J. A21022/16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


WELLS FARGO BANK, N.A. SUCCESSOR :            IN THE SUPERIOR COURT OF
BY MERGER TO WACHOVIA BANK, N.A., :                PENNSYLVANIA
                                    :
                     Appellee       :
                                    :
                v.                  :
                                    :
LISA FERRERI A/K/A LISA A. FERRERI, :
                                    :
                     Appellant      :         No. 403 EDA 2015

             Appeal from the Order Entered January 16, 20151
           In the Court of Common Pleas of Montgomery County
                     Civil Division at No.: 2009-42684

BEFORE: BENDER, P.J.E., DUBOW, J., and MUSMANNO, J.

MEMORANDUM BY DUBOW, J.:                     FILED NOVEMBER 15, 2016

     Appellant, Lisa Ferreri, defendant below, appeals from the January 16,

2015 Order entered in the Montgomery County Court of Common Pleas

granting Appellee’s Motion for Summary Judgment in this mortgage

foreclosure action. We affirm.

     We adopt the facts as set forth by the trial court.   See Trial Court

Opinion, filed 10/27/15, at 1-5.     In summary, Wachovia Bank, N.A.

(“Wachovia”) instituted this mortgage foreclosure action after Appellant



1
  Appellant purports to appeal from the Order entered on January 15, 2014.
We note that the trial court dated its Order granting Summary Judgment in
favor of Appellee on January 15, 2015, but the trial court did not file and
enter this Order on the docket until the next day on January 16, 2015. We
have changed the caption accordingly. See Pa.R.A.P. 108 (entitled “Date of
Entry of Orders”).
J. A21022/16


defaulted    on   her   mortgage   for   1516   Surrey   Lane   in   Wynnewood,

Pennsylvania, in the amount of $269,015.93. After serving Act 91 2 notice of

its intent to foreclose, Wachovia eventually filed a second Amended

Complaint.     Appellant responded with an Answer that included general

denials, and an admission that she mortgaged the property to Wachovia.

Appellant also raised twenty-six affirmative defenses, which the trial court

dismissed with prejudice.

      On April 14, 2014, Wells Fargo Bank, N.A. (“Wells Fargo”) became the

plaintiff in this action pursuant to Pa.R.C.P. No. 2352 as Wachovia’s

successor by merger.        On July 3, 2014, Wells Fargo filed a Motion for

Summary Judgment.         On August 1, 2014, Appellant filed her response

admitting that she had executed the note and mortgage, that she was in

default, and that Wells Fargo merged with Wachovia as its successor

generally.

      On January 16, 2015, the trial court granted Wells Fargo’s Motion for

Summary Judgment and entered Judgment on January 22, 2015.                  On

January 26, 2015, Appellant filed a 424-page Motion for Reconsideration.

On February 9, 2015, Appellant filed a Notice of Appeal before the trial court

had ruled on Appellant’s Motion for Reconsideration.




2
  Homeowners Emergency Mortgage Assistance Act (“Act 91”), 35 P.S. §
1680.401c et seq.



                                         -2-
J. A21022/16


      Both Appellant and the trial court complied with Pa.R.A.P. 1925.

Appellant presents four issues for our review:

      I. This Court has held that a foreclosing bank is not entitled to
      summary judgment when that bank cannot establish that it was
      the owner or holder in due course of the relevant promissory
      note when the mortgage foreclosure action was filed. Here,
      Wells Fargo has not established that it, or its predecessor in title,
      was the owner or holder in due course of the relevant
      promissory note when this mortgage foreclosure action was filed.
      Did the trial court commit an error of law or abuse its discretion
      when it granted Wells Fargo’s Motion for Summary Judgment?

      II. Whether fraud has been committed is a question of fact.
      Homeowner has alleged that fraud has been committed by
      Wachovia Bank and Wells Fargo. Did the trial court commit an
      error of law or abuse its discretion when it granted Wells Fargo’s
      Motion for Summary Judgment despite the existence of disputed
      issues of fact with respect to Homeowner’s fraud claims?

      III. An Act 91 Notice is defective if it lists more than just the
      contact information for the county counseling agency where the
      property is located or when it is written on the mortgagee’s
      letterhead. A defective Act 91 Notice requires dismissal of the
      action. The Act 91 Notice received by Homeowner included
      contact information for counseling agencies in at least five
      different counties and was written on Wachovia Bank’s
      letterhead. Did the trial court commit an error of law or abuse
      its discretion when it granted summary judgment in favor of
      Wells Fargo, despite such evidence that the Act 91 Notice was
      defective?

      IV. The federal Real Estate Settlement Procedures and Truth In
      Lending Acts required Wells Fargo to provide certain information
      to Homeowner that was not provided in this case. Did the trial
      court commit an error of law or abuse its discretion when it
      granted summary judgment in favor of Wells Fargo, despite
      Homeowner’s claims that Wells Fargo violated these federal
      laws?

Appellant’s Brief at 4.




                                      -3-
J. A21022/16


      Each of Appellant’s four issues challenge the trial court’s Order

granting summary judgment in favor of Appellee. Our Supreme Court has

clarified our role as the appellate court as follows:

      On appellate review, then, an appellate court may reverse a
      grant of summary judgment if there has been an error of law or
      an abuse of discretion. But 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. This means we need not defer to the determinations
      made by the lower tribunals. To the extent that this Court must
      resolve a question of law, we shall review the grant of summary
      judgment in the context of the entire record.

Summers v. Certainteed Corp., 997 A.2d 1152, 1159 (Pa. 2010)

(citations and quotation omitted).

      A trial court may grant summary judgment “only in those cases where

the record clearly demonstrates that there is no genuine issue of material

fact and that the moving party is entitled to judgment as a matter of law.”

Id. (citation and quotation omitted); see also Pa.R.C.P. No. 1035.2(1).

“When considering a motion for summary judgment, the trial court must

take all facts of record and reasonable inferences therefrom in a light most

favorable to the non-moving party.”       Summers, supra at 1159 (citation

omitted).   “In so doing, the trial court must resolve all doubts as to the

existence of a genuine issue of material fact against the moving party, and,

thus, may only grant summary judgment where the right to such judgment

is clear and free from all doubt.” Id. (citation and internal quotation marks

omitted).



                                      -4-
J. A21022/16


      “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.”        Truax v. Roulhac, 126 A.3d 991, 997 (Pa. Super.

2015), appeal denied, 129 A.3d 1244 (Pa. 2015) (citation and quotation

omitted).    “Further, failure of a non-moving party to adduce sufficient

evidence on an issue essential to his case and on which he bears the burden

of proof establishes the entitlement of the moving party to judgment as a

matter of law.”    Id. (citation and internal quotation marks omitted).      “If

there is evidence that would allow a fact-finder to render a verdict in favor of

the non-moving party, then summary judgment should be denied.”              Id.

