J-A24007-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

FREEDOM MORTGAGE CORPORATION                IN THE SUPERIOR COURT OF
                                                  PENNSYLVANIA


                  v.

PATRICIA E. DENNIS

                       Appellant                 No. 3423 EDA 2015


                 Appeal from the Order October 26, 2015
          In the Court of Common Pleas of Montgomery County
                   Civil Division at No(s): 2014-07116


BEFORE: BOWES, OTT AND SOLANO, JJ.

MEMORANDUM BY BOWES, J.:                   FILED SEPTEMBER 30, 2016

     Patricia E. Dennis appeals, pro se, from the October 26, 2015 order

granting summary judgment in favor of Freedom Mortgage Corporation

(“Freedom”). We affirm.

     On March 29, 2013, Ms. Dennis executed a mortgage and associated

promissory note in the amount of $149,469.00, and secured by the real

property located at 652 Haws Avenue, Norristown, Pennsylvania.       The

mortgage was recorded on April 10, 2013.       Ms. Dennis provided the

mortgage to Mortgage Electronic Registration System (“MERS”) as nominee

for Freedom, in consideration of her loan, with payments to commence on

April 1, 2013. MERS assigned the mortgage to Freedom on March 11, 2014,

and that assignment was properly recorded on March 25, 2014.
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      On September 1, 2013, Ms. Dennis defaulted on the note and

mortgage by failing to make her monthly payment. Freedom provided her

with the requisite notice of default, and Act 6 and Act 91 combined notice,

including notice of its intent to foreclose.           Freedom commenced the

underlying mortgage foreclosure action on April 1, 2014, attaching the note

and mortgage thereto. Ms. Dennis unsuccessfully attempted to remove the

case to United States District Court for the Eastern District of Pennsylvania.

Freedom then obtained a default judgment against Ms. Dennis, but the court

granted     a   petition   to   open   default   judgment   on   August   8,   2015.

Subsequently, Ms. Dennis filed an answer to Freedom’s original complaint

alleging, inter alia, that Freedom did not possess the original note or

mortgage, and therefore lacked standing to bring a foreclosure action on her

property.

      Freedom filed a motion for summary judgment, attaching copies of the

note, mortgage, assignment, and an affidavit averring that Freedom

possessed the original note and mortgage encumbering Ms. Dennis’s

property. The court granted Freedom’s motion for summary judgment, and

Ms. Dennis filed a timely appeal. The court directed Ms. Dennis to file a Rule

1925(b) concise statement of errors complained of on appeal, with which

she complied, and then authored its Rule 1925(a) opinion.

      Ms. Dennis raises seven questions for our review:

      1. Can the Trial Court render in rem judgment for a debt
         collector?

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      2. Did the mortgage get separated from the Note prior to the
         foreclosure action being commence[d]?

      3. Does a mortgage         being   assigned   alone    nullif[y]   the
         enforceability of it?

      4. Was Government National Mortgage Association the holder of
         the Note?

      5. Is [Freedom] an Approved Document                  Custodian    for
         Government National Mortgage Association?

      6. Is [Freedom] in possession of the original Note?

      7. Can [Freedom] proceed with the foreclosure action?

Appellant’s brief at 5-6.

  Our scope and standard of review of a trial court’s order granting

summary judgment is as follows.

             In reviewing an order granting summary judgment, our
      scope of review is plenary, and our standard of review is the
      same as that applied by the trial court . . . [a]n appellate court
      may reverse the entry of a summary judgment only where it
      finds that the lower court erred in concluding that the matter
      presented no genuine issue as to any material fact and that it is
      clear that the moving party was entitled to judgment as a matter
      of law. In making this assessment, we view the record in the
      light most favorable to the nonmoving party, and all doubts as to
      the existence of a genuine issue of material fact must be
      resolved against the moving party. Where our analysis involves
      solely questions of law, our review is de novo.

             Thus, our responsibility as an appellate court is to
      determine whether the record either established that the
      material facts are undisputed or contains insufficient evidence of
      facts to make out a prima facie cause of action, such that there
      is no issue to be decided by the fact finder.




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Gerber v. Piergrossi, 2016 WL 3414993 (Pa.Super. 2016) at *3 (citation

omitted).

