J-S01023-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

DEUTSCHE BANK TRUST COMPANY                     IN THE SUPERIOR COURT OF
AMERICAS, AS TRUSTEE FOR SAXON                        PENNSYLVANIA
SECURITIES TRUST 2003-1

                            Appellee

                       v.

CONNIE WILSON AND ZEKE WILSON

APPEAL OF CONNIE WILSON

                                                    No. 816 WDA 2014


                     Appeal from the Order January 23, 2014
                 In the Court of Common Pleas of Potter County
                       Civil Division at No(s): 2010-CV-20


BEFORE: GANTMAN, P.J., JENKINS, J., and MUSMANNO, J.

MEMORANDUM BY JENKINS, J.:                       FILED JANUARY 07, 2015

       Connie Wilson (“Wife”) appeals from an order granting summary

judgment in this mortgage foreclosure action to Deutsche Bank Trust

Company Americas, as trustee for Saxon Securities Trust 2003-1 (“the

Bank”)1. We affirm.



____________________________________________


1
  The Bank refers to itself in its brief as “Deutsche Bank Trust Company
Americas f/k/a Bankers Trust Company, as Trustee for Saxon Asset
Securities Trust 2003-1, Mortgage Loan Asset Backed Certificates, Series
2003-1.” The Bank commenced this action under the name “Deutsche Bank
Trust Company Americas, as trustee for Saxon Securities Trust 2003-1,” and
the trial court granted summary judgment to the Bank under this name.
There is no motion in the record to amend the Bank’s name. Therefore, the
(Footnote Continued Next Page)
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        The record reveals that on February 24, 2003, Wife and Zeke Wilson

(“Husband”) obtained a loan in the amount of $45,850 from America’s

Moneyline Inc.         The loan was evidenced by a note and secured by a

mortgage in favor of America’s Moneyline Inc. that was recorded in Potter

County2. On June 3, 2009, the mortgage was assigned to Saxon Mortgage,

Inc. and then to the Bank. Both assignments were recorded3. The note was

likewise indorsed to Saxon Mortgage, Inc., which in turn indorsed it in blank4

and transferred it to the Bank, its current holder5.

        Husband and Wife failed to make mortgage payments after February

1, 20096. The Bank complied with the notice requirements under Act 6 and

Act 917 and brought this foreclosure action in January 20108. On September

                       _______________________
(Footnote Continued)

effect of our decision is to affirm the judgment in favor of “Deutsche Bank
Trust Company Americas, as trustee for Saxon Securities Trust 2003-1.”
2
    Bank Compl. ¶ 3; Answer ¶ 3; Bank Mot. Summ. J. ¶ 5 & Exs. A, A1.
3
    Bank Compl. ¶ 3; Bank Mot. Summ. J. ¶¶ 6-7 & Exs. A2, A3.
4
    Bank Mot. Summ. J. ¶ 5 & Ex. A1 at 3.
5
    Bank Mot. Summ. J. ¶¶ 6-7 & Ex. B ¶ 4.
6
    Bank Mot. Summ. J. ¶¶ 8-10 & Exs. B & C.
7
  Bank Mot. Summ. J. Ex. D (Act 6/91 notice). Act 6, the Loan Interest and
Protection Law, is codified at 41 P.S. § 101 et seq. Act 91, the Homeowner's
Emergency Mortgage Assistance Act of 1983, is codified at 35 P.S. §
1680.401c et seq.
8
    Bank Mot. Summ. J. ¶¶ 11-12 & Ex. D.
(Footnote Continued Next Page)


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20, 2013, the Bank moved for summary judgment, alleging that there were

no disputed issues of fact as to the default in mortgage payments or the

Bank’s entitlement to enforce the mortgage. On January 23, 2014, the trial

court granted summary judgment to the Bank, holding that the Bank is the

real party in interest, has standing to enforce the mortgage and note, and

carried its evidentiary burden through an affidavit showing the default in

mortgage payments.