(citation and quotation omitted).

      A trial court properly grants summary judgment in a mortgage

foreclosure action “where the defendant[/mortgagor] admits that he had

failed to make the payments due and fails to sustain a cognizable defense to

the plaintiff’s claim.”   Gateway Towers Condominium Ass’n v. Krohn,

845 A.2d 855, 858 (Pa. Super. 2004); see also Bank of America , N.A. v.

Gibson, 102 A.3d 462, 465 (Pa. Super. 2014), appeal denied, 112 A.3d

648 (Pa. 2015) (holding that entry of summary judgment is proper if the

mortgagor admits that: (1) the mortgage is in default; (2) the mortgagor

has failed to pay the obligation; and (3) the recorded mortgage is in the

specified amount).    Where specific denials are required, general denials to




                                     -5-
J. A21022/16


averments in a Complaint constitute admissions.        Pa.R.C.P. No. 1029(b);

see, e.g., Bank of America, supra at 466-67.

      In her first issue, Appellant avers the trial court improperly granted

Wells Fargo’s Motion for Summary Judgment because Wells Fargo failed to

prove it was the “owner or holder in due course of the relevant promissory

note when the mortgage foreclosure action was filed.” Appellant’s Brief at 4.

Appellant’s claim essentially challenges Appellee’s standing to proceed with

the mortgage foreclosure action.3

      The law is clear that only “the real party in interest” may prosecute a

legal action. Pa.R.C.P. No. 2002(a). “[T]he mortgagee is the real party in

interest in a foreclosure action.” PHH Mortgage Corp. v. Powell, 100 A.3d

611, 619 (Pa. Super. 2014) (citation omitted). Generally, when the original

mortgagee      company   merges     with   another   company,   the   surviving

corporation becomes the mortgagee under the mortgage agreement, as it

“succeeds to both the rights and obligations of the constituent corporations,”

rendering the surviving corporation the real party in interest in a mortgage

foreclosure action.   See Park v. Greater Delaware Valley Sav. & Loan

Ass’n, 523 A.2d 771, 775-76 (Pa. Super. 1987); 12 U.S.C. § 215a(e); 7

P.S. § 1606.



3
 Insofar as Appellant relies on Nanty-Glo v. American Surety Co., 163 A.
523 (Pa. 1932), for the first time on appeal, Appellant has waived such an
argument by failing to present it in the lower court. Pa.R.A.P. 302(a).



                                      -6-
J. A21022/16


      No assignment or indorsement is necessary to bestow upon the

surviving bank the status of the real party in interest to enforce a debt owed

to its predecessor.   12 U.S.C. § 215a(e); 7 P.S. § 1606.       This assumes,

however, that the predecessor in interest was, at the time of the merger,

itself entitled to enforce the note. Unless the predecessor in interest has the

right to enforce the note, the successor by merger does not acquire the right

to enforce the note. 13 Pa.C.S. § 3302(c). See also J.P. Morgan Chase,

N.A. v. Murray, 63 A.3d 1258, 1267-68 n.6 (Pa. Super. 2013) (implying

that succession by merger is sufficient proof to show ownership of note and

mortgage).

      As the trial court noted in its Opinion, Appellant admitted that she

obtained a loan from Wachovia and executed a note and mortgage in favor

of Wachovia.    See Answer to Second Amended Complaint, R.R. at 26a;

Response in Opposition to Motion for Summary Judgment, R.R. at 70a-71a.

When Appellant defaulted, Wachovia, as the original mortgagee, commenced

the instant mortgage foreclosure action by filing a Complaint in 2009.

Docket Entry from 12/11/2009, R.R. at 1a.         As a result of Wachovia’s

merger with Appellee Wells Fargo, Wells Fargo became the plaintiff as

Wachovia’s successor, pursuant to Pa.R.C.P. No. 2352.       See also Docket

Entry from 4/14/2014, R.R. at 2a.     Appellant admitted that Wells Fargo is

Wachovia’s successor by merger “in general” and that it acquired Wachovia’s




                                     -7-
J. A21022/16


assets in 2010. Response in Opposition to Motion for Summary Judgment,

R.R. at 71a.

      By virtue of statutory authority and case law, and most significantly

Appellant’s own admissions, there is no question that Wells Fargo had

standing to enforce the note.            Appellant’s assertions to the contrary are

baseless.

      In her second issue, Appellant avers that the trial court improperly

granted Wells Fargo’s Motion for Summary Judgment because there is a

question of fact as to Appellant’s fraud claims that she asserted in her

Response     to   the   Motion     for    Summary       Judgment,    her    Motion       for

Reconsideration, and her Pa.R.A.P. 1925(b) Statement.

      In order to raise a genuine issue of material fact at summary

judgment, a defendant must do more than rest on the pleadings; he or she

must meet the burden of producing facts to counter the plaintiff’s

averments. N.Y. Guardian Mortg. Corp. v. Dietzel, 524 A.2d 951, 952-53

(Pa. Super. 1987); Pa.R.C.P. No. 1035.3 (“adverse party may not rest upon

the   mere     allegations   or   denials    of   the   pleadings   but    must   file    a

response…identifying (1) one or more issues of fact arising from evidence in

the record controverting the evidence cited in support of the motion or from

a challenge to the credibility of one or more witnesses testifying in support

of the motion, or (2) evidence in the record establishing the facts essential




                                            -8-
J. A21022/16


to the cause of action or defense which the motion cites as not having been

produced.”).

     In addressing this issue, the trial court concluded as follows:

     [Appellant’s] fourteenth assignment of error lacks merit. It
     presumes, falsely, that [Appellant] presented to this court in
     opposition to the [Appellee]’s [M]otion for [S]ummary
     [J]udgment competent evidence to support the assertions now
     made on appeal that loan application information was fabricated,
     that the loan made was predatory, or any other of the assertions
     [Appellant] now makes by her fourteenth assignment of error.
     [Appellant’s] fourteenth assignment of error lacks merit.

Trial Court Opinion at 12-13, 16. We agree.

     Appellant did not attach any affidavits to her Response in opposition to

Appellee’s Motion for Summary Judgment or her “Sur-Sur Reply[.]” Instead,

Appellant relied exclusively on averments or denials contained in her

Response to the Motion for Summary Judgment.         She failed to attach any

evidence to support her opposition to Wells Fargo’s Motion for Summary

Judgment.      Although Appellant included several exhibits related to Fannie

Mae, the merger between Wachovia and Wells Fargo, and Wachovia’s Act 91

Notice in her “Sur-Sur Reply[,]” these exhibits did not relate to or support

her fraud claims.

