J-A25009-15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

WELLS FARGO BANK, N.A.,         : IN THE SUPERIOR COURT OF
                                :      PENNSYLVANIA
             Appellee           :
                                :
          v.                    :
                                :
RONALD W. LOCKHART, SR. AND :
SANDRA LOCKHART A/K/A SANDRA M. :
LOCKHART,                       :
                                :
             Appellants         : No. 3011 EDA 2014

            Appeal from the Order entered September 25, 2014,
                 Court of Common Pleas, Chester County,
                      Civil Division at No. 2013-08544

BEFORE: DONOHUE, MUNDY and FITZGERALD*, JJ.

MEMORANDUM BY DONOHUE, J.:                      FILED OCTOBER 20, 2015

     Ronald W. Lockhart, Sr., and Sandra Lockhart a/k/a Sandra M.

Lockhart (together, “the Lockharts”) appeal from the September 25, 2014

order entered by the Chester County Court of Common Pleas granting the

motion for summary judgment filed by Wells Fargo Bank, N.A. (“Wells

Fargo”) in this mortgage foreclosure action. Upon review, we reverse and

remand for further proceedings.

     The facts and procedural history of this case are as follows. On March

26, 2007, the Lockharts borrowed $1,400,000 from World Savings Bank,

F.S.B. (“WSB”).   The Lockharts executed and delivered a promissory note

and a mortgage securing payment of the note, the latter of which WSB duly




*Former Justice specially assigned to the Superior Court.
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recorded, on a three-acre property and residence located at 687 Sugartown

Road, Malvern, Pennsylvania (“the property”).

      On December 31, 2007, WSB became Wachovia Mortgage, F.S.B.

(“Wachovia”).1 On November 1, 2009, Wachovia became Wells Fargo Bank,

Southwest, National Association (“Wells Fargo SW”).       On that same date,

Wells Fargo SW merged with Wells Fargo.

      On August 29, 2013, Wells Fargo filed a complaint in mortgage

foreclosure, alleging therein that the Lockharts had defaulted on the loan by

failing to make the requisite biweekly payments of principal and interest due

on February 25, 2013. According to the complaint, as of August 13, 2013,

the Lockharts owed $1,547,368.94. Wells Fargo attached to the complaint

documents confirming its succession by merger from WSB, a copy of the

original note, and a legal description of the property.

      On September 18, 2013, the Lockharts filed a pro se answer wherein,

in relevant part, they admitted the chain of succession of the companies

from WSB to Wells Fargo and that they executed and delivered the

promissory note and mortgage, in the recorded amount, in favor of WSB.

The Lockharts denied, however, that Wells Fargo had standing to bring the

action in mortgage foreclosure.     Further, the Lockharts denied that they



1
  This name change followed the merger of WSB’s parent company, Golden
West Financial Corporation, with Wachovia Corporation, which occurred on
October 1, 2006 – prior to the creation of the debt between the Lockharts
and WSB.


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defaulted on the loan, stating that they sent six checks, which Wells Fargo

cashed, between March 7 and June 6, 2013, and that Wells Fargo returned

to the Lockharts six checks that they had sent between June 11 and August

15, 2013.   Lastly, the Lockharts contended that Wells Fargo’s failure to

comply with their qualified written request (“QWR”),2 in which they

requested documentation to verify the debt, resulted in Wells Fargo’s

inability to prove that it was a holder of the note in due course pursuant to

the Uniform Commercial Code.

      On June 26, 2014, Wells Fargo filed a motion for summary judgment,

asserting that the Lockharts effectively admitted all necessary allegations,

that Wells Fargo was the “mortgagee by succession,” and that it was entitled

to judgment as a matter of law. Motion for Summary Judgment, 6/26/14,



2
   Section 2605 of the Real Estate Settlement Procedures Act defines a
qualified written request as follows:

            For purposes of this subsection, a qualified written
            request shall be a written correspondence, other
            than notice on a payment coupon or other payment
            medium supplied by the servicer, that—

            (i) includes, or otherwise enables the servicer to
            identify, the name and account of the borrower; and

            (ii) includes a statement of the reasons for the belief
            of the borrower, to the extent applicable, that the
            account is in error or provides sufficient detail to the
            servicer regarding other information sought by the
            borrower.