        On February 21, 2014, Wife filed a timely notice of appeal.        On

February 24, 2014, the trial court ordered Wife to file a Pa.R.A.P. 1925(b)

statement within 21 days. On April 10, 2014, after expiration of the 21-day

deadline, Wife filed a petition for extension of time within which to file her

Pa.R.A.P. 1925(b) statement nunc pro tunc. In an order docketed on April

16, 2014, the trial court granted Wife an additional 21 days within which to

file a Pa.R.A.P. 1925(b) statement9. On May 2, 2014, Wife filed a Pa.R.A.P.

1925(b) statement.

        Before we analyze the issues raised in Wife’s appeal, we must first

determine whether Wife has waived these issues due to the untimeliness of

her Pa.R.A.P. 1925(b) statement. We conclude that the trial court properly

permitted Wife to file a Pa.R.A.P. 1925(b) statement nunc pro tunc.

        Pa.R.A.P. 1925(b)(2) provides:
                       _______________________
(Footnote Continued)


9
    Order Docketed April 16, 2014.



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              The judge shall allow the appellant at least 21 days
              from the date of the order’s entry on the docket for
              the filing and service of the Statement. Upon
              application of the appellant and for good cause
              shown, the judge may enlarge the time period
              initially specified or permit an amended or
              supplemental Statement to be filed. Good cause
              includes, but is not limited to, delay in the
              production of a transcript necessary to develop the
              Statement so long as the delay is not attributable to
              a lack of diligence in ordering or paying for such
              transcript by the party or counsel on appeal. In
              extraordinary circumstances, the judge may
              allow for the filing of a Statement or amended
              or supplemental Statement nunc pro tunc.

Id. (emphasis added). Although the trial court’s order does not explicitly

mention the final sentence of Rule 1925(b)(2), it appears that the court

granted Wife’s petition pursuant to this provision. We review this decision

for abuse of discretion.      Cf. Commonwealth v. Williams, 893 A.2d 147,

150 (Pa.Super.2006) (“an abuse of discretion standard governs our review

of the propriety of a grant or denial of an appeal nunc pro tunc”).

       Wife alleged in her petition for extension that before the Pa.R.A.P.

1925 order arrived in the mail, she was forced to flee her home due to “a

domestic violence issue”, and she did not return home until April 9, 2014,

when Husband was admitted into the hospital10. During her absence, “upon

advice,” she did not leave a forwarding address with the post office “due to

____________________________________________


10
  Wife’s Petition For Extension Of Time To File [Pa.R.A.P. 1925(b)
Statement] Nunc Pro Tunc, p. 1.




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J-S01023-15


concerns         regarding    [Husband’s]      discovery   of   [her]   location.”11

Communications with Husband, who remained in the home, “indicated that

there was no mail from the court.”12 Upon her return home, she found an

unopened letter from the court containing the Pa.R.A.P. 1925 order13. One

day later, she filed her petition for leave to file a Pa.R.A.P. 1925(b)

statement nunc pro tunc14.

           The facts alleged in Wife’s petition were “extraordinary,” the operative

term under Pa.R.A.P. 1925(b)(2), because her domestic travails prevented

her from discovering the trial court’s Pa.R.A.P. 1925 order between its

issuance on February 24, 2014 and her return home on April 9, 2014.

Moreover, upon discovering the unopened order, she immediately filed a

petition seeking an extension of time within which to file her Pa.R.A.P.

1925(b) statement.           Under these circumstances, the trial court properly

exercised its discretion by granting her leave to file her Pa.R.A.P. 1925(b)

statement nunc pro tunc.

           Wife raises the following issues on appeal:


____________________________________________


11
     Id.
12
     Id.
13
     Id.
14
     Id.




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J-S01023-15


            1. Should the lower court’s order for summary
            judgment be overturned and the complaint dismissed
            with prejudice when the Complainant lacks standing
            to bring the current action?

            2. Should the lower court’s order for summary
            judgment be overturned and the complaint dismissed
            with prejudice when the Complainant has failed to
            establish ownership of the original note?

            3. Should the lower court’s order for summary
            judgment be overturned and the complaint dismissed
            with prejudice when the Complainant has failed to
            properly verify their Complaint?

