J-A05045-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

WELLS FARGO BANK, N.A. S/I/I/T               IN THE SUPERIOR COURT OF
WACHOVIA BANK, N.A.,                               PENNSYLVANIA

                       Appellee

                  v.

JUDITH A. DEVICARIS,

                       Appellant                 No. 2072 EDA 2014


               Appeal from the Order Entered June 18, 2014
              In the Court of Common Pleas of Bucks County
                    Civil Division at No(s): 2012-03940


WELLS FARGO BANK, NATIONAL                   IN THE SUPERIOR COURT OF
ASSOCIATION, S/I/I/T TO WACHOVIA                   PENNSYLVANIA
BANK, N.A.,

                       Appellee

                  v.

JUDITH A. DEVICARIS,

                       Appellant                 No. 2281 EDA 2014


               Appeal from the Order Entered July 18, 2014
              In the Court of Common Pleas of Bucks County
                    Civil Division at No(s): 2011-03862


BEFORE: GANTMAN, P.J., SHOGAN, and ALLEN, JJ.

MEMORANDUM BY SHOGAN, J.:                        FILED MARCH 31, 2015

     Judith A. DeVicaris (“Appellant”) appeals from two orders entering

summary judgment in favor of Wells Fargo Bank, N.A. s/i/i/t Wachovia Bank,
J-A05045-15


N.A. (“Wells Fargo”) in these consolidated mortgage foreclosure actions filed

in Bucks County, Pennsylvania. We affirm.

        On    December   15,   2004,   Appellant’s   husband,    Louis   DeVicaris

(“Louis”), secured a loan from Wells Fargo’s predecessor, Wachovia Bank, in

the amount of $166,715.00 for the operation of Adventureland Day Camp

(“Adventureland”), of which Louis was the sole shareholder. As security for

the loan, Louis and Appellant executed a mortgage (“First Mortgage”) upon

their personal residence at 97 Fieldstone Road, Levittown, PA 19056 (“the

Property”), which they held as tenants by the entireties. About nine months

later, Wachovia Bank extended a Business Equity Line of Credit in the

amount of $175,000.00 to Adventureland.         As security for payment of the

line of credit, Louis and Appellant executed an Open End Mortgage upon the

Property (“Open End Mortgage”).         Louis and Adventureland defaulted on

payments under both mortgages. Louis passed away on February 23, 2010,

leaving title to the Property vested solely in Appellant. On March 20, 2010,

Wells Fargo became the successor in interest to Wachovia Bank.

        Wells Fargo filed a foreclosure action on the First Mortgage on April 28,

2011,    at   Docket   No.   2011-03862    (“First   Mortgage   Action”),   and   a

foreclosure action on the Open End Mortgage on April 27, 2012, at Docket

No. 2012-03940 (“Open End Mortgage Action”). Appellant filed answers and

new matters in both actions, raising two defenses:         Wells Fargo failed to

aver that it was the current owner of the two mortgages, and Appellant


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received no consideration for executing the mortgages. In response to the

second action, Appellant also filed a counterclaim, alleging that Wells Fargo

breached duties of fair dealing and good faith in extending the loan and line

of credit to Louis and Adventureland, respectively, when it “knew or should

have known” that: (1) the loan and line of credit were unlikely to be repaid

because Adventureland operated at a loss; (2) the total amounts owed on

the loan and line of credit were significantly more than the value of the

Property; and (3) Appellant was in her late seventies with no means of

repaying the loan and line of credit. Counterclaim, 5/30/12, at ¶¶ 7-9, 12.

      Wells Fargo filed preliminary objections to the counterclaim on June

18, 2012, which the trial court sustained on August 30, 2012, dismissing the

counterclaim. Wells Fargo then filed a motion for summary judgment in the

First Mortgage Action on September 12, 2013. In response to a request by

Appellant on October 4, 2013, the trial court consolidated the two actions on

December 6, 2013, with all subsequent pleadings to be filed under the First

Mortgage Action. Wells Fargo filed a motion for summary judgment in the

Open End Mortgage Action on April 28, 2014, alleging there were no genuine

issues of material fact because Appellant admitted that the line of credit and

Open End Mortgage were in default. In her response, Appellant again raised

issues of standing, lack of consideration, and breaches of fiduciary duty and

duty of good faith.




