J-A01018-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

U.S. BANK N.A., AS TRUSTEE, ON                   IN THE SUPERIOR COURT
BEHALF OF THE HOLDERS OF THE J.P.                   OF PENNSYLVANIA
MORGAN    MORTGAGE   ACQUISITION
TRUST 2006-MC2 ASSET BACKED PASS
THROUGH             CERTIFICATES,
SERIES 2006-NC2

                         Appellee

                    v.

ROBERT J. CAREY AND OCCUPANTS

                         Appellants                  No. 923 EDA 2018


              Appeal from the Order Entered February 22, 2018
              In the Court of Common Pleas of Chester County
                        Civil Division at No.: 16-05885


BEFORE: OTT, STABILE, and McLAUGHLIN, JJ.

MEMORANDUM BY STABILE, J.:                         FILED MARCH 22, 2019

      Robert J. Carey and occupants (individually “Mr. Carey” and collectively

“Appellants”) appeal from the February 22, 2018 order entered in the Court

of Common Pleas of Chester County (“trial court”), which granted summary

judgment in favor of Appellee U.S. Bank N.A., as Trustee, on Behalf of the

Holders of the J.P. Morgan Mortgage Acquisition Trust 2006-MC2 Asset Backed

Pass Through Certificates, Series 2006-NC2 (“U.S. Bank”). Upon review, we

affirm.
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       The facts and procedural history of this case are undisputed.1 On April

28, 2006, Mr. Carey, as the sole owner of 106 Windridge Drive, West Goshen

Township, Pennsylvania (“the Property”), executed a note and mortgage in

favor of New Century Mortgage Corporation.           New Century Mortgage

Corporation subsequently assigned the mortgage to U.S. Bank. On September

15, 2006, Carey executed a second mortgage on the Property in favor of Gary

and Joy Lehndorff. On November 1, 2006, Carey defaulted on the U.S. Bank

mortgage.

       On June 13, 2007, U.S. Bank filed a mortgage foreclosure action against

Mr. Carey, serving him on June 20, 2007. Four days later, on June 24, 2007,

Mr. Carey executed a deed transferring title to the Property from himself,

individually, to both himself and Mrs. Carey, his wife.       This deed was

acknowledged on June 27, 2007 and recorded with the Chester County

Recorder of Deeds on August 31, 2007. Likewise, the Lehndorffs’ mortgage

was both acknowledged and recorded on June 27, 2007.

       On March 24, 2008, U.S. Bank filed a motion for summary judgment.

On May 5, 2008, the trial court granted U.S. Bank’s motion for summary

judgment and entered an in rem judgment in favor of U.S. Bank and against


____________________________________________


1 Unless otherwise noted, these facts are taken from our May 19, 2015
Memorandum. See U.S. Bank Nat’l Ass’n. v. Carey, No. 2206 EDA 2014,
unpublished memorandum, at 1-3 (Pa. Super. filed May 19, 2015), appeal
denied, 132 A.3d 459 (Pa. 2016).



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Mr. Carey.2 On November 20, 2008, U.S. Bank purchased the Property as the

successful bidder at the sheriff’s sale (“the first sheriff’s sale”). The sheriff’s

deed was issued on February 25, 2009 and recorded on March 25, 2009. U.S.

Bank failed to provide notice to Mrs. Carey of the first sheriff’s sale, however,

because U.S. Bank’s title company did not discover the deed transferring title

to the Property into both Mr. and Mrs. Carey’s names. Thus, on September

2, 2009, U.S. Bank filed a motion seeking to confirm the first sheriff’s sale and

strike the June 24, 2007 deed transferring title of the Property from Mr. Carey,

individually, to both Mr. and Mrs. Carey. On December 4, 2009, the trial court

denied U.S. Bank’s motion, and sua sponte set aside the first sheriff’s sale

based on U.S. Bank’s failure to provide notice to Mrs. Carey of the first sheriff’s

sale.

        On January 4, 2010, Mr. Carey appealed the trial court’s decision to set

aside the first sheriff’s sale. On March 3, 2011, the Superior Court affirmed

the trial court’s order setting aside the first sheriff’s sale.   See U.S. Bank

Nat’l Ass’n v. Carey, 26 A.3d 1177 (Pa. Super. March 3, 2011) (unpublished

memorandum).         Mr. Carey filed a petition for allowance of appeal to the

Supreme Court of Pennsylvania, which it denied on May 1, 2012.

