J-S07033-20


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

 U.S. BANK NATIONAL ASSOCIATION,         : IN THE SUPERIOR COURT OF
 AS TRUSTEE FOR BEAR STEARNS             :         PENNSYLVANIA
 ASSET BACKED SECURITIES I TRUST         :
 2005-AC4 ASSET-BACKED                   :
 CERTIFICATES, SERIES 2005-AC4           :
                                         :
              v.                         :
                                         :
 JACQUELINE SMITH,                       :
                                         :
                    Appellant            :    No. 1452 EDA 2019

                Appeal from the Order Entered April 9, 2019
           in the Court of Common Pleas of Montgomery County
                  Civil Division at No(s): No.: 2016-22680

 U.S. BANK NATIONAL ASSOCIATION,         : IN THE SUPERIOR COURT OF
 AS TRUSTEE FOR BEAR STEARNS             :         PENNSYLVANIA
 ASSET BACKED SECURITIES I TRUST         :
 2005-AC4 ASSET-BACKED                   :
 CERTIFICATES, SERIES 2005-AC4           :
                                         :
              v.                         :
                                         :
 JACQUELINE SMITH,                       :
                                         :
                    Appellant            :    No. 1483 EDA 2019

                Appeal from the Order Entered April 9, 2019
           in the Court of Common Pleas of Montgomery County
                  Civil Division at No(s): No.: 2016-22680

BEFORE:    NICHOLS, J., KING, J. and STRASSBURGER, J.*

MEMORANDUM BY STRASSBURGER, J.:                    FILED APRIL 03, 2020

     Jacqueline Smith (Appellant) appeals pro se from the orders entered

April 9, 2019, denying her motion for summary judgment and granting the

motion for summary judgment filed by U.S. Bank National Association (U.S.



*Retired Senior Judge assigned to the Superior Court.
J-S07033-20


Bank), as trustee for Bear Stearns Asset Backed Securities I Trust 2005-AC4

Asset-Backed Certificates Series 2005-AC4 (Trust).1           Upon review, we

affirm.

       In 2005, Appellant purchased a home at 55 Hilldale Road, Cheltenham,

Montgomery County (the Property), with the aid of a $202,400 loan secured

by a mortgage from Alterna Mortgage Company (Lender).             The mortgage

listed Mortgage Electronic Registration Systems, Inc. (MERS) as the

mortgagee, acting solely as nominee for Lender, and its successors and

assigns. Mortgage, 3/30/2005, at 1. On June 25, 2010, Appellant signed a

loan modification agreement, which listed EMC Mortgage Corporation as the

servicer for mortgagee U.S. Bank, as trustee for certificateholders of Bear

Stearns Asset Backed Securities I LLC Asset-Back Certificates, Series 2005-

AC4 (LLC).        Complaint, 9/14/2016, at Exhibit D (Loan Modification

Agreement, 6/25/2010).          Pursuant to a pooling and servicing agreement,

LLC was depositor for Trust, and U.S. Bank served as trustee to Trust. Id.

at Exhibit D (Affidavit of Select Portfolio Servicing, Inc., at Exhibit 1 (Limited

Power of Attorney Exhibit A)). On November 8, 2013, MERS assigned the

mortgage to U.S. Bank, as trustee for LLC. U.S. Bank’s Motion for Summary

Judgment, 5/11/2018, at Exhibit C (Recorder of Deeds and Assignment of

Mortgage, 11/8/2013).
____________________________________________


1 This Court sua sponte consolidated the appeals at 1452 EDA 2019 and
1483 EDA 2019.



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J-S07033-20


       In January 2015, Appellant stopped making mortgage payments. On

September 14, 2016, U.S. Bank, as trustee for Trust, filed a complaint in

mortgage foreclosure against Appellant.          Appellant pro se filed an answer

and new matter alleging inter alia, that U.S. Bank lacked standing because it

was not in possession of the original note, that U.S. Bank had failed to send

the requisite pre-foreclosure notice,2 and that the mortgage documents were

materially altered and Appellant’s signature was forged.           Regarding her

standing allegation, Appellant argued that U.S. Bank, as trustee for Trust,

lacked standing to bring the foreclosure action because the mortgage was

assigned to U.S. Bank, acting as trustee for LLC.          See Answer and New

Matter, 10/19/2016, at ¶¶ 45-50.