     After the trial court granted Appellee’s Motion for Summary Judgment,

Appellant filed a 424-page Motion for Reconsideration and annexed affidavits

from a certified fraud examiner and a securitization analyst, and a letter

from a second certified fraud examiner to support her averment that “the

bank was taking advantage of the limited understanding of interest rates of


                                     -9-
J. A21022/16


an elderly woman and using predatory and deceptive practices.” Appellant’s

Motion for Reconsideration, Exhibit A, R.R. at 191a. This was the first and

only “evidence” of fraud or predatory lending practices presented to the trial

court to support her opposition to the Motion for Summary Judgment.

Appellant filed her Notice of Appeal before the trial court ruled on her Motion

for Reconsideration, and the trial court never permitted Appellant to

supplement her Response to the Motion for Summary Judgment with these

additional exhibits.    The trial court committed no error of law and did not

abuse its discretion in concluding that Appellant had presented no issue of

fact that would preclude summary judgment. Appellant’s argument to the

contrary lacks merit.

      In her third issue, Appellant avers that because the Act 91 Notice was

defective, the trial court improperly refused to dismiss the mortgage

foreclosure action.     Appellant contends that the Notice violated Act 91

because it was printed on Wachovia letterhead, failed to accurately

summarize the balance due, and included a list of numerous counseling

agencies rather than just the agency in Appellant’s county. This issue lacks

merit.

      Act 91 requires a mortgagee pursuing foreclosure to send notice to a

mortgagor advising her of the delinquency and providing 30 days to have a

face-to-face meeting with the mortgagee or with a consumer credit

counseling agency to attempt to resolve the delinquency.           35 P.S. §



                                     - 10 -
J. A21022/16


1680.403c(a), (b)(1).     The purpose of Act 91 Notice is “to instruct the

mortgagor of different means [s]he may use to resolve [her] arrearages in

order to avoid foreclosure on [her] property and also [to give] a timetable in

which such means must be accomplished.”          Wells Fargo Bank, N.A. v.

Monroe, 966 A.2d 1140, 1142 (Pa. Super. 2009).

      In the instant case, Appellee filed a copy of the Act 91 Notice as an

Exhibit to its Motion for Summary Judgment.         See Appellee’s Motion for

Summary Judgment, 7/3/14, Exhibit D; R.R. at 826a.                In addressing

Appellant’s challenge to the Notice, the trial court observed:

      First, [Appellant] failed to present [] the notices that she actually
      received and she failed to present any evidence to show how the
      notices presented by the [Appellee] were at variance with the
      amounts she actually owed on her mortgage.                   Second,
      [Appellant] failed to challenge the notices she received on the
      ground that too many [counseling] agencies were listed. [] In
      any event, the [Appellant] failed to respond to the [Appellee’s]
      [M]otion for [S]ummary [J]udgment with any evidence that the
      notices she received in any way confused her or otherwise
      caused her to default on her mortgage.               [Appellant]’s []
      assignment of error lacks merit.

Trial Court Opinion at 12 (citation omitted).

      Based on our thorough review of the record, we discern no abuse of

discretion or error of law in the trial court’s disposition of this issue.

Accordingly, Appellant’s third claim does not merit relief.

      In her fourth issue, Appellant contends that Wells Fargo violated (1)

the Truth In Lending Act (“TILA”) by failing to respond to her request to

identify the owner of the mortgage; and (2) the Real Estate Settlement



                                     - 11 -
J. A21022/16


Procedures Act (“RESPA”) by failing to respond to a request for information

about the note and the mortgage. This issue is waived.

      As noted supra, issues not raised in the trial court are waived for

purposes of appeal. Pa.R.A.P. 302(a). This Court has previously held that

“a non-moving party’s failure to raise grounds for relief in the trial court as a

basis upon which to deny summary judgment waives those grounds on

appeal.”    Harber Philadelphia Center City Office Ltd. v. LPCI Ltd.

P'ship, 764 A.2d 1100, 1105 (Pa. Super. 2000). These strategic choices in

the lower court are consequential because the “decision to pursue one

argument over another carries the certain consequence of waiver for those

arguments that could have been raised but were not.” Id.

      The trial court here concluded that Appellant waived her TILA and

RESPA claims pursuant to Pa.R.A.P. 302(a) because Appellant did not

present these arguments in the lower court in her Response to the Motion

for Summary Judgment.       See Trial Court Opinion at 1; Appellee’s Brief at

53. Instead, Appellant presented only a general objection to the calculation

of finance charges based on TILA. She failed to present any issues related

to Wells Fargo’s failure to respond under TILA or any issues related to

RESPA.     As a result, Appellant has waived this fourth claim of error on

appeal.




                                     - 12 -
J. A21022/16


      In summary, we discern no abuse of discretion or error of law and

affirm the trial court’s January 16, 2015 Order granting Summary Judgment

in favor of Wells Fargo.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/15/2016




                                 - 13 -
                                                                                                        Circulated 10/28/2016 02:38 PM



                                             2009-426R-l-OI02     10 27 2015 I0:14 ..\J\I   "105Jl8JJ
                                                                       Opinion
                                            R~pta'22556R9& Fee:S0.00
       IN THE COURT OF (                                ~(ark ( .evy • :0.lontCo Prothonotary               fY,PA
                                           LIV IL lJI V I-'1Ul'li


WELLS FARGO BANK, N.A., Successor by                                                    2009-42684
Merger to Wachovia Bank, N.A.                                                           403 EDA 2015

               vs.
                                                                                        IN MORTGAGE
LISA FERRARI a/k/a LISA A. FERRARI                                                      FORECLOSURE


                                                 OPINION

BARRETT,J.                                                                                      OCTOBER '7 t      , 2015
       Defendant Lisa Ferrari has filed a notice of appeal from this court's order dated January

15, 2015, entered of record on January 16, 2015. That order granted the plaintiffs motion for

summary judgment in this in rem action sounding in mortgage foreclosure.

                                  I. PROCEDURAL msTORY

       On May 13, 2010, the original plaintiff, Wachovia Bank, National Association, filed its

second amended complaint by which it alleged: (1) that defendant Lisa Ferrari gave a mortgage

to the original plaintiff for the real property she owned at 1516 Surrey Lane, Wynnewood,

Pennsylvania; (2) that the defendant was in default because she had not paid any principal or

interest in over a year; (3) that the defendant owed $269,015.93                  on the mortgage; and (4) that

proper notice of intention to foreclose was served upon the defendant. See Second Amended

Complaint, 5/13/10, #0009,   ,r,r 3-6.   As an exhibit to the second amended complaint, the original

plaintiff attached mortgage papers dated July I 0, 2006, signed by the defendant, bearing the

recordation mark of the Montgomery County Recorder of Deeds. Second Amended Complaint,

5/13/10, #0009 (Exhibit "A").