      Ms. Dennis devotes the majority of her brief to her contention that the

court lacked subject-matter jurisdiction when it granted Freedom’s motion

for summary judgment. While her statement of the question does not state

her contention in those words, we construe Ms. Dennis’s issue on appeal as

encompassing this question.       See Ir re Ullman, 995 A.2d 1207, 1211-12

(Pa.Super. 2010) (“[T]his Court is willing to liberally construe materials filed

by a pro se litigant, [however] pro se status confers no special benefit upon

the appellant.”).

      Ms. Dennis first asserts that Freedom is a “debt collector,” as defined

in the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692 et seq.

She maintains that since Freedom is a New Jersey-based debt collector

engaging in interstate commerce, and she is a resident of Pennsylvania, the

Montgomery County Court of Common Pleas lacked jurisdiction to grant

summary judgment in favor of Freedom, and the federal courts maintain

jurisdiction over this dispute.

      Subject matter jurisdiction refers to the court’s competency to hear

and decide the type of controversy presented. Sheard v. J.J. DeLuca Co.,

Inc., 92 A.3d 68, 75 (Pa.Super. 2014). Jurisdiction over the subject matter

refers to “the nature of the cause of action and of the relief sought; and this

is conferred by the sovereign authority which organizes the court, and is to


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be sought for in the general nature of its powers, or in authority specially

conferred.”   Id. (quoting Mid-City Bank & Trust Co. v. Myers, 23 A.2d

420, 423 (Pa. 1942)). The question of subject matter jurisdiction may be

raised at any time, by any party, or by the court sua sponte. In re Estate

of Ciuccarelli, 81 A.3d 953, 958 (Pa.Super. 2013) (citation omitted).

Notwithstanding exceptions inapplicable to this matter, our courts of

common pleas have unlimited jurisdiction over all proceedings in this

Commonwealth, unless otherwise provided by law.       Beneficial Consumer

Discount Co. v. Vukman, 77 A.3d 547, 552 (Pa. 2013); 42 Pa.C.S. §

931(a).

     At the outset, we observe that it is unclear whether Ms. Dennis is

arguing that federal question or diversity subject matter jurisdiction is

invoked by this matter.    Furthermore, she does not reference any legal

authority indicating how Freedom’s status as a “debt collector” affects state

jurisdiction. Nonetheless, since the Montgomery County Court of Common

Pleas exercises jurisdiction over all proceedings arising in that county,

including complaints in mortgage foreclosure, we find jurisdiction was

properly within that court. 42 Pa.C.S. § 931(a).

     Additionally, we note Ms. Dennis’s previous attempt to remove this

matter to federal court under diversity jurisdiction was found to be improper

since Ms. Dennis, as the defendant in the underlying complaint, is a citizen

of Pennsylvania.   See 28 U.S.C. § 1441(b)(2) (“a civil action otherwise


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removable solely on the basis of the jurisdiction under [diversity of

citizenship] may not be removed if any of the parties in interest properly

joined and served as defendants is a citizen of the State in which the action

is brought.”).

      Furthermore, despite Freedom’s admission that it is a “debt collector,”

see Appellee’s brief at 3, Freedom does not meet the definition of that term

under the FDCPA. The FDCPA defines “debt collector” as:

      any person who uses any instrumentality of interstate commerce
      or the mails in any business the principal purpose of which is the
      collection of any debts, or who regularly collects or attempts to
      collect, directly or indirectly, debts owed or due or asserted to be
      owed or due another. Notwithstanding the exclusion provided by
      clause (F) . . . [t]he term does not include--

                                     ***

         (F) any person collecting or attempting to collect any debt
         owed or due or asserted to be owed or due another to the
         extent such activity . . . (ii) concerns a debt which was
         originated by such person[.]

15 U.S.C. § 1692a(6).     Freedom, as the original mortgagee of the loan,

attempted to collect its own debt owed to it by Ms. Dennis. Under the plain

meaning of the FDCPA, Freedom is not a “debt collector,” as Ms. Dennis’s

default concerns a debt originated by Freedom. This analysis is consistent

with the Third Circuit’s interpretation of the FDCPA. See Police v. National

Tax Funding, L.P., 225 F.3d 379, 403 (3rd Cir. 2000) (quoting Staub v.

