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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

U.S. BANK, N.A., AS TRUSTEE FOR               IN THE SUPERIOR COURT OF
SASCO MORTGAGE LOAN TRUST,                          PENNSYLVANIA

                        Appellee

                   v.

ALBERT J. HARLOW, JR.,

                        Appellant                   No. 889 EDA 2015


              Appeal from the Judgment Entered March 6, 2015
               In the Court of Common Pleas of Bucks County
                     Civil Division at No(s): 2012-05195


BEFORE: SHOGAN, LAZARUS, and STABILE, JJ.

MEMORANDUM BY SHOGAN, J.:                          FILED APRIL 12, 2016

      Albert J. Harlow, Jr. (“Appellant”) appeals from the March 6, 2015 in

rem judgment entered in favor of Appellee, U.S. Bank, N.A. (“U.S. Bank”),

pursuant to the trial court’s order granting U.S. Bank’s motion for summary

judgment in its action for mortgage foreclosure. We affirm.

      The trial court summarized the procedural and factual history as

follows:

            On May 10, 2006, [Appellant] mortgaged the subject
      property located at 515 Summit Lane, Riegelsville, Pennsylvania
      18077-9732 to Mortgage Electronic Registration Systems
      (“MERS”), incorporated as a nominee for Americap Financial Inc.,
      and concurrently executed a promissory note in favor of
      Americap Financial Inc. MERS originally assigned the mortgage
      to US Bank National Association, as Trustee for SASCO Mortgage
      Loan Trust 2006-WF3 (“US Bank”) on September 9, 2009, and a
      corrective assignment was recorded April 20, 2012.
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            On June 7, 2012, US Bank commenced this action by filing
      a Complaint in Mortgage Foreclosure with this Court. US Bank
      alleged that the mortgage was in default because monthly
      payments of principal and interest upon the mortgage due
      June 1, 2009[,] and each month thereafter were due and
      unpaid. Complaint ¶ 5. Based upon the terms of the mortgage,
      US Bank asserted the entire principal balance and all interest
      due were collectible. Complaint ¶ 5. US Bank further alleged
      that $636,097.44 was due on the mortgage as of May 23, 2012.
      Complaint ¶ 6.

            [Appellant] filed Preliminary Objections to the Complaint,
      which were overruled by Order of this Court on October 2012.
      [Appellant] then filed an Answer with New Matter on
      November 9, 2012.       US Bank replied to [Appellant’s] New
      Matter, and then filed a Motion for Summary Judgment on
      September 11, 2014. [Appellant] filed a response in opposition
      to US Bank’s Motion for Summary Judgment, and each party
      subsequently filed supplemental briefs. Eventually, this Court
      granted US Bank’s Motion for Summary Judgment on March 6,
      2015. This appeal timely followed.

Trial Court Opinion, 5/29/15, at 1–2.

      Appellant’s Pa.R.A.P. 1925(b) statement of errors complained of on

appeal filed with the trial court included eleven assertions of error. The trial

court condensed the issues to three:     (1) whether the trial court erred by

granting summary judgment in favor of U.S. Bank; (2) whether U.S. Bank

had standing to prosecute this action as the real party in interest; and (3)

whether the verification attached to the mortgage foreclosure complaint was

defective. Trial Court Opinion, 5/29/15, at 3–4.

      The trial court first concluded that its award of summary judgment to

U.S. Bank was appropriate because Appellant “admitted to defaulting on the

mortgage and admitted the amount owed under the mortgage.” Trial Court

Opinion, 5/29/15, at 5.        See First Wisconsin Trust Company v.

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Strausser, 653 A.2d 688, 694 (Pa. Super. 1995) (holding that summary

judgment is appropriate in foreclosure actions when mortgagor admits that

he is delinquent in mortgage payments). The trial court next explained that

because U.S. Bank established that it was assigned the mortgage from MERS

for consideration and was in possession of the promissory note, U.S. Bank

“as assignee, became the only entity with standing to prosecute” the

mortgage foreclosure action and “is the real party in interest.” Id. at 8, 10.