____________________________________________


2The Homeowner’s Emergency Mortgage Assistance Act (Act 91), 35 Pa.C.S.
§§ 1680.401c-1680.412c, requires pre-foreclosure notice be given to a
mortgagor as follows.

       Act 91 requires a mortgagee who desires to foreclose to
       send notice to the mortgagor advis[ing] the mortgagor of his
       delinquency ... and that such mortgagor has thirty (30) days to
       have a face-to-face meeting with the mortgagee who sent
       the notice or a consumer credit counseling agency to attempt to
       resolve the delinquency ... by restructuring the loan payment
       schedule or otherwise. [T]he purpose of an Act 91 notice is to
       instruct the mortgagor of different means he may use to resolve
       his arrearages in order to avoid foreclosure on his property and
       also gives him a timetable in which such means must be
       accomplished.

Wells Fargo Bank N.A. v. Spivak, 104 A.3d 7, 15 (Pa. Super. 2014)
(citations and quotation marks omitted).



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J-S07033-20


     On December 6, 2017, U.S. Bank, as trustee for Trust, filed a motion

for partial summary judgment as to Appellant’s allegations of forgery on the

mortgage documents.       In support thereof, it submitted, inter alia, an

affidavit from the notary public who witnessed the settlement for the

purchase of the Property. In response, Appellant argued, inter alia, that the

motion should be denied because she believed U.S. Bank was not in

possession of the original note.     See generally Appellant’s Response,

1/10/2018.

     On May 11, 2018, U.S. Bank, as trustee for Trust, filed a motion for

summary judgment, which was supported by, inter alia, copies of the

original mortgage and note signed by Appellant; the assignment of the

mortgage to U.S. Bank, as trustee for LLC, and the recorder of deed’s forms

showing the recording of the assignment; copies of the Act 91 notices sent

to Appellant; and an affidavit by U.S. Bank’s counsel that it was currently in

possession of the original note and that Appellant had been in default of her

payment obligations since January 15, 2015.       Based thereon, U.S. Bank

sought an in rem judgment of foreclosure.

     On June 12, 2018, Appellant pro se filed a motion for summary

judgment, alleging that plaintiff U.S. Bank, as trustee for Trust, was not the

real party in interest on the mortgage; there was no assignment of the

mortgage to U.S. Bank, as trustee for Trust; and U.S. Bank had failed to

provide the required Act 91 notices.   On June 26, 2018, U.S. Bank filed a


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J-S07033-20


reply.    On January 31, 2019, Appellant requested that the trial court take

judicial notice of U.S. Bank’s lack of standing to foreclose on the Property

based on the argument that the mortgage was assigned to U.S. Bank, as

trustee for LLC, not the plaintiff, U.S. Bank, as trustee for Trust. Appellant’s

Request for Mandatory Judicial Notice, 1/31/2019, at ¶¶ 38-44.

         On April 5, 2019, the trial court granted U.S. Bank’s motion for partial

summary judgment and found that the mortgage was a valid lien against the

Property. On April 9, 2019, the trial court entered two orders: one denying

Appellant’s motion for summary judgment, and one granting U.S. Bank’s

motion for summary judgment and entering an in rem judgment against

Appellant and in favor of U.S. Bank in the amount of $275,458.78 plus

interest and costs.

         This timely-filed appeal followed.3     On appeal, Appellant argues that

the trial court erred in granting U.S. Bank’s motion for summary judgment

and denying Appellant’s motion for summary judgment because, according

to Appellant, U.S. Bank lacked standing to foreclose on the mortgage.

Appellant’s Brief at 1.4

____________________________________________


3 Both Appellant and the trial court have complied with the mandates of
Pa.R.A.P. 1925.

4 Although Appellant lists four questions for this Court to resolve in the
statement of questions section of her brief, she only presents two issues in
her argument section. Compare Appellant’s Brief at 1-2 (Statement of
Questions Involved) with id. at 3-6 (Argument). The first three questions
(Footnote Continued Next Page)


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J-S07033-20


      The Pennsylvania Rules of Civil Procedure authorize parties to
      move for 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[.]” Pa.R.C.P. 1035.2(1).

