J-S18032-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

WILMINGTON TRUST, NATIONAL                        IN THE SUPERIOR COURT OF
ASSOCIATION, NOT IN ITS                                 PENNSYLVANIA
INDIVIDUAL CAPACITY, BUT SOLELY AS
TRUSTEE FOR MFRA TRUST 2014-2

                      v.

STEPHEN R. SAFT AND ELLYN GOLDER
SAFT

                             Appellants               No. 1750 EDA 2016


                    Appeal from the Order Dated May 5, 2016
              in the Court of Common Pleas of Montgomery County
                       Civil Division at No(s): 2014-22230

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

MEMORANDUM BY FITZGERALD, J.:                          FILED APRIL 11, 2017

        Appellants, Stephen R. Saft and Ellyn Golder Saft, appeal from the

order of the Montgomery County Court of Common Pleas granting summary
                                                          1
judgment in favor of Bank of America, N.A (“BANA”),            and entering an in

rem judgment of $600,893.78, with interest, in BANA’s favor.           Appellants

contend the trial court impermissibly relied on an affidavit when granting

summary judgment. We affirm.




*
    Former Justice specially assigned to the Superior Court.
1
  On January 20, 2017, this Court granted an application for voluntary
substitution of a party and amended the name of the captioned Appellee as
“Wilmington Trust, National Association, not in its individual capacity, but
solely as trustee for MFRA Trust 2014-2.” Order, 1/20/17.
J-S18032-17


        The trial court set forth the factual and procedural history of this

matter as follows:

           On November 8, 2005, [Appellants] made, executed, and
           delivered to Lafayette Lending Group, Inc. (“Lender”) a
           promissory note (“the Note”) in consideration for a loan
           made by Lender to [Appellants] on said date, whereby
           [Appellants] promised and agreed to pay to Lender, its
           successors and assigns, the principal loan amount of
           $550,000.00 at 5.875%.        As security for the Note,
           [Appellants] made, executed, and delivered a mortgage
           (“the Mortgage”) [on 525 Hoffman Drive in Bryn Mawr,
           Pennsylvania (“Property”)] to Lender.      [BANA] is in
           possession of the Note, indorsed in blank.

           [BANA] filed a Complaint in foreclosure on July 28, 2014.

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

        BANA’s complaint contained the following allegations:

           3. On 11/08/2005 [Appellants] made, executed and
           delivered a mortgage upon the premises hereinafter
           described to MORTGAGE ELECTRONIC REGISTRATION
           SYSTEMS, INC. AS NOMINEE FOR LAFAYETTE LENDING
           GROUP, INC., which mortgage is recorded in the Office of
           the Recorder of Deeds of MONTGOMERY County, in
           Mortgage Book 11690, Page 2595. By Assignment of
           Mortgage recorded 11/26/2013 the mortgage was
           assigned to [BANA], which Assignment is recorded in
           Assignment of Mortgage Book 13717, Page 02749. The
           mortgage and assignment(s), if any, are matters of public
           record and are incorporated herein by reference in
           accordance with Pa.R.C.P. 1019(g);[2] which Rule relieves

2
    Rule 1019(g) states:

           Any part of a pleading may be incorporated by reference in
           another part of the same pleading or in another pleading in
           the same action. A party may incorporate by reference any
           matter of record in any State or Federal court of record
           whose records are within the county in which the action is



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J-S18032-17


         [Appellee] from its obligations to attach documents to
         pleadings if those documents are of public record.

         4. The premises subject to said mortgage is described as
         attached.

         5. The mortgage is in default because monthly payments
         of principal and interest upon said mortgage due
         09/01/2013 and each month thereafter are due and
         unpaid, and by the terms of said mortgage, upon failure of
         [Appellants] to make such payments after a date specified
         by written notice sent to [Appellants], the entire principal
         balance and all interest due thereon are collectible
         forthwith.