                                               Appendix I
        On September 10, 2010, the defendant filed an answer to the second amended complaint.

Defendant admitted expressly that she had mortgaged her property at 1516 Surrey Lane.

Defendant's Answer, 9/10/10, #0022, 12. To the remainder of the original plaintiffs

allegations, the defendant responded "Denied" while admitting that she had given the mortgage

to "Wachovia Bank National Association."           Defendant's Answer, 9/10/10, # 0022, 13.1

Defendant also filed a list of twenty-six affirmative defenses designated as new matter. See New

Matter, 9/10/10, #0022, pp. 1-7. Defendant also purported to set forth five separate

counterclaims arising from the original plaintiffs conduct in originating the mortgage loan or in

collecting payment. See Counterclaim, 1127-42. By order entered on October 20, 2011, the

Honorable William R. Carpenter, of this court, dismissed the defendant's new matter and

counterclaims, with prejudice, upon consideration of the original plaintiff's preliminary

objections.

        On November 2, 2011, the original plaintiff served upon the defendant a request for

admissions. Motion for Summary Judgment, 7/3/14, #0054, 112; Response, 8/1/14, #0055, 112

(noting that the request was served upon defendant's prior counsel). That request asked the

defendant to admit: (1) the principal and interest due on the mortgage; (2) that the original

plaintiff properly served on the defendant the required legal notices; and (3) that the original

plaintiff is entitled to collect attorney's fees. See Motion for Summary Judgment, 7/3/14, #0054,

(Exhibit "H''). Defendant did not respond to the original plaintiffs request for admissions.

Motion, 7/3/14, #0054, 112. See Response, 8/1/14, #0055, 112 (ignoring the substance of




I
 Defendant did so while denying that she had given the mortgage to "Wachovia Bank National Association
Wachovia Bank DSR 04003-014." Defendant's Answer, 9/10/10, #0022, ~ I. Defendant made that denial
mistakenly believing that the original plaintiff's mailing address, that being "Wachovia Bank DSR 04003-014," was
part of its name.


                                                       2
original plaintiffs allegation and denying that defendant "ever served on Defendant's current

counsel any Request for Admissions.") (emphasis added).

         On April 14, 2014, Wells Fargo Bank, N.A., became the plaintiff in this action by

asserting its right to substitution by filing its ''Substitution of Successor Plaintiff Under Rule

2352." That filing indicated that "[o]n March 20, 2010, Wachovia Bank, M.A. merged with

Wells Fargo Bank, N.A. and the resulting bank is Wells Fargo Bank, N.A." Substitution,

4/14/14, #0053, 12. Contemporaneously with its substitution, the plaintiff filed a certificate of

service indicating that the substitution was served upon the defendant on April 14, 2015.

Defendant filed no opposition to the substitution.2

         On July 3, 2014, the plaintiff filed its motion for summary judgment, based on the

defendant's general denials to the second amended complaint, and based on the defendant's

failure to respond to the requests for admissions. Plaintiff averred in its motion that the original

plaintiff had been merged into the plaintiff and that that the plaintiff possessed the note that the

defendant had given to the original plaintiff. Motion for Summary Judgment, 7/3/14, #0054, 11

5-6. See also Plaintiff's Reply, 8/19/14, #0058, 14 (reasserting that "Wells Fargo Bank, N.A. is

the successor mortgagee."). To its motion, the plaintiff attached a certificate of service

indicating that a copy of the motion was served upon defendant on July 3, 2014.

         On August 1, 2014, the defendant filed her response to the plaintiff's motion for

summary judgment. Defendant admitted that she had executed the note and mortgage, and that

she was in default. Similarly, the defendant conceded that that the plaintiff had obtained the

original plaintiff's assets in 2010 and that the plaintiff was the original plaintiffs successor, in


2 There was no factual dispute as to whether the plaintiff was generally the successor to the original plaintiff. See
Response to Motion for Summary Judgment, 8/1/14, #0055, 12 ("It is also admitted that Wells Fargo Bank, N.A. is
the successor to Wachovia Bank[,] in general, having obtained the assets of Wachovia Bank in 20 I 0. "). See also
Motion for Summary Judgment, Exhibit "C" (merger documentation).


                                                          3
                                               3
general. Response, 8/1/14, #0055, 12.              Defendant attached to her response no exhibits,

however, the defendant nevertheless opposed the plaintiffs motion on four discernable grounds.

The first of these was that the "[defendant] entered into the Note and loan due to fraudulent

actions of [the original] Plaintiff." Response, 8/1/14, #0055, 12. See also Response, 8/1/14,

#0055, 125 (referring to predatory loan practices); Response, 8/1/14, #0055, 129 (alleging fraud

in the inducement); Response, 8/1/14, #0055, 130 (alleging "additional fraudulent acts").

         The second defense was that the original plaintiff forfeited its right to enforce either the

note or the mortgage when it "transferred" the note or the mortgage to the Federal National

Mortgage Association ("Fannie Mae") before the original plaintiff sold its assets to the plaintiff.

Response, 8/1/14, #0055, 128. See also Response, 8/1/14, #0055, 12 (''Wells Fargo Bank, N.A.

is [not] the holder in due course or other valid owner of the Note."); Response, 8/1/14, #0055, 1

23 (asserting that the original plaintiff sold "the loan" to "private investors"); Response, 8/1/14,

#0055, 16 ("Plaintiff is [not] the current holder of the Mortgage and has [no] right to enforce

it."); Response, 8/1/14, #0055, 113, 14-16.

        Defendant's third defense was that "the Property is [not] encumbered by the Mortgage."

Response, 8/1/14, #0055, 14. This was apparently because the defendant claimed that the

original plaintiff violated a pooling and servicing agreement when it "record[ed] Defendant's

home equity line of credit in first position on the Mortgage and recording the Mortgage in second

position, ... " Response, 8/1/14, #0055, 124.


        3
           However, the defendant took the position that the plaintiff could not have acquired the note from the
original plaintiff by way of succession, as follows:
                    Plaintiff, Wells Fargo, is not the successor in interest by operation of merger to
                    the initial lender, because the loan was securitized prior to the date of merger
                    and had been transferred from Wells Fargo to at least one other entity.
                    Specifically, the Federal National Mortgage Association ("Fannie Mae") had
                    claimed to own the Note prior to that time.
Response, 8/1/14, #0055, 128.



                                                          4
        The fourth defense asserted was that the notices defendant received failed to comply with

41 P.S. §§ 4~3(b), et seq., and 35 P.S. §§1680.403c, et seq. Response, 8/1/14, #0055, 18. See

also Response, 8/1/14, #0055, 122 ("Specifically, Defendant was neyer given the opportunity to

meet the lender in person, as required, since Plaintiff is not the true lender in this matter.

