J-S46011-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

GREEN TREE SERVICING, LLC                       IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

PATRICIA KENT

                            Appellant                No. 2599 EDA 2013


            Appeal from the Judgment Entered September 10, 2013
                In the Court of Common Pleas of Bucks County
                      Civil Division at No(s): 2010-11202

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

MEMORANDUM BY MUNDY, J.:                          FILED OCTOBER 15, 2015

       Appellant, Patricia Kent, appeals from the September 10, 2013 in rem

judgment entered in favor of Bank of America, N.A. (Bank of America),

pursuant to the order granting Bank of America’s motion for summary

judgment in its action for mortgage foreclosure.1    After careful review, we

affirm.

       The trial court summarized the facts and procedural history as follows.

                    On April 26, 2004, []Appellant[] and Joel R.
              Kent, Jr. (“Joel Kent”) jointly made, executed, and
              delivered a Mortgage to Oak Street Mortgage, Inc.
              and Joel Kent solely executed the Promissory Note.
              The Mortgage applied to 25 Quince Circle, Newtown,
              Pennsylvania, 18940 (“Subject Property”) and was
____________________________________________


1
  As explained below, this Court granted Bank of America’s application to
substitute Green Tree Servicing, LLC (Green Tree), which it filed after
assigning the mortgage to Green Tree.
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          recorded in the Office of the Recorder of Deeds of
          Bucks County, Mortgage Book No. 3979, page 1314.
          The Mortgage was assigned to BAC Home Loans
          Servicing, LP (“BAC”) and said assignment was
          recorded in the Office of the Recorder of Deeds of
          Bucks County, Mortgage Book No. 6528, page 2228.
          On September 15, 2010, notice was sent to
          Appellant and Joel Kent (collectively “the Kents”) of
          the intention of BAC to foreclose on the Subject
          Property.   Because the Kents failed to take the
          necessary affirmative steps to cure the delinquency,
          on October 28, 2010, BAC filed a Complaint in
          mortgage foreclosure against the Subject Property.
          Bank of America [] is the successor by merger with
          BAC and on February 28, 2012, a Voluntary Praecipe
          to Substitute Party Plaintiff was filed and
          subsequently granted, causing the complaint to be
          amended in 2012.

                 In 2010, when the Original Complaint was
          filed, the Mortgage was in default because the
          required payments had not been made as set forth in
          the Promissory Note. Specifically, the Kents failed to
          make payments on the Mortgage from May 1, 2009
          until the present. The Kents also failed to cure this
          default and otherwise comply with the terms of the
          Mortgage. At that time, the principal balance due
          was $225,051.40 with interest from May 1, 2009 to
          October 26, 2010 of $20,632.83 (per diem at
          $35.9457). Other fees sought in this action include
          attorney’s fees, late charges through October 26,
          2010, costs of suit and title search, and escrow
          deficit. When the Complaint was filed, [Bank of
          America] sought $251,246.64 including fees and
          costs, which have increased as the default continues.
          Attached to the Complaint, [Bank of America]
          included both Act 91 of 1983 notice, Act 6 Notice,
          and a legal description of 25 Quince Circle in
          Newtown.      See Complaint; see also 35 P.S.
          § 1680.403c (2008); 41 P.S. § 403 (1974).

               The Parties also participated in the Bucks
          County Conciliation Program and tried to modify the
          mortgage loan.      Appellant was denied a loan

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          modification on May 12, 2011. [Appellant] filed two
          Answers in this action, one to the Original Complaint
          and one to the Amended Complaint.            In both
          answers, Appellant made general denials. However,
          in her Amended Answer of January 3, 2013,
          Appellant did admit that Act 6 Notice was given.

                During the pendency of this action, Joel Kent
          obtained a Chapter 7 Discharge of Bankruptcy,
          releasing him personally from the debt owed under
          the Mortgage. Also during the pendency of this
          action, Joel Kent deeded the Subject Property to
          Appellant as a result of a divorce settlement. Now,
          Appellant is the current and sole owner of the
          Subject Property. Currently, there is also a tax lien
          against the Subject Property, which caused an
          Amended Complaint to be filed where the United
          States was added as an additional defendant in this
          action.