Finally, the trial court determined that Appellant waived his claim that the

verification attached to the complaint was defective because Appellant failed

to raise the issue before the trial court in any of its pleadings. Id. at 10.

See Pa. R.A.P. 302(a) (issues not raised in the lower court cannot be raised

for the first time on appeal).

       In his appellate brief, Appellant reduces his claims of error to one

discrete issue:      “Did the trial court commit an error of law in granting

foreclosing lender’s Motion for Summary Judgment when there existed an

issue of fact as to whether foreclosing lender was the ‘real party in interest’

by virtue of the loan being held by Plaintiff-Trust?” Appellant’s Brief at 9.1

____________________________________________


1
   Issues raised in Appellant’s 1925(b) statement, but not included in his
appellate brief’s recital of statement of questions involved, are waived. See
Koller Concrete Inc. v. Tube City IMS, LLC, 115 A. 3d 312, 320 n.9 (Pa.
Super. 2015) (noting that issue not explicitly raised in appellant’s statement
of the questions involved is waived) (citation omitted); Pa.R.A.P. 2116(a)
(“No question will be considered unless it is stated in the statement of
questions involved or is fairly suggested thereby.”).



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      Our standard of review is well settled:

            We review an order granting summary judgment for an
      abuse of discretion. Our scope of review is plenary, and we view
      the record in the light most favorable to the nonmoving party. A
      party bearing the burden of proof at trial is entitled to summary
      judgment “whenever there is no genuine issue of any material
      fact as to a necessary element of the cause of action or defense
      which could be established by additional discovery or expert
      report[.]” Pa.R.C.P. No. 1035.2(1). In response to a summary
      judgment motion, the nonmoving party cannot rest upon the
      pleadings, but rather must set forth specific facts demonstrating
      a genuine issue of material fact. Pa.R.C.P. No. 1035.3.

Bank of America, N.A. v. Gibson, 102 A.3d 462, 464 (Pa. Super. 2014)

(some internal citations omitted).

      Appellant concedes that the trial court properly concluded that

Appellant admitted his mortgage default. However, Appellant contends that

there exists an issue of fact as to whether the subject loan was actually held

by U.S. Bank; thus he disputes U.S. Bank’s standing to litigate the mortgage

foreclosure action.    In essence, Appellant’s claim is that the chain of

assignment of the mortgage and the note to U.S. Bank, as Trustee for

SASCO Mortgage Loan Trust 2006-WF3, is defective and does not establish

U.S. Bank as the real party in interest.

      The holder of a mortgage has the right, upon default, to initiate a

foreclosure action. Bank of America, N.A., 102 A.3d at 464. Additionally,

the mortgage holder “is entitled to summary judgment if the mortgagor

admits that the mortgage is in default, the mortgagor has failed to pay on

the obligation, and the recorded mortgage is in the specified amount.” Id.


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at 465. The foreclosing party can prove standing either by showing that it

(1) originated or was assigned the mortgage, or (2) is the holder of the note

specially indorsed to it or indorsed in blank.   J.P. Morgan Chase, NA v.

Murray, 63 A.3d 1258, 1267–1268 & n.6 (Pa. Super. 2013).

      In this matter, the trial court determined that U.S. Bank was the real

party in interest based upon the following rationale:

      Upon its purchase of the Note and Mortgage, US Bank, as
      assignee, became the only entity with standing to prosecute this
      action.