        On April 5, 2013, U.S. Bank filed and served upon Mr. and Mrs. Carey a

praecipe for a new writ of execution and the affidavit required under Rule

____________________________________________


2As the trial court noted, “[j]udgment was entered on a mortgage foreclosure
action on May 5, 2008 in the amount of $464,019.61.” Trial Court Opinion,
5/17/18, at 1 n.1.

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3129.1 of the Pennsylvania Rules of Civil Procedure to list the Property for

sheriff’s sale. On July 2, 2013, U.S. Bank filed an amended affidavit pursuant

to Rule 3129.1. Thereafter, on January 16, 2014, U.S. Bank again purchased

the Property at sheriff’s sale (“the second sheriff’s sale”).3

       Despite U.S. Bank’s purchase of the Property, Appellants refused to

convey possession of the Property to U.S. Bank. As a result, on June 21,

2016, U.S. Bank filed a complaint in ejectment against Mr. Carey and other

unknown occupants.4 In the complaint, U.S. Bank averred that Select Portfolio

Servicing, Inc. (“SPS”) “maintains the business records for [U.S. Bank] in the

ordinary course and scope of its business” and acts as “[t]he loan servicing

agent for this account.” Complaint, 6/21/16, at ¶ 1(b), (c). Additionally, U.S.

Bank averred that it had appointed and empowered SPS “to act as its agent

in this matter” pursuant to a limited power of attorney (“POA”) recorded in

the Office of the Chester County Recorder of Deeds. Id. at ¶ 1(d). The POA

provides, among other things, that SPS has the authority to:

       [d]emand, sue for, recover, collect and receive each and every
       sum of money, debt, account and interest (which now is, or
       hereafter shall become due and payable) belonging to or claimed
       by the Trustee, and to use or take any lawful means for recovery
       by legal process or otherwise, including but not limited to the
       substitution of trustee serving under a Deed of Trust, the
       preparation and issuance of statements of breach, or non-
       performance or acceleration, notice of default, and/or notices of
       sale, accepting deeds in lieu of foreclosure, evicting (to the extent
____________________________________________


3 As noted earlier, we denied Mr. Carey’s challenge to U.S. Bank’s purchase of
the Property at the second sheriff’s sale. See Carey, supra at footnote 1.
Our Supreme Court affirmed our decision on February 26, 2016.
4The complaint was submitted by Barbara A. Fein, Esquire, who identified
herself as counsel for U.S. Bank.

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      allowed by federal, state or local laws) foreclosing on the
      properties under the Security Instruments by judicial or non-
      judicial foreclosure, actions for temporary restraining orders,
      injunctions, appointments of receiver, suits for waste, fraud and
      any and all other tort, contractual or verifications in support
      thereof, as may be necessary or advisable in any bankruptcy
      action, state or federal suit or any other action and take any and
      all actions necessary for the preparation and execution of such
      other document and performance of such other actions as may be
      necessary under the terms of the Security Instruments or state
      law to expeditiously complete the transaction set forth in this
      paragraph.

POA, 5/3/13, at ¶ 1.

      On August 5, 2016, Appellants filed preliminary objections, seeking

dismissal of U.S. Bank’s complaint, inter alia, on the allegation that SPS lacked

the capacity to sue. On May 4, 2017, the trial court overruled Appellants’

preliminary objections. On June 5, 2017, Appellants filed an answer and new

matter. U.S. Bank filed its reply to the new matter on August 11, 2017.

      On October 4, 2017, U.S. Bank moved for summary judgment, arguing

that (1) “there are no material issues of fact or law as to [Appellants] right to

the property,” (2) “[Appellants have] no right, title, or interest in the

Property,” and (3) “[Appellants] are mere trespassers.” Motion for Summary

Judgment, 10/4/17, at ¶¶ 12-14.        Appellants responded to the summary

judgment on November 3, 2017, arguing in part that SPS lacked the capacity

to sue. On February 22, 2018, the trial court granted U.S. Bank’s motion for

summary judgment and ordered that U.S. Bank “is entitled to immediate

possession of” the Property.

      On March 22, 2018, Appellants timely appealed to this Court. The trial

court directed them to file a Pa.R.A.P. 1925(b) statement of errors complained



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of on appeal. They complied, raising several assertions. In response, on May

15, 2018, the trial court issued a Pa.R.A.P. 1925(a) opinion.

