J-S29039-15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

U.S. BANK NATIONAL ASSOCIATION            :   IN THE SUPERIOR COURT OF
                                          :         PENNSYLVANIA
          v.                              :
                                          :
RUSSELL G. McCLELLAND and ISAVEL          :
HERNANDEZ McCLELLAND                      :
                                          :
APPEAL OF: RUSSELL G. McCLELLAND          :   No. 1926 WDA 2014

                Appeal from the Order Entered October 28, 2014,
                  in the Court of Common Pleas of Erie County,
                         Civil Division, at No: 11390-2013

BEFORE:        PANELLA, MUNDY, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:                       FILED JULY 16, 2015

     Russell G. McClelland (McClelland) appeals pro se from the October 28,

2014 order which granted summary judgment in favor of U.S. Bank National

Association (U.S. Bank) in this mortgage foreclosure action.1 We affirm.

     The trial court summarized the history of this case as follows.

           [U.S. Bank] filed a complaint on May 21, 2013 seeking to
     foreclose on a mortgage. In its complaint, [U.S. Bank] asserted
     the mortgage secures the indebtedness of a note executed by
     Russell G. McClelland on July 29, 2003 and that [U.S. Bank]
     became mortgagee when Flagstar Bank assigned the note and
     mortgage to [it] on April 16, 2004. The complaint also attached
     copies of the note, mortgage, and assignment.

           On June 24, 2013, [McClelland] filed preliminary objections
     contending that [U.S. Bank] failed to timely file original
     documents with the Prothonotary, that Exhibit D attached to the
     complaint incorrectly identified Allegheny Mortgage Corp. as the
     original lender, and that the copies of the mortgage and note do

1
  Isavel Hernandez McClelland, who is listed as a joint tenant with McClelland
in the mortgage instrument and who was also named as a defendant in the
foreclosure action, has not appealed to this Court.

*Retired Senior Judge assigned to the Superior Court.
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        not match those copies provided to [McClelland] by [U.S. Bank]
        in February and March 2013. [McClelland] subsequently filed
        amended preliminary objections on July 8, 2013, stating that
        “failing to exhibit the instrument by the person making
        presentment violates U.C.C. §3501(b)(2).”

               [U.S. Bank] filed its reply to [McClelland’s] preliminary
        objections on August 5, 2013, arguing the law does not require
        [it] to file the original mortgage and note with the Prothonotary.
        [U.S. Bank] represented it would make the original note
        available to [McClelland]. [U.S. Bank] also asserted that while
        there are differences between the two copies of the mortgage,
        those differences stem from the fact that the copy attached to
        the complaint was recorded and thus bore a stamp of the
        recording information and included a legal description of the
        property. [U.S. Bank] averred there are no differences between
        the copy of the note attached to the complaint and that which
        was attached to [McClelland’s] preliminary objections.

              [McClelland’s] preliminary objection[s] and amended
        preliminary objections were overruled by order dated February
        7, 2014. [McClelland] filed an answer to the complaint on
        February 27, 2014 in which he admitted that Mortgage Electronic
        Registration Systems, Inc., (MERS) as nominee for Flagstar Bank
        (FSB) assigned the note and mortgage to [U.S. Bank].

             After the close of discovery, [U.S. Bank] filed a motion for
        summary judgment on August 22, 2014. [McClelland] filed an
        answer to [U.S. Bank’s] motion for summary judgment on
        September 17, 2014. After oral argument afforded the parties
        on October 22, 2014, [U.S. Bank’s] motion for summary
        judgment was granted on October 28, 2014.

              On November 24, 2014, [McClelland] filed a Notice of
        appeal with the Superior Court and subsequently filed a concise
        statement of matters complained of on appeal. …

Trial   Court   Opinion,   1/14/2015,    at   1-2   (citation   and   unnecessary

capitalization omitted).




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      McClelland presents one question for this Court’s consideration: “When

suit is brought against a defendant by a stranger to his contract, is the

defendant entitled to proof that the plaintiff is the owner of the claim against

him[?]” McClelland’s Brief at 1.

