J-S58004-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

U.S. BANK NATIONAL ASSOCIATION,                  IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

TIMOTHY PIACENTE,

                            Appellant                 No. 472 MDA 2015


              Appeal from the Judgment Entered February 3, 2015
                in the Court of Common Pleas of Luzerne County
                        Civil Division at No.: 2013-07192


BEFORE: GANTMAN, P.J., OLSON, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                         FILED NOVEMBER 19, 2015

        Appellant, Timothy Piacente, appeals pro se from the summary

judgment entered in favor of Appellee, U.S. Bank National Association, in

this mortgage foreclosure action. We affirm.

        The trial court aptly summarized the relevant procedural history of this

case as follows:

               [Appellee] commenced this action by way of Complaint
        filed on June 18, 2013. On December 2, 2013, [Appellant], pro
        se, filed his Answer to [Appellee’s] Complaint. In [Appellant’s]
        Answer [he] admitted that he executed the Mortgage dated
        November [24], 2004 in favor of New Century Mortgage
        Corporation [(New Century)] but denied that the assignment of
        said mortgage was valid due to the bankruptcy filing of New
        Century[].     With respect to the amounts being owed by
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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        [Appellant] as alleged in [Appellee’s] Complaint, [Appellant]
        stated “[Appellant] specifically denies each and every allegation.
        . .” but [Appellant] does not specifically set forth any payment
        made or an amount which he feels is owed to [Appellee]. In his
        answer to [Appellee’s] Complaint, [Appellant] also specifically
        denied receiving the Act 6 and Act 91 notices[1] [Appellee]
        alleges to have sent [Appellant].

              [Appellant] raised New Matter and Affirmative Defenses to
        [Appellee’s] Complaint, including but not limited to the
        assignment of mortgage not being valid; the default interest rate
        as usurious; [Appellant] not receiving the Act 6 and Act 91
        notices[;] and [Appellee] not being the holder of the Promissory
        Note. [Appellee] attached in its Reply to New Matter, a copy of
        the recorded Assignment, a true and certified copy of the Note
        as well as Act 6 and Act 91 notices addressed to [Appellant] at
        552 Pardee Street, Hazelton, Pennsylvania as well as 550-552
        Pardee Street, Hazelton, Pennsylvania.

(Trial Court Opinion, 5/26/15, at 2-3).

        On December 22, 2014, Appellee filed a motion for summary

judgment, attaching an affidavit of lost note prepared by the servicer of the

loan, JPMorgan Chase Bank, N.A. (JPMorgan Chase). The affidavit attached

a copy of the original note and stated that, after a thorough and diligent

search of the hard copy file pertaining to the loan, the original note was not

located, and the loss was not a result of cancellation or transfer of the note

to another party.      (See Motion for Summary Judgment, 12/22/14, Exhibit

A1). Appellant filed a response on January 16, 2015, challenging Appellee’s

standing to bring this action. On February 3, 2015, the trial court granted



____________________________________________


1
    See 41 P.S. §§ 101-605, 35 P.S. §§ 1680.401(c)-1680.410(c).



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Appellee’s motion and entered summary judgment.                   This timely appeal

followed.2

       Appellant raises ten overlapping issues for our review:

       1.    Did the [trial court] err in granting summary judgment as
       Appellee has no ‘locus standi’ or ‘legal standing’ in this case?

       2.    Did the [trial court] err in finding that there is no genuine
       issue of material fact in this case?

       3.    Did the [trial court] err in finding that the Appellee is the
       real-party-in-interest to initiate this action?

       4.    Did the evidence on record demonstrate that Appellee did
       not possess the Note at any point of time?

       5.    Did the [trial court] err in disregarding the exhibits filed by
       Appellant?

       6.   Did the [trial court] err in relying upon the falsehoods
       and/or misrepresentations made by Appellee?

       7.    Whether the Appellee failed to comply with the notice
       requirements pursuant to Act 6 of 1974 41 P.S. § 101 et. seq.
       and Act 91 of 1983, 35 P.S. § 1680.401c?

       8.   Whether the affidavit of lost Note filed by Appellee is in
       compliance of the requirements of UCC?

       9.    Whether      the    complaint     filed   by   Appellee   is   fatally
       defective?

       10. Whether the Assignment of Mortgage filed by Appellee is
       null and void or fatally defective?
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2
   Pursuant to the trial court’s order, Appellant filed a timely concise
statement of errors complained of on appeal on March 12, 2015. See
Pa.R.A.P. 1925(b). The trial court entered an opinion on May 26, 2015.
See Pa.R.A.P. 1925(a).



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(Appellant’s Brief, at 4-5).3

       Our standard of review of an order granting a motion for summary

judgment requires us to determine whether the trial court committed an

error of law or abused its discretion.           See Cigna Corp. v. Exec. Risk

Indem., Inc., 111 A.3d 204, 210 (Pa. Super. 2015).

