J-A22003-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    LSF9 MASTER PARTICIPATION        :         IN THE SUPERIOR COURT OF
    TRUST                            :              PENNSYLVANIA
                                     :
                                     :
               v.                    :
                                     :
                                     :
    JEAN DESY, THOMAS MUELLER, IN    :
    HIS CAPACITY AS HEIR OF FRANCES :          No. 95 EDA 2019
    MUELLER, DECEASED; MARY R.       :
    MUELLER, IN HER CAPACITY AS HEIR :
    OF FRANCES MUELLER, DECEASED;    :
    AND UNKNOWN HEIRS,               :
    SUCCESSORS, ASSIGNS, AND ALL     :
    PERSONS, FIRMS, OR               :
    ASSOCIATIONS CLAIMING RIGHT,     :
    TITLE OR INTEREST FROM OR        :
    UNDER FRANCIS J. MUELLER,        :
    DECEASED.
    APPEAL OF THOMAS MUELLER

             Appeal from the Judgment Entered December 28, 2018
     In the Court of Common Pleas of Monroe County Civil Division at No(s):
                                3150 CV 2013


BEFORE:      MURRAY, J., STRASSBURGER, J.*, and PELLEGRINI, J.*

MEMORANDUM BY MURRAY, J.:                         FILED OCTOBER 03, 2019

        Thomas Mueller (Appellant) appeals from the judgment entered in favor

of LSF9 Master Participation Trust (Appellee) in this mortgage foreclosure

action. Upon review, we affirm.

        The trial court recounted the factual and procedural background as

follows:


____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
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           Frances Mueller and Jean Desy executed a Mortgage and
     Promissory Note with Bank of America on April 24, 2009. The
     mortgage was assigned to Nationstar Mortgage, LLC ([]
     Nationstar) by Bank of America, which was recorded on January
     11, 2013. On January 7, 2013, the loan went into default and
     Nationstar sent both Frances Mueller and Jean Desy notice of the
     default.

            This action was commenced as a [c]omplaint in [m]ortgage
     [f]oreclosure by Nationstar against Frances Mueller and Jean Desy
     on April 15, 2013. Defendant Frances Mueller filed an Answer with
     New Matter on May 20, 2013. Nationstar’s Response to New
     Matter was filed on June 7, 2013. A Praecipe for In Rem Judgment
     for Failure to Answer was filed on August 15, 2013 against Jean
     Desy for failure to file an answer and a judgment was entered
     against Jean Desy. The first motion for summary judgment was
     filed by Nationstar on March 25, 2014, and briefs were filed by
     both Nationstar and Frances Mueller. Following oral argument,
     the Motion for Summary Judgment was denied on May 7, 2014.
     The mortgage was assigned to [Appellee] on November 8, 2016.
     A Praecipe for Voluntary Substitution of [Appellee] was filed on
     November 14, 2016, and [Appellee] assumed control of this
     action.

           [Appellee] filed a second motion for summary judgment on
     February 6, 2017. Notice of Death of Defendant Frances Mueller
     was filed on April 4, 2017. The Motion for Summary Judgment
     was withdrawn on April 17, 2017. [Appellee] then moved to
     amend its Complaint on July 26, 2017, which was granted on July
     27, 2017. The Amended Complaint was filed on August 9, 2017,
     wherein [Appellant] was named a party to the action, in his
     capacity as heir to Frances Mueller. The Amended Complaint also
     included Mary R. Mueller, in her capacity as heir to Frances
     Mueller, and also included as Defendants any unknown heir,
     successors, assigns, and all persons firms, or associations
     claiming right, title, or interest from or under Frances Mueller.

           On October 10, 2017, a Praecipe to Reinstate Amended Civil
     Action/Mortgage Foreclosure was filed, and [Appellant] filed an
     Answer with New Matter on October 11, 2017. [Appellee] filed a
     Praecipe to Reinstate Amended Civil Action/Mortgage Foreclosure
     on November 3, 2017. [Appellee] filed a Reply to [Appellant’s]
     New Matter on November 14, 2017. [Appellee] filed a Praecipe
     for In Rem Judgment for Failure to Answer and Assessment of

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       Damages on January 31, 2018 against the non-responding
       parties, Jean Desy, Mary Mueller, and known heirs. [Appellee]
       filed a third motion for summary judgment, and its brief, on June
       7, 2018. [Appellant] filed his brief in opposition on August 3,
       2018.

Trial Court Opinion, 11/20/18, at 1-3 (footnotes omitted).