      On appeal, Appellants essentially raise a single issue for our review:

      [I.] Whether, where a post-foreclosure complaint in ejectment
      was brought by an agent pursuant to a limited power of attorney
      which does not grant to the agent the authority to bring post-
      foreclosure actions in ejectment or otherwise, and where the
      defendants objected to the authority of the agent to bring a post-
      foreclosure action in ejectment in both preliminary objections and
      in response to plaintiff’s motion for summary judgment, the trial
      court abused its discretion and/or committed errors of law by
      overruling the defendants’ preliminary objections and granting
      plaintiff’s motion for summary judgment.

Appellants’ Brief at 8.

      We review a challenge to the entry of summary judgment as follows:

      [We] 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. See Pa.R.C.P. No. 1035.2. The rule
      [provides] 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 nonmoving 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 he bears the burden of
      proof establishes the entitlement of the moving party to judgment
      as a matter of law. Lastly, we will review 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.

E.R. Linde Const. Corp. v. Goodwin, 68 A.3d 346, 349 (Pa. Super. 2013)

(citation omitted; brackets in original).

      As we recently explained in Becker v. Wishard, __ A.3d __, 2019 WL

123695 (Pa. Super. filed January 7, 2019):


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      Ejectment is an action filed by a plaintiff who does not possess the
      land but has a right to possess it, against a defendant who has
      actual possession. Ejectment is a possessory action only, and can
      succeed only if the plaintiff is out of possession, and the plaintiff
      has a present right to immediate possession. An ejectment action
      differs from a quiet title action in that quiet title serves to
      determine the relative and respective rights of all potential title
      holders. In contrast, ejectment determines the immediate rights
      as between the plaintiff and the defendant.[FN1]

            FN1. See also 4 Goodrich-Amram 2d § 1051:2
            (“Generally, ejectment lies where the defendant is in
            possession of land claimed by the plaintiff, and if the
            plaintiff is in possession of land claimed by the
            defendant, the remedy of the plaintiff is action to quiet
            title.”).
      Therefore, to prevail in an ejectment action, the plaintiff must
      show title at the commencement of the action and can recover, if
      at all, only on the strength of his own title, not because of
      weakness or deficiency of title in the defendant. If a plaintiff in
      ejectment has presented at trial prima facie evidence that it has
      title to the property at issue, the burden then shifts to the
      defendant, unless the plaintiff’s proof necessarily defeats the
      plaintiff’s claim of title. Conversely, if the plaintiff’s claimed chain
      of title is faulty, the plaintiff has not shown a prima facie case, and
      the plaintiff’s ejectment case fails. An ejectment action likewise
      fails if the plaintiff is not a bona fide purchaser.

Becker, 2019 WL 123695 at *3 (quotation marks, citations, brackets and

some footnotes omitted).

      Here, Appellants argue only that the trial court “improperly granted the

summary judgment motion of [U.S. Bank] where SPS does not have authority

under the POA to bring this post-foreclosure ejectment on behalf of and in the

name of U.S. Bank [] in the first place.” Appellants’ Brief at 11. Appellants

misapprehend the nature of SPS’s involvement in this case. Contrary to their

characterization and     understanding,     SPS neither     brought    the   instant

ejectment action against Appellants nor is SPS a party to the action. Rather,

as an agent of U.S. Bank under the POA, SPS simply verified the complaint at



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issue.5 More important, as the trial court aptly found, this action “was brought

by [U.S. Bank], as owner of the Property . . . by virtue of a valid sheriff’s

deed.” Trial Court Opinion, 5/15/18, at 2. As noted, the complaint was signed

by counsel for U.S. Bank. Thus, viewing the record in the light most favorable

to Appellants, as the nonmoving party, we agree with the trial court’s

determination that U.S. Bank is entitled to possession of the Property, which

is supported by the record and free of legal error. Accordingly, we affirm the

trial court’s entry of summary judgment in favor of U.S. Bank.

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/22/19




____________________________________________


5 Appellants do not challenge SPS’s verification of the complaint on appeal.
As stated, SPS, as an agent for U.S. Bank pursuant to the POA, only verified
the complaint at issue. However, U.S. Bank, as owner of the Property,
initiated the ejectment action against Appellants.

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