             [O]ur scope of review is plenary, and our standard of
       review is the same as that applied by the trial court. . . . An
       appellate court may reverse the entry of a summary judgment
       only where it finds that the lower court erred in concluding that
       the matter presented no genuine issue as to any material fact
       and that it is clear that the moving party was entitled to a
       judgment as a matter of law. In making this assessment, we
       view the record in the light most favorable to the nonmoving
       party, and all doubts as to the existence of a genuine issue of
       material fact must be resolved against the moving party. As our
       inquiry involves solely questions of law, our review is de novo.

              Thus, our responsibility as an appellate court is to
       determine whether the record either establishes that the
       material facts are undisputed or contains insufficient evidence of
       facts to make out a prima facie cause of action, such that there
       is no issue to be decided by the fact-finder. If there is evidence
____________________________________________


3
  We note that Appellant’s pro se brief fails to conform to our Rules of
Appellate Procedure in several material respects.           For example, the
statement of the case contains argument, and the statement of the
questions involved and argument sections contain issues and discussion that
are duplicative in nature.        See Pa.R.A.P. 2116(a), 2117(b), 2119(a).
Significantly, Appellant fails to support many of his issues with discussion of
pertinent legal authority. See Pa.R.A.P. 2119(b). Although this Court is
willing to construe pro se materials liberally, pro se litigants must comply
with procedural rules. See Commonwealth v. Lyons, 833 A.2d 245, 251-
52 (Pa. Super. 2003), appeal denied, 879 A.2d 782 (Pa. 2005). Although
this Court could quash or dismiss this appeal, see Pa.R.A.P. 2101, in the
interest of judicial economy, we will address Appellant’s arguments to the
extent we can discern them.




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       that would allow a fact-finder to render a verdict in favor of the
       non-moving party, then summary judgment should be denied.

Bastian v. Sullivan, 117 A.3d 338, 344 (Pa. Super. 2015) (citation

omitted).

       We will address Appellant’s first, third, fourth, and eighth issues

together because they are interrelated. The crux of Appellant’s claim is that

Appellee lacks standing to bring this action because it does not have

possession of the note, and the affidavit of lost note is defective.        (See

Appellant’s Brief, at 12-19, 22-25, 28). He asserts that “the story of the lost

note is a fabricated one to make an impression that Appellee is the lawful

owner of the note.” (Id. at 21, 30). This claim does not merit relief.

       Section 3309 of the Pennsylvania Uniform Commercial Code states:4

       § 3309. Enforcement of lost, destroyed or stolen instrument

       (a) Enforcement.—A person not in possession                of   an
       instrument is entitled to enforce the instrument if:

       (1) the person was in possession of the instrument and
       entitled to enforce it when loss of possession occurred;

       (2) the loss of possession was not the result of a transfer by
       the person or a lawful seizure; and

       (3) the person cannot reasonably obtain possession of the
       instrument because the instrument was destroyed, its
       whereabouts cannot be determined or it is in the wrongful
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4
  This Court has held that a note secured by a mortgage is a negotiable
instrument governed by the Pennsylvania Uniform Commercial Code, 13
Pa.C.S.A. §§ 1101-9809. See JP Morgan Chase Bank, N.A. v. Murray,
63 A.3d 1258, 1263, 1265 (Pa. Super. 2013).



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      possession of an unknown person or a person that cannot be
      found or is not amenable to service of process.

      (b) Proof.—A person seeking enforcement of an instrument
      under subsection (a) must prove the terms of the instrument
      and the person’s right to enforce the instrument. If that proof is
      made, section 3308 (relating to proof of signatures and status as
      holder in due course) applies to the case as if the person seeking
      enforcement had produced the instrument. The court may not
      enter judgment in favor of the person seeking enforcement
      unless it finds that the person required to pay the instrument is
      adequately protected against loss that might occur by reason of
      a claim by another person to enforce the instrument. Adequate
      protection may be provided by any reasonable means.

13 Pa.C.S.A. § 3309(a), (b).

      Here, the trial court determined that Appellee was entitled to enforce

the note even though the original hard copy document could not be located.

The court explained:

      . . . [Appellee] provided an affidavit executed before a notary by
      an authorized representative of [Appellee, J.P. Morgan Chase,]
      setting forth the policies and procedures for maintaining original
      notes. [Appellee] also produced a copy of the Note in question
      and [Appellant] did not deny executing the Note. Rather, [he]
      challenges the ability of the original holder of the note to assign
      it. The [c]ourt finds the Affidavit of Lost Note to be credible.
      Furthermore, the Note produced by [Appellee] is indorsed in
      blank, which enables the holder of the instrument to establish
      standing. . . .