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      The trial court entered summary judgment in favor of Wells Fargo on

June 18, 2014, in the Open End Mortgage Action.         In response, Appellant

filed a motion entitled “Motion for Arrest and Vacation of Order Granting

Motion for Summary Judgment in 2012-03940 only.”            Therein, Appellant

asserted that the trial court did not rule on Wells Fargo’s motion for

summary judgment in the First Mortgage Action, which was filed before

consolidation of the two actions. The trial court realized that, due to a filing

error, it had not received the motion for summary judgment in the First

Mortgage Action. Upon investigation and review of the outstanding motion,

the trial court entered summary judgment in favor of Wells Fargo on July 18,

2014, in the First Mortgage Action.     Appellant timely appealed from both

orders. The trial court and Appellant complied with Pa.R.A.P. 1925.

      Appellant presents the following questions for our consideration:

      1.    Should summary judgment be reversed where the Court
            ordering such relief relied on (a) facts not of record and
            inferences drawn from such facts and (b) inferences from
            the pleadings of record which were favorable to the
            movant for judgment rather than drawing appropriate
            inferences favorable to the opposing party?

      2.    Where a bank lending money to a corporation and its
            owner, which loans it knew or would have known on
            proper investigation could not and would not be repaid by
            the borrowers, required as security for such loans
            mortgages on a residence owned by the owner of the
            corporation and his wife, did its requirement of such
            mortgages and its failure to advise the wife of the
            likelihood of foreclosure constitute such breach of fiduciary
            duty and duty of good faith to preclude foreclosure of the
            mortgages on the wife, now the residence’s sole owner?


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         3.      Does the failure of the mortgagee bank now seeking
                 foreclosure to offer the proof demanded of it by the
                 mortgagor that it now holds the mortgages, i.e. has not
                 assigned them, preclude it from obtaining judgments of
                 foreclosure?

Appellant’s Brief at 5.

         Our standard of review is well settled:

               We 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[.]” 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.

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

(some internal citations omitted).

         Appellant seeks reversal of the orders granting summary judgment

because the trial court relied on facts not of record to support inferences

that were favorable to Wells Fargo and not to Appellant, the non-moving

party.        Appellant’s Brief at 18.   Specifically, Appellant challenges: (a) the

trial court’s reliance on the fact not of record that Appellant took full

ownership of the corporation upon Louis’ death to support an inference that


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Appellant benefitted from the loan and line of credit, and (b) the trial court’s

reliance on the fact not of record that she was employed by Adventureland

as its treasurer to support an inference that Appellant signed, executed, and

delivered the mortgages with full knowledge.      Id. at 20–21. According to

Appellant, the trial court should have drawn inferences favorable to her, i.e.,

she did not know that Louis and Adventureland would not be able to repay

the loan and line of credit and that executing the mortgages would

ultimately deprive her of her home. Id. at 22. In response to Appellant’s

argument, Wells Fargo acknowledges that the trial court relied on facts not

of record, but claims the error does not warrant reversal of the orders

granting summary judgment. Wells Fargo’s Brief at 16–17.

      The trial court’s reference to unsupported facts arose in response to

Appellant’s argument that the loan and line of credit lacked consideration:

            [Appellant] next argues that because the loans were made
      to Louis DeVicaris for financing Adventureland (Docket No. 2011-
      03862) or to the corporation itself (Docket No. 2012-03940),
      there is a failure of consideration to [Appellant].

            It is clear that the consideration for both mortgages in this
      case was the loan to Louis DeVicaris in the amount of
      $166,715.00 and a Business Equity Line of Credit in the amount
      of $175,000.00. [Appellant] believes that because she did not
      derive any “personal benefit” from these loans she cannot be
      held to their terms. We disagree.

            [Appellant] was married to Louis DeVicaris and although
      she was not a shareholder of Adventureland, she certainly had
      an interest in its success and profitability. Indeed, [Appellant]
      was employed by Adventureland as its Treasurer. Upon
      the death of Louis DeVicaris, [Appellant] took full
      ownership of the corporation. Moreover, [Appellant] signed,

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     executed, and delivered the mortgage to Wachovia Bank with
     the full knowledge of its purpose, as well as the consequences if
     [Appellant] defaulted on the mortgages – i.e. it was collateral
     and security for the loans provided to Louis DeVicaris and
     Adventureland.    There is absolutely no evidence of duress,
     coercion, or any other indication that the negotiations or
     transactions did not take [sic] occur at arms-length.

