as follows: “Denied. After reasonable investigation, [Appellants]

are without knowledge or information sufficient to form a belief as to the

truth of the averments contained in paragraph 7 of [Appellee’s] Complaint

and, therefore, deny said allegation.” Id. at 26a. At paragraph 11, Appellee

averred the amount due and owing on the mortgage. Id. at 10a-11a. In

their answer to paragraph 11 of the complaint, Appellants responded as

follows:   “Denied.   After reasonable investigation, [Appellants] are without

knowledge or information sufficient to form a belief as to the truth of the

averments contained in paragraph 11 of [Appellee’s] Complaint and,

therefore, deny said allegation.” Id. at 26a.

      Appellants’ ineffective denials to Appellee’s complaint were tantamount

to admissions, permitting the trial court to enter summary judgment. See

Gibson, 102 A.3d at 467.      We discern no abuse of discretion by the trial

court or error of law. See Varner-Mort, 109 A.3d at 246-47.

      Order affirmed.

      Judge Solano joins the memorandum.         Judge Olson concurs in the

result.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 1/31/2017




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