       On November 20, 2018, the trial court granted Appellee’s third motion

for summary judgment and entered judgment in favor of Appellee and against

Appellant “for $150,779.50 plus interest from June 12, 2018 and other costs

and charges collectible under the mortgage foreclosure and sale of the

mortgaged property.” Trial Court Order, 11/20/18. Appellant filed a notice of

appeal on December 20, 2018.              Both Appellant and the trial court have

complied with Pennsylvania Rule of Appellate Procedure 1925.1

       Appellant presents two issues for our review:

       1. Did the [c]ourt below err as a matter of law in dismissing the
       issues raised by Appellant[] in his New Matter against the
       []Appellee’s mortgage foreclosure complaint?

       2. Did the [c]ourt below err as a matter of law in granting the
       []Appellee’s Motion for Summary Judgment?


Appellant’s Brief at 4.



____________________________________________


1 On December 28, 2018, in response to Appellee’s praecipe, the Monroe
County Prothonotary entered final judgment in favor of Appellee and against
Appellant and his co-defendants in the amount of $153,126.52. Although
Appellant’s notice of appeal was filed prior to the entry of judgment, “appellate
jurisdiction may be perfected after the notice of appeal has been filed upon
docketing of a final judgment.” See Reuter v. Citizens & Northern Bank,
599 A.2d 673, 676 (Pa. Super. 1991); Arcadia Co., Inc. v. Peles, 576 A.2d
1114 (Pa. Super. 1990).

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     Because Appellant’s issues are related, we address them together. We

begin with our standard of review:

     We review an order granting summary judgment for an abuse of
     discretion. Our scope of review is plenary, and we view the record
     in the light most favorable to the nonmoving party. A party
     bearing the burden of proof at trial is entitled to summary
     judgment whenever there is no genuine issue of any material fact
     as to a necessary element of the cause of action or defense which
     could be established by additional discovery or expert report. In
     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) (citations

omitted).

     With regard to mortgage foreclosures:

     The holder of a mortgage has the right, upon default, to bring a
     foreclosure action. Additionally, 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.
     The foreclosing party 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.

Gerber v. Piergrossi, 142 A.3d 854, 859-60 (Pa. Super. 2016) (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).

     When responding to a motion for summary judgment setting forth

evidence establishing the moving party’s right to relief, “the adverse party

may not rest upon mere allegations or denials of the pleadings,” Pa.R.C.P.


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1035.3(a), but must identify evidence controverting the evidence cited in

support of the motion or establishing facts essential to the defense that the

motion cites as not having been produced.         Pa.R.C.P. 1035.3(a)(1)-(2).

“[P]arties seeking to avoid the entry of summary judgment against them . .

. are required to show, by depositions, answers to interrogatories,

admissions[,] or affidavits, that there is a genuine issue for trial.”   Wash.

Fed. Sav. & Loan Assn. v. Stein, 515 A.2d 980, 981 (Pa. Super. 1986).

Moreover, responsive pleadings in a mortgage foreclosure action should

include specific denials; general denials constitute admissions. See Pa.R.C.P.

1029(b); Gibson, 102 A.3d at 466-67.

      Here, the trial court articulated:

            [Appellee], as successor to Nationstar by assignment, has
      proven that it is the current mortgagee of record. The chain of
      assignment provided in [Appellee’s Exhibit A-2] shows notarized
      assignments from Bank of America to Nationstar; from Nationstar
      to Secretary of Housing and Urban Development; and, lastly, from
      Secretary of Housing and Urban Development to [Appellee].
      [Appellant] has neither produced nor cited any evidence in the
      record to establish that [Appellee] is not the mortgage holder or
      note holder. As the current mortgagee of record, [Appellee] has
      established that it has standing to pursue this action.

            [Appellant] contends that Mortgage Electronic Recording
      Systems, Inc., [(MERS)] “had no apparent authority or actual
      authority to execute the Assignment of Mortgage.” [Appellant’s
      Answer at ¶ 2]. However, [Appellant] again cites no authority,
      nor provides any evidence raising a material issue of fact to
      preclude summary judgment. And in fact, MERS does not appear
      in the Mortgage, the Note, or in any of the Assignments.
      [Appellant] asserts that an Assignment of Mortgage is ineffective
      for assigning an interest of MERS, who “is not the true lender on
      the mortgage,” but as MERS was never assigned the mortgage in


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      the chain of assignment, [Appellant’s] issue with MERS, and the
      assignment generally, is without merit.

             [Appellant] denies that default occurred for [Appellee’s]
      failure “to provide [Appellant] with written notice of [b]reach as
      required by the Note and the Mortgage,” and of “notice of
      acceleration,” and “notice of a change of the loan servicer.”
      [Appellee’s Complaint at ¶ 5]. However, the mortgage does not
      require notice to be given to non-mortgagors with mere possible
      future interest to mortgagors’ estate as an heir. All of these
      notices were provided to the mortgagors, Frances Mueller and
      Jean Desy, in timely fashion. Here, [Appellant] again fails to
      establish a genuine issue of material fact to prevent summary
      judgment.

