J-A26002-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

US BANK NATIONAL ASSOCIATION AS IN THE SUPERIOR COURT OF
SUCCESSOR TRUSTEE TO BANK OF PENNSYLVANIA
AMERICA N.A. AS SUCCESSOR TO
LASALLE BANK N.A. AS TRUSTEE FOR
THE STRUCTURED ASSET INVESTMENT
LOAN TRUST, MORTGAGE PASS
THROUGH CERTIFICATES, SERIES 2003-
BC8

DEBRA CATALDO

 

Appe||ant No. 1571 WDA 2015

Appeal from the Order Entered September 21, 2015
in the Court of Common Pleas of A||egheny County
Civil Division at No(s): MG-12-483

BEFORE: BENDER, P.J.E., RANSOM, J., and MUSMANNO, J.
MEMORANDUM BY RANSO|V|, J.: FILED NOVEMBER 08, 2016

In this mortgage foreclosure action, the trial court entered summary
judgment in favor of the mortgage holder, Appe||ee, U.S. Banl<, National
Association as Successor Trustee to Bank of America, N.A. as Successor
Trustee to LaSalle Banl<, N.A., as Trustee for the Structured Asset
Investment Loan Trust, Mortgage Pass Through Certificates, Series 2003-
BC8 (U.S. Bank). Debra Cataldo, Appe||ant and mortgagor, appeals from
that order, arguing that disputed, genuine issues of material fact exist
regarding US Banl<'s standing to bring suit, and the provenance of the note

offered against her. We affirm.

J-A26002-16

The trial court outlined the relevant procedural and factual history as

follows:

In 2003[, Appe||ant] executed a mortgage and note related
to property known as 632 Penny Drive located within A||egheny
County.[l] The mortgage and note were recorded in the
A||egheny County Recorder of Deeds and [Appellant] concedes
that they are valid. In [2008, Appe||ant] executed a loan
modification agreement. [Appellant] has not made a payment
on this mortgage since August[] 2011. After sending
appropriate notices of default required by law, [Appellee] filed
the present Complaint in Mortgage Foreclosure on March 7,
2012.

On October 28, 2013[, Appe||ee] filed the first Motion for
Summary Judgment. The parties filed responses and
Supplemental Motions and Briefs. The first Motion for Summary
Judgment was argued before [the court] on April 17, 2014. The
Motion was denied. The only issue raised at that time was
whether [the Appe||ee] had the original [n]ote in its possession.
Questions of fact were raised concerning the Allonge endorsed to
“bearer” and certain notations made on the note.[z] []

[Appellee] filed a Second Motion for Summary Judgment
on April 7, 2015.[3] A response was filed and Briefs filed by both

 

1 The mortgage holder on the document and note is IMPAC Funding
Corporation DBA Novelle Financial Services. See Appe||ant's Answer and
New Matter Pleading, 4/9/12, at paragraphs 3, 5. The mortgage was
thereafter assigned to U.S. Bank. Plaintiff's Reply to Defendant's New
Matter, Ex. A (“Assignment of Mortgage").

2 Specifically, Appe||ant took issue with the slight differentiation of barcodes
or lack thereof on copies of the mortgage and Allonge. Appe||ant's Brief at
1-3. Appe||ant asserted that these discrepancies raised questions of fact
regarding whether U.S. Bank was a holder in clue course of the original
documents and thereby had the standing to initiate the foreclosure. Id.

3 After the argument on the first motion for summary judgment, Appellee
offered an additional affidavit explaining that the different prefixes and digits
in the barcodes on the note and Allonge were a reflection of the business
records of U.S. Bank and the discrepancies therein indicated whether the

document was an image of a copy of the original or an image of the original
(Footnote Continuec/ Next Page)

J-A26002-16

parties. After argument on September 16, 2015, the Motion for
Summary Judgment was granted on October 9, 2015 and
judgment entered in favor of [Appellee] in amount of
$85,453.43.[4] A timely appeal followed.

Trial Court Opinion, 12/29/15, at 1-2.

Appe||ant presents the following question for our review:

1. Whether the [c]ourt's decision to grant summary judgment
violated the Nanty-Glo Rule.

Appe||ant's Brief at 2.