12 U.S.C.A. § 2605(e)(1)(B) (bold in the original).


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¶¶ 10, 25; see Bank of Am., N.A. v. Gibson, 102 A.3d 462, 465 (Pa.

Super. 2014) (“The entry of summary judgment in a mortgage foreclosure

action is proper “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.”), appeal denied, 112 A.3d 648 (Pa. 2015).

Specifically, Wells Fargo stated that the Lockharts’ denial that they defaulted

on the loan was ineffective, as the sums tendered (and returned) “did not

constitute all sums due on the subject loan, and as such, were properly

rejected by [Wells Fargo].” Motion for Summary Judgment, 6/26/14, ¶ 13

(citing Bell Federal Savings and Loan Assn. of Bellvue v. Laura Lanes,

Inc., 435 A.2d 1284 (Pa. Super. 1981)). Wells Fargo further claimed that

the Lockharts only generally denied the averment that they had failed to pay

interest on the loan, which must be deemed an admission. Id. ¶¶ 19-21;

see also First Wisconsin Trust Co. v. Strausser, 653 A.2d 688, 692 (Pa.

Super. 1995) (“[I]n mortgage foreclosure actions, general denials by

mortgagors that they are without information sufficient to form a belief as to

the truth of averments as to the principal and interest owing must be

considered an admission of those facts.”).    Lastly, Wells Fargo stated that

the Lockharts admitted that the recorded mortgage was in the specified

amount.    Motion for Summary Judgment, 6/26/14, ¶ 23.            Wells Fargo

appended to its motion the affidavit of Erica Marie Sandoval, Vice President

of Loan Documentation at Wells Fargo, which stated that Wells Fargo,



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“directly or through an agent has possession of the Promissory Note.” Id. at

Exhibit A. It also appended the Lockharts’ account history from January 29,

2013 through May 1, 2014; copies of the recorded mortgage, the complaint

and the exhibits attached thereto (including a copy of the promissory note),

the Act 91 notices sent by Wells Fargo to the Lockharts, and the Lockharts’

answer to the complaint; and a document verifying that the Lockharts were

not members of the military.

     On July 11, 2014, counsel entered an appearance on behalf of the

Lockharts. On July 18, 2014, the Lockharts, through counsel, presented a

stipulation reached with Wells Fargo for an extension of time for the

Lockharts to respond to Wells Fargo’s motion for summary judgment, which

required the Lockharts to file their response on or before August 25, 2014.

     On August 29, 2014, the Lockharts filed a reply in opposition to the

motion for summary judgment and a request for an additional extension of

time to respond to Wells Fargo’s motion for summary judgment.            The

Lockharts did not include any direct responses to the averments contained in

Wells Fargo’s motion for summary judgment. Instead, they stated that they

had researched the securitization of the loan and that the fraud expert they

had retained, Charles K. Lamm, had concerns about Wells Fargo’s ownership

of the loan.3   They therefore requested an extension until September 19,



3
   “Securitize” means “[t]o convert (assets) into negotiable securities for
resale in the financial market, allowing the issuing financial institution to


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2014 to complete their response.     The Lockharts appended a copy of Mr.

Lamm’s preliminary report to their reply. On September 2, 2014, the trial

court denied the Lockharts’ request for an additional extension of time.

      On September 8, 2014, Wells Fargo filed a praecipe for determination,

seeking a decision on its motion for summary judgment.       Despite the trial

court’s denial of their request for an extension of time, the Lockharts

nonetheless filed an additional response to the motion for summary

judgment on September 22, 2014, once again challenging Wells Fargo’s

standing to bring the mortgage foreclosure action, averring that WSB

securitized the note.   The Lockharts again attached to their response the

preliminary report composed by Mr. Lamm in support of their claims.        On

September 25, 2014, the trial court entered an order and opinion granting

Wells Fargo’s motion for summary judgment.

