J-A17014-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    FEDERAL NATIONAL MORTGAGE                  :   IN THE SUPERIOR COURT OF
    ASSOCIATION                                :         PENNSYLVANIA
                                               :
                       Appellee                :
                                               :
               v.                              :
                                               :
    LINDA BONNIE SCRIPNICENCU                  :
                                               :
                       Appellant               :       No. 3039 EDA 2016

                      Appeal from the Judgment August 18, 2016
                    In the Court of Common Pleas of Bucks County
                        Civil Division at No(s): No. 2014-04415


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

MEMORANDUM BY GANTMAN, P.J.:                             FILED August 8, 2017

        Appellant, Linda Bonnie Scripnicencu, appeals from the summary

judgment entered in the Bucks County Court of Common Pleas, in favor of

Appellee, Federal National Mortgage Association (“FNMA”),1 in this mortgage

foreclosure action. We affirm.

        In its supplemental opinion filed June 16, 2017, the trial court

accurately set forth the relevant facts and procedural history of this case.

Therefore, we have no reason to restate them.

        Appellant raises four issues for our review:
____________________________________________


1
  On March 13, 2017, FNMA filed a “substitution of successor” pursuant to
Pa.R.C.P. 2352, naming LSF9 Master Participation Trust as the successor
plaintiff in this case.


_________________________

*Retired Senior Judge assigned to the Superior Court.
J-A17014-17


         DID THE COURT COMMIT AN ERROR OF LAW BY
         GRANTING THE MOTION FOR SUMMARY JUDGMENT
         AGAINST [APPELLANT?]

         DID THE COURT COMMIT AN ERROR OF LAW BY FINDING
         FOR [FNMA] DESPITE [ITS] FAILURE TO PRESENT PROPER
         PROOF OF STANDING?

         DID THE COURT COMMIT AN ERROR OF LAW BY
         ALLOWING [FNMA] TO PROCEED EVEN WITHOUT GIVING
         PROPER NOTICE GIVEN THE FACT [APPELLANT’S
         HUSBAND] HAD PASSED AWAY?

         DID THE COURT COMMIT AN ERROR OF LAW IN FINDING
         FOR [FNMA] DESPITE [APPELLANT’S] SOUND ARGUMENTS
         IN FACT AND LAW?

(Appellant’s Brief at 2).

      Initially we observe:

         Our scope of review of an order granting summary
         judgment is plenary. We apply the same standard as the
         trial court, reviewing all the evidence of record to
         determine whether there exists a genuine issue of material
         fact. We view the record in the light most favorable to the
         non-moving party, and all doubts as to the existence of a
         genuine issue of material fact must be resolved against the
         moving party. Only where there is no genuine issue as to
         any material fact and it is clear that the moving party is
         entitled to a judgment as a matter of law will summary
         judgment be entered.

         Motions for summary judgment necessarily and directly
         implicate the plaintiff’s proof of the elements of [its] cause
         of action.   Summary judgment is proper if, after the
         completion of discovery relevant to the motion, including
         the production of expert reports, an adverse party who will
         bear the burden of proof at trial has failed to produce
         evidence of facts essential to the cause of action or
         defense which in a jury trial would require the issues to be
         submitted to a jury.         Thus, a record that supports
         summary judgment will either (1) show the material facts
         are undisputed or (2) contain insufficient evidence of facts


                                     -2-
J-A17014-17


         to make out a prima facie cause of action or defense and,
         therefore, there is no issue to be submitted to the jury.
         Upon appellate review, we are not bound by the trial
         court’s conclusions of law, but may reach our own
         conclusions. The appellate Court may disturb the trial
         court’s order only upon an error of law or an abuse of
         discretion.

            Judicial discretion requires action in conformity with
            law on facts and circumstances before the trial court
            after hearing and consideration. Consequently, the
            court abuses its discretion if, in resolving the issue
            for decision, it misapplies the law or exercises its
            discretion in a manner lacking reason. Similarly, the
            trial court abuses its discretion if it does not follow
            legal procedure.

         Where the discretion exercised by the trial court is
         challenged on appeal, the party bringing the challenge
         bears a heavy burden.

            It is not sufficient to persuade the appellate court
            that it might have reached a different conclusion
            if…charged with the duty imposed on the court
            below; it is necessary to go further and show an
            abuse of the discretionary power.       An abuse of
            discretion is not merely an error of judgment, but if
            in reaching a conclusion the law is overridden or
            misapplied, or the judgment exercised is manifestly
            unreasonable, or the result of partiality, prejudice,
            bias or ill will, as shown by the evidence or the
            record, discretion is abused.

Lineberger v. Wyeth, 894 A.2d 141, 145-46 (Pa.Super. 2006) (internal

citations and quotation marks omitted).

      After a thorough review of the record, the briefs of the parties, the

applicable law, and the well-reasoned opinion of the Honorable Robert O.