            4. Should the lower court’s order for summary
            judgment be overturned and the complaint dismissed
            with prejudice when the Complainant's actions in
            regard to the underlying instrument are in violation
            of state and/or federal laws regulating the transfer of
            financial instruments?

            5. Should the lower court’s order for summary
            judgment be overturned and the complaint dismissed
            with prejudice when the Complainant has failed to
            establish legal ownership of the mortgage and/or
            underlying note?

            6. Should the lower court’s order for summary
            judgment be overturned and the complaint dismissed
            with prejudice when the Plaintiff cannot enforce the
            promissory note?

            7. Should the lower court’s order for summary
            judgment     be     overturned when  both    the
            assignment(s) of the mortgage and the signatures
            on the assignment thereof give rise to genuine
            issues of material fact?

Brief For Appellant, pp. 1-2.




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J-S01023-15


     Our standard of review on an appeal from the grant of a motion for

summary judgment is well-settled:

           A reviewing court may disturb the order of the trial
           court only where it is established that the court
           committed an error of law or abused its discretion.
           As with all questions of law, our review is plenary.
           In evaluating the trial court’s decision to enter
           summary judgment, we focus on the legal standard
           articulated in the summary judgment rule. Pa.R.C.P.
           1035.2. The rule states that where there is no
           genuine issue of material fact and the moving party
           is entitled to relief as a matter of law, summary
           judgment may be entered. Where the nonmoving
           party bears the burden of proof on an issue, he may
           not merely rely on his pleadings or answers in order
           to survive summary judgment. Failure of a non-
           moving party to adduce sufficient evidence on an
           issue essential to his case and on which he bears the
           burden of proof establishes the entitlement of the
           moving party to judgment as a matter of law. Lastly,
           we will review 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.

Murphy v. Duquesne University, 777 A.2d 418, 429 (Pa.2001).

     We will consider Wife’s first, second, fifth, and sixth issues together,

because they raise the same question: whether the Bank lacks standing to

bring this mortgage foreclosure action.

     In a foreclosure action, the plaintiff can prove standing either by

showing that it (1) originated or was assigned the mortgage, or (2) is the

holder of the note specially indorsed to it or indorsed in blank. J.P. Morgan

Chase    Bank,   NA.    v.   Murray,      63   A.3d   1258,   1267-68   &   n.6




                                    -7-
J-S01023-15


(Pa.Super.2013). The trial court held, and we agree, that the Bank proved

standing both ways.

        First, the Bank owns the Wilson’s mortgage via assignment.           The

complaint in a mortgage foreclosure action must allege “the parties to and

the date of the mortgage, and of any assignments, and a statement of the

place of record of the mortgage and assignments.” Pa.R.Civ.P. 1147(a)(1).

The Bank’s complaint set forth the original parties and date of the Wilsons’

mortgage.      It further alleged that the mortgage was assigned from the

original lender, America’s Moneyline Inc., to Saxon Mortgage Inc., and then

to the Bank.        Moreover, in support of summary judgment, the Bank

submitted copies of the recorded mortgage and assignments. The recorded

mortgage assignments showed an unbroken chain from the original lender to

the Bank15. Because the Bank is the current mortgage owner, it has standing

to enforce the mortgage.

        Second, the Bank holds the note for the Wilsons’ loan, and the note is

indorsed in blank.       Mortgage notes are negotiable instruments under the

Uniform Commercial Code (“UCC”).               Murray, supra, 63 A.3d at 1263-68.

The UCC provides that a note is payable to its bearer if it is indorsed “in




____________________________________________


15
     Bank Mot. Summ. J. Exs. A2, A3.




                                           -8-
J-S01023-15


blank”, i.e., it is not indorsed to an identified person or to the bearer16. In

this case, America's Moneyline Inc. specially indorsed the note to Saxon

Mortgage. Saxon Mortgage then indorsed the note in blank17. The note was

then transferred to the Bank18.          13 Pa.C.S. § 3203(a) (“an instrument is

transferred when it is delivered by a person other than its issuer for the

purpose of giving to the person receiving delivery the right to enforce the

instrument”). Because the note is indorsed in blank, and because the Bank

currently holds it as the transferee, the Bank has standing to enforce the

Wilsons’ payment obligation.            13 Pa.C.S. § 3203(b) (“transfer of an

instrument, whether or not the transfer is a negotiation, vests in the

transferee any right of the transferor to enforce the instrument, including

any right as a holder in due course. . .”)