Defendant was not provided the proper payoff amount as required by the notice.").

        The parties presented oral argument to the undersigned on January 15, 2015. By order

dated January 15, 2015, entered of record on January 16, 2015, the court granted the plaintiff's

motion for summary judgment. Accordingly, an in rem judgment was entered in favor of the

plaintiff and against the defendant on January 22, 2015, pursuant to the praecipe filed by the

plaintiff on that date.

        On January 26, 2015, the defendant filed a 20 page motion for reconsideration of this

court's order dated January 15, 2015. With its attachments, the defendant's motion for

reconsideration totaled 424 pages. The undersigned had not yet decided the defendant's motion
               I

for reconsideration when the defendant filed a notice of appeal, on February 9, 2015.

        On March 10, 2015, the defendant filed a concise statement of errors complained of on

appeal, as directed by this court's order entered on February 17, 2015. The defendant's

assignments of error for appeal span seven typewritten pages will not be set out here at length,

but will rather be quoted as appropriate below, owing to their length.

                                         II. DISCUSSION

        A motion for summary judgment is properly granted when "the pleadings, depositions,

answers to interrogatories, admissions on file, and affidavits demonstrate that there exists no

genuine issue of material fact and the moving party is entitled to judgment as a matter of law."

Horne v. Haladay, 728 A.2d 954, 955 (Pa.Super.1999) (citing Pa. R. Civ. P. 1035.2). "In actions



                                                  5
for in rem foreclosure due to the defendant's failure to pay a debt, summary judgment is proper

where the defendant admits that he had failed to make the payments due and fails to sustain a

cognizable defense to the plaintiffs claim. Gateway Towers Condominium Ass'n v. Krohn, 845

A.2d 855 (Pa.Super. 2004) ( citing First Wis. Trust Co. v. Strausser, 439 Pa.Super. 192, 653 A.2d

688, 694 (1995)). See also Cunningham v. McWil/iams, 714 A.2d 1054, 1057 (Pa.Super. 1998)

("In a mortgage foreclosure action, summary judgment is properly granted where 'the

mortgagors admit that the mortgage is in default, that they have failed to pay interest on the

obligation, and that the recorded mortgage is in the specified amount.?') (citing Landau v.

Western Pennsylvania National Bank, 445 Pa. 217, 225-26, 282 A.2d 335, 340 (1971)). A

defendant admits the material portions of a complaint in mortgage foreclosure, by operation of

Pa.R.C.P.      1029, when that defendant files an answer containing general denials. E.g., Bank of

America, N.A. v. Gibson, 102 A.3d 462 (Pa.Super. 2014). See also First Wisconsin Trust Co. v.

Strausser, 653 A.2d 688, 692 (Pa.Super. 1995) ("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 must be considered an admission of those facts")

(citing New York Guardian Mortgage Corp. v. Dietzel, 524 A.2d 951, 952 (1987)).

        Here, in the matter now on appeal, the case is squarely within the rule by which general

denials to a complaint in mortgage foreclosure amount to admissions justifying the grant of

summary judgment. Here, the defendant responded "denied" to all of the plaintiff's material

allegations.     Moreover, the defendant's failure to respond to the requests for admissions

propounded by the plaintiff established the plaintiff's prim a facie claim in mortgage foreclosure

as "[t]he matter is admitted unless, within thirty days after service of the request, or within such

shorter or longer time as the court may allow, the party to whom the request is directed serves




                                                    6
upon the party requesting the admission an answer verified by the party or an objection, signed

by the party or the party's attorney." Pa.R.C.P 1014(b). See also Pa.R.C.P. 1014(d) (setting forth

the general rule that such deemed admissions are "conclusively established"). This court

properly granted the plaintiff's motion for summary judgment.

       This court will next address the assignments of error the defendant set forth in her

concise statement.

                          1. Defendant's First Assignment of Error

       Defendant's first assignment of error is as follows:

                        1. Defendant intends to complain on appeal all issues
               raised both at oral argument and in the pleadings. Pursuant to Rule
               1925(b)(4)(vi), because the Court's Order dated January 15, 2015
               states no reasons for the granting of Plaintiffs Motion for
               Summary Judgment, this Statement is being expressed in only
               general terms. Defendant reserves the right to address issues in
               any opinion of the Court which did not previously appear of
               record. See Ryan v. Johnson, 522 Pa. 555, 563 A.2d 1237 (1989).
               Furthermore, to the extent that this Honorable Court is not basing
               its decision in any way on the errors of which Defendant has
               complained, Defendant reserves the right to amend this statement
               to take into account the specific errors which defendant can discern
               from an opinion of this Honorable Court.

Concise Statement, 3/10/15, #0078, p. 2.

       This assignment of error raises no cognizable issue on appeal. Rather, it is a purported

reservation of appellate rights. Defendant by this paragraph set forth no grounds to support

reversing the order entered by this court granting the plaintiffs motion for summary judgment.

                         2. Defendant's Second Assignment of Error

       Defendant's second assignment of error is as follows:

              2. This Honorable Court erred when it granted summary judgment
              in favor of Plaintiff, because there are material facts in question on
              which there is a general dispute. Plaintiff's use of an affidavit
              from a bank officer who was in no way ever involved in the



                                                7
                transactions concerning this matter should have been disregarded
                as the basis for a motion for summary judgment. See Nanty-Glo v.
                American Surety Co., 309 Pa. 236, 163 A.2d 523 (1932).

Concise Statement, 3/10/15, #0078, pp. 2-3.

        This assignment of error lacks merit as it is unsupported in fact since it presumes that this

court granted the plaintiffs motion for summary judgment in sole reliance upon the affidavit by

the plaintiffs bank officer. As noted above, the plaintiff set forth a prima facie case in mortgage

foreclosure in its second amended complaint and in its requests for admissions. Defendant's

deemed admissions were sufficient grounds to entitle the plaintiff to grant of its motion for

summary judgment. Defendant's second assignment of error lacks merit.

                           3. Defendant's ThirdAssignment of Error

        Defendant's third assignment of error is as follows:

               3. This Honorable Court erred by applying an incorrect standard
               when it granted summary judgment in favor of Plaintiff by failing
               to rule in favor of the non-moving party. "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." JP Morgan Chase Bank
               NA. v. Murray, 63 A.3d 1258, 1268 (Pa. Superior Court, 2013).

Concise Statement, 3/10/15, #0078, p. 3.

       This assignment of error lacks merit as it is unsupported in fact since it presumes that the

record as developed contained evidence that required a determination of fact. As noted above,

the defendant failed to adequately respond to the second amended complaint and the defendant

failed to respond at all to the requests for admissions. Defendant's judicial admissions removed

from consideration any need for this court to weigh any evidence. Defendant's third assignment

of error lacks merit.