Baldi, we conclude Appellant’s issues merit no relief. The trial court opinion

comprehensively discusses and properly disposes of those questions. (See



                                     -3-
J-A17014-17


Supplemental Trial Court Opinion, filed June 16, 2017, at unnumbered pages

5-10) (finding: (1) Appellant failed to deny FNMA’s allegations of default

with any specificity; there is no evidence that Appellant has made requisite

payments, and record contains no evidence contravening amounts FNMA

alleged are due and owing; instead of factually responding to FNMA’s

averments of default, Appellant responded with legal conclusion that

“proper” owner of note has not declared default; Appellant’s response does

not answer FNMA’s averment that mortgage is in default; Appellant is

charged with having sufficient knowledge upon which to lodge specific denial

with respect to FNMA’s averments of default; Appellant’s general denial to

default is insufficient to raise genuine issue of fact; Appellant produced no

evidence by way of affidavits, interrogatories, depositions, or other

substantiating documentation in support of her allegations; evidence

presented shows no genuine issue of material fact and summary judgment

in favor of FNMA was proper as matter of law; (2) FNMA produced evidence

that it was holder of mortgage; specifically, FNMA alleged in its complaint

that mortgage was assigned by SunTrust Mortgage, Inc. to FNMA by

assignment of mortgage recorded under instrument 2013091760; FNMA

produced copies of original recorded mortgage and its recorded assignment

to FNMA, as well as note; Appellant’s argument that FNMA cannot establish

ownership of note lacks merit; note produced by FNMA in this case identifies

Appellant’s deceased husband as “borrower” and Buyers Home Mortgage,


                                    -4-
J-A17014-17


Inc. as “lender”; note was endorsed by Buyers Home Mortgage without

recourse to order of SunTrust; SunTrust, in turn, endorsed note without

recourse in blank; note endorsed in blank becomes payable to “bearer” and

may be negotiated by transfer of possession alone until specially endorsed;

as negotiable instrument, note entitles holder of note to enforcement of

obligation; based on FNMA’s ownership of mortgage and possession of note,

court properly concluded that FNMA had standing as real party in interest to

bring underlying foreclosure action; (3-4)2 Appellant’s remaining matters

are repetitious of her previously worded arguments that FNMA lacks

standing and that court erred by granting summary judgment in favor of

FNMA).3 Accordingly, we affirm on the basis of the trial court’s supplemental

opinion.

       Judgment affirmed.


____________________________________________


2
  Appellant’s specific claim raised in her third question presented, regarding
lack of notice, is waived for failure to preserve that claim in her Pa.R.A.P.
1925(b) statement. See Lineberger, supra (explaining general rule that
issues not raised in Rule 1925(b) statement are waived on appeal). To the
extent Appellant advances additional arguments on appeal that the trial
court did not discuss in its supplemental opinion, those issues are waived for
vagueness in Appellant’s Rule 1925(b) statement. See id. (stating concise
statement which is too vague to allow court to identify issues raised on
appeal is functional equivalent of no concise statement at all).
3
  On July 13, 2017, this Court granted “Appellant’s Emergency Motion to
Stay Sheriff Sale,” and temporarily stayed the sheriff’s sale scheduled for
July 14, 2017, pending the outcome of this appeal. Due to our disposition,
we now lift the stay.



                                           -5-
J-A17014-17


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/8/2017




                          -6-
                                                                          Circulated 07/11/2017 13


                                                                                                                     1.6
      IN THE COURT OF COMMON PLEAS OF BUCKS COUNTY,                  PENNSYLVANIA
                                  CIVIL ACTION    - LAW
 Federal National Mortgage Association                  No.: 2014-04415

              v.

 Linda Scripnicencu                                                                                             1




                                                                     Case # 2014-04415-0062
                                                                                                        11111

                                                                                                                    111
                                                                                                   11627312

                               SUPPLEMENTAL OPINION                  Code' 5214          Judge:35
                                                                     Patricia L. Bauhlie, Bucks County Prothonotary
                                                                     Rcpt. 21605712 6116/2017 2:04:10 PM

 I.    Introduction

       Defendant Linda Scripnicencu has appealed to the Superior Court of Pennsylvania

this Court's Order dated August 18, 2016, granting Plaintiff's Motion for Summary

Judgment wherein an in rem judgment was entered in favor of Plaintiff and against

Defendant, Linda Scripnicencu, in the amount of $244,522.38, together with interest, to

the date of Sheriff's Sale, and for foreclosure and sale of the mortgaged premises. We

file this supplemental opinion pursuant to the Superior Court's order and the Pennsylvania

Rule of Appellate Procedure (Pa.R.A.P.) 1925(a).

