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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

WELLS FARGO BANK, N.A.                  :     IN THE SUPERIOR COURT OF
                                        :           PENNSYLVANIA
                   v.                   :
                                        :
RICHARD POSOFF AND SUSAN                :
POSOFF,                                 :
                                        :          No. 3472 EDA 2016
                        Appellants      :


               Appeal from the Order Entered October 12, 2016,
               in the Court of Common Pleas of Delaware County
                          Civil Division at No. 16-0792


BEFORE: PANELLA, J., OLSON, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                   FILED JULY 17, 2017

     Richard Posoff and Susan Posoff (collectively, “appellants”) appeal

pro se from the October 12, 2016 order of the Court of Common Pleas of

Delaware County that granted the motion for summary judgment of Wells

Fargo Bank, N.A. (“appellee”) and entered judgment in favor of appellee and

against appellants in the amount of $602,892.61 plus interest at the rate of

$25.46 per diem from May 18, 2016 plus such costs and charges as are

collectible under the mortgage and for foreclosure and sale of the mortgaged

property. We affirm.

     The relevant facts, as recounted by the trial court, are as follows:

           [Appellants] executed a Mortgage in favor of World
           Savings Bank, FSB[Footnote 1] on June 3, 2004 in
           the amount of $487,500 with regard to real property
           located at 535 Brandymede Road, Rosemont,
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          Delaware County, Pennsylvania. On the same date,
          Richard Posoff also signed a Promissory Note which
          was secured by the Mortgage. The Mortgage and
          Promissory Note were modified pursuant to a Loan
          Modification    Agreement      on    April  9,   2013.
          [Appellants] have failed to make the scheduled
          payments on the Mortgage since July 1, 2012. Thus,
          under the terms of the Mortgage, the entire loan has
          become due and payable, along with interest, late
          charges, costs and attorney fees and expenses.
          [Appellee] provided [appellants] with written notice
          of [appellants’] default under the Mortgage and
          [appellee’s] intention to foreclose through a Notice of
          Homeowners       Emergency      Mortgage    Assistance
          Program pursuant to Act 91 of 1983 as amended in
          2008.

                [Footnote 1]: [Appellee] is currently the
                holder of the mortgage and note as
                successor by merger to World Savings
                Bank, FSB.

                 [Appellee] instituted this action on January 29,
          2016 by filing a Complaint in Mortgage Foreclosure.
          [Appellee] filed an in rem action and did not seek
          personal liability against [appellants]. On March 21,
          2016, [appellants] filed an Answer with New Matter
          to [appellee’s] Complaint. [Appellants’] Answer sets
          forth a series of general denials. They admit only
          their names and address, that they are the record
          owners of the mortgaged premises and that they
          were sent the Act 91 notice. In [appellants’] New
          Matter, they assert that [appellee’s] Complaint
          should fail due to accord and satisfaction, estoppel,
          failure of consideration, impossibility of performance,
          the Doctrine of Laches, the Statute of Frauds, and
          truth and waiver. [Appellants] also assert that the
          Complaint should fail as only Richard Posoff[]
          executed the Mortgage[Footnote 2] and because the
          Mortgage is defective. On April 29, 2016, [appellee]
          filed a Reply to New Matter arguing that the
          affirmative defenses asserted by [appellants] did not
          apply, that the Complaint complied with the



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          statutory requirements for a mortgage foreclosure
          and denied that the Mortgage was defective.

               [Footnote 2]: This is factually incorrect.
               A review of the Mortgage shows that
               both [appellants] signed the Mortgage.