      On October 22, 2014, the Lockharts filed a timely notice of appeal. On

October 23, 2014, the trial court issued an order for the Lockharts to file

within twenty-one days a concise statement of errors complained of on

appeal pursuant to Pa.R.A.P. 1925(b) (“1925(b) statement”). The Lockharts

filed their 1925(b) statement on November 18, 2014. The trial court issued

its responsive opinion pursuant to Pa.R.A.P. 1925(a) on December 16, 2014.




remove assets from its books, and thereby improve its capital ratio and
liquidity, and to make new loans with the security proceeds if it so chooses.”
BLACK’S LAW DICTIONARY, securitize, (10th ed. 2014).


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      On April 2, 2015, Wells Fargo filed in this Court a motion to quash the

appeal based upon the Lockharts’ alleged untimely filing of their 1925(b)

statement. Following our review of the motion and the Lockharts’ response

thereto, this Court denied the motion in an Order Per Curiam on April 28,

2015.4

      On appeal, the Lockharts raise two issues for our review:

         1. Was summary judgment properly granted when
            [Wells Fargo] failed to produce clear, definitive proof
            of its actual ownership of the original WSB
            [m]ortgage [n]ote as an alleged successor in interest
            in order to establish that it was the proper real party
            in interest?

         2. Did [Mr. Lamm] raise genuine issues of material fact
            as to [Wells Fargo’s] actual ownership of the WSB
            [m]ortgage [n]ote as the alleged successor in
            interest?

The Lockharts’ Brief at 3.

      We review a decision granting summary judgment according to the

following standard:

                A reviewing court may disturb the order of the
            trial court only where it is established that the court
            committed an error of law or abused its discretion.
            As with all questions of law, our review is plenary.

               In evaluating the trial court’s decision to enter
            summary judgment, we focus on the legal standard
            articulated in the summary judgment rule. Pa.R.C.P.


4
   By entering this Order, this Court rejected Wells Fargo’s contention that
the Lockharts failed to timely file their 1925(b) statement. We therefore
decline Wells Fargo’s invitation to revisit this question. See Wells Fargo’s
Brief at 8 n.2.


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           1035.2. 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 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) (citation omitted).

     Both of the issues raised by the Lockharts on appeal challenge Wells

Fargo’s standing to bring the mortgage foreclosure action.5   The Lockharts

contend that their “demand for production of the original WSB [m]ortgage

[n]ote combined with Wells Fargo[’s] failure to produce the original WSB

[m]ortgage [n]ote is sufficient to raise a genuine issue of material fact as

[to] the accuracy of Wells Fargo’s ownership and possession claims.”     The

Lockharts’ Brief at 12-13. According to the Lockharts, Wells Fargo’s reliance

on its status as the owner of the note by virtue of corporate succession from

WSB is insufficient. Id. at 13. This is based upon the Lockharts’ belief that




5
    As the Lockharts include only one argument in support of both issues
raised on appeal, we likewise decide them together.


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“WSB was a pass through entity only” and securitized the note in question,

and the supporting expert opinion of Mr. Lamm. Id. at 14 & n.1, 16-17.

      The trial court stated that Wells Fargo produced a copy of the original

note, which established Wells Fargo’s standing to bring the foreclosure

action.     Trial Court Opinion, 12/16/14, at 4.   The trial court further found

that by admitting in their answer that Wells Fargo was a successor to WSB,

“the Lockharts have failed to put forth any evidence or legal authority to

support their contention … that the copy of the note that is attached [to the

complaint] is not genuine.” Trial Court Opinion, 9/25/14, at 4. With respect

to Mr. Lamm, the trial court questioned whether he could be classified as an

“expert,” as “his conclusion is ‘it is my opinion that all these facts … must be

proven in a court …[,]’ [which] states nothing other than the obvious.” Id.

at 3 n.1.

      The law is clear that only “the real party in interest” may prosecute a

legal action.     Pa.R.C.P. 2002(a).   “[T]he mortgagee is the real party in

interest in a foreclosure action.” PHH Mortgage Corp. v. Powell, 100 A.3d

611, 619 (Pa. Super. 2014) (citation omitted). Generally, when the original

mortgagee       company    merges   with   another   company,    the   surviving

corporation becomes the mortgagee under the mortgage agreement, as it

“succeeds to both the rights and obligations of the constituent corporations,”

rendering the surviving corporation the real party in interest in a mortgage

foreclosure action.    See Park v. Greater Delaware Valley Sav. & Loan



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Ass’n, 523 A.2d 771, 775-76 (Pa. Super. 1987); 12 U.S.C.A. § 215a(e).6

