J-S11016-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

U.S. BANK NATIONAL ASSOCIATION, AS              IN THE SUPERIOR COURT
TRUSTEE SUCCESSOR IN INTEREST TO                          OF
BANK OF AMERICA NATIONAL                             PENNSYLVANIA
ASSOCIATION AS TRUSTEE SUCCESSOR
TO MERGER TO LASALLE BANK
NATIONAL ASSOCIATION AS TRUSTEE
FOR STRUCTURED ASSET INVESTMENT
LOAN TRUST MORTGAGE PASS-
THROUGH CERTIFICATES, SERIES 2004-
4

                         Appellee

                    v.

JACQUELINE BLOUNT AND/OR
OCCUPANTS

APPEAL OF JACQUELINE BLOUNT
                                                   No. 2056 EDA 2017


                Appeal from the Order Entered May 23, 2017
              In the Court of Common Pleas of Monroe County
                      Civil Division at No: 735 CV 2017

BEFORE: OTT, STABILE, and MUSMANNO, JJ.

MEMORANDUM BY STABILE, J.:                           FILED JULY 09, 2018

     Appellant, Jacqueline Blount, appeals pro se from an order entering

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

action for ejectment and against Appellant on her counterclaims. We affirm.

     In January 2004, Appellant and her husband, now deceased, entered

into a mortgage with BNC Mortgage, Inc., relating to real property owned by

the Blounts at 198 Scenic Drive, Blakeslee, Pennsylvania (“the Property”).

Subsequently, the mortgage was assigned to Appellee, which commenced a
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mortgage foreclosure action against Appellant in early 2014 and obtained a

default judgment against Appellant in mid-2014. Appellant filed a petition to

open judgment, which the trial court denied on July 21, 2015.        Appellee

purchased the Property at sheriff’s sale on September 23, 2015 and recorded

the sheriff’s deed on October 23, 2015.

      On February 2, 2017, Appellee filed a complaint in ejectment, the action

that presently is before us for review. On February 21, 2017, Appellant filed

an answer to the ejectment complaint with counterclaims against Appellee

alleging, inter alia, violations of the Due Process Clause of the Fifth

Amendment and the federal Fair Debt Collection Practices Act, 15 U.S.C.

§§ 1692-1692p.

      On April 18, 2017, Appellee filed a motion seeking summary judgment

in its favor on the ejectment action and against Appellant on her

counterclaims. Appellee argued that Appellant’s counterclaims were barred

by res judicata due to Appellant’s failure to raise them in the underlying

foreclosure action. On May 23, 2017, the trial court entered an order granting

Appellee’s motion for summary judgment and entering summary judgment in

ejectment in favor of Appellee and against Appellant. The order, however, did

not expressly resolve Appellant’s counterclaims.

      On June 19, 2017, Appellant appealed to this Court. On August 9, 2017,

the trial court filed a Pa.R.A.P. 1925(a) opinion concluding that Appellant’s

counterclaims belonged in the underlying foreclosure action and could not be

raised in the present ejectment action.

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      On June 5, 2018, we remanded this case to the trial court for entry of a

final order, i.e., an order that expressly disposes of Appellee’s claims and

Appellant’s counterclaims. On June 7, 2018, the trial court entered an order

granting summary judgment to Appellee on its ejectment action and against

Appellant on her counterclaims. The order provides with regard to Appellant’s

counterclaims:

      Pa.R.C.P. 1056 prohibits counterclaims which do not arise from
      the same transaction or occurrence from which the cause of action
      arose. [Appellant’s] Counterclaims do not assert a superior title
      and are therefore not permitted in this case. To the extent that
      [Appellant] alleges defects in the mortgage foreclosure
      proceedings which led to [Appellee’s] sheriffs deed, they were
      concluded by the final judgment in the mortgage foreclosure case.

Order, 6/7/18, at 1.

      As promised in our June 5, 2018 order, we now treat Appellant’s appeal

as filed in accordance with Pa.R.A.P. 905(a)(5). See id. (“[a] notice of appeal

filed after the announcement of a determination but before the entry of an

appealable order shall be treated as filed after such entry and on the day

thereof”).