                On May 24, 2013 and June 10, 2013, [Bank of
          America] and Appellant filed Motions for Summary
          Judgment, respectively.         Both Motions were
          praeciped [for disposition] under Bucks County Rule
          208.3(b). In its Motion for Summary Judgment,
          [Bank of America] avers it is entitled to summary
          judgment as a matter of law because (1) the
          Mortgage is in default; (2) there are no genuine
          issues of material fact present; (3) it is seeking an in
          rem judgment only; (4) the mortgage foreclosure
          does not come under Act 6 of 1974 but said notice
          was given[;] (5) temporary stay under Act 91 of
          1983 has terminated; and (6) it named the United
          States of America as a proper Defendant in this
          action.    Attached to the Motion for Summary
          Judgment is the Mortgage, which was signed by
          Appellant on April 26, 2004.

                [Bank of America] attached an Affidavit to the
          Motion for Summary Judgment, authored by
          Jacqueline S. Nauman, Assistant Vice-President at
          Bank of America, N.A. In the Affidavit, Ms. Nauman
          stated that, in the performance of her regular job
          functions, she has “personal knowledge Bank of

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              America, N.A.’s procedures for creating” the records
              maintained in this matter.       With this personal
              knowledge, Ms. Nauman further asserted that in her
              said capacity she is “familiar with the account that
              forms the basis of the instant action and she has
              examined all relevant documents prior to the
              execution of the Affidavit.” In the Affidavit, Ms.
              Nauman verified that the May 1, 2009 payment, and
              every payment thereafter, is due and owing as of
              February 21, 2013, the total amount due upon the
              Mortgage was $289,874.15, including a per diem
              interest at 5.75%. The amount owed was itemized
              and listed in her Affidavit.

Trial Court Opinion, 10/10/13, at 2-4 (footnote and some citations omitted).

       On August 19, 2013, the trial court entered an order granting Bank of

America’s summary judgment motion and denying Appellant’s summary

judgment motion. That order also entered an in rem judgment in favor of

Bank of America in the amount of $289.874.15, plus per diem interest of

$34,945.70, for a total judgment of $324,819.85. On September 10, 2013,

Bank of America filed a praecipe               for   judgment in   the   amount of

$324,819.85, and the same was entered that day.

       On September 13, 2013, Appellant filed a timely notice of appeal. 2 On

April 14, 2014, a panel of this Court entered an order staying the appeal

because Appellant had filed for bankruptcy. Superior Court Order, 4/14/14

(per curiam), citing 11 U.S.C. § 362.            Thereafter, on April 15, 2015, the

____________________________________________


2
  Appellant and the trial court have complied with Pennsylvania Rule of
Appellate Procedure 1925.




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United States Bankruptcy Court for the Eastern District of Pennsylvania

entered an order dismissing Appellant’s Chapter 13 bankruptcy case.

Consequently, on June 16, 2015, this Court entered an order vacating the

previous order staying the appeal.               That order also granted Bank of

America’s application for substitution of Green Tree because Bank of America

had assigned the mortgage to Green Tree.3                See generally Pa.R.A.P.

502(b). Accordingly, this appeal is before us for disposition.

       On appeal, Appellant presents the following three issues for our

review.

              1.     Was the trial [court’s] application of the law as
                     to the affect [sic] of the Bank’s release of the
                     borrower from the obligation on the note and
                     its affect [sic] on the mortgage given as
                     collateral error?

              2.     Did the trial [court] commit an error of law
                     when it denied [Appellant]’s legal position that
                     the release of the borrower from the obligation
                     on the note, release her as the mortgagor on
                     the mortgage given as collateral for the
                     obligation, and therefore deny her Motion for
                     Summary Judgment and grant the Bank’s
                     Motion for Summary Judgment[]?