         6. The following amounts are due on the mortgage as of
         06/13/2014:

                  Principal Balance                   $485,023.37
                  Interest                            $24,682.73
                  08/01/2013 through 06/13/2014
                  Late Charges                        $488.01
                  Property Inspections                $32.25
                  Escrow Deficit                      $6,775.74

                        TOTAL                         $517,002.10

BANA’s Compl., 7/28/14, at ¶¶ 3-6.

      Appellants filed an answer and new matter on August 28, 2014,

responding, in relevant part, as follows:

         3. Denied. After reasonable investigation [Appellants] lack
         knowledge or information sufficient to form a belief as to


         pending, or any matter which is recorded or transcribed
         verbatim in the office of the prothonotary, clerk of any
         court of record, recorder of deeds or register of wills of
         such county.

Pa.R.C.P. 1019(g).




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        the truth of the averments contained in this paragraph.
        Strict proof is demanded at trial.

        4. Admitted.

        5. Denied. After reasonable investigation [Appellants] lack
        knowledge or information sufficient to form a belief as to
        the truth of the averments contained in this paragraph.
        [Appellants] are entitled to a full accounting through the
        master transaction histories and general ledger for the
        account since a summary of said information cannot be
        relied upon to determine the rightful amounts owed. Strict
        proof is demanded at trial.

        6. Denied. After reasonable investigation [Appellants] lack
        knowledge or information sufficient to form a belief as to
        the truth of the averments contained in this paragraph.
        [Appellants] are entitled to a full accounting through the
        master transaction histories and general ledger for the
        account since a summary of said information cannot be
        relied upon to determine the rightful amounts owed. Strict
        proof is demanded at trial.

Appellants’ Answer & New Matter, 8/28/14, at ¶¶ 3-6. In their new matter,

Appellants asserted BANA was not entitled to relief because it could not

produce the original mortgage and did not maintain the business records for

the mortgage. Id. at ¶¶ 11, 13-14.

     BANA filed a reply to the new matter asserting it properly incorporated

the mortgage by reference. Further, BANA attached copies of the mortgage,

the assignment of the mortgage, and the note as exhibits to its reply. The

attached assignment read:

                 CORPORATE ASSIGNMENT OF MORTGAGE

        Montgomery, Pennsylvania
        SELLER'S SERVICING # :0143676068 "SAFT"
        MERS #: 1000104014387606134 SIS #: 1-888-679-6377


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J-S18032-17



        Date of Assignment: November 19th, 2013
        Assignor.    MORTGAGE    ELECTRONIC     REGISTRATION
        SYSTEMS, INC. AS NOMINEE FOR LAFAYETTE LENDING
        GROUP, INC., ITS SUCCESSORS AND ASSIGNS Assignee:
        BANK OF AMERICA, N.A., A CORPORATION ORGANIZED
        AND EXISTING UNDER THE LAWS OF THE UNITED STATES

        I hereby certify the precise address of the within named
        Assignor is 1901 E VOORHEES STREET, SUITE C,
        DANVILLE, IL 61834,

        I hereby certify the precise address of the within named
        Assignee is 200 S. COLLEGE ST, CHARLOTTE, NC 28255.

        MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC is
        at 1901 E Voorhees Street, Suite C, Danville, IL 61834
        P.O. BOX 2026, FLINT, MI 48501-2026

        Executed By: STEPHEN R SAFT AND ELLYN GOLDER SAFT
        To: LAFAYETTE LENDING GROUP, INC.

        Date of Mortgage: 11/08/2005 Recorded: 12130/2005 in
        Book/Reel /Liben 11690 Page/Folio: 2595 as Instrument
        Document: 2005190467 In the County of Montgomery,
        State of Pennsylvania.   525 HOFFMAN DRIVE, BRYN
        MAWR, PA 19010 in the Township of LOWER MERION

BANA’s Reply to Appellants’ New Matter, 9/17/14, Ex. B.

