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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    RESIDENTIAL MORTGAGE LOAN                  :   IN THE SUPERIOR COURT OF
    TRUST 2013-TT2                             :        PENNSYLVANIA
                                               :
                                               :
                v.                             :
                                               :
                                               :
    COLLEEN K. KAMENIK AND MIRO                :
    KAMENIK                                    :   No. 1747 EDA 2019
                                               :
                       Appellants              :

               Appeal from the Judgment Entered May 14, 2019
     In the Court of Common Pleas of Bucks County Civil Division at No(s):
                                 2010-12692

BEFORE: BOWES, J., KING, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY BOWES, J.:                                     Filed: July 9, 2020

       Colleen and Miro Kamenik (collectively “the Kameniks”) appeal from the

May 14, 2019 in rem judgment entered in this mortgage foreclosure action.

Specifically, the Kameniks challenge the order entered on January 11, 2018,

which granted the motion for summary judgment1 filed by U.S. Bank as the

legal trustee of Residential Mortgage Loan Trust.2 We affirm.


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1 The trial court advocates for quashing this appeal as untimely, contending
that the Kameniks were obligated to appeal within thirty days of the order
granting summary judgment. See Trial Court Opinion, 10/11/19, at 4-5. We
agree with the Kameniks that the summary judgment order, which did not
establish the amount of the judgment, remained interlocutory until a
judgment was entered resolving the outstanding issues. See Kameniks’ brief
at 38.

2 For ease of discussion, we refer to the plaintiff as “U.S. Bank” throughout,
rather than distinguish among the various entities in the chain of assignments.
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      In January 2006, the Kameniks executed a mortgage on real property

in Doylestown, Bucks County, Pennsylvania, and a promissory note evidencing

the debt of $428,300 plus interest. After they stopped making payments,

U.S. Bank filed a complaint in mortgage foreclosure in December 2010. When

the Kameniks failed to file an answer, default judgment was entered.           A

sheriff’s sale was scheduled, but was cancelled when the Kameniks

successfully petitioned to open the default judgment.

      Upon agreement, U.S. Bank filed an amended complaint alleging, inter

alia, that (1) it is the current owner of the mortgage and holder of the note;

(2) the mortgage was in default because no monthly installment payments of

principal and interest due May 1, 2010 or thereafter had been made; and (3)

the proper statutory notices had been sent to the Kameniks. See Amended

Complaint, 7/21/14, at ¶¶ 2, 4, 8, 12-13. The Kameniks filed an answer in

which they disputed the assignment history of the mortgage, but merely made

general denials to as to the facts constituting their payment default.      See

Answer with New Matter, 8/12/14, at ¶¶ 1(d), 8.

      After U.S. Bank replied to the Kameniks’ new matter, there was no

docket activity in the action until November 2015, when notice was docketed

reflecting Mr. Kamenik’s filing of bankruptcy.      That bankruptcy case was

dismissed for failure to timely pay the filing fee, and Mr. Kamenik filed another

bankruptcy action, which was dismissed in March 2017 with indication that he




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was not permitted to file a subsequent bankruptcy action without leave of

court.

         U.S. Bank moved for summary judgment in the mortgage foreclosure

action, producing, inter alia, a copy of the note signed by the Kameniks in

2006 along with an allonge3 indorsed in blank by Joseph Caiazzo on behalf of

the original lender/mortgagee. See Motion for Summary Judgment, 8/10/17,

at Exhibit A.     U.S. Bank also attached an affidavit indicating that it is in

possession of the original note. Id. at Exhibit Z, ¶ 9.

         In opposing U.S. Bank’s motion, the Kameniks did not produce any

evidence4 or dispute that the mortgage was in default and that they had failed

to fulfill their obligations. Rather, they claimed that there were issues of fact

as to U.S. Bank’s standing to maintain the action.        Specifically, while the

Kameniks acknowledged that U.S. Bank produced evidence indicating that it

possessed the original note, they argued that the record was not clear as to


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3 “An allonge is ‘a slip of paper sometimes attached to a negotiable instrument
for the purpose of receiving further indorsements when the original paper is
filled with indorsements.’” JP Morgan Chase Bank, N.A. v. Murray, 63 A.3d
1258, 1259 n.2 (Pa.Super. 2013) (quoting Black's Law Dictionary 76 (Deluxe
7th ed.)).

4 The Kameniks did reference and quote the deposition testimony of Karam
Bradfield, described as a mortgage foreclosure specialist with the successor to
the original assignee of the mortgage. See Memorandum in Opposition to
Motion for Summary Judgment, 8/29/17, at 4-6. As we discuss more fully
infra, although their filing indicates that the transcript was attached as Exhibit
A, no exhibits to the memorandum are included in the certified record.



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whether the allonge was affixed to the note, or that Mr. Caiazzo was

authorized to indorse it.        See Memorandum in Opposition to Motion for

Summary Judgment, 8/29/17, at 12. Further, the Kameniks contended that

U.S. Bank failed to establish that it had standing as the legal owner of the

mortgage. Id. at 13-15.