            An assignment is a transfer of property or a right from one
      person to another; unless qualified, it extinguishes the assignor’s
      right to performance by the obligor and transfers that right to
      the assignee. Legal Capital, LLC. v. Med. Prof’l Liab. Catastrophe
      Loss Fund, 750 A.2d 299, 302 (Pa. 2000). Under the law of
      assignment, the assignee succeeds to no greater rights than
      those possessed by the assignor. Employers Ins. of Wausau v.
      Com., Dep’t of Transp., 865 A.2d 825, 830-31 (Pa. 2005). An
      assignee’s rights, however, are not inferior to those of the
      assignor. U.S. Steel Homes Credit Corp. v. South Shore Dev.
      Corp., 419 A.2d 785, 789 (Pa. Super. Ct. 1980). Ultimately, an
      assignee stands in the shoes of the assignor. Crawford Cent.
      School Dist. v. Com., 888 A.2d 616, 620 (Pa. 2005).

            Thus, upon assignment of the mortgage by MERS to US
      Bank, US Bank became the legal owner of the mortgage and had
      the right to institute foreclosure proceedings against [Appellant]
      as a result of his failure to make timely payments in accordance
      with the terms of the mortgage. See Cunningham, 714 A.2d at
      1056-57. Further, US Bank is the real party in interest and has
      standing to prosecute this action as the holder of the Note
      executed by [Appellant].

            A promissory note accompanied by a mortgage is a
      negotiable instrument governed by Pennsylvania’s Uniform
      Commercial Code. JP Morgan Chase Bank, N.A. v. Murray, 63
      A.3d 1258 1265 (Pa. Super. Ct. 2013). Under the UCC, a
      “[p]erson entitled to enforce” an instrument means “the holder
      of the instrument.” 13 Pa.C.S.A. § 3301(1). A “holder” is

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       defined as “the person in possession of a negotiable instrument
       that is payable either to the bearer or to an identified person
       that is the person in possession.” 13 Pa.C.S.A. § 1201(b)(21)(i).
       A “bearer” is defined as “[a] person in control of a negotiable
       electronic document of title or a person in possession of a
       negotiable instrument, negotiable tangible document of title or
       certificated security, that is payable to bearer or indorsed in
       blank.” 13 Pa.C.S.A. § 1201(b)(5). The UCC further states, “[i]f
       an [i]ndorsement is made by the holder of the instrument and it
       is not a special indorsement, it is a ‘blank indorsement.’ When
       indorsed in blank, an instrument becomes payable to bearer and
       may be negotiated by transfer of possession alone until specially
       indorsed.” 13 Pa.C.S.A. § 3205(b).

             The Note in this case therefore meets of the requirements
       of negotiable instrument under the Pennsylvania UCC. Since US
       Bank is a holder in possession of the original bearer instrument
       executed by [Appellant], and received a valid assignment from
       MERS, it follows that US Bank may enforce the loan. US Bank
       therefore has standing to prosecute this action and is the real
       party in interest.

Trial Court Opinion, 5/29/15, at 8–10.

       Earlier in this litigation, Appellant criticized the trial court’s findings

that U.S. Bank established that it was assigned the subject mortgage from

MERS and that it possessed the promissory note. In this appeal, however,

Appellant limits his contest of U.S. Bank’s standing to the factual question of

whether Appellant’s particular loan was assigned to U.S. Bank. Appellant’s

Brief at 15.2

____________________________________________


2
  In any event, the record evidence produced by U.S. Bank in support of its
motion for summary judgment demonstrated that it was the holder of the
mortgage.    Specifically, U.S. Bank alleged in its complaint that “By
Assignment of Mortgage recorded 09/29/2009, the mortgage was assigned
to [U.S Bank], which assignment is recorded in Assignment of Mortgage
(Footnote Continued Next Page)


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      Appellant submits that his loan was part of a trust established by

Lehman Brothers, Inc. Holdings.3            Citing to certain provisions of the trust,

Appellant claims, alternatively, (1) that his non-performing loan could not

have been included in the trust; (2) if included, the conveyance of his loan

to the trust was void; and (3) there is an issue of fact regarding whether

Appellant’s loan was actually assigned to U.S. Bank through the trust.

Appellant’s Brief at 14–15.