     BANA filed the instant motion for summary judgment on January 26,

2016, claiming it was owed $600,893.78 with interest and costs.       BANA

alleged Appellants “filed an Answer and New Matter in which they have

effectively admitted all of the allegations of the Complaint [and] generally

denie[d] paragraphs five (5) and six (6) of the Complaint, which aver the

default and amounts due on the Mortgage.”       BANA’s Mot. for Summ. J.,

1/26/16, at ¶ 11-12.   BANA also attached to its motion an affidavit of an



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J-S18032-17


officer at Suntrust Mortgage, Inc., BANA’s servicing agent (“Suntrust

affidavit”). Id., Ex. B. The affidavit purported to confirm the default and

the amount of the debt and included a loan history report. Id. at ¶ 5 & Ex.

B.

      Appellants filed a response on February 22, 2016. Appellants denied

the allegations in BANA’s motion for summary judgment and requested that

the Suntrust affidavit be stricken as inadmissible hearsay. Appellants’ Resp.

in Opp’n to BANA’s Mot. for Summ. J., 2/22/16, at ¶¶ 5-6.

      By order entered on May 6, 2016, the trial court granted summary

judgment and directed that an in rem judgment be entered in BANA’s favor.

Appellants timely appealed and complied with the court’s order to submit a

Pa.R.A.P. 1925(b) statement.

      Appellants present the following question for review:

         Did the trial court commit an error of law in granting
         foreclosing lender’s Motion for Summary Judgment when
         [BANA]’s motion was founded upon an inadmissible
         testimonial affidavit?

Appellants’ Brief at 8.

      Appellants rely on Borough of Nanty-Glo v. American Surety Co.

of New York, 163 A. 523 (Pa. 1932), to assert that the entry of summary

judgment was “predicated upon an impermissible affidavit.”        Appellants’

Brief at 13.   They claim that “there exists no properly recorded mortgage

through the chain of mortgage title.”   Id. at 14. According to Appellants,

BANA thus lacked “authority/standing to foreclose.” Id. at 15. Appellants,


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J-S18032-17


however, concede that “[t]he note was endorsed in blank[,]” as well as a

“loan default.” Id. at 9. No relief is due.

      Our standard of review is well settled:

         [w]e 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[.]” 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.

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

(citations omitted).

      It is well settled that

         [t]he holder of a mortgage has the right, upon default, to
         initiate a foreclosure action. 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.” 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.

Gerber v. Piergrossi, 142 A.3d 854, 859-60 (Pa. Super. 2016) (citation

omitted).

      Moreover,

         Nanty–Glo prohibits entry of summary judgment based
         on the moving party's oral testimony. “An exception to
         this rule exists, however, where the moving party supports


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J-S18032-17


         the motion by using admissions of the opposing party. . .
         .” Admissions include facts admitted in pleadings.

Gibson, 102 A.3d at 466 (citations omitted).       “[I]n mortgage foreclosure

actions, general denials by mortgagors that they are without information

sufficient to form a belief as to the truth of averments as to the principal and

interest owing [on the mortgage] must be considered an admission of those

facts.” Id. at 467 (citation and quotation marks omitted).

      Instantly, Appellants’ focus on the Suntrust affidavit is of no avail.

Apart from the affidavit, we agree with the trial court that Appellants’

general denials and assertions that they lacked of sufficient knowledge in

their answer constituted admissions. See id. at 466-67; Trial Ct. Op. at 3.

Additionally, BANA adduced further bases for its “standing” to foreclose in its

reply to Appellants’ new matter, including a copy of the assignment as well

as the bearer note. See Piergrossi, 142 A.3d at 859-60; BANA’s Reply to

Appellants’ New Matter, Ex. B. In any event, because Appellants failed to

deny the relevant portions of BANA’s complaint with the required specificity,

their appellate challenge to the affidavit based on Nanty-Glo lacks merit.

See Gibson, 102 A.3d at 466-67.            Accordingly, Appellants’ argument

warrants no relief.

      Order affirmed.




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J-S18032-17




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 4/11/2017




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