       The trial court granted U.S. Bank’s summary judgment motion by order

of January 11, 2018.5 U.S. Bank moved for a damages hearing, at which the

parties reached an agreement that was entered as an order of court on

February 13, 2019. That order assessed in rem damages at $569,347.32, but

provided that U.S. Bank would not file or execute upon the judgment for sixty

days. Order, 2/13/19. After sixty days, U.S. Bank was free to execute the

judgment, including listing the property for sheriff’s sale, for which the parties

would equally share costs. Id. On May 14, 2019, U.S. Bank filed a praecipe

for entry of judgment upon the February 13, 2019 order.6

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5The trial court issued its own order merely providing that U.S. Bank’s motion
was granted. It did not execute the proposed order submitted by U.S. Bank,
which included language entering judgment for a specific amount.

6 Also on May 14, 2019, U.S. Bank filed for a writ of execution, and a sheriff’s
sale was scheduled. In its brief, U.S. Bank contends that the property was
sold to U.S. Bank on November 8, 2019, and the deed recorded on December
4, 2019, rendering the instant appeal moot. See U.S. Bank’s brief at 16-17
(citing Deutsche Bank Nat’l Co. v. Butler, 868 A.2d 574, 577 (Pa.Super.
2005)). Our review of the trial court’s docket confirms that the property was
sold and the deed was recorded; however, it also reveals an unresolved
motion to set aside the sheriff’s sale. Accordingly, we decline to dismiss the
appeal as moot.



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       The Kameniks filed a timely appeal from the entry of judgment, and

both they and the trial court complied with Pa.R.A.P. 1925. The Kameniks

present the following questions for this Court’s consideration:

             1.    Did the trial court err when it held that there are no
       disputed facts as to whether the Note . . . is indorsed in blank?

             2. Did the trial court err when it held that there are no
       disputed facts as to whether U.S. Bank is the owner of the
       Kamenik[s’] mortgage?

Kameniks’ brief at 4.7

       We begin with a review of the applicable legal principles.    Summary

judgment in mortgage foreclosure actions is subject to the same rules as other

civil actions. See Pa.R.C.P. 1141(b) (“Except as otherwise provided in this

chapter, the procedure in the action shall be in accordance with the rules

relating to a civil action.”). Summary judgment in a civil action is governed

by Pa.R.C.P. 1035.2.

              In evaluating the trial court’s decision to enter summary
       judgment, we focus on the legal standard articulated in the
       summary judgment rule. 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 non-moving 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 it bears the burden of proof establishes the entitlement
       of the moving party to judgment as a matter of law. Lastly, we
       will view the record in the light most favorable to the non-moving
____________________________________________


7 The Kameniks include a third question concerning the trial court’s
determination that the appeal is untimely. However, as we resolved that issue
supra, and need not address it further.

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      party, and all doubts as to the existence of a genuine issue of
      material fact must be resolved against the moving party.

JP Morgan Chase Bank, N.A. v. Murray, 63 A.3d 1258, 1261-62 (Pa.Super.

2013) (cleaned up).

      Confronted with a motion for summary judgment setting forth evidence

establishing the moving party’s right to relief, “the adverse party may not rest

upon the mere allegations or denials of the pleadings,” Pa.R.C.P. 1035.3(a),

but must identify evidence controverting the evidence cited in support of the

motion or establishing the 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).

      “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). In this case, the Kameniks do not dispute that the

mortgage was in default, that they failed to pay interest on the obligation, and

that the recorded mortgage was in the specified amount.          Instead, they

question whether U.S. Bank is the proper party to bring this action.




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       Subject to exceptions not relevant in the instant case, “all actions shall

be prosecuted by and in the name of the real party in interest.” Pa.R.C.P.

2002(a). “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) (emphasis in original, internal quotation marks

omitted).    Hence, if the Kameniks’ challenge to U.S. Bank’s status as the

holder of the note fails, U.S. Bank had standing to pursue the action and obtain

its judgment regardless of whether the mortgage was assigned to it.

       We therefore begin by considering the law applicable to the note. “[A]

note secured by a mortgage fits the plain language of the UCC’s definition of

a negotiable instrument.”        Murray, supra at 1265.   Under Pennsylvania’s

UCC, an instrument that is indorsed in blank8 is payable to its bearer. 13

Pa.C.S. § 3205(b). Notably, one who satisfies his or her “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.”

Murray, supra at 1263 (citing 13 Pa.C.S. § 3602(a)).




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8 A blank indorsement is one made by the holder of an instrument that does
not identify a particular person to whom it makes the instrument payable.
See 13 Pa.C.S. § 3205(a), (b). “When indorsed in blank, an instrument
becomes payable to bearer and may be negotiated by transfer of possession
alone until specially indorsed.” Id. at (b).