II.    Factual and Procedural Background

       Like many Mortgage Foreclosure cases, this particular case features a mortgage

which had been assigned several times after the mortgage was originally created. On

March 10, 2005, George Scripnicencu executed and delivered a Promissory Note to

Buyers Home Mortgage, Inc., in consideration for a loan made to him by Buyers Home

Mortgage, Inc., the principal loan amount of $228,000.00, plus interest. On March 10,

2005, George Scripnicencu and Linda Scripnicencu executed and delivered a mortgage

to Mortgage Electronic Registration System, Inc. ("MERS") as nominee for Buyers Home



                                                           . It ig wux rearomibibity
                                                       to notify all intketetki tttititS
                                                       of thi above ammo
 Mortgage, Inc., in consideration for the loan made to George Scripnicencu. On April
                                                                                     15,

 2014, George Scripnicencu passed away.

          On February 4, 2010, the Mortgage was assigned by Mortgage
                                                                     Electronic
 Registration Systems, Inc. ("MERS") as nominee for Buyers Home Mortgage,
                                                                          Inc. its

 successors and assigns to SunTrust Mortgage Inc., by an Assignment of
                                                                       Mortgage. The
 Mortgage was thereafter assigned by SunTrust Mortgage Inc. to current Plaintiff
                                                                                 Federal
National Mortgage Association, by an Assignment of Mortgage, recorded in the Office
                                                                                    of
the Recorder of Deeds for Bucks County as Instrument Number
                                                            2013091760.

         Plaintiff commenced this action by filing a complaint in mortgage foreclosure on

June 25, 2014.

         Plaintiff filed its Motion for Summary Judgment on April   5,   2016, seeking judgment

in the   amount of $244,522.38. The calculations were supported by Plaintiff's Affidavit of

Van Anderson, Foreclosure Specialist at Seterus, Inc., Plaintiff's authorized loan
                                                                                   servicer.
Defendant filed a response to the Motion on May 8, 2016. After studying the record,
                                                                                    and

the argument of the parties submitted in their respective briefs, the Court
                                                                            entered its Order
granting Summary Judgment on August 18, 2016.

         On September 16, 2016, Defendant filed a Notice of an Appeal.
                                                                       Inexplicably
despite Counsel's certification of service which noted service through regular and
                                                                                   certified
mail, the undersigned did not receive said notice. The undersigned first
                                                                         became aware
of the appeal on October 7, 2016, when the Superior Court's letter dated October 5,
                                                                                    2016
advising of the appeal was received by the undersigned's Chambers.
                                                                   Thereafter the
undersigned issued an Order docketed on October 7, 2016, directing the Defendant
                                                                                 to
file a Concise Statement of Matters Complained Of no later than 21 days
                                                                        from the date
    of the Court's Order, with the further caveat that "Any issue not properly included in the

    statement timely filed and served shall be deemed waived." A copy of the Court's Order

    was immediately transmitted to the parties' attorneys, directly from the
                                                                             undersigned's
    Chambers.

           The Prothonotary sent out the order on October 12, 2016. Defendant's Concise

    Statement of Matters Complained was filed on November                         2, 2016.    Again, curiously,

    despite counsel's certification of service which noted service through regular and certified

    mail, the undersigned did not receive said Statement of Matters Complained of.1

    Regardless, Defendant filed a Concise Statement on November 2, 2016, the date that the

    statement was due. This Court did not enter the original opinion until we checked the

    docket on November 2, 2016 and did not see any new filings. This Court filed the opinion

    on November 3, 2016 without realizing that Defendant had filed their Concise Statement

    because it had not yet appeared on the docket.

          This Court applies all best effort to insure litigants have a fair and even playing

field to preserve and present issues on appeal. The litigants are expected to be truthful

to the Court and to timely apprise the Court of any grounds for appeal. The Court
                                                                                  does

not accept current counsel's assertion that he sent his Statement Of Matters Complained

Of to Chambers by certified mail. This is the second time Defendant's counsel has failed

to do so in this appeal and he has a history before another Judge in our Court of Common

Pleas of the same conduct. This Court invites counsel to file the certified receipt and/or

proof of delivery to correct the Court's assumption if the Court is mistaken.




1Counsel's Proof of Service is also incorrectly captioned as Deutsche Bank v M. Barry Lipson, et al,
                                                                                                     Docket Number
2013-00262.
             The undersigned is not the only Judge to notice counsel's perplexing history with

    regards to orders from the Judiciary. This Court notes two opinions by Judge Simandle

    of the United States District Court of New Jersey in which Counsel Joshua Thomas is

    admonished by the Court for his failure to follow repeated instructions.2 A recent appeal

    before Judge Rubenstein of our Court of Common Pleas had the same episode of

    certification of service without actual service occurring. See Exhibit A, Deutsche Bank

    National Trust vs. Kenneth Taggart.

            Because of the Defendant's failure to follow proper procedures, the Court filed its

opinion on November 3, 2016, without realizing that Defendant's Concise Statement had

been filed. On June 6, 2017 the Superior Court remanded this case to the undersigned

in order to reach the merits of Defendant's appeal and ordered the Court to file a

supplemental opinion. We file this opinion pursuant to that order.



