J-A19014-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    THE BANK OF NEW YORK MELLON                :   IN THE SUPERIOR COURT OF
    (F/K/A THE BANK OF NEW YORK),              :        PENNSYLVANIA
    SUCCESSOR TO JPMORGAN CHASE                :
    BANK NA, IN TRUST FOR                      :
    REGISTERED HOLDERS BEAR                    :
    STERNS ASSET BACKED SECURITIES             :
    2006-2, ASSEST BACKED                      :
    CERTIFICATES, SERIES 2006-2                :
                                               :   No. 3083 EDA 2018
                                               :
                v.                             :
                                               :
                                               :
    HOWARD J. POOLER A/K/A HOWARD              :
    POOLER AND LISA ROSENBERGER                :
                                               :
                       Appellants              :

               Appeal from the Order Entered September 14, 2018
                In the Court of Common Pleas of Monroe County
                     Civil Division at No(s): 7411 CV 2017


BEFORE:      PANELLA, P.J., KUNSELMAN, J., and STEVENS, P.J.E.*

MEMORANDUM BY PANELLA, P.J.:                        FILED NOVEMBER 27, 2019

        Howard J. Pooler and Lisa Rosenberger appeal the trial court’s order

granting summary judgment in favor of the Bank of New York in this mortgage

foreclosure action. Specifically, Appellants contend that the trial court erred

when it struck several of Appellants’ claims raised as new matter and granted

summary judgment in favor of Bank of New York. We affirm.

        Appellants entered into a mortgage contract with Eagle National Bank in

1998 for an adjustable rate mortgage on a property in East Stroudsburg,

____________________________________________


*   Former Justice specially assigned to the Superior Court.
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Pennsylvania. The mortgage was later assigned to Unicor Mortgage, Inc. and

then assigned to Bank of New York. Appellants stopped making payments on

the loan in 2012. After giving the required notice of default and intent to

foreclose, Bank of New York initiated this mortgage foreclosure action against

Appellants.

      Appellants filed an answer to the complaint in which they raised

seventy-two numbered paragraphs of claims and defenses. The trial court

struck six claims after sustaining Bank of New York’s preliminary objections.

      Bank of New York then filed a motion for summary judgment. Finding

that Appellants came forward with no evidence to refute the fact that they

have not made a mortgage payment since August 2012, or to refute that Bank

of New York has the right to foreclose on the loan, the trial court granted

summary judgment in favor of Bank of New York. This timely appeal followed.

      Appellants raise three questions on appeal.

      1. Did the court below err as a matter of law in granting [Bank of
         New York’s] motion for summary judgment?

      2. Did the court below err as a matter of law in dismissing the
         [Appellants’] new matter against [Bank of New York] which
         included, inter alia, claims for breach of contract, failure to
         comply with truth in lending disclosure requirements, violations
         of the Real Estate Settlement Procedures Act and failure to
         comply with Pennsylvania Unfair Trade Practices and Consumer
         Protection laws?

      3. Did the court below err as a matter of law in dismissing the
         [Appellants’] new matter, as they were integral to the entire
         case, particularly the creation of the mortgage and note, upon
         which [Bank of New York] is relying?




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Appellant’s Brief, at 4 (questions reordered, unnecessary capitalization

omitted). 1

       In the first issue, Appellants claim that the trial court erred when it

granted Bank of New York’s motion for summary judgment. See Appellants’

Brief, at 17-22.

             This Court’s scope and standard of review of a trial court’s
       order granting summary judgment is well-settled:

                     In reviewing an order granting summary
              judgment, our scope of review is plenary, and our
              standard of review is the same as that applied by the
              trial court. Our Supreme Court has stated the
              applicable standard of review as follows: [A]n
              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.