            Further, even if there was no personal benefit to
     [Appellant], the element of a benefit to the promisor is not
     necessary to the sufficiency of the consideration. A benefit to a
     third party, in this case, Louis DeVicaris and Adventureland, is
     sufficient consideration for a promise. Restatement (2nd) of
     Contracts, §71, Comment e (1981) (Consideration moving from
     or to a third person[)].       It matters not from whom the
     consideration moves or to whom it goes. If it is bargained for
     and given in exchange for the promise, the promise is not
     gratuitous). Section 71 of the Restatement (2nd) of Contracts
     has been implicitly adopted by our courts and has been cited
     with approval. See e.g. Vitow v. Robinson, 823 A[.]2d 973, 977
     (Pa. Super. 2003); Eighth North-Val, Inc. v. William L.
     Parkinson, D.D.S., P.C., 773 A.2d 1248, 1253 (Pa. Super. 2000).

           Also, under Section 79 of the Restatement (2nd) of
     Contracts, “if the requirement of consideration is met, there is
     no additional requirement of a) a gain, advantage or benefit to
     the promisor or loss, disadvantage or detriment to the promisor;
     or b) equivalence in the values exchanged; or c) mutuality of
     obligation.” Id.; see also Greene v. Oliver Realty, Inc., 526 A.2d
     1192, 1195-97 (Pa. Super. 1987).

           It is clear that [Appellant] received precisely what she and
     her husband bargained for.         [Wells Fargo] benefitted from
     [Appellant’s] mortgaging of her home, and these mortgages
     benefitted [Appellant] by enabling her husband to finance
     Adventureland, in which she had a direct interest. It is of no
     moment that the deal ended badly for [Appellant] and
     Adventureland. It is not this court’s duty to pass judgment upon
     the value of the consideration, or the likelihood of success of a
     contract entered without duress or bad faith on behalf of one of
     the parties.

Trial Court Opinion, 7/25/14, at 13–14 (bold emphasis supplied).


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       Upon    review,    we     conclude      that   the   trial   court’s   reference   to

unsupported facts was not dispositive of the consideration issue. Regardless

of Appellant’s ownership and employment status with Adventureland, the

record supports an inference that Appellant derived a benefit from the

success of her late husband’s business venture. As the trial court opined:

       [T]here is no dispute that [Appellant] and her late husband,
       Louis DeVicaris, signed and executed both mortgages. . . . It is
       also undisputed that [Appellant] failed to make payments upon
       the Business Equity Line of Credit or either of the mortgages at
       issue in this case. By the plain language of the terms and
       conditions of the mortgages and Line of Credit, [Appellant] is in
       default. See Business Equit Line of Credit Agreement, p. 4; see
       also Mortgage, dated Sept. 16, 2005; Mortgage, dated Dec. 15,
       2004.

            [Appellant] does not challenge that she is in default, nor
       does she challenge the amount due and owing upon the
       mortgages and Line of Credit.

Trial Court Opinion, 7/25/14, at 9–10.

       Our review of the record confirms that summary judgment in the First

Mortgage Action was based on Appellant’s admission that she executed the

First Mortgage and defaulted on the loan. Answer and New Matter, 9/14/11,

at ¶¶ 2–7.1     Similarly, the record confirms that summary judgment in the

____________________________________________


1
    Appellant did not include in her Answer a response to Wells Fargo’s
averment of default:      “The mortgage is in default because monthly
payments of principal and interest upon said mortgage due October 13,
2010 and each month thereafter are due and unpaid, and by the terms of
said mortgage, upon default in such payments for a period of one month,
the entire principal balance and all interest due thereon are collectible
forthwith.” Complaint, 4/28/11, at ¶ 6. As the trial court observed,
(Footnote Continued Next Page)


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Open End Mortgage Action was based on Appellant’s admission that she

executed the Open End Mortgage and did not make payments on the line of

credit.   Answer, New Matter, and Counterclaim, 5/30/12, at ¶¶ 4, 6.

Contrarily, the inferences Appellant proffers are not supported by the record.

Because there were no genuine issues of material fact regarding the defaults

and the amounts due and owing upon the mortgages, the trial court’s

reference to unsupported facts did not undermine its disposition of Wells

Fargo’s motions for summary judgment. Thus, we conclude that Appellant’s

first issue lacks merit.