             As has been oft declared by this Court, summary
             judgment is appropriate only in those cases where
             the record clearly demonstrates that there is no
             genuine issue of material fact and that the moving
             party is entitled to judgment as a matter of law.
             When considering a motion for summary judgment,
             the trial court must take all facts of record and
             reasonable inferences therefrom in a light most
             favorable to the non-moving party. In so doing, the
             trial court must resolve all doubts as to the existence
             of a genuine issue of material fact against the
             moving party, and, thus, may only grant summary
             judgment where the right to such judgment is clear
             and free from all doubt.

             On appellate review, then, an appellate court may
             reverse a grant of summary judgment if there has
             been an error of law or an abuse of discretion. But
             the issue as to whether there are no genuine issues
             as to any material fact presents a question of law,
             and therefore, on that question our standard of
             review is de novo. This means we need not defer to
             the determinations made by the lower tribunals. To
             the extent that this Court must resolve a question of
             law, we shall review the grant of summary judgment
             in the context of the entire record.
(Footnote Continued) _______________________

all relate to her first argument that the trial court erred in entering the April
9, 2019 orders because U.S. Bank lacked standing to foreclose on the
mortgage. See id. at 1, 3-5. Appellant’s second argument on appeal is that
the trial court exhibited bias and prejudice against Appellant when it failed to
grant Appellant’s request for judicial notice. Id. at 5-6. Because Appellant
failed to raise this claim in her Pa.R.A.P. 1925(b) statement, it is waived.
See Commonwealth v. Castillo, 888 A.2d 775, 780 (Pa. 2005) (holding
that any issues not raised in an ordered Rule 1925(b) statement are waived
on appeal).



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J-S07033-20



      Summers v. Certainteed Corp., [] 997 A.2d 1152, 1159 ([Pa.]
      2010) (internal citations and quotation marks omitted). The
      party opposing the motion for summary judgment must produce
      evidence essential to the cause of action, without merely resting
      upon the allegations or denials in the pleadings. Pa.R.C.P.
      1035.3(a).

Wells Fargo Bank, N.A. v. Joseph, 183 A.3d 1009, 1012 (Pa. Super.

2018).

      Here, Appellant claims that U.S. Bank was not in possession of the

original note and lacked standing to proceed in the foreclosure action.

Specifically, Appellant argues as follows, verbatim.

      The Note presented in this case has been specially indorsed to
      U.S. BANK NATIONAL ASSOCIATION, AS TRUSTEE FOR
      CERTIFICATEHOLDERS OF BEAR STEARNS ASSET BACKED
      SECURITIES I LLC, ASSET BACKED CERTIFICATES, SERIES
      2005-AC4[.] Appellee is U.S. BANK NATIONAL ASSOCIATION,
      AS TRUSTEE FOR CERTIFICATEHOLDERS OF BEAR STEARNS
      ASSET BACKED SECURITIES I TRUST, ASSET BACKED
      CERTIFICATES, SERIES 2005-AC4. Appellee is a Trust but the
      Note was specially indorsed to a [sic] LLC.

Appellant’s Brief at 4 (emphasis added).

      U.S. Bank responds that this minor naming discrepancy is insufficient

to support Appellant’s standing argument, and that the trial court did not err

in granting summary judgment in U.S. Bank’s favor. U.S. Bank’s Brief at 12.

According to U.S. Bank, Appellant “presented no evidence to dispute the fact

that U.S. Bank, as Trustee, is the holder of the Note and assignee of the

Mortgage.” Id. at 14. Rather, U.S. Bank contends that the record supports

the trial court’s conclusion that U.S. Bank had standing to foreclose on the


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J-S07033-20


mortgage and was the real party in interest in the underlying action. Id. at

15 (“The record conclusively establishes that U.S. Bank, as Trustee, is the

sole owner and holder of the Note and that it sufficiently averred its

ownership of the Mortgage.”).

       In support of its orders, trial court found as follows.

       U.S. Bank[] has fully supported with conclusive evidence the fact
       that the mortgage was assigned to it in 2011.[5] Likewise, U.S.
       Bank has provided evidence through an affidavit the fact that it
       is in possession of the original note which is being held by its
       counsel. As the assignee of the mortgage and the holder of the
       note, U.S. Bank had the legal right to file a foreclosure lawsuit.