              3.     Did the trial [court] abuse [its] discretion
                     and/or commit an error of law when [it]
                     granted the Bank’s Motion for Summary
                     Judgment and failed to consider the following
                     issues raised in the pleadings:


____________________________________________


3
    Green Tree has not filed an amended brief.



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                   (a) The Bank did not comply with Act 91 of
                   1983, a fact raised in [Appellant]’s pleadings,

                   (b) The Bank, although it claims otherwise,
                   did not consider [Appellant] a “borrower” for
                   purposes of mediating pursuant to the Home
                   Affordable Modification Program[],

                   (c)   Contrary to the allegations in the Bank’s
                   Motion, [Appellant] did have the resources for
                   a loan modification, and

                   (d)    The Bank did not mediate in good faith?

Appellant’s Brief at 4.

      We begin by noting our standard and scope of review.

                  We review an order granting summary
            judgment for an abuse of discretion. Indalex, Inc.
            v. Nat'l Union Fire Ins. Co. of Pittsburgh, PA, 83
            A.3d 418, 420 (Pa. Super. 2013)[, appeal denied, 99
            A.3d 926 (Pa. 2014)].       Our scope of review is
            plenary, and we view the record in the light most
            favorable to the nonmoving party. Id. A party
            bearing the burden of proof at trial is entitled to
            summary judgment “whenever there is no genuine
            issue of any material fact as to a necessary element
            of the cause of action or defense which could be
            established by additional discovery or expert
            report[.]” Pa.R.C.P. 1035.2(1). In response to a
            summary judgment motion, the nonmoving party
            cannot rest upon the pleadings, but rather must set
            forth specific facts demonstrating a genuine issue of
            material fact. Pa.R.C.P. 1035.3.

                  The holder of a mortgage has the right, upon
            default, to bring a foreclosure action. Cunningham
            v. McWilliams, 714 A.2d 1054, 1056–57 (Pa.
            Super. 1998)[, appeal denied, 734 A.2d 861 (Pa.
            1999)]. The holder of a mortgage is entitled to
            summary judgment if the mortgagor admits that the
            mortgage is in default, the mortgagor has failed to


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J-S46011-15


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

Bank of Am., N.A. v. Gibson, 102 A.3d 462, 464-465 (Pa. Super. 2014),

appeal denied, 112 A.3d 648 (Pa. 2015).

     We will address Appellant’s first two issues together as Appellant

consolidates them in the argument section of her brief. Therein, Appellant

contends that the mortgage was discharged when Bank of America, in its

amended complaint, released Joel Kent from personal liability for the debt

secured by the mortgage. Appellant’s Brief at 8-10; see also Amended

Complaint, 12/14/12, ¶ 10 (stating “Plaintiff hereby releases JOEL R. KENT,

JR[.] from liability for the debt secured by the mortgage[]”).     Appellant

asserts that because she did not sign a promissory note, Bank of America

cannot foreclose on the property, even though the mortgage is in default.

See id. (concluding “[t]he Bank by its unilateral action released the

borrower[, Joel Kent], therefore releasing the Note.   Pursuant to law, the

mortgage is also released[]”).   We conclude that Appellant’s argument is

misplaced because it conflates the personal liability for the debt secured by

the mortgage with Bank of America’s right to foreclose on the mortgage lien

on the property to satisfy the outstanding debt.

     While Appellant may not have signed a promissory note, she cosigned

the mortgage. Bank of America’s Motion for Summary Judgment, 5/24/13,

at Exhibit A, Mortgage, 4/26/04, at 15 (Mortgage).      Moreover, Appellant

became the sole owner and mortgagor of the Subject Property when Joel

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Kent deeded it to her in their divorce settlement. The mortgage secures the

repayment of the note. Mortgage at 3. Specifically, under the terms of the

mortgage, Appellant, as a “Borrower,” incurred the obligation to pay the

debt evidenced by the note.             Mortgage at 1 (defining Appellant as a

Borrower); id. at 4, ¶ 1. Bank of America has not released the mortgage or

the lien on the Subject Property. Accordingly, when Appellant defaulted on

the mortgage, Bank of America’s remedy was to seek foreclosure and sale of

the property to satisfy the outstanding debt.4 Mortgage at 13, ¶ 22.