No assignment or indorsement is necessary to bestow upon the surviving

bank the status of the real party in interest to enforce a debt owed to its

predecessor.   12 U.S.C.A. § 215a(e).       This assumes, however, that the

predecessor in interest was at the time of the merger itself entitled to

enforce the note (i.e., at the time of the merger, the predecessor

corporation was the holder of the note and did not, for example, sell or

transfer the loan to another entity).7 Unless the predecessor in interest has


6
   Section 215a(e) of the Bank Act states: “The corporate existence of each
of the merging banks or banking associations participating in such merger
shall be merged into and continued in the receiving association and such
receiving association shall be deemed to be the same corporation as each
bank or banking association participating in the merger. All rights,
franchises, and interests of the individual merging banks or banking
associations in and to every type of property (real, personal, and mixed) and
choses in action shall be transferred to and vested in the receiving
association by virtue of such merger without any deed or other transfer. The
receiving association, upon the merger and without any order or other action
on the part of any court or otherwise, shall hold and enjoy all rights of
property, franchises, and interests, including appointments, designations,
and nominations, and all other rights and interests as trustee, executor,
administrator, registrar of stocks and bonds, guardian of estates, assignee,
and receiver, and in every other fiduciary capacity, in the same manner and
to the same extent as such rights, franchises, and interests were held or
enjoyed by any one of the merging banks or banking associations at the
time of the merger, subject to the conditions hereinafter provided.” 12
U.S.C.A. § 215a(e).
7
  A note is a “negotiable instrument” governed by the Pennsylvania Uniform
Commercial Code. Murray, 63 A.3d at 1265. Wells Fargo contends, and
the trial court found, that Wells Fargo is entitled to enforce the note as a
“holder in due course,” which the PUCC defines as follows:

        (a) Definition of “holder in due course.”--Subject to
        subsection (c) and section 3106(d) (relating to


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the right to enforce the note, the successor by merger does not acquire the

right to enforce the note. 13 P.S. § 3302(c).

     The Lockharts contend that Wells Fargo is not a holder in due course,

as the original mortgagee, WSB, securitized the loan, and thus WSB was not



        unconditional promise or order), “holder in due course”
        means the holder of an instrument if:

           (1) the instrument when issued or negotiated to the
           holder does not bear such apparent evidence of
           forgery or alteration or is not otherwise so irregular
           or incomplete as to call into question its authenticity;
           and

           (2) the holder took the instrument:

              (i) for value;

              (ii) in good faith;

              (iii) without notice that the instrument is overdue
              or has been dishonored or that there is an
              uncured default with respect to payment of
              another instrument issued as part of the same
              series;

              (iv) without notice that the instrument contains
              an unauthorized signature or has been altered;

              (v) without notice of any claim to the instrument
              described in section 3306 (relating to claims to an
              instrument); and

              (vi) without notice that any party has a defense
              or claim in recoupment described in section
              3305(a) (relating to defenses and claims in
              recoupment).

13 P.S. 3302(a).


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itself a holder in due course when it merged with Wachovia, which then

merged with Wells Fargo SW, which subsequently merged with Wells Fargo.

Reply in Opposition to Motion for Summary Judgment and Motion to Extend

Time to Respond to Motion for Summary Judgment, 8/29/14, ¶ 6; the

Lockharts’ Brief at 14 & n.1, 16; see also 13 P.S. § 3302(c); supra n.6. In

support of this claim, they presented before the trial court the preliminary

report of a fraud expert, Mr. Lamm. After reviewing the note Wells Fargo

attached to its complaint, which was identical to the note provided to the

Lockharts in response to their QWR, Mr. Lamm stated:

              [C]ontrary to what is alleged[,] that Wells Fargo,
           as successor-by[-]merger to Wachovia as successor-
           by[-]merger to [WSB] [has] any exclusivity [sic][,
           Wells Fargo] is without authority over the
           [Lockharts’] loan. … [B]ased on the transfer from
           Wachovia [] to Wells Fargo[,] [the note in Wells
           Fargo’s possession] should have revealed a transition
           stamp identified on the left side of the document, to
           include twelve digits displayed vertically, one letter
           character and eleven numeric digits, as identifying
           numbers. The first four digits to be the month and
           year, the sixth digit would be a letter followed by five
           additional numeric digits, the end two digits
           identifying the order of the page being numbered if
           the note was an original. This fact would indicate
           that the “note” offered in response to the
           [Lockharts’] QWR could not have been an actual true
           copy[.]