            The Affidavit provided by [Appellee] establishes J.P.
      Morgan Chase Bank, National Association as the servicer of the
      of the loan and authorized to act on behalf of [Appellee].
      [Appellant] failed to produce any evidence to suggest the
      Affidavit of J.P. Morgan Chase Bank is not accurate. . . .

(Trial Ct. Op., at 5).

      After review, we discern no error or abuse of discretion in the trial

court’s disposition of this issue.   Although Appellee was not able to locate

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the original note, it produced a copy of the original along with an affidavit of

lost note, which the trial court found credible.   Appellant’s claim does not

merit relief.

      We next address Appellant’s challenge to the validity of the mortgage

assignment, which he mentions in his first issue, and then raises again as a

separate issue in his tenth claim. (See Appellant’s Brief, at 12, 16, 30-31).

Specifically, Appellant asserts that New Century did not have the right to

assign the mortgage to Appellee in January 2012 because it “was declared

bankrupt in 2008.” (Id. at 30; see id. at 16, 31). This claim is waived and

would not merit relief.

      This Court has stated “[w]hen deficiencies in a brief hinder our ability

to conduct meaningful appellate review, we may dismiss the appeal entirely

or find certain issues to be waived. . . . Pa.R.A.P. 2101.” Krauss v. Trane

U.S. Inc., 104 A.3d 556, 584 (Pa. Super. 2014) (case citation omitted).

“[We] will not act as counsel and will not develop arguments on behalf of an

appellant.” U.S. Bank, N.A. v. Pautenis, 118 A.3d 386, 394 (Pa. Super.

2015) (citations omitted).    Here, Appellant fails to support his argument

challenging New Century’s right to assign the mortgage with citation to, and

discussion of, pertinent legal authority.   See Pa.R.A.P. 2119(a)-(b); (see




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also Appellant’s Brief, at 12, 16, 30-31).5 Accordingly, Appellant has waived

this underdeveloped issue. See Pa.R.A.P. 2101; Krauss, supra at 584.

        Moreover, Appellant’s claim that the assignment is invalid lacks record

support.    Specifically, Appellant admits that he executed the mortgage in

favor of New Century on November 24, 2004. (See Answer, 12/02/13, at 2

¶ 3).    The mortgage provided that New Century had the right to sell the

note, together with the mortgage, without prior notice to him.                  (See

Mortgage, 11/24/04, at 13).           New Century transferred the mortgage to

Appellee, and the assignment was recorded on January 31, 2012.                  (See

Assignment recorded 1/31/12, at 1-2). Thus, the record includes evidence

of a valid assignment, and Appellant has failed to support his contention that

the assignment is invalid.            Accordingly, Appellant’s challenge to the

assignment is waived and would not merit relief.

        We next address Appellant’s second issue, in which he claims that the

trial court erred in entering summary judgment based on its determination

that there are no genuine issues of material fact. (See Appellant’s Brief, at

19-22). We disagree.

               . . . 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
____________________________________________


5
  Appellant cites non-binding case law, specifically, an unpublished decision
from the Hawaii District Court and a Massachusetts trial court decision.
(See Appellant’s Brief, at 16).



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     discovery or expert report[.]” Pa.R.C.P. No. 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.
     No. 1035.3.

             The holder of a mortgage has the right, upon default, to
     bring a foreclosure action. 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 pay on the
     obligation, and the recorded mortgage is in the specified
     amount.

                                 *    *    *

             . . . General denials [to averments in a complaint]
     constitute admissions where . . . specific denials are required.
     See Pa.R.C.P. No. 1029(b).          Furthermore, “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 [on the
     mortgage] must be considered an admission of those facts.”
     First Wis. Tr. Co. v. Strausser, . . . 653 A.2d 688, 692
     ([Pa.Super.] 1995); see Pa.R.C.P. No. 1029(c) Note. . . .

Bank of Am., N.A. v. Gibson, 102 A.3d 462, 464-67 (Pa. Super. 2014),

appeal denied, 112 A.3d 648 (Pa. 2015) (case citation omitted) (determining

entry of summary judgment proper where appellant effectively admitted

material allegations of complaint with ineffective denials).    In a mortgage

foreclosure action, “[u]nquestionably, apart from appellee, appellants are

the only parties who would have sufficient knowledge on which to base a

specific denial.” Strausser, supra at 692 (citation omitted).

     Here, after review of the record, we conclude that it belies Appellant’s

contention that the trial court disregarded issues of material fact. As noted

above, Appellant responded to the material portions of Appellee’s complaint


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with general denials.      (See Answer, 12/02/13, at 2 ¶¶ 6-7).         Although

Appellant pled that he “specifically denies” the allegations, he did not

provide an alternative accounting of his mortgage payments or explain why

the amount sought by Appellee was incorrect.         (See id.).   Therefore, we

agree with the trial court that Appellant, in effect, admitted the material

allegations of the complaint, and that he failed to set forth specific facts to

raise a genuine issue of material fact regarding the default. (See Trial Ct.