                                           ***

             [Appellant] presented no evidence to challenge the fact
       that she has defaulted in her mortgage payments. Rather,
       [Appellant] presents unclear arguments as to U.S. Bank’s
       standing and unsupported averments as to the Act 91 notice.
       [Appellant’s] responses to the pleadings and to the motions filed
       do not alter U.S. Bank’s right to relief. The loan modification
       signed by [Appellant] in 2010 indicated that [] U.S. Bank[] was
       the mortgag[ee] in this lawsuit. Thus, [Appellant] was aware of
       U.S. Bank’s status as mortgagee since 2010. No evidence has
       been put forth by [Appellant] to support her claim that U.S.
       Bank is not the proper party to bring this mortgage foreclosure
       lawsuit.

Trial Court Opinion, 7/9/2019, at 4 (citation omitted).


____________________________________________


5 In its recitation of the factual background and procedural history, the trial
court mistakenly states that the mortgage was assigned to U.S. Bank on
November 1, 2011. Trial Court Opinion, 7/9/2019, at 1. It is clear from our
review of the record that the assignment, dated November 1, 2013, was
recorded on November 8, 2013. This dating error does not detract from the
trial court’s ultimate conclusion.



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J-S07033-20


     We begin our analysis with a discussion of real parties in interest in the

mortgage foreclosure context.

     Pennsylvania Rule of Civil Procedure 2002 provides, “[e]xcept as
     otherwise provided ... all actions shall be prosecuted by and in
     the name of the real party in interest, without distinction
     between contracts under seal and parol contracts.” Pa.R.C.P. No.
     2002(a); see also J.P. Morgan Chase Bank, N.A. v. Murray,
     63 A.3d 1258, 1258 (Pa. Super. 2013) (finding a debtor’s claim
     that appellee bank was not a real party in interest to bring
     foreclosure action was a challenge to appellee’s standing). “[A]
     real party in interest is a [p]erson who will be entitled to benefits
     of an action if successful. ... [A] party is a real party in interest if
     it has the legal right under the applicable substantive law to
     enforce the claim in question.” U.S. Bank, N.A. v. Mallory, 982
     A.2d 986, 993-[]94 (Pa. Super. 2009) (citation and quotation
     marks omitted; some brackets in original).

     In a mortgage foreclosure action, the mortgagee is the real party
     in interest. See Wells Fargo Bank, N.A. v. Lupori, 8 A.3d 919,
     922 n.3 (Pa. Super. 2010). This is made evident under our
     Pennsylvania Rules of Civil Procedure governing actions in
     mortgage foreclosure that require a plaintiff in a mortgage
     foreclosure action specifically to name the parties to the
     mortgage and the fact of any assignments. Pa.R.C.P. No. 1147.
     A person foreclosing on a mortgage, however, also must own or
     hold the note. This is so because a mortgage is only the security
     instrument that ensures repayment of the indebtedness under a
     note to real property. …

     The rules relating to mortgage foreclosure actions do not
     expressly require that the existence of the note and its holder be
     pled in the action. Nonetheless, a mortgagee must hold the note
     secured by a mortgage to foreclose upon a property.

Bayview Loan Servicing LLC v. Wicker, 163 A.3d 1039, 1044-45 (Pa.

Super. 2017) (some citations omitted) (quoting CitiMortgage, Inc. v.

Barbezat, 131 A.3d 65, 68 (Pa. Super. 2016)).




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J-S07033-20


     In the instant case, Appellant’s attempt to destroy U.S. Bank’s status

as a real party in interest due to a minor naming discrepancy in the

assignment is unconvincing.    The record established that Alterna assigned

Appellant’s mortgage to U.S. Bank, as trustee for LLC. U.S. Bank, as trustee

for both LLC and Trust, held the note to the mortgage at the time of filing

the underlying foreclosure action. Accordingly, we agree with the trial court

that U.S. Bank, as trustee for Trust, had standing to bring the complaint in

foreclosure against Appellant. See Joseph, 183 A.3d at 1012-13 (holding

that because Wells Fargo Home Mortgage is part of Wells Fargo Bank, the

bank had standing to bring the foreclosure action).

     As there is no dispute that U.S. Bank held the original note and

Appellant has not made payments on the mortgage since January 15, 2015,

we find no error in the trial court’s orders granting U.S. Bank’s motion for

summary judgment in favor of U.S. Bank and against Appellant, and denying

Appellant’s motion for summary judgment.

     Orders affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/3/20



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