       The Pennsylvania Rules of Civil Procedure govern actions in mortgage

foreclosure, which are strictly in rem proceedings.        See First Wis. Trust

Co. v. Strausser, 653 A.2d 688, 693 n.4 (Pa. Super. 1995) (stating that an

action on a promissory note seeks an in personam judgment, whereas a

mortgage foreclosure action is strictly in rem). Rule 1147 provides that the

complaint must plead the following elements.

              (a) The plaintiff shall set forth in the complaint:


____________________________________________


4
  We note that ordinarily, when a mortgagor defaults, the lender has two,
nonexclusive remedies. Elmwood Fed. Sav. Bank v. Parker, 666 A.2d
721, 724 n.6 (Pa. Super. 1995). It may seek foreclosure, or it may attempt
to obtain a judgment on the underlying note and issue a writ of execution.
Id.    Although the lender may seek these remedies concurrently or
consecutively, the lender may have only one satisfaction. Id. Herein, Bank
of America cannot hold Appellant personally liable because she did not sign
the note and the mortgage only creates a lien on the real property. See id.




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                  (1) the parties to and the date of the
                  mortgage, and of any assignments, and a
                  statement of the place of record of the
                  mortgage and assignments;

                  (2) a description of the land subject to the
                  mortgage;

                  (3) the names, addresses and interest of the
                  defendants in the action and that the present
                  real owner is unknown if the real owner is not
                  made a party;

                  (4) a specific averment of default;

                  (5) an itemized statement of the amount due;
                  and

                  (6) a demand for judgment for the amount
                  due.

Pa.R.C.P. 1147(a). Moreover, Rule 1144(b) provides that the lender is not

required to join all mortgagors as parties if the lender releases those

mortgagors from liability in the complaint.

            Rule 1144. Parties. Release of Liability.

            (a) The plaintiff shall name as defendants

                  (1) the mortgagor;

                  (2) the personal representative, heir or devisee
                  of a deceased mortgagor, if known; and

                  (3) the real owner of the property, or if the
                  real owner is unknown, the grantee in the last
                  recorded deed.

            (b) Unless named as real owner, neither the
            mortgagor nor the personal representative, heir or
            devisee of the mortgagor, need be joined as
            defendant if the plaintiff sets forth in the complaint

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              that the plaintiff releases such person from liability
              for the debt secured by the mortgage.

Pa.R.C.P. 1144. Herein, Bank of America complied with these Rules by filing

a complaint that named Appellant as the mortgagor and real owner of the

Subject Property and released Joel Kent from personal liability for the debt

evidenced by the note and secured by the mortgage.                Compare id. at

1144(b) (providing that a mortgagor does not need to be joined “as

defendant if plaintiff sets forth in the complaint that the plaintiff releases

such person from liability for the debt secured by the mortgage[]”) with

Amended Complaint, 12/14/12, ¶ 10 (stating, “Plaintiff hereby releases JOEL

R. KENT, JR[.] from liability for the debt secured by the mortgage[]”). Bank

of America did not release Appellant from the mortgage or release the lien

on the Subject Property created therein.           Further, as this action is in rem

only, Bank of America is not seeking to hold Appellant personally liable for

the debt. Accordingly, because the mortgage is in default, Bank of America

can proceed in rem to foreclose on the mortgage and force a sale of the

property.5



____________________________________________


5
   Appellant’s argument that she was under no obligation to make mortgage
payments is disingenuous. In her answer, she claims that she obtained a
loan modification and has attempted to make payments in accordance with
it. Appellant’s Answer to Amended Complaint, 1/3/13, at ¶ 5. Further, the
mortgage has been in default since May 1, 2009.




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J-S46011-15


       Moreover, Bank of America was entitled to summary judgment

because there is no issue of material fact that the mortgage is in default,

Appellant has failed to pay on the obligation, and the recorded mortgage is

in the specified amount. See Gibson, supra. We conclude the trial court

did not err as a matter of law by granting Bank of America’s motion for

summary judgment and denying Appellant’s cross-motion for summary

judgment. Consequently, Appellant’s first two issues lack merit.