      Next, Appellant contends that the trial court erred in granting

summary judgment because Wachovia Bank breached a fiduciary duty and a

duty of good faith. According to Appellant, her argument presents a case of

first impression. Appellant’s Brief at 23. In response, Wells Fargo contends

that, under established Pennsylvania law, a mortgagee is not a fiduciary to

Appellant and, therefore, Wachovia Bank did not breach any duties. Wells

Fargo’s Brief at 19.

      The trial court disposed of Appellant’s argument as follows:

      Specifically, [Appellant] contends that [Wachovia] knew or
      should have known from a review of the perilous financial
      situation of Adventureland that the loans were not likely to be
      repaid. She further avers that since [Wachovia] had a “superior
                       _______________________
(Footnote Continued)

Appellant’s “failure to admit or deny this averment is . . . an admission that
the mortgage is in default.” Trial Court Opinion, 7/25/14, at 2 (citing
Pa.R.C.P. 1029(b)).



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     and objective” ability to analyze Adventureland’s financial
     situation, it therefore had a fiduciary obligation and duty of good
     faith to [Appellant] to at least warn her of the likelihood of
     mortgage default and “possibly a duty not to solicit or accept her
     execution of a mortgage on her home.” See Response to Motion
     for Summary Judgment, May 14, 2014, Wells Fargo Bank, N.A.
     v. DeVicaris, BCCCP Docket No. 2011-03862.

            Under Pennsylvania law, a commercial lender is ordinarily
     not a fiduciary of the borrower. Federal Land Bank of Baltimore
     v. Fetner, 410 A.2d 344, 348 (Pa. Super. 1979); Buczek v. First
     National Bank, 531 A.2d 1122, 1124 (Pa. Super. 1987). “This
     principle stems from the presumption that the relationship
     between lenders and borrowers is conducted at arms-length and
     the parties are each acting in their own interest.” Temp-Way
     Corp. v. Continental Bank, 139 B.R. 299, 317 (E.D. Pa. 1992)
     (citing Frowen v. Blank, 425 A.2d 412, 416 (Pa. 1981)[)].

           This presumption can be rebutted, however, if the
     borrow[er] can show that the lender gained substantial control
     over the borrower’s business affairs. [Temp-Way, 139 B.R.] at
     318. “Control over the borrower is demonstrated when there is
     evidence that the lender was involved in the actual day-to-day
     management and operations of the borrower or that . . . the
     lender had the ability to compel the borrower to engage in
     unusual transactions.”     Bohm v. Commerce Union Bank of
     Tennessee, 794 F.Supp. 158, 164 (W.D. Pa. 1992). “The mere
     monitoring of the borrower’s operations and the proffering of
     management advice by lenders, without more, does not
     constitute control.”     Temp-Way Corp, 139 B.R. at 318.
     “Moreover, action taken by the creditor to minimize the risk does
     not constitute total and absolute control.” James E. McFadden,
     Inc. v. Baltimore Contractors, Inc., 609 F.Supp. 1102, 1105
     (E.D.Pa. 1985).

           In the case sub judice, there is no evidence that
     [Wachovia] was involved in the actual day-to-day management
     of the finances of either [sic] Adventureland, Louis DeVicaris, or
     [Appellant]. In support of her argument, [Appellant] contends
     that [Wachovia] had “objective” and “superior” knowledge of the
     finances of Adventureland. There is no evidence of this of
     record, and even assuming [Wachovia] did have “superior” or
     “objective” knowledge of the finances of Adventureland and


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     [Appellant], this per se is not sufficient to establish a fiduciary
     relationship. See Bohm, 794 F.Supp. at 164.

           Further, merely monitoring the finances of Adventureland
     or [Appellant] is insufficient to constitute control and therefore
     does not establish a fiduciary relationship between [Wachovia]
     and [Appellant].      [Wachovia] requested, and [Appellant]
     acquiesced to the execution of mortgages to secure various
     loans made to Louis DeVicaris and Adventureland. The purpose
     of such a transaction was to minimize [Wachovia’s] risk in its
     financial dealings with [Appellant]. As previously stated, this
     does not constitute control to sufficiently establish any fiduciary
     duty to [Appellant]. See id. at 1105.