Ill.        Statement of Matters Complained Of on Appeal

            Defendant raises the following issues on appeal verbatim:

       1.   The Court committed an error by law by entering the motion for summary judgment
            against Defendant



2   In Bounasissi v. N.Y. Life Ins. &
                                   Annuity Corp., No. CV 15-7585 (185/15), 2016 WL 852483, at *2 (D.N.J. Mar. 4, 2016)
the Court stated:
          "...the second time in this case that Plaintiffs' counsel, Joshua Thomas, Esq., has failed to submit a brief in
support of his motion for extraordinary relief, the requirement for which Mr. Thomas was previously explicitly
advised in the listing of deficiencies in this Court's prior Letter Opinion. [Docket Item 9 at p. 1.] Counsel has ignored
this advice. Plaintiffs' submission will not be construed as a brief because it fails to comply with L Civ. R. 7.2(b),
which requires, inter alia, a table of contents and a table of authorities, together with the party's legal arguments.
The Local Civil Rules are not an invitation to parties to submit whatever papers they please; they are rules that exist
for a reason, to assist the courts in the accurate and efficient adjudication of cases. Plaintiffs' counsel is hereby
warned explicitly to follow all applicable procedural rules or his motions may be denied on that basis alone."
In Bounasissi v. N.Y. Life Ins. & Annuity Corp., No. CV 15-7585 (1135/J5), 2016 W14697333, at *1 (D.N.1 Sept. 6, 2016)
the Court stated:
         "...yet Plaintiffs' counsel, Joshua Thomas, Esq., failed to even attempt to cure the deficiency. This is the third
time Mr. Thomas has ignored his basic obligations under the Federal Rules of Civil Procedure in this case."
      2. The    Court committed an error of law by finding for the Plaintiff despite their failure
           to present proper proof of standing


      3.   The Court committed an error of law by allowing Plaintiff to proceed even without
           standing based on the evidence presented

      4. The Court committed an error of law in finding for the Plaintiff despite Defendant's
         sound arguments in fact and law



           For reasons which will be set forth below, the undersigned believes that the

allegations of error, by the Defendant, are without merit. Based on the record presented

to the Court the Plaintiff established that the Defendant defaulted under the terms of the

mortgage, but in response the Defendant, through counsel, attempted to delay the entry

of the judgment attempting to invoke the protection of certain legal rules, which will be

discussed below.



IV.        Discussion
              a. The Court properly granted Summary Judgment

           Defendant appears to argue that as a matter of law and because there was a

dispute of material fact, the court erred in granting summary judgment for the Plaintiff.

           Summary judgment is properly granted where the pleadings, answers to

interrogatories, depositions, affidavits and admissions on file establish that there is no

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

of law. McConnaughey v. Building Components, Inc., 536 Pa. 95, 98 (Pa. 1994). Mere

conclusory allegations in pleadings without supporting factual evidence are not sufficient

to overcome a motion for summary judgment. Pape v. Smith, 323 A.2d 856, 858-859 (Pa.
 Super. 1974) (noting that the adverse party may not claim that the averments of their

 pleadings, alone, are sufficient to raise a genuine issue of fact so as to defeat a motion

for summary judgment). The non-moving party has the burden of "set[ting] forth specific

facts by way of affidavit or as otherwise provided in [Rule 1035], demonstrating that a

genuine factual issue exists." Liles      v.   Balmer, 567 A.2d 691, 692 (Pa. Super. 1989);

 Younginger     v.   Heckler, 410 A.2d 340, 342 (Pa. Super. 1979) (holding that the adverse

party may not rest on the mere allegations or denials of his pleadings, but must respond

by evidence which sets forth specific facts showing that there is a genuine issue for trial).

       In a    mortgage foreclosure action, entry of summary judgment for a mortgagee is

proper if there is no genuine dispute that: (1) the mortgage is in default; (2) the mortgagor

failed to pay interest on the obligation; and (3) the recorded mortgage is in the specified

amount. Cunningham v. McWilliams, 714 A.2d 1054, 1057 (Pa. Super 1998) (citing

Landau   v.   Western Pennsylvania National Bank, 282 A .2d 335, 340 (Pa. 1971)). Further,

in actions    for in rem foreclosure due to the defendant's failure to pay a debt, summary

judgment is proper where the defendant admits that he had failed to make the payments

due and fails to sustain a cognizable defense to the plaintiff's claim. See First Wis. Trust

Co. v. Strausser, 653 A.2d 688, 694 (Pa.Super.1995) (providing that summary judgment

is proper in mortgage foreclosure actions where the mortgagor admits the delinquency of

his mortgage payments).