                 During the pendency of the action, [appellee]
          discovered errors in the legal description in the
          Mortgage. On May 6, 2016, [appellee] filed a Motion
          to Reform Mortgage to Correct Legal Description
          requesting this Court to reform the Mortgage to
          correct the legal description of the mortgaged
          property. [Appellee] states that a scrivener’s error
          resulted in an inaccurate legal description of the
          property. The proposed correction involves minimal
          revisions to the metes and bounds description
          appearing in the Mortgage.        On May 12, 2016,
          [appellants] filed an Answer to [appellee’s] Motion
          arguing that the Motion should be denied as the
          elements to reform a written instrument have not
          been met. This Court denied [appellee’s] Motion to
          Reform Mortgage to Correct Legal Description by
          way of Order dated June 29, 2016. This Court
          denied [appellee’s] Motion as it is not the proper
          procedure for reforming a mortgage to correct a
          legal description.    Such reformation is addressed
          through an action to quiet title, a remedy remaining
          available to [appellee]. However, this Court finds
          that the errors in the Mortgage are de minimus and
          immaterial to the issue before this Court.

                [Appellee] filed its Motion for Summary
          Judgment on July 21, 2016. [Appellants] filed a
          response on August 18, 2016. In their response,
          [appellants] assert that the mortgage is “defective”
          in that it contains an incorrect legal description of
          the property. They assert that this fact has been
          admitted by [appellee] as it had filed the Motion to
          Reform Mortgage to Correct Legal Description. They
          argue that [appellee’s] Motion for Summary
          Judgment must be denied because the incorrect legal
          description of the property in the Mortgage is an
          issue of material fact relevant to their defense. On


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              October 12, 2016, this Court entered an Order
              granting [appellee’s] Motion for Summary Judgment
              entering an in rem judgment against [appellants] in
              the amount of $602,892.61 plus interest, costs and
              charges collectible under the Mortgage and for
              foreclosure and sale of the mortgaged property.
              [Appellants] filed a Motion for Reconsideration[ 1]
              with this Court and an appeal to the Superior Court,
              both on November 3, 2016.

Trial court opinion, 1/17/17 at 1-3 (citations omitted).

        On appeal, appellants raise the following issue for this court’s review:

“Whether the judgment following [appellee’s] motion for summary judgment

should be stricken because there was an admitted error in the legal

description of the real property that was the subject of the mortgage

foreclosure complaint with no showing of fraud, accident or mistake?”

(Appellants’ brief at 4 (capitalization omitted).)

        This court reviews a grant of summary judgment under the following

well-settled standards:

                    Pennsylvania law provides that summary
                    judgment may be granted only in those
                    cases in which the record clearly shows
                    that no genuine issues of material fact
                    exist and that the moving party is
                    entitled to judgment as a matter of law.
                    The moving party has the burden of
                    proving that no genuine issues of
                    material fact exist.     In determining
                    whether to grant summary judgment,
                    the trial court must view the record in
                    the light most favorable to the non-
                    moving party and must resolve all doubts
                    as to the existence of a genuine issue of

1
    The trial court did not rule upon this motion.


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                  material fact against the moving party.
                  Thus, summary judgment is proper only
                  when the uncontroverted allegations in
                  the pleadings, depositions, answers to
                  interrogatories, admissions of record,
                  and submitted affidavits demonstrate
                  that no genuine issue of material fact
                  exists, and that the moving party is
                  entitled to judgment as a matter of law.
                  In sum, only when the facts are so clear
                  that reasonable minds cannot differ, may
                  a trial court properly enter summary
                  judgment.

                  [O]n appeal from a grant of summary
                  judgment, we must examine the record
                  in a light most favorable to the
                  non-moving party.         With regard to
                  questions of law, an appellate court’s
                  scope of review is plenary. The Superior
                  Court will reverse a grant of summary
                  judgment only if the trial court has
                  committed an error of law or abused its
                  discretion.    Judicial discretion requires
                  action in conformity with law based on
                  the facts and circumstances before the
                  trial    court     after    hearing    and
                  consideration.

            Gutteridge v. A.P. Green Services, Inc., 804 A.2d
            650, 651 (Pa.Super. 2002).

Wright v. Allied Signal, Inc., 963 A.2d 511, 514 (Pa.Super. 2008)

(citation omitted).   Summary judgment in mortgage foreclosure actions is

subject to the same rules as any other civil action. See Pa.R.C.P. 1141(b).