                                   * * *

            Regarding [Appellant’s] claim of a breach of a duty of good
     faith, our Supreme Court has refused to impose a duty of good
     faith which would modify or defeat the legal rights of a creditor.
     Heights v. Citizens National Bank, 342 A.2d 738, 742 (Pa. 1975).
     Further,

           a lending institution does not violate a separate duty
           of good faith by adhering to its agreement with the
           borrower or by enforcing its legal and contractual
           right as a creditor. The duty of good faith imposed
           upon contracting parties does not compel a lender to
           surrender rights which it has been given by statute
           or by the terms of its contract. Similarly, it cannot be
           said that a lender has violated a duty of good faith
           merely because it has negotiated terms of a loan
           which are favorable to itself.

     Creeger Brick and Bldg. Supply Inc. v. Mid-State Bank and Trust
     Co., 560 A.2d 151, 154 (Pa. Super. 1989).

           [Appellant] argues that the holding in Creeger is
     inapplicable to the facts of this case. Specifically, she argues
     that the relationship here is similar to that of a
     franchisor/franchisee or insurer/insured, rather than that of a
     lender borrower.     In those relationships, the courts have
     recognized a separate duty of good faith. See Creeger, 560 A.2d
     at 153-[1]54.


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           Despite [Appellant’s] contention, the facts of Creeger are
     almost identical to the facts of this case. In Creeger, Creeger
     Brick and Building Supply Inc., a closely held corporation,
     purchased a refractory plant with the intention of rehabilitating
     the facility and reopening it as a brick manufacturing plant. The
     financing for this project was provided in part by obtaining a loan
     from Mid-State Bank and Trust Company in the amount of
     $250,000.00. This loan was secured by a mortgage upon the
     plant itself and upon three (3) residential properties owned by
     Donald Creeger, the president and sole shareholder of the
     company, and his wife, Marjorie Creeger. See id. at 152.

            The plant project thereafter suffered financial collapse for a
     variety of reasons unimportant to our analysis.           Upon this
     collapse, Creeger Brick and Building Supply, Inc. as well as
     Donald Creeger and his wife, Marjorie Creeger, who executed the
     mortgages upon their residential properties to secure the loan,
     filed suit against Mid-State Bank alleging that although the Bank
     did not breach any specific provision of the loan agreement, they
     nevertheless failed to deal with the borrowers in good faith. See
     id. at 153.

           Upon these set of facts, the Court in Creeger held that the
     borrowers failed to state a legally enforceable cause of action
     against Mid-State Bank for failing to deal with them in good faith
     as such a duty is not recognized in a borrower-lender setting.
     See id. at 153-[1]55.

           The facts of this case are almost identical. [Wachovia]
     provided loans in the form of a Business Equity Line of Credit for
     the purpose of financing Adventureland, a closely held
     corporation. As in Creeger, [Appellant], along with her late
     husband, Louis DeVicaris, mortgaged their home as security for
     the financing.      Adventureland suffered economically and
     [Appellant] and Louis DeVicaris were unable to repay the loans.

            Although the borrowers in Creeger were the plaintiffs, the
     facts relied upon by the Creeger Court in its analysis remain the
     same. Under the same factual scenario, the Creeger Court held
     that there was no separate duty of good faith. Thus, we adhere
     to the holding of Creeger and find that [Appellant] has failed to
     state a legally enforceable cause of action against [Wells Fargo
     as successor in interest] based upon a breach of a duty of good
     faith.

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Trial Court Opinion, 7/25/15, at 14–17.

       Upon review of the record in the light most favorable to Appellant as

the nonmoving party, we discern no abuse of the trial court’s discretion. The

record supports the trial court’s findings.               The relationship between

Wachovia Bank and Appellant was arms-length.                 Moreover, we do not

consider this a case of first impression, as Wachovia Bank and Appellant

engaged in a standard mortgage transaction.                 Appellant presented no

evidence that Wachovia Bank gained substantial control over the business

affairs of Louis DeVicaris and Adventureland by being involved in the actual

day-to-day management and operations of Adventureland.                       Similarly,

Appellant presented no evidence that Wachovia Bank had the ability to

compel Louis DeVicaris, Adventureland, or Appellant to engage in unusual

transactions. Thus, Wachovia Bank was not in a fiduciary relationship with

Appellant and, as such, did not owe her any specialized duty.                Moreover,

contrary to Appellant’s assertions, we agree with the trial court that this

case   is   factually   similar   to,   and   therefore   controlled   by,   Creeger.