       This Court's decision to grant summary judgment        in   favor of the Plaintiff is proper

due to Defendant' admission that they are in default by failure to deny the allegation with

any specificity. See Defendant's Answer with New Matter, at 9 and 10. Averments in a

responsive pleading are deemed admitted when not denied specifically or by necessary
     implication. Pa.R.C.P. 1029; Cercone              v.   Cercone, 386 A.2d 1, 3 (Pa. Super. 1978)

     (finding defendant was required to specifically deny factual allegations in complaint
                                                                                           where
     defendant is in position to know truth or falsity of allegation). A general denial or demand

     for proof will be deemed an admission.             Id. More specifically, in a       mortgage foreclosure

     action, the mortgagors, aside from the mortgagee or assignee, are the only
                                                                                parties with
     sufficient knowledge to base a specific denial. New York Guardian Mortgage Corp.                                  v.

     Dietzel, 362 Pa. Super. 426, 429, 524 A.2d 951, 952 (1987).


            Defendant, in their Answer, admit paragraph 3 of the Complaint3, specifically the

     identity of the surviving defendant and the legal description of the property. In
                                                                                       Paragraph
     5, Defendant admits       that George Scripnicencu executed a note with Buyer's Home

     Mortgage. Defendant purported to deny paragraphs 9 and 10 of the Complaint4, which

     aver the default and the amounts due on the Mortgage; however, there is no evidence

 that payments have been made and the record contains no evidence contravening the

     amounts due and owing. See Defendant's Answer with New Matter at                                   9 and 10.

     Defendant instead of factually responding to the averments responded with legal

 conclusions in her answer. Defendant answered with a legal conclusion that the proper

 owner of the note has never declared a default, that response however, does not
                                                                                 answer
the averment that the mortgage is in default because the payments stopped.
                                                                           Further
making the same denial again does not answer whether the charged amounts are due on

the mortgage.          Accordingly, because Defendant are charged with having sufficient



3 "Admitted" See Defendant's Answer with New Matter at 3.
 "Denied. There was never a default declared under the note by the mortgagee who is the
`i
                                                                                             "holder of the [Note],"
a "nonholder in possession of the [Note] who has the rights of a holder,"
                                                                          or "a person not in possession of the
[Note] who is entitled to enforce the instrument pursuant to 13 P.S. §3309. Strict Proof is
                                                                                            demanded. See
Defendant's Answer with New Matter at 9 and 10.
knowledge upon which to base a specific denial with respect to averments contained                   in


paragraphs 9 and 10 of the Complaint, a general denial             is   insufficient to raise a genuine

issue of fact. Cercone      v.   Cercone, 386 A.2d   1, 3   (Pa. Super. 1978), City of Philadelphia

v.   Hertler, 114 475, 482, 539 A2d 468, 472 (Pa. Cmwlth. 1988).


         Unlike    Plaintiff,    Defendant   produced       no   evidence by way         of affidavits,

interrogatories, depositions or other substantiating documentation in support of her

allegations. Mere allegations, without supporting evidence are insufficient to prevent

summary judgment. Accordingly, this summary judgment was properly granted as the

pleadings and admissions on file show there is no genuine issue of material fact and that

the Plaintiff is entitled to judgment as a matter of law.


            b.    Whether the Court of Common Pleas erred in holding plaintiff as
                  having standing

         Defendant argues that Plaintiff has never been the holder of the note and therefore

Plaintiff does not have standing. The implication of Defendant's argument is also that the

Plaintiff was not the real party in interest and lacked standing to bring this action.

         In a   mortgage foreclosure action, the mortgagee         is   the real party in interest. See

Wells Fargo Bank, N.A. v. Lupori, 8 A.3d 919, 922 n. 3 (Pa.Super.2010). The

Pennsylvania Rules of Civil Procedure governing actions            in   mortgage foreclosure require

a plaintiff in a mortgage foreclosure action specifically to name the parties to the mortgage

and the fact of any assignments. Pa.R.C.P. 1147. A person foreclosing on a mortgage,

must own or hold the note. This is so because a mortgage is only the security instrument

that ensures repayment of the indebtedness under a note to real property. See Carpenter

v.   Longan, 83 U.S. 271, 275, 16 Wall. 271, 21 L.Ed. 313 (1872). A mortgage can have no
separate existence. Id. When a note is paid, the mortgage expires. Id. On the other hand,

a   person may choose to proceed in an action only upon     a   note and forego an action in

foreclosure upon the collateral pledged to secure repayment of the note. See Harper v.

Lukens, 271 Pa. 144, 112 A. 636, 637 (1921) (noting "as suit is expressly based upon the

note, it was not necessary to prove the agreement as to the collateral.").

        Here, Plaintiff produced evidence that it was the holder of the mortgage.

Specifically, Plaintiff alleged in its complaint that the "mortgage was assigned by SunTrust

Mortgage Inc., to Federal National Mortgage Associations, by Assignment of Mortgage

recorded...under Instrument 2013091760." (Complaint, 6/24/14 at ¶ 7.) Plaintiff produced

copies of the original recorded mortgage and its recorded assignment to Plaintiff as well

as the note. (Motion for Summary Judgment at Exhibit A -B).