        Wife argues unsuccessfully that the Bank lacks standing.       She first

claims that the note is not indorsed in blank but instead is specially indorsed

____________________________________________


16
   See 13 Pa.C.S. § 3205(b) (“If an indorsement is made by the holder of an
instrument and it is not a special indorsement, it is a ‘blank indorsement.’
When indorsed in blank, an instrument becomes payable to bearer and may
be negotiated by transfer of possession alone until specially indorsed”). A
“special indorsement,” in contrast, is one made by the holder of an
instrument that identifies a person to whom it makes the instrument
payable. 13 Pa.C.S. § 3205(a). Such an indorsement renders the instrument
payable to the identified person, who is the only person who may transfer
that note by subsequent indorsement. Id.
17
     Bank Mot. Summ. J. Ex. A1 at 3.
18
     Bank Mot. Summ. J. Ex. B ¶ 4.



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and payable to America’s Moneyline, Inc. Wife ignores the indorsement from

America's Moneyline to Saxon Mortgage and the later indorsement in blank

by Saxon Mortgage.          Wife further argues that the indorsements are not

effective because they are undated. Nothing in the UCC requires an

indorsement to be dated in order to be effective. See 13 Pa.C.S. § 3204(a)

(general definition of indorsement); 13 Pa.C.S. § 3205 (definitions of blank

indorsement and special indorsement).

       Wife also argues that the indorsements are ineffective because they

were made by the same person, Tracie Leckie, on behalf of both America’s

Moneyline and Saxon Mortgage. As the trial court observes, there is nothing

facially improper about the same person executing a document on behalf of

different parties. Trial Court Opinion, p. 7 (citing In Re Lampe, 665 F.3d

506, 517 (3d Cir.2011) (applying Pennsylvania law))19.          Contrary to what

____________________________________________


19
   Citing 15 Pa.C.S. § 1728, Lampe observes that a corporate officer may
stand on both sides of transaction, but he owes a duty of care and a
fiduciary duty to both corporations. Section 1728 further confirms that a
corporate officer may stand on both sides of the transaction, providing in
relevant part:

              A contract or transaction between a business
              corporation and one or more of its directors or
              officers or between a business corporation and
              another domestic or foreign corporation for profit or
              not-for-profit, partnership, joint venture, trust or
              other enterprise in which one or more of its directors
              or officers are directors or officers or have a financial
              or other interest, shall not be void or voidable solely
              for that reason, or solely because the director or
(Footnote Continued Next Page)


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Wife claims, the Bank did not have the burden of proving that Leckie could

sign on behalf of both America’s Moneyline and Saxon Mortgage, since there

was nothing inherently suspect about her doing so.         15 Pa.C.S. § 1728;

Lampe, supra, 665 F.3d at 517.

      Finally, Wife argues that the Bank cannot enforce the note because it

did not produce the original note for inspection. The Bank submitted an

affidavit attesting that it was the legal owner of the note and attaching a

                       _______________________
(Footnote Continued)

             officer is present at or participates in the meeting of
             the board of directors that authorizes the contract or
             transaction, or solely because his or their votes are
             counted for that purpose, if:

             (1) the material facts as to the relationship or
             interest and as to the contract or transaction are
             disclosed or are known to the board of directors and
             the board authorizes the contract or transaction by
             the affirmative votes of a majority of the
             disinterested directors even though the disinterested
             directors are less than a quorum;

             (2) the material facts as to his relationship or
             interest and as to the contract or transaction are
             disclosed or are known to the shareholders entitled
             to vote thereon and the contract or transaction is
             specifically approved in good faith by vote of those
             shareholders; or

             (3) the contract or transaction is fair as to the
             corporation as of the time it is authorized, approved
             or ratified by the board of directors or the
             shareholders.