Op., at 4); see also Gibson, supra at 464-67. He was not entitled to rest

simply on the pleadings.       See Gibson, supra at 464.     Appellant’s second

issue does not merit relief.

       We next address Appellant’s fifth and six issues, which assert trial

court error in disregarding certain exhibits he submitted, and in “relying

upon    the   falsehoods     and/or   misrepresentations   made   by   Appellee.”

(Appellant’s Brief, at 26; see also id. at 25-27). These claims are waived

and lack record support.

       First, Appellant’s arguments, each spanning a single page, are waived

for his failure to support them with citation to, and discussion of, any

pertinent legal authority. See Pa.R.A.P. 2119(a)-(b), 2101.

       Furthermore, with respect to Appellant’s claim that the trial court

ignored certain exhibits he submitted, the record reflects that the court did

consider the exhibits; it simply found them flawed and legally unpersuasive.

(See Trial Ct. Op., at 7).




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      Regarding Appellant’s claim that the court purportedly relied on

Appellee’s “falsehoods,” he points to Appellee’s characterization of his

responses in his answer to the complaint as general denials.        (Appellant’s

Brief, at 26; see also Answer, 12/02/13, at 2 ¶¶ 6-7).             However, as

discussed in detail above, we agree with the trial court and Appellee that

Appellant’s responses to the material allegations of the complaint constitute

general denials.    Thus, Appellant’s fifth and sixth issues are waived and

would not merit relief.

      In Appellant’s seventh issue, he argues that Appellee failed to comply

with the foreclosure notice requirements of Act 6 and Act 91.              (See

Appellant’s Brief, at 27-28). He claims that “[t]he evidence on record does

not contain any document to establish that the Appellee has complied with

the notice requirements[.]” (Id. at 27). This issue lacks merit.

      Specifically, the record shows that Appellee filed copies of the

foreclosure notices as exhibits to its reply to Appellant’s new matter. (See

Appellee’s Reply to New Matter, 12/30/13, Exhibit C). The address used for

the notices was the same as the address Appellant included on his brief in

this appeal. (See id.). The trial court addressed this issue as follows:

            The documentation provided by [Appellee] with respect to
      the Act 6 of 1874, 41 P.S. § 101 et seq. and Act 91 of 1983, 35
      P.S. § 1680.401(c) clearly sets forth the address of [Appellant]
      and where the notices were sent.            There is not any
      documentation to suggest that [Appellee] did not fulfill its
      statutory obligations.

(Trial Ct. Op., at 4).


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      Upon review, we discern no abuse of discretion or error of law in the

trial court’s disposition of this issue.   Appellant’s seventh claim does not

merit relief.

      Finally, in his ninth issue, Appellant claims that the trial court erred in

failing to find that Appellee’s complaint is fatally defective. (See Appellant’s

Brief, at 29-30).   He argues that the complaint is defective because the

verification is insufficient, and because Appellee “did not assert the

execution of the Note[.]”     (Id. at 29).    This issue is waived for several

reasons.

      Pennsylvania Rule      of Appellate Procedure 302(a)       provides that

“[i]ssues not raised in the lower court are waived and cannot be raised for

the first time on appeal.”   Pa.R.A.P. 302(a). “Hence, only claims properly

presented in the lower court are preserved for appeal.”             Coulter v.

Ramsden, 94 A.3d 1080, 1089 (Pa. Super. 2014), appeal denied, 110 A.3d

998 (Pa. 2014). Here, Appellant failed to challenge the verification of the

complaint in the trial court.   (See Answer, 12/02/13, at 1-5; Appellant’s

Response in Opposition to Motion for Summary Judgment, 1/16/15, at 1-7).

Thus, he waived his challenge to the verification for purposes of appeal.

See Pa.R.A.P. 302(a).

      With respect to Appellant’s claim that the complaint is defective

because Appellee “did not assert the execution of the Note,” this argument is

waived for his failure to support it with discussion of relevant legal authority.

(Appellant’s Brief, at 29; see id. at 30); see also Pa.R.A.P. 2119(a)-(b);

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2101.     Instead of engaging in such discussion, Appellant simply reiterates

his challenge to Appellee’s possession of the note, which we previously

addressed in this memorandum. Appellant’s ninth issue is waived.

        In sum, we conclude that the trial court did not err or abuse its

discretion in granting Appellee’s motion for summary judgment. See Cigna

Corp., supra at 210.          Accordingly, we affirm the summary judgment

entered in the trial court.

        Judgment affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/19/2015




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