J-S63014-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    LSF9 MASTER PARTICIPATION                  :   IN THE SUPERIOR COURT OF
    TRUST                                      :        PENNSYLVANIA
                                               :
                                               :
                v.                             :
                                               :
                                               :
    CHARLES MCGOWAN AND UNITED                 :
    STATES OF AMERICA                          :   No. 107 WDA 2018
                                               :
                                               :
    APPEAL OF: CHARLES MCGOWAN                 :

               Appeal from the Order Entered December 20, 2017
               In the Court of Common Pleas of Allegheny County
                     Civil Division at No(s): MG-16-000709

BEFORE:      OTT, J., MURRAY, J., and STEVENS, P.J.E.

MEMORANDUM BY OTT, J.:                                  FILED MARCH 15, 2019

        Charles McGowan appeals, pro se, from the order entered on December

20, 2017, in the Court of Common Pleas of Allegheny County. The court

granted LSF9 Master Participation Trust’s (“LSF9”) motion for summary

judgment against McGowan in a mortgage foreclosure action.1 On appeal,

McGowan argues the trial court erred in granting summary judgment because

(1) LSF9 did not properly serve the complaint; (2) LSF9 lacked standing

____________________________________________


   Former Justice specially assigned to the Superior Court.

1  LSF9 named the United States of America as a defendant in this action
because of certain tax liens filed against McGowan. On June 22, 2017, the
trial court entered a consent order in favor of LSF9 and against the United
States for foreclosure of McGowan’s property. Thus, the United States is not
a party to this appeal.
J-S63014-18



because the action was res judicata and because it did not possess McGowan’s

promissory note; (3) LSF9 did not prove McGowan defaulted on the mortgage;

(4) LSF9 did not send McGowan the proper notices of intent to foreclose; and

(5) LSF9 did not attach a notice of undisputed facts to its motion for summary

judgment.2 Based upon the following, we affirm.

       The trial court set out the relevant facts and procedural history as

follows:

       On March 30, 2006, [] Charles McGowan executed a Promissory
       Note in which he promised to repay a mortgage loan extended by
       Accredited Home Lenders, Inc. in the principal amount of
       $171,000.00.     At the same time, [] McGowan executed a
       Mortgage granting Accredited Home Lenders a first priority
       mortgage lien against the Property located at 540 New England
       Road a/k/a 540 Lisa Drive, West Mifflin, PA 15122. The Mortgage
       was recorded on April 10, 2006. By assignment of Mortgage dated
       March 30, 2015, the Mortgage was assigned to [LSF9]. LSF9 is
       the holder of the Mortgage. . . .



____________________________________________


2 McGowan raises a sixth issue in his statement of the questions involved.
See McGowan’s Brief, at 6. In it, McGowan alleges that LSF9 violated 15
U.S.C. § 1692g, relating to fair debt collection practices, because it filed the
mortgage foreclosure action despite knowing that the statute of limitations
had expired and that the action was res judicata. However, McGowan’s res
judicata claim is merely a reiteration of that argued in his second issue on
appeal, and he did not include the fair debt collection practice or the statute
of limitations claims in his Rule 1925(b) statement. As amended in 2007,
Pennsylvania Rule of Appellate Procedure 1925 provides that issues that are
not included in the Rule 1925(b) statement or raised in accordance with Rule
1925(b)(4) are waived.           See Pa.R.A.P. 1925(b)(4)(vii); see also
Commonwealth v. Lord, 719 A.2d 306, 308 (Pa. 1998), superseded by rule
on other grounds as stated in Commonwealth v. Burton, 973 A.2d 428, 431
(Pa. Super. 2009). Thus, as McGowan’s sixth issue is both waived and
duplicative, we will not further discuss it.

                                           -2-
J-S63014-18


     [] McGowan defaulted under the Mortgage by failing to make
     payments due from December 1, 2009. On May [13], 2016, LSF9
     filed its Complaint in Mortgage Foreclosure.

     On November 7, 2016, [] McGowan filed Preliminary Objections.
     [The trial court] overruled them on December 14, 2016. []
     McGowan filed an Answer and New Matter on January 3, 2017.
     LSF9 replied to the New Matter on February 7, 2017[,] and then
     [] McGowan filed another Answer and New Matter on February 27,
     2017. LSF9 filed a Motion for Summary Judgment on April 4,
     2017. . . . [] McGowan filed a response to LSF9’s Motion for
     Summary Judgment on April [2]8, 2017. [The trial c]ourt denied
     LSF9’s Motion for Summary Judgment on June 26, 2017. LSF9
     filed a Renewed Motion for Summary Judgment on September 22,
     2017.     [] McGowan responded to that Renewed Motion for
     Summary Judgment on October 23, 2017. [The trial c]ourt
     granted Summary Judgment on December [20], 2017, ordering in
     rem Judgment to be entered in favor of LSF9 and against []
     McGowan in the amount of $356,043.45 together with interest
     from and after September 14, 2017. It was also ordered that LSF9
     has the right to foreclose and sell the Property. It is from that
     decision that [] McGowan appeals.