Harris, 626 F.2d 275, 277 (3rd Cir. 1980) (“The [FDCPA] does not apply to

persons or businesses collecting debts on their own behalf.”)). As Freedom’s


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attempts to recover its debt from Ms. Dennis did not implicate the FDCPA,

no federal question of law arises in this matter, and federal jurisdiction is not

invoked on that ground.     See 28 U.S.C. § 1331 (“The district courts shall

have original jurisdiction of all civil actions arising under the Constitution,

laws, or treaties of the United States.”).     Hence, Ms. Dennis’s arguments

that the federal courts have jurisdiction over this dispute are without merit.

      When liberally construed, Ms. Dennis’s second, fourth, and fifth claims

all contest the trial court’s finding that Freedom held the mortgage and note

at all relevant times during this proceeding. As her second and third issues

are also interrelated, we will discuss these four issues jointly.

      The following principles apply to courts reviewing summary judgments

in mortgage foreclosure proceedings. Specifically, upon default, a mortgage

holder has the right to pursue a mortgage foreclosure action.          Bank of

America, N.A. v. Gibson, 102 A.3d 462, 464 (Pa.Super. 2013) (citation

omitted). The mortgage holder:

      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 465 (citations omitted).

      Ms. Dennis’s contentions in this regard focus on Freedom’s purported

possession of the mortgage and note, thereby implicating its authority to

bring a foreclosure action against her. Ms. Dennis presented a letter from

Freedom’s loan servicer, LoanCare, that, as of October 23, 2013, the

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Government National Mortgage Association (“Ginnie Mae”) held her note.

She claims that, on March 11, 2014, MERS assigned the mortgage to

Freedom.   She further argues that Freedom is not in possession of the

original note, and since the documents have been separated, they are no

longer enforceable.   Thus, she contends, genuine issues of material fact

remain that should have precluded the entry of summary judgment.

     First, we reject Ms. Dennis’s assertion that the assignment of the

mortgage alone rendered the note unenforceable. She cites no persuasive

authority in support of this claim.   Instantly, Freedom presented evidence

that Ms. Dennis defaulted on her obligations under the note on September 1,

2013. It demonstrated that MERS assigned Freedom the mortgage on March

10, 2014, with that assignment being recorded on March 25, 2014. Thus,

Freedom had the right to bring a foreclosure action when it filed its

complaint in foreclosure on April 1, 2014. Gibson, supra.

     Freedom moved for summary judgment on June 3, 2015.              In its

motion for summary judgment, Freedom confirmed its status as the

assignee of the mortgage by appending a copy of that assignment from

MERS.   Significantly, Freedom also attached an affidavit averring it was in

possession of the original note. Although Ms. Dennis provided evidence that

Ginnie Mae held the note as of October 23, 2013, she provided no evidence

that it remained in Ginnie Mae’s possession on June 3, 2015, the day

Freedom moved for summary judgment.            Hence, upon review of the


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evidence of record, Freedom was entitled to enforce Ms. Dennis’s obligations

under the note.     See JP Morgan Chase Bank, N.A. v. Murray, 63 A.3d

1258, 1265-66 (Pa.Super. 2013) (finding that a note secured by a mortgage

is a negotiable instrument, and the possessor thereof has the right to

enforce it).

      Finally, we observe that Ms. Dennis’s fifth and seventh issues were not

asserted before the trial court or included in her Rule 1925(b) concise

statement of matters complained of on appeal. It is axiomatic that “issues

not raised in the lower court are waived and cannot be raised for the first

time on appeal.”    Pa.R.A.P. 302(a); Pa.R.A.P. 1925(b)(4)(vii) (”Issues not

included in the Statement and/or not raised in accordance with the

provisions of this paragraph (b)(4) are waived.”).   Therefore, these issues

are waived.

      In sum, Ms. Dennis failed to produce any evidence of record to

demonstrate a genuine issue of material fact as to the holder of the note and

mortgage. Therefore, the trial court properly granted summary judgment in

favor of Freedom.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/30/2016




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