Appellant’s attempt to reframe this generic mortgage transaction in a

franchise or insurance context is unavailing. Hence, we conclude there is no

genuine issue of fact regarding the nature of Wachovia Bank’s and, as

successor, Wells Fargo’s relationship to Appellant.               In reaching this

conclusion, we adopt as our own the well-reasoned analysis of the trial court

set forth above.

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      Appellant’s final question challenges Wells Fargo’s standing to obtain

judgment on the mortgages. According to Appellant, Wells Fargo failed to

provide proof through requested discovery that it owned the mortgages at

issue in both foreclosure actions. Appellant’s Brief at 34. In response, Wells

Fargo insists that it pleaded sufficient facts and provided sufficient

documentary evidence of its merger with Wachovia Bank to establish its

status as current holder of the mortgages and its standing to foreclose on

the mortgages. Wells Fargo’s Brief at 13.

      The trial court disposed of Appellant’s standing challenge as follows:

            In the Complaint filed at Docket No. 2011-03862, [Wells
      Fargo] asserted that it was the “successor-in-interest-to”
      Wachovia Bank, N.A. The mortgage, recorded in the Bucks
      County Office of the Recorder of Deeds at Mortgage Book 4311,
      Page 1061, clearly indicates that Louis DeVicaris and [Appellant]
      made, executed and delivered a mortgage upon the premises at
      97 Fieldstone Road, Levittown, PA to Wachovia Bank, N.A. on
      December 15, 2004.

            Clearly, Wachovia Bank, N.A. was the owner and legal
      holder of the mortgage at the time it was executed by
      [Appellant]. Upon the merger, [Wells Fargo], took ownership
      and control of Wachovia Bank, N.A.’s assets, including the
      mortgage at issue here. Complaint, April 28, 2011, Wells Fargo
      Bank, N.A. v. DiVicaris, BCCCP Docket No. 2011-03862.

            In response to [Appellant’s] Preliminary Objections to the
      Complaint filed at Docket No. 2011-03862, [Wells Fargo]
      attached a letter from the United States Comptroller of Currency
      evidencing the merger of Wachovia Bank, N.A. into [Wells
      Fargo]. See Exhibit A, Response to Preliminary Objections, May
      27, 2011, Wells Fargo Bank[,N.A.] v. DiVicaris, BCCCP Docket
      No. 2011-03862.

            Further, after [Appellant] averred in her New Matter that
      [Wells Fargo] did not offer proof that it is the current owner of

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     the mortgage, [Wells Fargo] replied that it “is the current holder
     and legal owner of the subject Mortgage by virtue of a merger in
     which Wells Fargo Bank, NA acquired Wachovia Bank, NA.”
     [Wells Fargo] again filed documentation of the merger with its
     Reply. See Exhibit A, Reply to New Matter, October 24, 2011,
     Wells Fargo Bank[,N.A.] v. DiVicaris, BCCCP Docket No. 2011-
     03862.

           In its motion for Summary Judgment, [Wells Fargo] again
     asserted that “[o]n March 20, 2010, Wachovia Bank, National
     Association merged into Wells Fargo Bank, N.A.” [Wells Fargo]
     also stated that it is “the current holder of the Mortgage by
     succession and is in possession of the Note with the right to
     enforce it.” See Motion for Summary Judgment, Sept. 12, 2013,
     Wells Fargo Bank, N.A. v. DiVicaris, BCCCP Docket No. 2011-
     03862[.]

           In the Complaint filed at Docket No. 2012-03940, [Wells
     Fargo] stated the following: “Wells Fargo Bank, N.A. . . . is a
     national banking association . . . and as successor by merger to
     Wachovia Bank, stands its stead (sic).” Complaint, April 27,
     2012, Wells Fargo Bank, N.A. v. DiVicaris, BCCCP Docket No.
     2012-03940.

            In its Motion for Summary Judgment as to the action
     originally filed at Docket No. 2012-03940, [Wells Fargo] asserted
     that it is the “original payee of the Business Line of Credit or the
     Business Line of Credit has been duly indorsed.” Motion for
     Summary Judgment, April 28, 2014, Wells Fargo Bank, N.A. v.
     DeVicaris, BCCCP Docket No. [2012-03940].

           Every pleading indicates that Plaintiff, Wells Fargo Bank,
     N.A., is the successor in interest to Wachovia Bank, N.A., the
     original mortgagee, as a result of the merger of these two
     banks. [Wellso Fargo] provided documentation of this merger as
     exhibits to its pleadings. See supra.