Trial Court Opinion, 3/22/2018, at 1-2. McGowan filed this timely appeal and

submitted a Pa.R.A.P. 1925(b) concise statement of matters complained of on

appeal.

     On appeal, McGowan raises six issues in support of his contention that

the trial court erred in granting LSF9’s motion for summary judgment. See

McGowan’s Brief at 5-6. We have disposed of the sixth issue; we summarize

his arguments on the remaining issues as follows. The trial court erred in

granting summary judgment because LSF9 did not properly serve the

complaint.   See id. At 9-11.   The trial court did not have subject matter

jurisdiction over the action because LSF9 lacked standing to pursue the case

under the doctrine of res judicata and because it did not prove it had

                                    -3-
J-S63014-18


possession of McGowan’s promissory note. See id. at 12-23. The trial court

should not have granted summary judgment because LSF9 did not show that

McGowan defaulted on the mortgage.          See id. at 24-35.    The trial court

wrongly granted summary judgment because LSF9 did not send notice of

intent to foreclose as required by Pennsylvania law. See id. at 35-37.    Lastly,

McGowan claims that LSF9 did not attach a statement of undisputed facts to

its motion for summary judgment as required by 25 Pa. Code §§

1021.94a(b)(1)(ii) and (d). See id. at 37-42.

      Our standard of review is well-settled:

      [o]ur scope of review of a trial court’s order granting or denying
      summary judgment is plenary, and our standard of review is clear:
      the trial court’s order will be reversed only where it is established
      that the court committed an error of law or abused its discretion.

      Summary judgment is appropriate only when the record clearly
      shows that there is no genuine issue of material fact and that the
      moving party is entitled to judgment as a matter of law. The
      reviewing court must view the record in the light most favorable
      to the nonmoving party and resolve all doubts as to the existence
      of a genuine issue of material fact against the moving party. Only
      when the facts are so clear that reasonable minds could not differ
      can a trial court properly enter summary judgment.

Bayview Loan Servicing LLC v. Wicker, 163 A.3d 1039, 1043-44 (Pa.

Super. 2017), appeal granted in part by 178 A.3d 1289 (Pa. 2018) (citation

omitted).   Moreover, “[i]n response to a summary judgment motion, the

nonmoving party cannot rest upon the pleadings, but rather must set forth

specific facts demonstrating a genuine issue of material fact.” Bank of Am.,

N.A. v. Gibson, 102 A.3d 462, 464 (Pa. Super. 2014), appeal denied, 112


                                      -4-
J-S63014-18


A.3d 648 (Pa. 2015) (citation omitted). We have also stated, “[t]he 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.” Id. at 464-

465 (citation omitted). “This is so even if the mortgagors have not admitted

the total amount of the indebtedness in their pleadings.” Cunningham v.

McWilliams, 714 A.2d 1054, 1057 (Pa. Super. 1998), appeal denied, 734

A.2d 861 (Pa. 1999).

       Here, the trial court in its Rule 1925(a) opinion provided a thorough and

well-reasoned discussion of McGowan’s first four arguments on appeal.3 See

Trial Court Opinion, 3/22/2018, at 2-5 (finding (1) McGowan failed to provide

a material defense to this action; (2) the Sheriff personally served McGowan

with the complaint and there was no evidence of fraud; (3) LSF9 demonstrated

that it possessed the original note and was entitled to enforce it; (4) LSF9


____________________________________________


3 In his fifth argument on appeal, McGowan complains that the trial court erred
in granting summary judgment because LSF9 failed to comply with 25 Pa.
Code §§ 1021.94(b)(1)(ii) and (d). However, this section of the Pennsylvania
Code only applies to proceedings before the Pennsylvania Environmental
Hearing Board and is thus inapplicable to this action. See 25 Pa. Code
1021.1(a). To the extent that McGowan also maintains that LSF9 failed to
properly verify its motion for summary judgment, see McGowan’s brief at 39-
42, he has waived this issue because he did not raise it in his Rule 1925(b)
statement. See Lord, supra at 308.




