J-A26026-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

BANK OF AMERICA, N.A. S/B/M            :   IN THE SUPERIOR COURT OF
LASALLE BANK MIDWEST NATIONAL          :        PENNSYLVANIA
ASSOCIATION                            :
                                       :
                                       :
            v.                         :
                                       :
                                       :
MARK R. DAVIS                          :   No. 331 WDA 2016
                                       :
                   Appellant           :

               Appeal from the Order Entered February 5, 2016
              In the Court of Common Pleas of Allegheny County
                    Civil Division at No(s): MG-13-000477


BEFORE: BENDER, P.J.E., RANSOM, J., and MUSMANNO, J.

MEMORANDUM BY RANSOM, J.:                    FILED NOVEMBER 29, 2016

     In this mortgage foreclosure action, Mark R. Davis appeals from the

order entered February 5, 2016, granting Bank of America, N.A. (“Bank of

America” or “the Bank”), summary judgment and awarding it judgment in

rem for $117,038.33, plus interest and costs. We affirm.

     On June 4, 1999, Appellant executed a mortgage and promissory note

to Standard Federal Bank in the original principal amount of $80,958.00.

The record suggests that in April 2001, Standard Federal Bank assigned the

mortgage to Atlantic Mortgage & Investment Corporation. However, seven

years later in April 2008, Standard Federal Bank assigned the mortgage to

LaSalle Bank Midwest National. LaSalle Bank merged with Bank of America.

In February 2010, Appellant defaulted under the mortgage by failing to

make payments due.
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      In March 2013, Appellee filed its complaint in mortgage foreclosure.

In July 2015, Appellee filed a motion for summary judgment, and one month

later, Appellant filed a response.    On February 5, 2016, judgment was

entered in favor of Bank of America in the amount of $117,038.33, with

interest from July 2015 to the date of the sheriff’s sale at the rate of $14.25

per diem, and for foreclosure and sale of the mortgaged premises.

      In March 2016, Appellant timely appealed and filed a court-ordered

Pa.R.A.P. 1925(b) statement. The trial court issued a responsive opinion.

      Appellant presents one issue for review:

      Whether [s]ummary [j]udgment should have been granted to
      [the Bank] in a mortgage foreclosure action where the [the
      Bank’s] mortgage had previously been assigned to another
      entity prior to its being assigned to [the Bank’s] predecessor and
      where [the Bank] did not produce the original note.

Appellant’s Brief at 4.

      We review the trial court’s decision for an abuse of discretion or error

of law; the scope of our review is plenary. PHH Mortg. Co. v. Powell, 100

A.3rd 611, 616 (Pa. Super. 2014).

      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. 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.

Id. (internal punctuation modified; citations omitted).




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      Appellant asserts the trial court erred in granting Bank of America

summary judgment.         Appellant raises two arguments in support of this

assertion. According to Appellant, (1) Bank of America did not have a valid

assignment of the mortgage, and (2) the Bank did not establish that it held

the original note.

      Appellant’s first argument is without merit, as he does not have

standing to challenge the assignment of the mortgage.             Under the

Pennsylvania Uniform Commercial Code, the note securing a mortgage is a

negotiable instrument. J.P. Morgan Chase Bank, N.A. v. Murray, 63 A.3d

1258 (Pa. Super. 2013) (Murray). Enforcement is proper even if questions

remain as to the chain of possession, and questions as to that chain are

immaterial to its enforceability so long as the holder can prove it holds said

note. Id. A note endorsed in blank is a “bearer note,” payable to anyone on

demand regardless of who previously held the note. 13 Pa.C.S.A. §§

3109(a), 3301.       Upon payment of the note, a borrower is released from

further liability, even if he pays the wrong party. Murray, 63 A.3d at 1264-

65 (applying 13 Pa.C.S.A. § 3602). Accordingly, this Court has held that a

borrower who has discharged his liability lacks standing to challenge the

validity of a note assignment. Id.

      The record in this case shows that Bank of America holds a bearer

note and, therefore, the mortgage.         Upon payment of the mortgage,

Appellant’s obligation is discharged, even if a note assignment was




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J-A26026-16



defective.    Id.   Consequently, Appellant lacks standing to challenge the

validity of the assignment. Id.

      Appellant’s second contention, that Bank of America failed to produce

the original note is without merit.   In response to a motion for summary

judgment, an adverse party may not rest on the mere allegations or denials

in his pleadings, but must set forth in his response by affidavits, specific

facts in dispute. Maier v. Maretti, 671 A.2d 701, 706 (Pa. Super. 1995)

(citing Kniaz v. Benton Borough, 642 A.2d 551, 553 (Pa. Cmwlth. 1994)).

Here, in its motion for summary judgment, the Bank averred it was properly

assigned the mortgage and possessed the note. Mot. Summ. J., 7/2/15, ¶

6. In its response, Appellant challenged the assignment, but not the Bank’s

possession of the note. Resp., 8/3/15, ¶ 6, 8.

      In argument supporting its response, Appellant suggested that Bank of

America did not possess the original note. See Appellant’s Brief in Support

of Response, at 3. However, such arguments are not sufficient to challenge

the Bank’s motion.      Scopel v. Donegal Mutual Ins. Co., 698 A.2d 602,

606 (Pa. Super. 1997) (citing Erie Indemnity Co. v. Coal Operations

Casualty Co., 272 A.2d 465, 466-467 (Pa. 1971) (holding that a brief filed

in support of motion for summary judgment, which included factual

averments not contained in the pleadings, could not be considered by the

trial court.)).

      Appellant failed to properly challenge Bank of America’s assertion that

it possessed the note.     Thus, the trial court acted correctly in granting

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summary judgment in favor of the Bank, since no material fact remained in

issue as to any element in the mortgage foreclosure action. Cunningham

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

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/29/2016




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