        Defendant's argument that Plaintiff cannot establish ownership of the note is

without merit. The note produced by Plaintiff in this case identifies Defendant's deceased

husband as the "Borrower" and Buyers Home Mortgage, Inc. as the "Lender." The note

was endorsed by Buyers Home Mortgage without recourse to the order of SunTrust

Mortgage, Inc. SunTrust Mortgage in turn endorsed the note without recourse in blank. A

note endorsed in blank becomes payable to "bearer" and may be negotiated by transfer

of possession alone until specially endorsed. See 13 Pa.C.S.A. §§ 3109(a), 3205(b). The

note as a negotiable instrument entitles the holder of the note to enforcement of the

obligation. See 13 Pa.C.S.A. §§ 3109(a). Because of Plaintiffs ownership of the mortgage

and possession of the note, this Court properly concluded that Plaintiff had standing as a

real party in interest to bring the underlying foreclosure action. Defendant has raised an

allegation of error that lacks merit.
       Defendant remaining matters complained of are repetitions of their previously

worded arguments, specifically that no standing existed and that the Court erred in

granting summary judgment as there was a dispute of material fact.    This Court has

addressed both the standing argument and whether a genuine dispute of material fact

existed. Therefore, we find that summary judgment was properly granted.

 V.    Conclusion

       Thus, for all the above reasons, the Undersigned believes that Defendant's

allegations of error are without merit and that the August 18, 2016 Order was entered

properly.
Copies sent to:

Marc S. Weisberg, Esquire
McCabe, Weisberg & Conway, P.C.
123 South Broad Street, Ste. 1400
Philadelphia, PA 19109

Joshua L. Thomas, Esquire
1110 Pocopson Rd
PO Box 415
Pocopson, PA 19366
EXHIBIT A
                          IN THE COURT OF COMMON PLEAS
                           BUCKS COUNTY, PENNSYLVANIA
                                   CIVIL DIVISION


DEUTSCHE BANK NATIONAL TRUST                                                   No. 2010-07592
COMPANY
         v.



KENNETH TAGGART                                                                                                                 III
                                                                                  Case ft 2010-07592 B09     11475648

                                                                                  Code: 214         Ju 90:26
                                                                                  Patdei L. Bachlle,13 cksCounly Prothonotary
                                                                                  Rcpt 21671248 12/21/2016 9:56:11 AM


                                                 OPINION

         Kenneth Taggart appeals this Court's Order of October           6,   2016,   granting Deutsche Bank
National Trust Company's "Motion to Reinstate" their Complaint in Mortgage Foreclosure.

         This matter commenced on July         27, 2010,   with the filing of a Complaint in Mortgage
Foreclosure by Plaintiff, Deutsche            Bank National Trust Company which asserts as
follows: Kenneth Taggart made, executed, and delivered a mortgage in favor of Mortgage
Electronic Registration Systems on September         15,   2006 in   the amount of $374,935.24, recorded
in the Office of the Recorder of Bucks County, in Mortgage Book No.              5122,     Page     1367.      On July
13,   2010,   the Mortgage was assigned to Deutsch Bank and recorded in Mortgage Book No.                          6446,

Page   1322.    Complaint in Mortgage Foreclosure, July 27, 2010 ¶        3.




          Deutsche Bank alleges that Taggart defaulted on the Mortgage beginning on March                                1,

2009 and      each month thereafter. Complaint ¶    5.   At the time of the filing of the Complaint, the
total amount due under the mortgage including costs was         $423,253.32.      Complaint ¶          6.



         On July   27, 2011,   Taggart Tiled a "Notice of Removal" to the United States District Court
for the Eastern District of Pennsylvania, alleging that his Answer raised "federal questions,"
primarily under the Truth in Lending Act, warranting the exercise of jurisdiction by, the Federal
courts. Notice of Removal, July      27, 2011.
        On October 27, 2011, the Honorable Mary A. McLaughlin           of the United States District
Court of for the Eastern District of Pennsylvania remanded the case to the Bucks County Court of
Common Pleas in a sua sponte written Order.

        On January 7, 2013, Taggart filed a Motion for Judgment on the Pleadings by filing the
requisite praecipe for judicial determination under Bucks County Local Rule 208.3. Although it
appears the Motion was properly filed, it was never sent to a judge for determination.

        Because no docket activity had occurred for two (2) years, on July 7, 2015, a Preliminary
Case Termination Order was entered pursuant to Bucks County Administrative Rule No. 29 by the
Honorable Robert 0. Baldi of the Bucks County Court of Common Pleas

        On August 18, 2015, Deutsche Bank filed a "Statement of Intention to Proceed" pursuant
to the Pennsylvania Rules of Civil Procedure.

        On September 10, 2015, the case was terminated by this Court.