                                           -5-
J-S63014-18


proved that McGowan was in default of the mortgage; (5) LSF9 did provide

McGowan with notice of its intent to foreclose as required by law;4 and (6) the

doctrine of res judicata does not bar this complaint because the trial court had

previously vacated the judgment in an earlier mortgage foreclosure action).

       Our review of the record reveals ample support for the trial court’s

conclusions. Accordingly, we adopt the reasoning of the trial court and affirm

its order in favor of LSF9.

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/15/2019




____________________________________________


4 We briefly note that, subsequent to the trial court’s writing of its opinion, the
Pennsylvania Supreme Court issued its decision in JPMC Bank, N.A. v.
Taggart, ___ A.3d ___, 2019 WL 692810 (Pa. Feb. 20, 2019). In Taggart,
our Supreme Court held that where there were two mortgage foreclosure
proceedings, the lender could not rely on a stale Act 6 notice issued in the
older proceeding but must send a new notice prior to initiating the second
action. Id. at *9. Here, our review of the record demonstrates that LSF9
sent out a new Act 6 notice in the fall of 2015, prior to filing the instant action
in the spring of 2016. Thus, this matter does not conflict with the holding in
Taggart.

                                           -6-
..
                                                                        Circulated 03/11/2019 10:05 AM




      IN THE    COURT OF COMMON PLEAS OF ALLEGHENY COUNTY, PENNSYLVANIA
                                   CIVIL DIVISION




      CHARLES MCGOWAN,                                No. MG 16-000709

                                         Appellant,

                                    V.

      LSF9 MASTER PARTICIPATION TRUST,

                                         Appel lee.

                                                      OPINION



                                                      Honorable Joseph M. James



                                                      Copies Sent To:

                                                      Charles E. McGowan, Pro Se
                                                      Sarah K. Mccaffery, Esquire

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     IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY, PENNSYLVANIA
                               CIVIL DIVISION




     CHARLES MCGOWAN,                               No.   MG 16-000709

                        Appellant,

                  V.

     LSF9 MASTER PARTICIPATION TRUST,

                        Appellee.




                                          OPINION

      James, J.                                                             March 22, 2018

           On March 30, 2006, Appellant Charles McGowan executed a Promissory Note in

     which he promised to repay a mortgage loan extended by Accredited Home Lenders, Inc.

     in the principal amount of $171,000.00. At the same time, Mr. McGowan executed a

     Mortgage granting Accredited Home Lenders a first priority mortgage lien against the

     Property located at 540 New England Road a/k/a 540 Lisa Drive, West Mifflin, PA 15122.

     The Mortgage was recorded on April 10, 2006. By assignment of Mortgage dated March

     30, 2015, the Mortgage was assigned to Appellee LSF9 Master Participation Trust

     (LSF9). LSF9 is the holder of the Mortgage. The United States of America was named a

     Defendant in this case because one or more federal tax liens were filed against Mr.

     McGowan.

           Mr. McGowan defaulted under the Mortgage by failing to make payments due from

     December 1, 2009. On May 9, 2016, LSF9 filed its Complaint in Mortgage Foreclosure.
iI   ...


I
I-         On November 7, 2016, Mr. McGowan filed Preliminary Objections. Judge Timothy Patrick

           O'Reilly overruled them on December 14, 2016. Mr. McGowan filed an Answer and New

           Matter on January 3, 2017. LSF9 replied to the New Matter on February 7, 201 7 and then

           Mr. McGowan filed another Answer and New Matter on February 27, 2017. LSF9 filed a

           Motion for Summary Judgment on April 4, 2017. On June 22, -2017, Judge W. Terrence

           O'Brien entered a Consent Order entering judgment in favor of LSF9 and against

           Defendant United States of America for foreclosure of Mr. McGowan's property. Mr.

           McGowan filed a response to LSF9's Motion for Summary Judgment on April 8, 2017.

           This Court denied LSF9's Motion for Summary Judgment on June 26, 2017. LSF9 filed a

           Renewed Motion for Summary Judgment on September 22, 2017. Mr. McGowan

           responded to that Renewed Motion for Summary Judgment on October 23, 2017. This

           Court granted Summary Judgment on December 19, 2017, ordering in rem Judgment to

           be entered in favor of LSF9 and against Mr. McGowan in the amount of $356,043.45

           together with interest from and after September 14, 2017. It was also ordered that LSF9

           has the right to foreclose and sell the Property. It is from that decision that Mr. McGowan

           appeals.

                  LSF9 alleges that it is entitled to Summary Judgment because there is no genuine

           issue as to material fact in this case. LSF9 claims that Mr. McGowan defaulted on the

           mortgage. Mr. McGowan filed an Answer but did not provide a material defense to the

           mortgage foreclosure action. He did not contest the essential elements of LSF9's

           Complaint.

