J-A17020-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

BANK OF AMERICA, N.A., SUCCESSOR                IN THE SUPERIOR COURT OF
BY MERGER TO BAC HOME LOANS                           PENNSYLVANIA
SERVICING, LP

                         Appellee

                    v.

EDWIN CARDENALES, JACKELYN
CARDENALES A/K/A JACKELYN TINEO
CARDENALES

                         Appellants                 No. 2101 EDA 2013


                   Appeal from the Order June 27, 2013
              In the Court of Common Pleas of Lehigh County
                    Civil Division at No(s): 2012-C-459


BEFORE: GANTMAN, P.J., PANELLA, J., and STABILE, J.

MEMORANDUM BY PANELLA, J.                       FILED DECEMBER 19, 2014

      Appellants,   Edwin    Cardenales   and   Jackelyn   Cardenales   (“the

Cardenales”), appeal from the order granting summary judgment to the

Bank of America (“the Bank”) in its mortgage foreclosure action.        After

careful review, we affirm.

      On July 13, 2007, the Cardenales executed a mortgage in favor of

Mortgage Electronic Registration Systems, Inc. (“MERS”) as nominee for

Countrywide Bank, FSB.       At the same time, the Cardenales executed a

promissory note in favor of Countrywide Bank, FSB, and the mortgage was

subsequently recorded in the Recorder of Deeds of Lehigh County. In late

2010, BAC Home Loans Servicing, Inc., filed an assignment of mortgage
J-A17020-14


indicating that the mortgage had been assigned in BAC’s favor. The Bank is

the successor by merger to BAC.

      On February 7, 2012, the Bank filed a mortgage foreclosure action

against the property secured by the mortgage.       The Cardenales filed an

Answer with New Matter, to which the Bank filed a responsive pleading. The

trial court subsequently granted the Bank’s motion for summary judgment,

and this timely appeal followed.

      On appeal, the Cardenales raise the following issues for our review:

      [1.] Did the trial court commit an error of law in its grant of
      summary judgment upon a defective note transfer and mortgage
      assignment?

      [2.] Did the trial court commit an error of law when it refused
      Appellants’ underlying request to depose the assignment of
      mortgage’s executrix?

      [3.] Did the trial court commit an error of law in its grant of
      summary judgment upon an inadmissible hearsay testimonial
      affidavit predicated upon an indecipherable hearsay “loan
      history?”

Appellant’s Brief, at 9.

      The Cardenales’ first argument actually subsumes two separate issues.

First, they argue that the Bank’s note, which is endorsed in blank, does not

name the Bank. Second, they argue that MERS is not empowered to assign

mortgages.    Both of these arguments were rejected in Bank of America,

N.A., v. Gibson, ___ A.3d ___, ___, 2014 WL 4923106, *2-*3 (Pa. Super.




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2014).1 Accordingly, we conclude that the Cardenales are due no relief on

this issue.

       Next, the Cardenales contend that the trial court erred in failing to

grant their request to depose Judith Romano, Esq., who executed the

assignment of mortgage on behalf of MERS. The Cardenales argue that they

were entitled to explore Attorney Romano’s factual and legal authority to

execute the assignment of mortgage, as they “are not aware of any binding

authority which grants MERS the ability to execute assignments of

mortgage[.]” Appellant’s Brief, at 17. However, as noted above, this Court

has held that MERS has this ability, so long as the mortgage documents

provide for it.    Here, the mortgage document explicitly identifies MERS as

the mortgagee. See Mortgage, at 2. Furthermore, the mortgage provides

that MERS has the right to foreclose and sell the property secured by the

mortgage. See id., at 4. Thus, the Cardenales have failed to identify any

material evidence that could have been produced through deposing Attorney

Romano. The Cardenales’ second issue on appeal therefore merits no relief.

____________________________________________


1
   The trial court held that the Cardenales had waived this issue by failing to
file preliminary objections to the Bank’s standing in this matter. However, a
review of the record indicates that the Cardenales asserted the Bank’s lack
of standing in their Answer and New Matter. See Defendants’ Answer with
New Matter, filed 9/6/12, at Answer, ¶ 3; at New Matter, ¶ 2. “Challenges
to a litigant’s capacity to sue must be raised by way of preliminary
objections or answer.” Hall v. Episcopal Long Term Care, 54 A.3d 381,
399 (Pa. Super. 2012) (emphasis supplied). Thus, the trial court erred in
concluding that the Cardenales had waived this issue.



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      In their final argument, the Cardenales assert that the trial court erred

in relying upon inadmissible hearsay documents in granting summary

judgment. The exact arguments raised by the Cardenales in this issue were

also rejected in Gibson.     See Gibson, 2014 WL at *3.          We therefore

conclude that the Cardenales’ final issue on appeal merits no relief.

      Order affirmed. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/19/2014




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