            [Appellant] also denies the amount actually due, but
      presents no genuine issue of material fact to contradict
      [Appellee’s] evidence of the loan history. [Appellant] can be
      reasonably expected to have evidence of his own payments to the
      subject loan. Instead, [Appellant] rests on his averments that the
      amount due may be different from the loan history provided by
      [Appellee].    [Appellant’s] denial is therefore insufficient to
      establish a genuine issue of material fact to prevent summary
      judgment.

            [Appellant] has raised numerous additional affirmative
      defenses in his new matter, but has not presented any genuine
      issue of material fact that would support his averments. As
      previously stated, a party opposing a motion for summary
      judgment may not rest on mere allegations. Pa.R.C.P. 1035.3.
      We find that [Appellee] has established that no genuine issue of
      material fact as to a necessary element as to the cause of action
      exists and that [Appellee] is entitled to judgment as a matter of
      law.

Trial Court Opinion, 11/20/18, at 4-5 (footnotes citing the record omitted).

      The trial court’s analysis is supported by the record.    For example,

Appellee averred:

      5. The mortgage is in default because the monthly payments of
      principal and interest upon said mortgage due 04/01/2012 and
      each month thereafter are due and unpaid, and by the terms of


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     said mortgage, upon failure of [Appellant] to make such payments
     after a date specified by written notice sent to [Appellant], the
     entire principal balance and all interest due thereon are collectible
     forthwith.

Appellee’s Amended Complaint, 8/9/17, at ¶ 5.

     In response, Appellant generally denied default:

     5. Paragraph five (5) is denied. Default never occurred as
     [Appellee] failed to provide [Appellant] with written notice of
     [b]reach as required by the Note and the Mortgage. [Appellee]
     failed to provide [Appellant] with the written notice of acceleration
     as required by the Mortgage. [Appellee] also failed to provide
     [Appellant] with written notice [of] a change of the loan servicer
     [as] required by 15 U.S.C. §1641(g), 24 C.F.R. 3500.21(d) and
     by the mortgage. [Appellee’s] right to demand any payment or
     collect any payment from [Appellant] is denied. As well, the
     allegation that the Mortgage is in default is a conclusion of
     law to which no response is required on the part of
     [Appellant]. The allegation is, therefore, denied and, if relevant,
     strict proof thereof is demanded at trial. Furthermore, for the
     reasons hereinafter set forth in [Appellant’s] New Matter, the
     Mortgage is void and, thus, unenforceable against [Appellant].

Appellant’s Answer and New Matter, 10/11/17, at ¶ 5 (emphasis added).

     Appellant’s general denial is an admission. See First Wisconsin Trust

Co. v. Strausser, 653 A.2d 688, 692 (Pa. Super. 1995) (refusing to permit

the mortgagor to generally deny the total amount due on the mortgage by

characterizing it as a conclusion of law); see also Pa.R.C.P. 1029(b);

Pa.R.C.P. 1029(c), Note.   In his brief in opposition to summary judgment,

Appellant referenced no “specific denials” or facts, and simply declared that

he “will not restate herein all of the facts set forth in the Answer to the

Complaint, and the items of New Matter included in the pleadings.”

Appellant’s Brief in Opposition to Summary Judgment, 8/3/18, at 4. Thus,

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Appellant failed to present a “genuine issue for trial,” because a “nonmoving

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

demonstrating a genuine issue of material fact.” Gibson, 102 A.3d at 464;

see also Pa.R.C.P. 1035.3(a).

      As to the trial court’s dismissal of Appellant’s new matter, Appellant

argues that he presented claims that Appellee “and/or its assignor breached

the covenant of good faith and fair dealing in the initial lending,” which

constitute “genuine issues of material fact left to be decided regarding the

formation of the mortgage.” Appellant’s Brief at 11-14. However, our review

again confirms that Appellant failed to “present[] any genuine issue of material

fact that would support” the affirmative defenses raised. Trial Court Opinion,

11/20/18, at 5. Instead of pleading facts in support of his claims, Appellant’s

new matter contains numerous conclusory statements, none of which specifies

facts derivative of depositions, answers to interrogatories, admissions, or

affidavits. See Appellant’s Answer and New Matter, 10/11/17, at 5-23; see

also Wash. Fed. Sav. & Loan Assn., 515 A.2d at 981.

      In sum, the record reveals no abuse of discretion by the trial court in

entering summary judgment where the pleadings indicate Appellant presented

no genuine issue of material fact, such that Appellee was entitled to judgment

as a matter of law.

      Judgment affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/3/19




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