                  Mr. McGowan admitted the existence of the Mortgage and the execution of the

           Note knowing that he would be responsible for the payments. Summary judgment is




                                                        2
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               appropriate when there are no genuine issues of material fact as to any necessary

               element of the cause of action. Pa. R.C.P. 1035.2. A Motion for Summary Judgment may
    I          be granted if the pleadings, depositions, answers to interrogatories and admissions on
    I!
               filej show that there is no genuine issue as to any material fact, and that the moving party
    lI         is entitled to judgment as a matter of law. Myszkowski v. Penn Stroud Hotel, Inc., 634

               A.2d 622, 625 (Pa. Super. 1993). In ruling on a motion for summary judgment, the facts

               must be viewed in light most favorable to the non-movinq party. Ertel v. Patriot News,

               Co., 674 A.2d 1038, 1041 (Pa. 1996).        Pa.R.C.P. 1035.2(2) requires the party who

               opposes the motion to provide the Court with      11
                                                                      ...   evidence of facts essential to the ...

               defense which, in a jury trial, would require the issues to be submitted to a jury."

                      Pa. R.C.P. 1035.3 states:

                             (a) the adverse party may not rest upon the mere allegations
                             or denials of the pleadings but must file a response within
                             thirty days after service of the motion 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.


                      Mr. McGowan makes several assertions in his Statement of Errors Complained of

               on Appeal. He claims that the Court lacked personal jurisdiction over him because he was

               not served with the Complaint and the Sherriff's Return is fraudulent. LSF9 attached the

               Sherriff's Return to the Complaint showing that Mr. McGowan was personally served on

               May 19, 2016 and this Court found no evidence of fraud. He also claims that LSF9 does




                                                             3
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     not have standing. LSF9 has established that it holds the original Note and is entitled to

     enforce it against Mr. McGowan. A copy of the Note, endorsed in blank is attached to the

     pleadings. Pennsylvania has adopted a version of the Uniform Commercial Code ("the

     UCC") which pertains to negotiable instruments and promissory notes. Section 3301

     states that, "a person entitled to enforce" an instrument is "the holder of the instrument".

     A "holder" is "the person in possession of the instrument is payable to the bearer or, in

     the case of an instrument payable to an identified person, if the identified person is in

     possession."    Mr. McGowan's Note meets all of the requirements of a negotiable

     instrument under 13 Pa. C.S.A Section 3104. "A promissory note accompanied by a

     mortgage is a negotiable instrument." See JP Morgan Chase Bank, N.A. v. Murray, 63

     A.3d 1258, 1264 (Pa. Super. 2013). Enforcement is proper even if questions remain as

     to the chain of possession. Id. at 1266. Mr. McGowan has not demonstrated any potential

     injury as a result of LSF9 enforcing the Note. "Challenges to the chain of possession by

     which Appellee came to hold the Note [are) immaterial to its enforceability by Appellee."

     Id. LSF9 is a holder in possession of the original bearer instrument executed by Mr.

     McGowan and therefore is entitled to enforce it. It is well-established that a "person

     entitled to enforce" a note is not synonymous with the owner or investor of the note.

     Furthermore, a change in the owner or investor on a note does not necessarily bring about

     a change in the identity- of a person entitled to enforce the note. See Official Comment 1

     to UCC Section 13 Pa. C.S. Section 3203. Mr. McGowan also alleges that LSF9 offered

     no evidence of default. However, LSF9's Affidavit and the payment history of Mr.

     McGowan's mortgage loan account both indicate that his mortgage loan is due for

     December 1, 2009. Mr. McGowan also claims that LSF9 did not provide him with Notices




                                                  4
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               of Intention to Foreclose and notices pursuant to the Homeowner's Emergency Mortgage

               Assistance Act. However, the evidence shows that LSF9 sent those notices to Mr.

               McGowan via regular mail postage prepaid and certified mail return receipt requested.

               He also claims that because this Court entered judgment against him in a prior case with

               identical issues docketed at GD 12-022001, that the Complaint is barred by Res Judicata

               and Collateral Estoppal. In that case, judgment was entered against him but the case was

               settled and discontinued and JMPC Specialty Mortgage filed a Praecipe to Vacate the

               Judgment on September 8, 2014. Therefore, the Note and Mortgage still exist and Res

               Judicata and Collateral Estoppal do not apply.

                     Based upon the foregoing, the Court has determined that no genuine issues of

               material fact exist between the parties. LSF9 has produced evidence that Mr. McGowan

               is in default and the amounts due and owing are a result of said default. Summary

               judgment is appropriate.




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