        On December 21, 2015, Deutsche Bank filed a Motion to Reinstate their Complaint. In
their Motion, Deutsche Bank alleged that they never received notice of the September 10, 2015
Termination Order. Deutsche Bank further asserts that the delay in the underlying case was caused
by Taggart's attempts to reach an agreement to cure the default upon the mortgage with Deutsche
Bank. See Plaintiff's Motion to Reinstate, December 21, 2015.

       The following day, On December 22, 2015, Taggart filed       a   "Motion for Enlargement of
Time to Respond to Motion to Reinstate & Rule to Show Cause," pro se.

       On January 12, 2016, this Court issued a Rule to Show Cause, ordering Taggart to respond
to Deutsche Bank's Motion to Reinstate the Complaint on or before February 8, 2016.

       On January 19, 2016, Taggart, again pro se, filed a "Response/Opposition to Motion to
Reinstate filed by Plaintiff, Rule to Show Cause & Motion to Strike 'Motion to Reinstate' [sic].
In his response, Taggart argues that Deutsche Bank has not timely filed its Motion to Reinstate the
Complaint in Mortgage Foreclosure. See Response/Opposition to Motion January 19, 2016.




                                                 2
       On February 26, 2016, Defendant, pro se, inexplicably filed a "Supplemental Answer           -

Response (by Defendant) to: Motion to Re -Instate," reiterating his same arguments from his prior
Answer.

       On October 6, 2016, this Court entered an Order reinstating Deutsche Bank's Complaint
in Mortgage Foreclosure.


       On October 17, 2016, Defendant, now represented by counsel, filed both a Motion to
Reconsider our October 6, 2016 Order and his Notice of Appeal. We note that, despite assertions
to the contrary, the Notice      of Appeal was never served upon this Court by Taggart's counsel. It
was not until notice from the Superior Court that we learned of Taggart's appeal. We then
promptly ordered a Concise Statement of Matters on November 10, 2016, to which Taggart
responded on December       1,   2016.

       Defendant raises the following twenty (20) repetitive issues on appeal, verbatim:

           1.    Whether the trial court erred in finding that it had subject matter jurisdiction
                 to re-open the case.
           2.    Whether the trial court erred in fmding that the Motion or Petition to
                 Reinstate was properly filed pursuant to Pa Rules of Civil Procedure.
           3.    Whether the trial court erred in finding that the Motion or Petition to
                 Reinstate was properly filed pursuant to Bucks County Rules of Civil
                 Procedure.
           4.    Whether the trial court erred in finding that the Motion or Petition to
                 Reinstate provided a proper verification with its motion.
           5.    Whether the trial court erred in finding that the Motion or Petition to
                 Reinstate was defective.
           6.    Whether the trial court erred in finding that the Motion or Petition to
                 Reinstate provided a proper affidavit.
           7.    Whether the trial court erred in finding that the Motion or Petition to
                 Reinstate was properly filed and granted when it failed to cite Pa. R.C.P.
                 3051, or comply with Pa. R.C.P. 3051.
           8.    Whether the trial court erred in finding that the Motion or Petition to
                 Reinstate was properly and timely filed pursuant to: Pa.R.C.P. 227.1. [sic].
           9.    Whether the trial court erred in fmding that, the Motion or Petition to
                 Reinstate was granted providing no opinion, or legal theory to grant a the
                 foregoing motion [sic].
           10.   Whether the trial court erred in finding that the Motion or Petition to
                 Reinstate was granted when its petition improperly cited Pa. R.C.P. 230.2,
                 which was suspended at the time it filed the Motion to Reinstate and relied
                 on the rule as its legal authority to do so.

                                                    3
              11. Whether the trial   court erred in finding that the Motion or Petition to
                  Reinstate was granted when its petition improperly failed to plead, or meet
                  all the requirements inPa. R.C.P 3051 [sic].
              12. Whether the trial court erred in finding that the Motion or Petition to
                  Reinstate was granted when its petition improperly failed to plead specific
                  reasons for delay.
              13. Whether the trial court erred in finding that the Motion or Petition to
                  Reinstate was granted when its petition improperly failed to comply with
                  Rule 237.3 Relieffrom Judgment of Non Pros or by Default
              14. Whether the trial court erred in finding that the Motion or Petition to
                  Reinstate was granted when its petition improperly failed to provide oral
                  argument prior to opening the judgment.
              15. Whether the trial court erred in finding that the Motion or Petition to
                  Reinstate was granted when the court failed to provide for discovery after
                  petition was filed and prior to order granting said petition.
              16. Whether the trial court erred in finding that the Motion or Petition to
                  Reinstate was granted when the petitioner failed to comply with the
                  termination order.
              17. Whether the trial court erred in finding that the Motion or Petition to
                  Reinstate was granted when the petitioner failed to correct any defects to
                  comply with the Preliminary Termination Order when it filed a Motion to
                  Reinstate.
              18. Whether the trial court erred in finding that the Motion or Petition to
                  Reinstate was granted when the petitioner failed to provide specific reasons
                  for failure to prosecutethe case for over 2 years [sic].
              19. Whether the trial court erred in finding that the Motion or Petition to
                  Reinstate was granted when the petitioner failed to provide specific reasons
                  for failure to file a timely petition.
              20. Whether the trial court erred in finding that the Motion or Petition to
                  Reinstate was granted when the petitioner failed to cite waiver of issues for
                  failure to cite Pa. R.C.P. 3051

                    Concise Statement of Matters Complained of on Appeal, November 28,
                    2016.