      Appellants argue that the trial court erred when it granted the motion

for summary judgment because there was an admitted error in the legal




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description of the real property that was the subject of the mortgage

foreclosure complaint with no showing of fraud, accident, or mistake.

      Appellants raised the issue of a defective mortgage in new matter and

stated that the complaint should fail because the mortgage is defective. In

its reply to new matter, appellee stated, as follows:

            Denied. The averments of paragraph twenty-four
            (24) are denied as conclusions of law to which no
            response is necessary. By way of further response,
            [appellants] have not presented any facts in support
            of same and [appellee] submits that no such facts
            exist. Moreover, [appellee] specifically denies that
            the subject mortgage is defective.

Reply to New Matter, 4/29/16 at 3 ¶24. Appellants argue that appellee, by

filing two motions to reform the mortgage, effectively admitted that the legal

description of the mortgage was defective.        Appellants argue that the

inaccurate description is reason for this court to reverse the grant of

summary judgment.

      First, it is important to determine exactly what this error in the legal

description of the property is. The metes and bounds contained in the legal

description states that at one point there is an arc distance of 111.50 feet

when it actually is 111.53 feet.       Additionally, when a plan of lots is

mentioned, the word “said” is left out as in “said plan being recorded . . . .”

There is one other error where the words “91.71 feet to a point; thence

extending South 78 degrees 18 minutes 8 seconds West 230.31 feet” are

left out.



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      The trial court found that the errors in the description of the property

in the mortgage were de minimus and immaterial to the issue that was

before it.

      This court agrees with the trial court.      Under Pennsylvania law, a

mortgage is an interest in land which must comply with the Statute of

Frauds. See Eastgate Enters, Inc. v. Bank & Trust Co. of Old York Rd.,

345 A.2d 279, 281 (Pa.Super. 1979).          Under the Statute of Frauds, a

purported transfer of an interest in real property is not enforceable unless it

is evidenced in writing and signed by the parties. Long v. Brown, 582 A.2d

359, 361 (Pa.Super. 1990).      See 33 P.S. § 1.      To satisfy the statute of

frauds, the writing:

             need only include an adequate description of the
             property, a recital of the consideration and the
             signature of the party charged [with performing].
             . . . A description of the property will satisfy the
             Statute of Frauds where it describes a particular
             piece or tract of land that can be identified, located,
             or found.

Zuk v. Zuk, 55 A.3d 102, 107 (Pa.Super. 2012). A detailed description of

the property is not needed where the description shows that a particular

tract is within the minds of the contracting parties and was intended to be

conveyed. Id.

      Here, the legal description of the property which was included on

Exhibit A to the mortgage contains the lot number assigned to the property

in the original recorded subdivision plan and also includes the tax parcel



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number for the property.        These descriptions adequately describe the

property subject to the mortgage to satisfy the Statute of Frauds.

      Given that the legal description adequately describes the real property

encumbered by the mortgage, this court must determine whether the trial

court erred or abused its discretion when it granted appellee’s motion for

summary     judgment.      Appellee   complied     with   the    requirements    of

Rule 1147(a) of the Pennsylvania Rules of Civil Procedure, when it provided

in its complaint the parties to the mortgage, the record of any assignments

of the mortgage, a description of the land, the names and addresses of the

appellants, an averment of default, an itemized statement of the amount

due and a demand for judgment of the amount due.                 Appellants either

admitted the allegations in the complaint or issued a general denial. It is

well settled that general denials in an answer to a complaint in a mortgage

foreclosure action constitute admissions.         Bank of America, N.A. v.

Gibson, 102 A.3d 462, 466-467; see also Pa.R.C.P. No. 1029(b).                  For

example, general denials by a mortgagor that he is without sufficient

information as to form a belief with respect to the amount of principal and

interest   due   and   owing   constitutes   an   admission     of   the   amounts.

U.S. Bank, N.A. v. Pautenis, 118 A.3d 386, 396 (Pa.Super. 2015).                As

there is no dispute regarding the material facts at issue, the trial court did

not err when it granted summary judgment.

      Order affirmed.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 7/17/2017




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