15 Pa.C.S. § 1728(a).




                                           - 11 -
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true and correct copy of the note20. This is sufficient evidence of the Bank’s

possession of the note and establishes it as the note holder entitled to

enforce the instrument. 13 Pa.C.S. §§ 1201, 3301. If Wife wanted to

physically inspect the note, she could have done so through discovery. See

Pa.R.Civ.P. 4009.1(a) (procedure for requesting inspection of designated

documents). Wife failed to take advantage of this mechanism.

        We now turn to Wife’s third argument on appeal, her claim that the

Bank failed to provide a proper verification to its complaint. The complaint

was verified by Regina Alexander, Assistant Vice President of Saxon

Mortgage Services, Inc.        Alexander stated that she had authority to verify

the complaint on behalf of Saxon Mortgage Services, Inc., which was the

servicing agent and attorney-in-fact for the Bank at that time. Alexander

also states that the allegations in the complaint are "true and correct to the

best of my knowledge, information and belief."

        Although the verification to the Bank’s complaint might be technically

incorrect,21 we do not find that Wife suffered any prejudice from Alexander’s

verification.   The Rules of Civil Procedure “shall be liberally construed to

____________________________________________


20
     Bank Mot. Summ. J. Ex. B ¶ 4.
21
   The verification might violate Rule 1024(c) because it is signed by an
employee of the Bank’s agent, Saxon Mortgage Services, Inc., instead of by
an employee of the Bank itself. In such circumstances, the verification
should explain why a Bank employee did not sign the verification. Id. This
verification fails to provide any such explanation.



                                          - 12 -
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secure the just, speedy and inexpensive determination of every action or

proceeding to which they are applicable. The court at every stage of any

such action. . .may disregard any error or defect of procedure which does

not affect the substantial rights of the parties.” Pa.R.Civ.P. 126 (emphasis

added). The verification did not affect Wife’s substantive rights, since there

is no dispute that the mortgage is in default22.

       In her fourth argument on appeal, Wife complains that the Bank’s

actions “are in violation of state and/or federal laws regulating the transfer

of   financial   instruments,”     because     the   signatories   to   the   mortgage

assignments are so-called “robo-signers”. Wife waived this argument by

failing to raise it in the trial court. Pa.R.A.P. 302 (“issues not raised in the

lower court are waived and cannot be raised for the first time on appeal”).




____________________________________________


22
    The Bank asserted in paragraphs 8-10 of its motion for summary
judgment that the mortgage is in default and attached an affidavit
confirming the default and amount of the debt. In response, Husband’s and
Wife’s answer to the motion for summary judgment simply states: “Denied.”
This is not sufficient to raise a genuine issue of fact concerning the default in
payment. See Pa.R.Civ.P. 1035.3(a) (providing in relevant part that the
respondent to a motion for summary judgment “may not rest upon the mere
allegations or denials of the pleadings but must file a response. . .identifying
(1) one or more issues of fact arising from evidence in the record
controverting the evidence cited in support of the motion or from a challenge
to the credibility of one or more witnesses testifying in support of the
motion, or (2) evidence in the record establishing the facts essential to the
cause of action or defense which the motion cites as not having been
produced”).



                                          - 13 -
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      Finally, in her seventh argument on appeal, Wife argues that “both the

assignment(s) of the mortgage and the signatures on the assignment

thereof give rise to genuine issues of material fact.” Her argument on this

point is nothing more than a boilerplate claim of lack of authenticity. Brief

For Appellant, pp. 18-19 (“while it is clear in this case that an assignment of

mortgage was filed prior to commencement of this action, the authenticity

and validity of the documents is questionable because simply filing it does

not make it a truthful document and that inference is in favor of the

Defendants”).   Wife failed to submit evidence in response to the Bank’s

motion for summary judgment that raised a genuine issue of material fact

concerning the authenticity of these documents.

      For these reasons, we affirm the order granting summary judgment to

the Bank.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/7/2015




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