      Appellant raises the following issues in her appeal:

      1. Can [the trial court] issue an order outside [its] authority that
      deprives Appellant of a federal “Private Right of Action” of
      rescission and consumer protections, pursuant to Article 3 Section
      2 of the Constitution for the United States of America and the laws
      enacted by the United States Congress, as it relates to Appellant’s
      private property?

      2. Can [the trial court] issue an order outside [its] authority that
      deprives Appellant of federally protected rights pursuant to the


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     Consumer Protection Laws, Federal Judicial Authority ---Article 3
     Section 2, in the laws enacted by the United States Congress, and
     issue orders that give rise to the taking of Appellant’s private
     property for public use without just compensation, Constitution for
     the United States of America (Amendment 5, the Bill of Rights)?

     3. Can [the trial court] issue any order concerning the taking of
     Appellant’s private property when that order was “voidable” from
     the beginning, by operation of law, due to fraudulent
     misrepresentation of the contract (Promissory Note and
     Mortgage), and Fraud upon the Court?

     When reviewing a trial court’s grant of summary judgment, our standard

and scope of review are as follows:

     Our scope of review is plenary, and our standard of review is the
     same as that applied by the trial court . . . An appellate court may
     reverse the entry of a summary judgment only where it finds that
     the lower court erred in concluding that the matter presented no
     genuine issue as to any material fact and that it is clear that the
     moving party was entitled to a judgment as a matter of law. In
     making this assessment, we view the record in the light most
     favorable to the non-moving 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.

Reinoso v. Heritage Warminster SPE, LLC, 108 A.3d 80, 84 (Pa. Super.

2015) (en banc).

     Although Appellant’s argument is difficult to follow, she appears to claim

that Appellee cannot eject her from the Property because she rescinded the

underlying mortgage pursuant to the Truth in Lending Act (“TILA”), 15 U.S.C.

§§ 1601-1667f.     We agree with Appellee that this argument lacks merit.

“Generally, attacks on a sheriff’s sale cannot be made in a collateral

proceeding.” Dime Savings Bank v. Greene, 813 A.2d 893, 895 (Pa. Super.


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2002). “An ejectment action is a proceeding collateral to that under which

the land was sold.”     Id.   Further, when there is a final judgment in a

foreclosure action, res judicata bars a separate action by an occupant to

rescind a mortgage based on the TILA. Stuart v. Decision One Mortgage

Co., LLC, 975 A.2d 1151, 1152 (Pa. Super. 2009).            Thus, Appellant’s

counterclaim under the TILA in this ejectment action is barred as a matter of

law.

       Appellant also claims that Appellee violated the Takings Clause in the

Fifth Amendment by taking the Property without just compensation. Appellee

responds that Appellant fails to present any evidence of a Takings Clause

violation. We agree with Appellee. To prove a Takings Clause violation, the

occupant must show that the private acting entity intends to use the property

in question for public use.   Kelo v. City of New London, 545 U.S. 469

(2005). Here, Appellee is not a government actor, and Appellant has failed to

provide any evidence that Appellee intends to use the Property for any public

use or purpose.

       Finally, Appellant claims that her ejectment and/or the underlying

sheriff’s sale are precluded by Appellee’s fraud and its violation of the Fair

Debt Collection Practices Act (“FDCPA”), 15 U.S.C. §§ 1692-1692p. Appellant

bases this argument on allegations that the note and mortgage were assigned

in 2004 to MERS, “an entity not registered in Pennsylvania to conduct any

form of business,” and the note was rescinded in 2000 when the original


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mortgagee, BNS, went out of business. Appellant’s Brief at 5. This does not

amount to a fraud or FDCPA claim; instead, it is a challenge to Appellee’s

standing to pursue the underlying mortgage foreclosure action due to defects

in the chain of title. As such, the proper time to raise this challenge was in

the underlying foreclosure action, and res judicata bars Appellant from raising

it in this action. Compare Bayview Loan Servicing LLC v. Wicker, 163

A.3d 1039 (Pa. Super. 2017) (standing raised as defense by mortgagor in

mortgage foreclosure action).

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/9/18




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