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      In an action on a negotiable instrument, “the authenticity of, and

authority to make, each signature on the instrument is admitted unless

specifically denied in the pleadings.” 13 Pa.C.S. § 3308(a). When the validity

of any signature is properly denied, the signature nonetheless “is presumed

to be authentic and authorized” subject to exceptions not applicable in the

instant case. Id. The result of this presumption is that “‘the trier of fact must

find the existence of the fact [that the signature is authentic and authorized]

unless and until evidence is introduced that supports a finding of its

nonexistence.’”   PHH Mortgage Corp. v. Powell, 100 A.3d 611, 618

(Pa.Super. 2014) (quoting 13 Pa.C.S. § 1206).

      Turning to the case sub judice, as noted above, U.S. Bank’s motion for

summary judgment included a copy of the note signed by the Kameniks in

2006 along with an allonge indorsed in blank by Joseph Caiazzo on behalf of

Tribeca, the original assignee. See Motion for Summary Judgment, 8/10/17,

at Exhibit A. U.S. Bank also produced evidence that it is in possession of the

original note. Id. at Exhibit Z, ¶ 9. The Kameniks argue that the trial court

erred in granting U.S. Bank’s motion for summary judgment on this record

because there were genuine factual disputes as to whether Mr. Caiazzo was

authorized to sign the allonge on behalf of Tribeca, and whether the allonge

is affixed to the note. See Kameniks’ brief at 19-28.

      The trial court determined that summary judgment was appropriate

because U.S. Bank established that it was the bearer of the note indorsed in


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blank by Mr. Caiazzo’s signature on the allonge, and the Kameniks produced

no evidence to rebut the presumption that Mr. Caiazzo was authorized to

indorse the note. See Trial Court Opinion, 10/11/19, at 6-9. We agree.

       The Kameniks’ purported evidence to rebut Mr. Caiazzo’s authorization

to indorse the note was the aforementioned deposition testimony of Karam

Bradfield, described as a mortgage foreclosure specialist with Franklin, the

successor to Tribeca. See Memorandum in Opposition to Motion for Summary

Judgment, 8/29/17, at 4-6.          However, this evidence is not in the certified

record, and is therefore not properly before us. See, e.g., Ruspi v. Glatz,

69 A.3d 680, 691 (Pa.Super. 2013) (“[A]n appellate court is limited to

considering only the materials in the certified record when resolving an issue.

...   [A]ny document which is not part of the officially certified record is

deemed non-existent—a deficiency which cannot be remedied merely by

including copies of the missing documents in a brief or in the reproduced

record.” (internal quotation marks omitted)).

       Moreover, not only do the Kameniks fail to explain the context of Mr.

Bradfield’s testimony,9 but we fail to see how Mr. Caiazzo’s authorization to

indorse the note on behalf of Tribeca is called into question by the testimony

of a mortgage specialist with Franklin to the effect that he personally did not



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9 For example, it is not discernable from the certified record in what capacity
and on whose behalf Mr. Bradfield was offered as a witness, or even whether
the deposition was noticed in the instant foreclosure action.

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know what connection Mr. Caiazzo had to Tribeca.        In the absence of any

evidence from the Kameniks to support a finding that Mr. Caiazzo’s signature

was not authentic and authorized, the fact-finder was bound to accept it as

such. See Powell, supra at 618. See also 13 Pa.C.S. §§ 1206, 3308(a).

Therefore, there was no genuine issue of fact as to the validity of Mr. Caiazzo’s

indorsement.

      The Kameniks’ argument that there was an issue of fact regarding

whether U.S. Bank had possession of the original note with the allonge

attached fails for the same reason.       This Court has reversed summary

judgment when a mortgage foreclosure defendant had availed himself of the

opportunity to view the original note and opposed summary judgment with

an affidavit representing that his inspection of the documents revealed that

the allonge was not attached to the note and did not appear to be original.

See Murray, supra at 1268.        However, the record before us contains no

indication that the Kameniks inspected the original documents, copies of which

were attached to U.S. Bank’s complaint and motion for summary judgment,

let alone that they produced evidence that created a question for the fact-

finder. The Kameniks could not create an issue of fact to defeat summary

judgment by making unsupported arguments. Accord Powell, supra at 621

(holding appellants were entitled to no relief on claim that a material issue of

fact existed as to whether the plaintiff was entitled to enforce the note where

the plaintiff attached a copy of the original note to the complaint and the


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appellants produced no evidence in opposing summary judgment to support

their contention that another entity held the original note).

      Since we find no support for the Kameniks’ attacks upon U.S. Bank’s

status as bearer of the note indorsed in blank, the trial court properly

concluded that U.S. Bank had standing to pursue this action. Therefore, we

need not address the Kameniks’ arguments that U.S. Bank failed to establish

that it had standing by virtue of the assignment of the mortgage.      See

Gerber, supra at 859-60. No relief is due.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/9/20




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