                                                  8
                          4. Defendant's Fourth Assignment of Error

       Defendant's fourth assignment of error is as follows:

               4. This Honorable Court erred when it granted summary judgment
               in favor of Plaintiff by failing to consider the effects of the
               decision of the Pennsylvania Superior Court in JP Morgan Chase
               Bank NA. v. Murray, 63 A.3d 1258, 1268 (Pa. Superior Court,
               2013), holding that a genuine issue of material fact to preclude
               summary judgment exists where Plaintiff "has failed to establish
               possession of the original Note, indorsed in blank."

Concise Statement, 3/10/15, #0078, p. 3.

       This assignment of error lacks merit because it ignores the fact that the defendant in the

matter now on appeal admitted that she gave the note and mortgage to the original plaintiff and

she admitted that the substituted plaintiff acquired the assets of the original plaintiff, which

would include the note and mortgage, necessarily. In JP Morgan Chase Bank NA. v. Murray, 63

A.3d 1258 (Pa.Super. 2013), the defendant challenged the evidence supporting the chain of

ownership by assignment of the note and mortgage. In JP Morgan Chase Bank NA. v. Murray,

63 A.3d 1258 (Pa.Super. 2013), it was taken as given that the appellee would own the mortgage

and note following a succession and merger, if there were sufficient proof of the chain of the

underlying assignments. Here, in the matter now on appeal, there are no assignments. The case

of JP Morgan Chase Bank NA. v. Murray, 63 A.3d 1258 (Pa.Super. 2013) militates against the

defendant in this appeal because it implies that succession by merger is sufficient proof to show

ownership of a note and mortgage to support the entry of summary judgment.         Defendant's

fourth assignment of error lacks merit.

                           5. Defendant's Fifth Assignment of Error

       Defendant's fifth assignment of error is as follows:

                5. This Honorable Court erred when it granted summary
               judgment in favor of Plaintiff in finding that Plaintiff was a holder



                                                  9
                 in due course of the note in question (the "Note") or that Plaintiff
                 was ever in physical possession of the Note, or ever an owner of
                 the Note, as Plaintiff presented no evidence of those facts.

Concise Statement, 3/10/15, #0078, p. 3.

        This assignment of error lacks merit for the same reason that the defendant's fourth

assignment of error lacks merit. The matter now on appeal is a case where the defendant

admitted that she gave the note and mortgage to the original plaintiff and she admitted that the

plaintiff acquired the assets of the original plaintiff. Defendant's fifth assignment of error lacks

merit because it ignores these admissions.

                             6. Defendant's Sixth Assignment of Error

        Defendant's sixth assignment of error is as follows:

                 6. This Honorable Court erred when it granted summary judgment
                 in favor of Plaintiff when it permitted Plaintiff to argue as agent, as
                 successor by merger, and as owner of the Note without proof of
                 standing to proceed in any of these roles. As a result, this
                 Honorable Court failed to require Plaintiff to prove standing in any
                 capacity while commencing this action. In Plaintiffs response to a
                 formal inquiry by Defendant's agent, Marie McDonnell, Wells
                 Fargo produced documents that clearly admit that they are not the
                 owner nor the assignee, but are at best a servicer of an
                 undetermined entity.

Concise Statement, 3/10/15, #0078, pp. 3-4.

        Defendant's sixth assignment lacks merit as raising matters not presented in response to

the plaintiffs motion for summary judgment. Defendant filed a response on August 1, 2014, a

sur-sur reply on September 18, 2014, and a brief on September 18, 2014. There is no mention of

Ms. McDonnell in any of these papers. There is no mention of the documents she purportedly

obtained and they were not filed as exhibits in response to the plaintiffs motion. Accordingly,

the defendant's sixth assignment of error raises matters that where de hors the record presented

to this court.



                                                   10
                         7. Defendant's Seventh Assignment of Error

       Defendant's seventh assignment of error is as follows:

               7. This Honorable Court erred when it granted summary judgment
               in favor of Plaintiff by failing to consider the effect of the holdings
               in the case of Montgomery County, Pa. ex rel. Becker v.
               MERSCORP, Inc., No. 11-cv-6968, 2014 WL 550805 (E.D. Pa.
               February 12, 2014), and its holding that every transfer of a
               mortgage is a conveyance and needs to be recorded, which
               Plaintiff has failed to do so in this case.

Concise Statement, 3/10/15, #0078, p. 4.

       Defendant's seventh assignment of error lacks merit for the same reason that JP Morgan

Chase Bank NA. v. Murray, 63 A.3d 1258 (Pa.Super. 2013) does not control. Inthe matter now

on appeal there were no assignments of the mortgage. Defendant's seventh assignment of error

lacks merit.

                          8. Defendant's Eighth Assignment of Error

       Defendant's eighth assignment of error is as follows:

               8. This Honorable Court erred when it granted summary judgment
               in favor of Plaintiff by failing to consider the responses of Plaintiff
               to the inquiries of Defendant's agent, Marie McDonnell, to
               Plaintiff on behalf of Defendant as set forth in Federal law with
               regard to the question of note ownership, in essence failing to
               consider the effect of Plaintiff's admission that neither Wells Fargo
               nor Wachovia is the owner or the assignee of the Note.

Concise Statement, 3/10/15, #0078, p. 4.

        Defendant's eighth assignment lacks merit as raising matters not presented in response to

the plaintiff's motion for summary judgment, as addressed previously.

                          9. Defendant's Ninth Assignment of Error

       Defendant's ninth assignment of error is as follows:

               9. This Honorable Court erred when it granted summary judgment
               in favor of Plaintiff by failing to consider the expert testimonies of



                                                 11
               William Mc Caffrey, Marie McDonnell, and Amy Andersson. All
               three experts have testified to Plaintiff not having the standing to
               bring the action as well as to the improper amounts due, their
               method of being calculated, and amounts already paid.

Concise Statement, 3/10/15, #0078, p. 4.

        Defendant's ninth assignment of error lacks merit as raising matters not presented in

response to the plaintiff's motion for summary judgment, as addressed previously.       It should be

noted that there was no testimony in this case, expert or otherwise. To the extent the defendant

might be referring to deposition testimony, l'l:o transcripts were filed in response to the plaintiffs

motion for summary judgment. Defendant's ninth assignment of error lacks merit.