      Appellant’s arguments that his loan could not have been part of the

trust and that the conveyance of his loan to the trust was void are not
                       _______________________
(Footnote Continued)

Book 6233, Page 1111. [U. S. Bank] is now the legal owner of the
mortgage . . . .” Complaint, 6/7/12, at ¶ 3. U.S. Bank also produced copies
of the original recorded mortgage and the recorded assignment by MERS to
the bank. Plaintiff’s Motion for Summary Judgment, 9/11/14, at Exhibits A
and A2. Accordingly, the uncontroverted evidence of record demonstrates
that U.S. Bank properly held the mortgage by way of assignment from
MERS. See CitiMortgage, Inc. v. Barbezat, ___ A.3d. ___, ___, 2016 PA
Super 7, *3 (Pa. Super. 2016) (filed January 7, 2016) (“Where an
assignment is effective, the assignee stands in the shoes of the assignor and
assumes all of his rights.”) (citing Smith v. Cumberland Group, Ltd., 687
A.2d 1167, 1172 (Pa. Super. 1997)).
3
    In his brief filed in opposition to U.S. Bank’s motion for summary
judgment, Appellant asserted that his mortgage was part of the Lehman
Brothers, Inc. trust, as evidenced by “Exhibit E” attached thereto.
Memorandum of Law in Support of Defendant’s Response to Plaintiff’s Motion
for Summary Judgment, 11/12/14, at unnumbered 15. Appellant also cites
to this document in his appellate brief in support of his contrary factual
assertion that his loan was not part of this trust. Appellant’s Brief at 14.
While not critical to our decision today, we are hesitant to accept Appellant’s
characterization of Exhibit E as depicting the actual document creating the
trust. In fact, the document identifies itself as a “free writing prospectus”
and classifies the information contained therein as “preliminary and is
subject to completion or change.” Id. at Exhibit E, 1-401.



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cognizable because Appellant does not have standing to mount a challenge

to the validity of the assignment. In JP Morgan Chase Bank, N.A., this

Court found that a note secured by a mortgage is a negotiable instrument,

as that term is defined by the Pennsylvania Uniform Commercial Code

(“PUCC”). Id. at 1265. “Pursuant to the PUCC, a debtor who satisfies his

obligations under a negotiable instrument cannot be required to do so again,

even if the recipient of the debtor’s performance is not the holder of the note

in question.” Id. at 1263 (citing 13 Pa.C.S. § 3602(a)). Because a borrower

is not in peril of double liability—i.e., if the assignment to the foreclosing

party was defective, the borrower would not have to pay on the note to

another party or—the borrower is not injured by an allegedly defective

assignment.     Thus, the Court found that a borrower lacks standing to

challenge the validity of the assignment.       Id. at 1266; see also In re

Walker, 466 B.R. 271, 285–286 (Bankr. E.D.Pa. 2012) (“If a borrower

cannot demonstrate potential injury from the enforcement of the note and

mortgage by a party acting under a defective assignment, the borrower

lacks standing to raise the issue.”) (citation omitted).

      In   an   apparent   attempt   to   distinguish   his   position   from   this

unfavorable legal precedent, Appellant purports that his challenge is not to

what he now refers to as the trust’s “Pooling and Servicing Agreement”

itself, but rather to U.S. Bank’s compliance with the agreement. Appellant’s

Brief at 15. We reject this argument as semantical in that the question of


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U.S. Bank’s compliance with the agreement equates to a challenge to the

validity of the assignment.

          We thus turn to Appellant’s remaining assertion that there exists a

viable factual question of whether his loan is part of the trust. Specifically,

Appellant asserts that U.S. Bank’s loan schedules do not list Appellant’s loan

number among those assigned to the trust.           This claim does not warrant

relief.

          On November 26, 2014, Appellant filed a supplementary pleading

alleging, for the first time, that information recovered from the “Wells Fargo

CTSLink” website raises an issue of fact regarding U.S. Bank’s real party in

interest status. Defendant’s Answer and Memorandum of Law in Opposition

to Plaintiff’s Motion for Summary Judgment, 11/26/14, at unnumbered 1.

