J-A13008-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 U.S. BANK NATIONAL                     :   IN THE SUPERIOR COURT OF
 ASSOCIATION, AS TRUSTEE FOR            :        PENNSYLVANIA
 CREDIT SUISSE FIRST BOSTON             :
 MORTGAGE SECURITIES CORP.,             :
 HOME EQUITY ASSET TRUST 2006-          :
 1, HOME EQUITY PASS-THROUGH            :
 CERTIFICATES, SERIES 2006-1            :
                                        :
                                        :   No. 1102 WDA 2017
              v.                        :
                                        :
                                        :
 JILL MCAFEE A/K/A JILL MCAFEE          :
 AND JOHN MCAFEE                        :
                                        :
                    Appellants          :

               Appeal from the Order Entered June 26, 2017
     In the Court of Common Pleas of Allegheny County Civil Division at
                        No(s): G.D. No. 16-006717


BEFORE: OLSON, J., DUBOW, J., and MUSMANNO, J.

MEMORANDUM BY DUBOW, J.:                             FILED AUGUST 2, 2018

      Appellants, Jill McAfee and John McAfee, appeal from the June 26, 2017

Order granting U.S. Bank National Association’s Motion for Summary

Judgment in this quiet title action. After careful review, we reverse.

      The facts and procedural history are as follows.     On July 28, 2005,

Appellants purchased the property underlying this dispute as tenants by the

entirety. Mrs. McAfee executed a mortgage to secure a loan to purchase the

property. Mr. McAfee did not execute the mortgage.
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      U.S. Bank became the owner of the mortgage on November 30, 2012.

At some point after acquiring the mortgage, U.S. Bank became aware that Mr.

McAfee did not execute the mortgage.

      On April 19, 2016, U.S. Bank filed a Complaint to obtain a judgment in

quiet title establishing that the mortgage signed only by Mrs. McAfee

encumbered the entire property, including Mr. McAfee’s interest. Complaint,

4/19/16, at ¶ 34. U.S. Bank alleged in the Complaint that Mr. McAfee’s failure

to execute the mortgage was the result of mutual mistake or inadvertent error

and has resulted in doubt and uncertainty regarding the scope of the

mortgage.   See id. at ¶¶ 31-32.     In the alternative, U.S. Bank sought a

declaratory judgment to this effect or reformation of the mortgage to add Mr.

McAfee as a borrower as of the recording date. See id at ¶¶ 39, 49.

      On June 24, 2016, Appellants filed an Answer and New Matter to U.S.

Bank’s Complaint.    In their Answer, Appellants denied that Mr. McAfee’s

omission from the mortgage was inadvertent. Answer, 6/24/16, at ¶¶ 9, 17,

25, 31, 33, 42, 44, 45, 48, 49. Rather, Appellants asserted that the lender

intentionally did not include him as a borrower. Id. at ¶¶ 9, 17, 25, 31, 33,

42, 45, 48, 49. Appellants explained that the original lender would only loan

funds to Mrs. McAfee because Mr. McAfee had financial issues. Id. at ¶ 6.

Appellants also expressly denied U.S. Bank’s averment that, by signing the

HUD-1 Statement, Mrs. McAfee acknowledged the lender’s expectation that it

would receive a valid mortgage lien against the entire property. Id. at ¶¶ 14,

37.

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      U.S. Bank replied to Appellants’ New Matter and, after conducting

discovery, filed a Motion for Summary Judgment.

      In its Motion for Summary Judgment, U.S. Bank maintained that: (1)

Appellants had failed to deny any of the material facts averred in the

Compaint; and (2) that Appellants had admitted that they both own the

property and that they had intended only for Mrs. McAfee to be a borrower on

the mortgage. Motion, 12/8/16, at 8. Simply, U.S. Bank claimed that there

were no material facts in dispute and it was entitled to judgment as a matter

of law.

      Appellants filed a Response to the Motion in which they argued that

summary judgment was improper because there were questions of fact as to

whether the parties made a mutual mistake when closing on the mortgage,

as alleged by U.S. Bank. Specifically, Appellants denied the existence of a

mutual mistake, explaining that the parties had purposefully omitted Mr.

McAfee from the mortgage because the original lender would only grant a

mortgage to Mrs. McAfee and specifically had denied Mr. McAfee’s request for

a mortgage.