____________________________________________


1 The argument section of Appellants’ brief contains a discussion that does not
appear to be related to any question presented. This far-ranging discussion
covers a large range of claims: the verification of Bank of New York’s
complaint, the alleged involvement of MERS as a past-assignee of the
mortgage, and a list of eleven “issues in the instant case that the Appellants
attempted to preserve for the instant appeal.” Appellants’ Brief, at 11; see id.
at 10-12. These issues are not included in the questions presented, and are
not developed. In fact this entire discussion appears to be copied and pasted
with minimal edits, from Appellants’ brief in response to Bank of New York’s
preliminary objections. Accordingly, we do not address these claims. See
Pa.R.A.P. 2116 (“No question will be considered unless it is stated in the
statement of questions involved or is fairly suggested thereby.”).

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

            Summary judgment in mortgage foreclosure actions is
      subject to the same rules as other civil actions. See Pa.R.C.P.
      1141(b).

Gerber v. Piergrossi, 142 A.3d 854, 858 (Pa. Super. 2016), appeal denied,

166 A.3d 1215 (Pa. 2017) (case citation omitted).

      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 Am., N.A. v. Gibson, 102 A.3d 462, 464–65 (Pa. Super. 2014)

(citations omitted).

      Here, Bank of New York established that it is the holder of the mortgage

by producing the original recorded mortgage note and its recorded

assignments. Appellants produced no evidence to challenge Bank of New

York’s standing to foreclose. There is no evidence in the recorded note or

assignments that Mortgage Electronic Registration Systems, Inc. (MERS) was

ever the mortgagee, or that there were any inappropriate assignments of the

mortgage. In addition, Appellants have not produced any evidence that the

mortgage is not in default, nor have they refuted that they have not made

payment on the mortgage loan since 2012. Finally, Appellants admitted that


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J-A19014-19



the mortgage was initially executed in 1998 for $143,100.00 when they failed

to specifically deny this allegation in their answer. See Pa.R.C.P. 1029(b).

Accordingly, we conclude that because no questions of material fact exist as

to any element, the trial court did not err in granting summary judgment.2

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

(summary judgment appropriate where mortgagee admitted to amount for

which mortgage was recorded).

       In their next two issues, Appellants assert that the trial court erred when

it sustained Bank of New York’s preliminary objections and dismissed their

defenses. See Appellants’ Brief, at 12-17. However, Appellants fail to develop

their argument in a meaningful manner.

       After sustaining, in part, Bank of New York’s preliminary objections, the

trial court struck the following from Appellants’ new matter: claim under the

Fair Debt Collections Practice Act; claim under the Unfair Trade Practices and

Consumer Protection Law; claim for damages; claim of a violation of loan

servicing requirements under federal law; claim for a violation of the Fair

Credit Reporting Act; and claim for a violation of federal law for Bank of New

York’s collection and loan servicing practices. See Order, 2/14/18, at 2.

However, Appellants fail to distinguish or form any argument concerning any

____________________________________________


2Furthermore, we note that Appellants failed to file a response to Bank of New
York’s motion for summary judgment, as required by Pa.R.C.P. 1035.3.
Although the trial court still considered the motion on the merits, it had the
authority to grant summary judgment on this basis alone. See Pa.R.C.P.
1035.3.

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J-A19014-19



of the claims that the court dismissed. Rather, to the extent Appellants set

forth any cogent argument concerning the dismissal of new matter, they

contend that their claim for fraud in the inducement of the mortgage is a

permissible counterclaim. See Appellants’ Brief, at 12-17.

      “When issues are not properly raised and developed in briefs, when the

briefs are wholly inadequate to present specific issues for review[,] a Court

will not consider the merits thereof.” Branch Banking and Trust v.

Gesiorski, 904 A.2d 939, 942-943 (Pa. Super. 2006) (citation omitted).

Appellants fail to develop any argument concerning the new matter that the

trial court struck. Most importantly, they do not identify where, in their

pleadings, they set forth the factual basis for their claim of fraud in the

inducement. Accordingly, we will not consider the merits of their final issues.

      Judgment affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/27/19




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