                          10. Defendant's Tenth Assignment of Error

        Defendant's tenth assignment of error is as follows:

                10. This Honorable Court erred when it granted summary
               judgment in favor of Plaintiff by failing to consider that Plaintiff
               has twice deceived the Court by presenting to the Court fraudulent
               and defective notices with improper amounts due that are not true
               and correct copies of the notices actually received by Defendant.
               Plaintiff attempts to hide the fact that Plaintiff has twice sent
               notices with counselling agencies in multiple counties instead of
               only Defendant's county. Proper notification is required in
               Pennsylvania to commence a foreclosure action. 35 P.S.
               1680.403c. See Washington Mutual v. Carr, CCP Adams County
               (July 5, 2006), published in Adams Co. Legal Journal, Vol. 49, No.
               4, pp. 17-21, June 15, 2007. Act 91 notice defective, foreclosure
               complaint dismissed because notice included a list of all
               counseling agencies in Pennsylvania rather than a list of agencies
               in the country in which the property was located.

Concise Statement, 3/10/15, #0078, pp. 4-5.

       Defendant's tenth assignment of error lacks merit as raising matters not presented in

response to the plaintiff's motion for summary judgment. First, the defendant failed to present to

this court the notices that she actually received and she failed to present any evidence to show

how the notices presented by the plaintiff were at variance with the amounts she actually owed



                                                  12
on her mortgage. Second, the defendant failed to challenge the notices she received on the

ground that too many counselling agencies were listed. See, Brief, 9/18/14, #0062, pp. 13-14

(setting forth nothing more than a block quote from the Ohio opinion PNC Bank, National

Association v. West, Case No. 12CA0061 (OH Ct. App., Dist 9, Jan. 21, 2014). In any event, the

defendant failed to respond to the plaintiffs motion for summary judgment with any evidence

that the notices she received in any way confused her or otherwise caused her to default on her

mortgage. Defendant's tenth assignment of error lacks merit.

                         11. Defendant's Eleventh Assignment of Error

       Defendant's eleventh assignment of error is as follows:

                11. This Honorable Court erred when it granted summary
               judgment in favor of Plaintiff by failing to consider the
               subordination and lien position of the subject loan.

Concise Statement, 3/1.0/15, #0078, p. 5.

       Defendant's eleventh assignment of error lacks merit as it refers to the defendant's

argument that the "[p Jlaintiff or its predecessor" forfeited its rights under the mortgage for

"materially violating [the] terms of a pooling and service agreement ('PSA')." Response, 8/1/14,

#0055, 124. See also Sur-Sur Reply, 9/18/14, #0061, 17. In no way did the defendant make

clear to this court how she can raise as a defense, in the matter now on appeal, the alleged breach

of a contract to which she is not a party. Accord In re Walker, 466 B.R. 271, 284 (Bkrtcy.

E.D.Pa. 2012) ("[w]hatever the context, it appears that a judicial consensus has developed

holding that a borrower lacks standing to (1) challenge the validity of a mortgage securitization

or (2) request a judicial determination that a loan assignment is invalid due to noncompliance

with a pooling and servicing agreement, when the borrower is neither a party to nor a third party




                                                 13
beneficiary of the securitization agreement, i.e., the PSA.") ( citation omitted). Defendant's

eleventh assignment of error lacks merit.

                         12. Defendant's Twelfth Assignment of Error

        Defendant's twelfth assignment of error is as follows:

                 12. This Honorable Court erred when it granted summary
                judgment in favor of Plaintiff by failing to consider Federal
                National Mortgage Association's ("Fannie Mae") claim of
                ownership of the loan along with the supporting expert testimony
                to this fact as well as Plaintiff's own admission of lack of
                ownership. Pa 1141-1150 states that Plaintiff in a mortgage
                foreclosure must set forth parties to the mortgage, any
                assignments, and a statement of the place of record of the mortgage
                and assignments. Wells Fargo v. Janosick, CCP Allegheny County
                (March 23, 2009).

Concise Statement, 3/10/15, #0078, p. 5.

        Defendant's twelfth assignment of error lacks merit as it presumes, falsely, that there

were any assignments in this case, just as it ignores the defendant's admission that the plaintiff

acquired the assets of the original plaintiff. In this regard, the defendant's argument regarding

Fannie Mae lacked merit as did the appellees in PHH Mortg. Corp. v. Powell, 100 A.3d 611

(Pa.Super. 2014). In Powell, the mortgagors argued that they had raised a genuine issue of

material fact because two documents "describe[d] Fannie Mae as the 'investor' and 'owner' of

the (mortgagors'] loan." 100 A.3d at 621. That was insufficient to preclude the entry of

summary judgment because it was not evidence that "Fannie Mae (rather than [the plaintiff])

ha[ d] possession of the original Note." 100 A.3d at 621. Defendant's twelfth assignment of

error lacks merit.

                       13. Defendant's ThirteenthAssignment of Error

       Defendant's thirteenth assignment of error is as follows:




                                                14
                13. This Honorable Court erred when it granted summary
               judgment in favor of Plaintiff by failing to consider that the Note
               was never attached to a pleading nor seen by Defendant nor by any
               court until this year and that the signature is possibly a forgery. A
               national practice by Wells Fargo of fabricating such documents for
                litigation was ruled upon in Cynthia Carrsow-Franklin v. Wells
               Fargo, Case No. 10-20010 (RDD) Chapter 13 Entered 1/29/2015
               (United States Bankruptcy Court, Eastern District of New York) by
               Judge Drain of White Plains, New York, almost immediately after
               the oral arguments in this case. Defendant has presented evidence
               of the fabrication instructions for attorneys discussed by Judge
               Drain in a lengthy opinion.

Concise Statement, 3/10/15, #0078, p. 5.

       Defendant's thirteenth assignment of error lacks merit as raising matters not presented in

response to the plaintiff's motion for summary judgment. Defendant acknowledges in her

thirteenth assignment of error that the grounds relied upon did not exist prior to "almost

immediately after" the matter was orally argued and thereby submitted to this court for decision.

In any event, the defendant tacitly admits that the plaintiff possesses the note, and "possibly. a

forgery" would be insufficient to raise a genuine issue of material fact precluding summary

judgment. Defendant's thirteenth assignment of error lacks merit.

                       14. Defendant'sFourteenth Assignment of Error

       Defendant's fourteenth assignment of error is as follows:

               14. This Honorable Court erred when it permitted the action to
               move forward to summary judgment in favor of Plaintiff despite
               the numerous acts of fraud perpetuated by the Plaintiff prior to and
               during this action. This Honorable Court has been provided with
               proof of fraud including, but not limited to, the fabrication of loan
               application information benefitting the [P]laintiff, exercise of an
               illegal right to offset, i[n]proper lien position, lack of recordation,
               and fraud in the inducement through predatory practices.

Concise Statement, 3/10/15, #0078, p. 6.