           The effect of a merger of two or more corporations with
     regard to property rights is clearly enunciated in Title 15, Section
     1929(b) [of the Pennsylvania Consolidated Statutes]:

        (b) Property rights.--All the property, real, personal, and
        mixed, and franchises of each of the corporations parties
        to the merger or consolidation, and all debts due on

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       whatever account to any of them, including subscriptions
       for shares and other choses in action belonging to any of
       them, shall be deemed to be vested in and shall belong to
       the surviving or new corporation, as the case may be,
       without further action, and the title to any real estate, or
       any interest therein, vested in any of the corporations shall
       not revert or be in any way impaired by reason of the
       merger or consolidation. . . .

     15 Pa.C.S. §1929(b). Further, a “successor in interest” is an
     entity “who follows another in ownership or control of property”
     and “retains the same rights as the original owner, with no
     change in substance.” Black’s Law Dictionary, 3d Pocket Edition
     (1996).

           Clearly, when corporations merge, the surviving/acquiring
     corporation, as [Wells Fargo] is here, succeeds to both the rights
     and liabilities of the constituent corporation. See LTV Steel Co.
     v. W.C.A.B. (Mozena), 754 A.2d 666, 677 (Pa. 2000).

           It is clear that when Wachovia Bank, N.A. merged with
     [Wells Fargo], [Wells Fargo] obtained the assets of Wachovia
     Bank, N.A., which included the mortgages executed by
     [Appellant] as well as the Line of Credit. See Mozena, supra.

           [Appellant] cites Wells Fargo Bank v. Lupori, 8 A.3d 919
     (Pa. Super. 2010) for the proposition that [Wells Fargo] must
     prove that it has not previously assigned the mortgage in order
     to demonstrate that it is the current owner of the mortgage.

           [Appellant] misstates the holding in Lupori. The Lupori
     Court only held that a mortgagee must identify itself as the
     owner of the mortgage upon which it seeks foreclosure; it does
     not state or hold that in every case a mortgagee must
     demonstrate that it did not assign the mortgage. Id. at 921–22.
     Further, this court is unaware of any “evidence of absence”
     requirement that a plaintiff must plead or otherwise demonstrate
     that there has been no assignment of a mortgage upon which it
     seeks foreclosure. Indeed, proving that the mortgages at issue
     were not assigned would be a fruitless exercise as there would
     be no evidence of an event or transaction that did not occur.
     The lack of an assignment of the mortgage is implicit in [Wells
     Fargo’s] assertion that it is the current owner of the mortgage.


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            This court is, however, cognizant of the affirmative
      requirement that, if a plaintiff is an assignee of a mortgage, it
      must plead as much in its Complaint. See U.S. Bank, N.A. v.
      Mallory, 982 A.2d 986 (Pa. Super. 2009). This is not the case
      here. [Wells Fargo] is not an assignee of the mortgages in
      question, nor have they indicated that there has been any
      assignment of the mortgages or Line of Credit by either [Wells
      Fargo] or Wachovia Bank, N.A. There is also no evidence of any
      assignments. Thus, Mallory is inapplicable in this case.

            [Wells Fargo] asserted and demonstrated that it is the
      current holder of the mortgages in question as successor in
      interest to the original mortgagee, Wachovia Bank, N.A.
      [Appellant] has not proffered any evidence to dispute this fact.
      Thus, there is no genuine issue of material fact as to [Wells
      Fargo’s] standing to bring [these] foreclosure action[s].

Trial Court Opinion, 7/25/14, at 10–13.

      Upon review of the record in the light most favorable to Appellant as

the nonmoving party, we discern no abuse of the trial court’s discretion. The

record supports the trial court’s finding that Wells Fargo currently holds the

subject mortgages.    Wells Fargo’s complaint sufficiently put Appellant on

notice of Wells Fargo’s claim of interest with regard to the mortgages.

Moreover, Wells Fargo’s documentary evidence sufficiently established its

ownership of the mortgages as successor in interest to Wachovia Bank.

Appellant’s attempt to defeat Wells Fargo’s standing lacks support in the

record and in Pennsylvania’s law of corporate merger.      Thus, we conclude

there is no genuine issue of fact regarding Wells Fargo’s standing to file the

underlying foreclosure actions. In reaching this conclusion, we adopt as our

own the well-reasoned analysis of the trial court set forth above.

      Orders affirmed.

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/31/2015




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