        We first note that Taggart asserts that Pa. R.C.P 230.2 was suspended at the time         of
Plaintiff's Motion to Reinstate the Complaint, and therefore, this matter is one which constitutes a
Petition to Open a Judgment. We will therefore analyze the merits of Deutsche Bank's Motion
under Pa. R.C.P. 3051(c), which governs the opening of a judgment of non pros because of docket
inactivity.

         We also note that relief from a judgment of non pros is discretionary. A ruling will only
be overturned if it illustrates "Manifest unreasonableness, or partiality, prejudice, bias, or

                                                    4
or such lack of support as to be clearly erroneous." Womer v. Hilliker, 589 Pa. 256, 273 (Pa. Super.
2006).

         In order to open a judgment of non pros for inactivity, the Petition must allege that it was
promptly filed and that there is a meritorious cause of action. Additionally, the record must show
that the following did not occur:   1)   there was a lack of due diligence on the part of the Plaintiff for
failure to proceed with reasonable promptitude; 2) the plaintiff failed to show a compelling reason
for the delay; and 3) the delay caused actual prejudice to the Defendant. Pa. R,C.P. 3051(c).

         Here, Deutsche Bank alleges that they were never served with a copy of the September 10,
2015 Termination Order. It is unclear from the docket whether Deutsche Bank was actually
served, as a Certificate of Service was not attached to the Termination Order.

         Additionally, it is clear that the pleadings assert a meritorious claim. Deutsche Bank has
set forth the necessary elements    of a mortgage foreclosure action. Deutsche Bank's Complaint
alleges that Taggart executed a mortgage and note, that the mortgage applies to Taggart's real
property, and that the mortgage was in default.

         According to the docket, the delay in docket activity was the result of pending motions
filed by both parties. Additionally, Taggart is benefitting, rather than being prejudiced, by the
delay, as it allows his continued occupancy of the property despite his alleged default in payment
of the mortgage.

         Although Rule 230.2 was suspended at the time of the Motion, it was reinstated and
amended on December 9, 2015, with the text being effective December 31, 2016. Assuming this
section applies, Deutsche Bank's Motion was still proper.

         Rule 230.2 has similar requirements as Rule 305I(c). A Petition to Reinstate a Complaint
will be granted if filed more than thirty (30) days after termination, as long as: 1) the Petition is
timely filed following the entry of termination and 2) there is a reasonable explanation or legitimate
excuse for the failure to file both the Statement of Intention to Proceed and the Petition to Reinstate
within thirty (30) days.




                                                      5
       Here, Deutsche Bank did indeed file a Statement of Intention to Proceed pursuant to the
Pennsylvania Rules of Civil Procedure.        Also, we found Deutsche Bank's claim that the
Termination Order was never served, combined with the absence of a Certificate of Service upon
Deutsche Bank, to reasonably explain why the Petition to Reinstate the Complaint was filed more
than thirty (30) days after the case was terminated.

       We also emphasize the equitable considerations unique to this case. Kenneth Taggart has
allegedly been in default in mortgage payments for almost eight (8) years.          The delay in
prosecuting the case only served to benefit the Defendant, as he continues to occupy his residence
despite the fact that no payments have allegedly been made since March 2009.

       Any prejudice caused by the failure to file a Motion to Reinsate within thirty (30) days is
clearly outweighed by the prejudice caused by Taggart's alleged default.

       We therefore respectfully urge that our Order reinstating Plaintiff's Complaint in Mortgage
Foreclosure be affirmed.




                                                                   BY THE COURT:




       Iai




DATE         1/21f"                                      ALAN M. RUBENSTEIN,            J.




                                                 6
COPIES SENT TO:


Andrew C. Bramblett, Esq.
Phelan, Hallinan, Diamond & Jones, LLP
One Penn Center at Suburban Station
1617 JFK Boulevard, Suite 1400
Philadelphia, PA 19103

             Attorney for Plaintiff'     Deutsche Bank National Trust Company



Joshua L. Thomas, Esq.
Joshua L. Thomas & Associates
1110'Pocopson Road
PO Box 415
Pocopson, PA 19366

             Attorney for Defendant      Kenneth J. Taggart



Joseph D. Seletyn, Esq.
Prothonotary
Superior Court of Pennsylvania
530 Walnut Street, Suite 315
Philadelphia, PA 19106