             The standards which govern summary judgment are well
      settled. When a party seeks summary judgment, a court shall
      enter judgment whenever there is no genuine issue of any
      material fact as to a necessary element of the cause of action or
      defense that could be established by additional discovery. A
      motion for summary judgment is based on an evidentiary record
      that entitles the moving party to a judgment as a matter of law.
      In considering the merits of a motion for summary judgment, a
      court views 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.
      Finally, the court may grant summary judgment only when the
      right to such a judgment is clear and free from doubt. An
      appellate court may reverse the granting of a motion for
      summary judgment if there has been an error of law or an abuse
      of discretion.…

Swords v. Harleysville Ins. Companies, 883 A.2d 562, 566-67 (Pa.

2005) (citations omitted).

      Summary judgment in mortgage foreclosure actions is subject to the

same rules as any other civil action. See Pa.R.C.P. 1141(b). “In an action

for mortgage foreclosure, the entry of summary judgment is proper if the

mortgagors admit that the mortgage is in default, that they have failed to

pay interest on the obligation, and that the recorded mortgage is in the

specified amount.”    Cunningham v. McWilliams, 714 A.2d 1054, 1057

(Pa. Super. 1998).



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      McClelland does not dispute that the mortgage is in default and that

foreclosure is appropriate. His issue, as expressed to the trial court, is as

follows: “I just want to make sure I’m paying the right people.” Transcript

of Summary Judgment Argument, 10/22/2014, at 8-9.

      Other than pursuant to exceptions not relevant to this case, “all

actions shall be prosecuted by and in the name of the real party in interest.”

Pa.R.C.P. 2002(a).     “[T]he mortgagee is the real party in interest in a

foreclosure action.” Wells Fargo Bank, N.A. v. Lupori, 8 A.3d 919, 922 n.

3 (Pa. Super. 2010).

      The original mortgage instrument, signed by McClelland and recorded

with the recorder of deeds on August 5, 2003, clearly states as follows on

page one: “MERS is the mortgagee under this Security Instrument.”

Exhibit E to McClelland’s Preliminary Objections, 6/24/2013, at 1 (emphasis

in original).2   The original mortgage instrument further provides that the

property in question is mortgaged, granted, and conveyed to MERS “and to

the successors and assigns of MERS….” Id. at 3.

      McClelland’s answer to U.S. Bank’s complaint states: “Admitted that

Mortgage Electronic Registration Systems, Inc. [(MERS)], as nominee for

Flagstar Bank, FSB, assigned its note and mortgage to [U.S. Bank] on



2
 A copy of the document, different in that it is marked with the stamp of the
Erie County Recorder of Deeds but otherwise the same, is attached to U.S.
Bank’s complaint.


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J-S29039-15


November 7, 2012 in the Office of the Recorder of Deeds in Erie County.”

Answer and New Matters, 2/27/2014, at ¶ 3a.

      Therefore,   based   upon   the   copy   of   the   mortgage   instrument

acknowledged by McClelland, MERS was the original mortgagee and had the

express authority to assign its interests. McClelland admitted in his answer

to the foreclosure complaint that MERS assigned the mortgage to U.S. Bank.

Accordingly, as a matter of law, U.S. Bank is the real party in interest in this

foreclosure action.   Therefore, the trial court properly granted U.S. Bank’s

motion for summary judgment.

      Order affirmed.3

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary


Date: 7/16/2015


3
  McClelland’s concerns about U.S. Bank’s failure to show him that it
possesses the original note and mortgage, rather than photocopies, is
unwarranted. “[A] note secured by a mortgage fits the plain language of the
UCC’s definition of [a negotiable] instrument.” JP Morgan Chase Bank,
N.A. v. Murray, 63 A.3d 1258, 1265 (Pa. Super. 2013). “Pursuant to
[Pennsylvania’s UCC], a debtor who satisfies his obligations under a
negotiable instrument cannot be required to do so again, even if the
recipient of the debtor’s performance is not the holder of the note in
question.” Id. at 1263 (citing 13 Pa.C.S. § 3602(a)).


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