                                                 15
       Defendant's fourteenth assignment of error lacks merit. It presumes, falsely, that the

defendant presented to this court in opposition to the plaintiffs motion for summary judgment

competent evidence to support the assertions now made on appeal that loan application

information was fabricated, that the loan made was predatory, or any other of the assertions the

defendant now makes by her fourteenth assignment of error. Defendant's fourteenth assignment

of error lacks merit.

                        15. Defendant's Fifteenth Assignment of Error

       Defendant's fifteenth assignment of error is as follows:

                15. This Honorable Court erred when it granted summary
               judgment in favor of Plaintiff by honoring the fraud bars for the
               Truth in Lending Act (TILA) and the Real Estate Settlement
               Procedures Act (RESPA) since both include many specific laws
               and many have been amended with the new law of which Plaintiff
               is still in violation. Defendant's agent, Marie McDonnell, has
               made inquiries that have gone unanswered to this day on behalf of
               Defendant in violation of Federal law. Answers would enlighten
               this Honorable Court if provided since they speak directly to
               ownership of the Note and standing to bring the action.

Concise Statement, 3/10/15, #0078, p. 6.

       Defendant's fifteenth assignment of error lacks merit as raising matters not presented in

response to the plaintiffs motion for summary judgment.

                        16. Defendant's Sixteenth Assignment of Error

       Defendant's sixteenth assignment of error is as follows:

                16. This Honorable Court erred when it granted summary
               judgment in favor of Plaintiff, because it has presumed without
               evidence that Plaintiff has been injured when expert testimony has
               declared that the loan was not funded by Plaintiff.

Concise Statement, 3/10/15, #0078, p. 6.




                                               16
       Defendant's sixteenth assignment of error lacks merit as raising matters not presented in

response to the plaintiffs motion for summary judgment.

                      17. Defendant's Seventeenth Assignment of Error

       Defendant's seventeenth assignment of error is as follows:

                17. This Honorable Court erred when it granted summary
               judgment in favor of Plaintiff by permitting the Plaintiff to mislead
               this Honorable Court regarding the meanings, definitions, and
               relationships of owners, servicers, agents, holders, and holders in
               due course. Washington Mutual v. Carr, CCP Adams County
               (2007), 2006 WL 2568287 (Pa.Com.Pl.), 77 Pa. D. & C.41h 136.
               Because Plaintiff failed to allege facts establishing the relationship
               between it and the original mortgagee in its mortgage-foreclosure
               complaint, the court granted defendant's preliminary objection
               based on plaintiffs lack of capacity to sue.

Concise Statement, 3/10/15, #0078, p. 6.

       Defendant's seventeenth assignment of error lacks merit as not based in fact. The case

of Washington Mutual v. Carr, CCP Adams County (2007), 2006 WL 2568287 (Pa.Com.Pl.), 77

Pa. D. & C.41h 136 was one where the plaintiff was given the opportunity to amend the complaint

to allege how it became the successor-in-interest to the mortgagee. The matter now on appeal is

a case where the original plaintiff alleged in its second amended complaint that it was the

mortgagee and the defendant filed an answer admitting to that allegation. Defendant's

seventeenth assignment of error lacks merit.

                       18. Defendant's EighteenthAssignment of Error

       Defendant's eighteenth assignment of error is as follows:

               18. This Honorable Court erred when it granted summary
              judgment in favor of Plaintiff in its interpretation and/or
              misinterpretation of the Uniform Commercial Code as adopted
              under Pennsylvania law, and its understanding of conveyances and
              negotiable instruments, if any are applicable in this matter, as well
              as its understanding of assignments and recordation laws relating
              to securitized mortgage notes.



                                                 17
Concise Statement, 3/10/15, #0078, p. 7.

        Defendant's eighteenth assignment of error lacks merit as its generic nature lacks

sufficient specificity to permit meaningful discussion.

                        19. Defendant's Nineteenth Assignment of Error

        Defendant's nineteenth assignment of error is as follows:

                19. This Honorable Court erred when it granted summary
               judgment in favor of Plaintiff when it failed to consider the lack of
               Plaintiff's proof of establishing a proper chain of title in the history
               of the instruments in question.

Concise Statement, 3/10/15, #0078, p. 7.

        Defendant's nineteenth assignment of error lacks merit for reasons addressed previously.

This is a case where the original plaintiff was the mortgagee and the defendant admitted that the

plaintiff purchased the assets of the plaintiff and it followed that the plaintiff is the original

plaintiffs successor by merger. Defendant's nineteenth assignment of error lacks merit.

                        20. Defendant'sTwentieth Assignment of Error

       Defendant's twentieth assignment of error is as follows:

                20. This Honorable Court erred when it granted summary
               judgment in favor of Plaintiff when it failed to consider that the
               Note was not attached to the pleadings. Since this is a suit on a
               contract, the contract must be attached pursuant to Pennsylvania
               Rule of Civil Procedure 1019.

Concise Statement, 3/10/15, #0078, p. 7.

       Defendant's twentieth assignment of error lacks merit as the defendant did not file

preliminary objections to the second amended complaint filed on May 13, 2010 by the original

plaintiff. Rather, the defendant filed an answer and new matter on September 10, 2010.




                                                  18
Defendant's twentieth assignment of error therefore raises an issue that has not been preserved

for appellate review.

               21. Defendant's Twenty-First Assignment of Error

        Defendant's twenty-first assignment of error isas follows:

               21. This Honorable Court erred when it granted summary
               judgment in favor of Plaintiff when it failed to recognize the
               possibility that a Pooling and Servicing Agreement of the Trust
               that has been identified as including the instrument in question
               would play a significant role in determining the standing of this
               action and that Courts have recognized a homeowner's standing in
               matters relating to securitized loans that have been pooled into a
               real estate mortgage investment conduit governed by a pooling and
               servicing agreement.

Concise Statement, 3/10/15, #0078, p. 7.

       Defendant's twenty-first assignment of error lacks merit as it refers to the defendant's

argument that the "[p ]laintiff or its predecessor" forfeited its rights under the mortgage for

"materially violating [the] terms of a pooling and service agreement ('PSA')." Response, 8/1/14,

#0055, 124. See also Sur-Sur Reply, 9/18/14, #0061, 17. It lacks merit for the same reasons

addressed earlier in this opinion, in the discussion of the defendant's eleventh assignment of

error, above. Defendant's twenty-first assignment of error lacks merit.

                                       III. CONCLUSION

       Accordingly, for the reasons set forth above, it is respectfully suggested that this court's

order dated January 15, 2015, entered of record on January 16, 2015, should be affirmed.


                                               BY THE COURT:


                                                ~./~--~
                                               R. STEPH~N BARRETT, J.




                                                 19
Copies mailed on   1j   /_,J /, r-;;:
Edward D. Conwa~             to:
Christine L. Graham, Esquire
Manrico A~liti, Jr Esquire




                                        20