We review an order granting summary judgment for an abuse of
discretion. Indalex, Inc. v. Nat'l Union Fire Ins. Co. of Pittsburgh, PA,
83 A.3d 418, 420 (Pa. Super. 2013). Our standard of review is plenary, and
we view the record in the light most favorable to the nonmoving party. Id.
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[.]” Pa.R.C.P. 1035.2(1). In response

to a summary judgment motion, the nonmoving party cannot rest upon the

(Footnote Continued)

itself. Second Motion for Summary Judgment, Ex. 5 (“Plaintiff's Affidavit in
Support of Its Summary Judgment Motion”) Through this explanation,
Appellee also established it possessed the original document. Id.

4 We note that the initial summary judgment order by the trial court was
dated by hand for June 18, 2015, although it was stamped filed by the Clerk
of Court on September 21, 2015. See Order 9/21/15, (“September 21,
2015 Order"). On October 8, 2015, the trial court vacated the September
21, 2015 Order and again entered summary judgment in favor of Appe||ee.
See Order of Court, 10/8/15.

J-A26002-16

pleadings, but rather must set forth specific facts demonstrating a genuine
issue of material fact. Pa.R.C.P. 1035.3.

Under the Pennsylvania Uniform Commercial Code, the note securing a
mortgage is a negotiable instrument. ].P. Morgan Chase Bank, N.A. v.
Murray, 63 A.3d 1258 (Pa. Super. 2013). Enforcement is proper even if
questions remain as to the chain of possession, and questions as to that
chain are immaterial to its enforceability so long as the holder can prove it
holds said note. Id. A note endorsed in blank is a “bearer note," payable to
anyone on demand regardless of who previously held the note. 13 Pa.C.S.A.
§§ 3109(a), 3301.

The holder of a mortgage has the right, upon default, to bring a
foreclosure action. Cunningham v. McWilliams, 714 A.2d 1054, 1056-57
(Pa. Super. 1998). 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.

Appe||ant argues the entry of summary judgment violated the rule of
Nanty-Glo v. American Surety Co., 163 A. 523 (Pa. 1932), because the
trial court relied on an affidavit to address discrepancies in the note and

reproduced copies. We disagree. The Nanty-Glo rule:

prohibits summary judgment where the moving party relies
exclusively on oral testimony, either through testimonial
affidavits or deposition testimony, to establish the absence of a
genuine issue of material fact except where the moving party

_4_

J-A26002-16

supports the motion by using admissions of the opposing party
or the opposing party's own witness.

Lineberger v. Wyeth, 894 A.2d 141, 149 (Pa. Super. 2006) (citing First
Philson Bank, N.A. v. Hartford Fire Ins. Co., 727 A.2d 584, 587 (Pa.
Super. 1999), appeal denied, 747 A.2d 901 (Pa. 1999)).

In the instant case, Appe||ant admits the existence of the mortgage in
a specific amount (and at a specific rate of interest) that was recorded in the
A||egheny County Recorder of Deeds. Appe||ant's Answer and New Matter
Pleading, 4/9/12, at paragraphs 3, 5. Appe||ant also admitted that she has
defaulted on the payments clue under the mortgage and has failed to pay
interest on the obligation. Id.

The affidavit presented by U.S. Bank, the moving party, utilized
admissions of Appe||ant and established the absence of a genuine issue of
material fact by addressing the manner in which the barcodes applied to the
original mortgage as well as each copy furnished. See Plaintiff's Affidavit in
Support of Its Summary Judgment Motion.

The record in this case shows that U.S. Bank holds a bearer note and,
therefore, the mortgage. Enforcement of the note is proper even if
questions remain as to the chain of possession. ].P. Morgan Chase Bank,
N.A., 63 A.3d 1258. Appe||ant failed to put forth any evidence or legal
authority to the contrary. Thus, the trial court was in compliance with the

Nanty-Glo rule and acted correctly in granting summary judgment in favor

J-A26002-16

of Appe||ee, since no material fact remained in issue as to any element in
the mortgage foreclosure action. See Cunningham, 714 A.2d 1054, 1057.

Judgment affirmed.

Judgment Entered.

 

J seph D. Seletyn, Es .
Prothonotary

Date: 11/8/2016