      Following a hearing, the trial court granted U.S. Bank’s Motion for

Summary Judgment on June 26, 2017. In so doing, the court “declared a lien

of first priority against the entire [p]roperty, including John McAfee’s

ownership interest[ ] as of the date it was recorded on August 2, 2005.” Trial

Ct. Order, 6/26/17, at 2.




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       This timely appeal followed. Both Appellants and the trial court complied

with Pa.R.A.P. 1925.

       Appellants raise the following two issues:

       1. Whether the lower court erred when it failed to properly apply
          the standard applicable to summary judgment motions under
          Pa.R.C.P. [No.] 1035.2(1)[?][1]

       2. Whether the lower court erred when it made credibility
          determinations based solely on the refuted allegations
          contained in [U.S. Bank’s C]omplaint[?]

Appellants’ Brief at 5.2

       Appellants claim the trial court erred when it found that there were no

genuine issues of material fact as to the alleged “mutual mistake” of the

parties.   Id. at 9.      They highlight their position that the original lender

intentionally omitted Mr. McAfee from the mortgage “so that his poor credit

rating would not impede the granting of the loan” to Mrs. McAfee. Id. at 11.

Simply, they argue that U.S. Bank pleaded that Mr. McAfee’s omission from

the mortgage was a product of mutual mistake—a position Appellants

repeatedly denied. Id. Therefore, Appellants aver that there are genuine
____________________________________________


1 Pa.R.C.P. No. 1035.2(1) provides that a party may move for summary
judgment as a matter of law “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[.]” Id.

2 We note that the argument section of Appellants’ Brief does not include a
sub-section in which they argue the merits of this issue. Thus, for appellate
review purposes, Appellants have abandoned their second issue.
Commonwealth v. Johnson, 985 A.2d 915, 924 (Pa. 2009) (concluding that
the failure to properly include a developed argument in an appellate brief
constitutes waiver).

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questions as to the existence of the alleged “mistake” that precluded summary

judgment in U.S. Bank’s favor. Id. at 10.

       “[A]n appellate court may reverse a grant of summary judgment if there

has been an error of law or an abuse of discretion.” Summers v. Certainteed

Corp., 997 A.2d 1152, 1159 (Pa. 2010). However, “the issue as to whether

there are no genuine issues as to any material fact presents a question of law,

and therefore, on that question our standard of review is de novo.” Id.; see

Pa.R.C.P. No. 1035.2. In assessing whether a genuine issue as to any material

fact exists, we “view the record in the light most favorable to the non-moving

party” and resolve all doubts in its favor. Mull v. Ickes, 994 A.2d 1137, 1139

(Pa. Super. 2010).

       Here, the trial court granted summary judgment in favor of U.S. Bank

because it found that Appellants “failed to deny any of the material facts

averred, they both used the [m]ortgage proceeds to purchase the

[p]roperty[,] and they intended for only Jill McAfee to be a borrower of the

[m]ortgage.” Trial Ct. Op., 10/17/17, at 2. The trial court acknowledged that

Appellants’ “sole defense is that they never intended for John McAfee to be an

intended borrower of the [m]ortgage.”            Id. at 2-3.   However, the court

concluded that, because Appellants admitted that they used the proceeds of

the mortgage to purchase the entire property, the mortgage “must” encumber

the entire property.”3 Id. at 3. We disagree.
____________________________________________


3 We note that the trial court did not support this conclusion of law by citing
to any authority.

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      First, we disagree with the trial court’s finding that Appellants “failed to

deny any of the material facts averred[.]”        Our review of the pleadings

indicates that Appellants repeatedly denied that Mr. McAfee’s omission from

the mortgage was the product of mutual mistake.             Instead, Appellants

explained that Mr. McAfee’s omission was intentional because Mr. McAfee had

a poor credit rating and the original lender would only extend a loan to Mrs.

McAfee. See Answer at ¶ 6; Appellants’ Brief at 11.

      Further, we note the trial court’s acknowledgment that Appellants have

steadfastly maintained that Mr. McAfee’s omission from the mortgage was

purposeful and not the result of mutual mistake. See Trial Ct. Op. at 2-3.

Our review of the record has not revealed any evidence undermining that

claim. Thus, a genuine issue of material fact exists on this issue.

      Following our review of the record in the light most favorable to

Appellants, we conclude that the trial court erred as a matter of law in entering

summary judgment in favor of U.S. Bank.

      Order reversed. Jurisdiction relinquished.

      Judge Musmanno joins the memorandum.

      Judge Olson files a concurring statement.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/2/2018




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