According to Appellant:

                The website publishes, inter alia, schedules of “Foreclosure
          Loan Detail – All Mortgage Loans in Foreclosure during Current
          Period” (“Wells Fargo Loan Schedules”). See Exhibit “K”, ppgs.
          22-25. The aforesaid loans are identified, inter alia, by loan
          number, month loan entered, first payment date, state, original
          principal balance, current actual Balance, paid to date, months
          delinquent, etc.

                 According to [U.S. Bank’s] Exhibit “C” of its Motion for
          Summary Judgment, as well as invoices received by [Appellant]
          from Wells Fargo, the loan number for [Appellant’s] account is
          identified as [loan number omitted].      Exhibits “L” and “M”
          attached hereto.

                According to Wells Fargo Loan Schedules, there are no
          loans listed that match [Appellant’s] loan. . . . Based upon the
          aforesaid information, [U.S. Bank] is not the owner of
          [Appellant’s] loan and should be estopped from claiming this
          account belongs to [U.S. Bank]. This information creates serious

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       doubt as to whether or not [U.S. Bank] is the Real Party in
       interest, which if it is not, would deprive this Court of subject
       matter jurisdiction over this case.

Id. at unnumbered 1–2.

       In our view, the information gleaned from the Wells Fargo website

does not have any evidentiary value.         Preliminarily, there is no way to

determine if the account numbers listed on the Wells Fargo Loan Schedules

correlate to the account number identified in Appellant’s loan history or

referenced on certain Wells Fargo invoices issued to Appellant (Defendant’s

Answer and Memorandum of Law in Opposition to Plaintiff’s Motion for

Summary Judgment, 11/26/14, at Exhibits L and M.            To punctuate this

point, we observe that the account number that Appellant describes as

reflecting his loan differs from the loan number assigned to Appellant’s

mortgage.    See Plaintiff’s Reply to Defendant’s New Matter, 11/30/12, at

Exhibit A.

       Additionally, the record does not demonstrate that Appellant complied

with Pennsylvania Rule of Evidence 901 regarding authentication of the Wells

Fargo Loan Schedules.      “To satisfy the requirement of authenticating or

identifying an item of evidence, the proponent must produce evidence

sufficient to support a finding that the item is what the proponent claims it

is.”    Pa.R.E. 901(a); Keystone Dedicated Logistics, LLC v. JGB

Enterprises, Inc., 77 A.3d 1, 12 (Pa. Super. 2013) (stating that “for a

document to be admissible into evidence at trial, it must first be



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authenticated by ‘evidence sufficient to support a finding that the item is

what the proponent claims it is.’” (quotation omitted)).     Here, Appellant

merely appended pages from a website as exhibits to his supplemental

pleading, without propounding any proof, direct or circumstantial, that the

information contained therein accurately reflected whether Appellant’s loan

was part of the subject trust.        Absent the required authentication,

Appellant’s argument that the data from the website raises a question of fact

precluding summary judgment is not sustainable.

      Finally, there is no indication in the record that Appellant requested

the trial judge to take judicial notice of the documents obtained from the

Wells Fargo website. Nor did the trial court reference the documents in its

Pa.R.A.P. 1925(a) opinion. Although Appellant likewise did not request this

Court to take judicial notice of the website documents, we are restrained

from doing so.   See In the Matter of J.C., 5 A.3d 284, 289 (Pa. Super.

2010) (Superior Court “will not take judicial notice of evidence of which the

trial court was not requested to take judicial notice.”) (quotation omitted)).

Therefore, Appellant has not produced any reliable evidence that there is a

question of fact regarding U.S. Bank’s standing to prosecute this foreclosure

action.

      Based on the foregoing, we conclude Appellant’s issue lacks merit and

the trial court did not abuse its discretion or err as a matter of law in




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awarding summary judgment in favor of U.S. Bank. Accordingly, we affirm

the trial court’s March 6, 2015 judgment.

     Judgment affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/12/2016




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