       In her third issue, Appellant asserts that her pleadings created two

issues of material fact that preclude the entry of summary judgment.

Appellant’s Brief at 4. Specifically, Appellant claims that Bank of America did

not provide her with an Act 91 notice. Id. Appellant also alleges that Bank

of America acted in bad faith during the loan modification process.      Id. at

10-11.

       We conclude that Appellant has waived the argument that Bank of

America did not provide her with Act 91 notice before instituting the present

action.6 Appellant waived this issue by failing to present it to the trial court

in her opposition to Bank of America’s Motion for summary judgment. See

Pa.R.A.P. 302(a) (providing that “[i]ssues not raised in the lower court are

waived and cannot be raised for the first time on appeal[]”); Moranko v.
____________________________________________


6
  As this purported defect is not jurisdictional, it may be waived. See
Beneficial Consumer Disc. Co. v. Vukman, 77 A.3d 547, 550 (Pa. 2013)
(holding “defective Act 91 notice does not implicate the jurisdiction of the
court…[]”).



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Downs Racing LP, 118 A.3d 1111, 1115-1116 (Pa. Super. 2015) (en banc)

(stating that “[a]rguments not raised initially before the trial court in

opposition to summary judgment cannot be raised for the first time on

appeal[]”)    (citations and internal quotation marks omitted).   Moreover,

Appellant has waived the issue for lack of development in the argument

section of her brief. See Moranko, supra at 1117 n.3 (noting “a failure to

argue and to cite any authority supporting any argument constitutes a

waiver of issues on appeal[]”) (citation and internal quotation marks

omitted).    Appellant’s argument section does not contain any reference to

Act 91 nor a citation to any authority supporting her Act 91 claim.

Therefore, we conclude Appellant has waived her Act 91 issue. See id.

     Appellant next contends that Bank of America acted in bad faith in the

loan modification process because it “did not acknowledge [Appellant] as a

borrower and did not afford her the opportunity to modify the mortgage.”

Appellant’s Brief at 10.   The only authority on which Appellant relies are

federal statutes and court decisions discussing the Home Affordable

Modification Program (HAMP).      Id. at 10 n.1.   This Court has recently

considered this issue and concluded that a lender’s noncompliance with

HAMP does not raise an issue of material fact that would preclude the entry

of summary judgment. See HSBC Bank, NA v. Donaghy, 101 A.3d 129,

136-137 (Pa. Super. 2014) (rejecting Appellant’s reliance on HAMP as a

defense and concluding that “even if [a]ppellee failed to comply with [HAMP]


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prior to proceeding with its foreclosure against [a]ppellant, [a]ppellant does

not   have   a   right   to   bring   an   action   against   [a]ppellee   for   such

noncompliance[]”) (emphasis in original). Moreover, the only counterclaims

recognized in a mortgage foreclosure action are those arising from, or

incident to, the creation of the mortgage itself. Pa.R.C.P. 1148; see also

Strausser, supra at 205 (rejecting counterclaims based on the bad faith of

mortgagee’s predecessor-in-interest because they were not part of or

incident to the creation of the mortgage as they transpired only after the

creation of the mortgage and after mortgagor’s default). Here, the alleged

bad faith of Bank of America in the loan modification proceedings cannot

form the basis of a defense to the mortgage foreclosure action because they

arose after the creation of the mortgage and after Appellant’s default.

Therefore, Appellant’s bad faith claims do not give rise to a disputed issue of

material fact and do not preclude the entry of summary judgment.

Accordingly, Appellant’s third issue is waived and meritless.

      Based on the foregoing, we conclude Appellant’s issues lack merit or

are waived, and the trial court did not abuse its discretion or err as a matter

of law in awarding summary judgment in favor of Bank of America and

denying Appellant’s motion for summary judgment.              See Gibson, supra.

Accordingly, we affirm the trial court’s September 10, 2013 judgment.

      Judgment affirmed.

      Judge Musmanno joins the memorandum.


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J-S46011-15


     Judge Olson concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/15/2015




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