Reply in Opposition to Motion for Summary Judgment and Motion to Extend

Time to Respond to Motion for Summary Judgment, 8/29/14, at Exhibit A

p.5.




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      Although the trial court was critical of Mr. Lamm’s report, it did not

find that the report or his opinion, quoted above, was inadmissible.8        Cf.

Snizavich v. Rohm & Haas Co., 83 A.3d 191, 194 (Pa. Super. 2013)

(indicating that prior to ruling upon a motion for summary judgment, the

trial court can, in its discretion, deem expert testimony inadmissible), appeal

denied, 96 A.3d 1029 (Pa. 2014).          Furthermore, although Wells Fargo

appended to its motion for summary judgment the affidavit of Erica Marie

Sandoval, Vice President of Loan Documentation at Wells Fargo, stating that

Wells Fargo “directly or through an agent has possession of the [p]romissory

[n]ote,” this is insufficient to permit the entry of summary judgment. See

Murray, 63 A.3d at 1267 (“Pennsylvania courts long have disapproved of

trial by affidavit. Moreover, testimonial affidavits of the moving party or his

witnesses, not documentary, even if uncontradicted, will not afford sufficient

basis for the entry of summary judgment, since the credibility of the

testimony is still a matter for the jury.”) (citation omitted).



8
   In its responsive brief, Wells Fargo contends that Mr. Lamm’s preliminary
report was inadmissible pursuant to Pa.R.E. 702 and 703. Wells Fargo’s
Brief at 25-28. However, “[i]t is well established in this Commonwealth that
the decision to admit or to exclude evidence, including expert testimony, lies
within the sound discretion of the trial court. Ramalingam v. Keller
Williams Realty Grp., __ A.3d __, 2015 WL 4927797, *9 (Pa. Super. Aug.
18, 2015) (emphasis omitted) (quoting Ettinger v. Triangle–Pac. Corp.,
799 A.2d 95, 110 (Pa. Super. 2002), appeal denied, 815 A.2d 1042 (Pa.
2003)). As it is for the trial court, not this Court, to rule upon the
admissibility of evidence in the first instance, and the trial court did not find
Mr. Lamm’s report or the opinion in question to be inadmissible, this
argument fails.


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      The evidence of record, viewed in the light most favorable to the

Lockharts, contradicts the trial court’s conclusions that the Lockharts “failed

to put forth any evidence … to support their contention … that the copy of

the note that is attached [to the complaint] is not genuine,” and that the

note attached to the complaint “clearly established [Wells Fargo’s] standing

to bring the action in foreclosure.” Trial Court Opinion, 9/25/14, at 4; Trial

Court Opinion, 12/16/14, at 4. The Lockharts have raised a genuine issue of

material fact with regard to Wells Fargo’s standing to enforce the loan. The

question of standing is essential to Wells Fargo’s ability to bring the action in

mortgage foreclosure.9

      On remand, Wells Fargo is required to prove that it is the holder of the

note. This can be accomplished by either producing the original note or by

establishing the chain of possession of the note from WSB to Wells Fargo.

See Murray, 63 A.3d at 1267-68.

      Order reversed. Case remanded. Jurisdiction relinquished.




9
    Without citation to authority, Wells Fargo states that the Lockharts’
admission that they made pre-foreclosure payments on the mortgage to
Wells Fargo constitutes a “significant and dispositive admission[][.]” Wells
Fargo’s Brief at 15. Our research reveals no case law that precludes a party
from challenging a plaintiff’s standing to bring a mortgage foreclosure action
simply because the party made payments to the plaintiff on the mortgage.
Nor is there any case or statutory support for the conclusion that an
admission by the defendant that he/she made payments to the plaintiff on
the mortgage prior to the foreclosure action is “dispositive” of a plaintiff’s
standing to bring a mortgage foreclosure action.


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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/20/2015




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