J-A27038-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

VIRGINIA HUMPHREYS AND BRIAN                      IN THE SUPERIOR COURT OF
HUMPHREYS                                               PENNSYLVANIA

                       v.

WELLS FARGO BANK N.A.

APPEAL OF: BRIAN HUMPHREYS
                                                      No. 2786 EDA 2015


                 Appeal from the Order Entered August 13, 2015
       in the Court of Common Pleas of Northampton County Civil Division
                         at No(s): C-48-CV-2014-12252

WELLS FARGO BANK N.A.                             IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                       v.

VIRGINIA L. HUMPHREYS AND BRIAN C.
HUMPHREYS

APPEAL OF: BRIAN HUMPHREYS
                                                      No. 2787 EDA 2015


                 Appeal from the Order Entered August 13, 2015
       in the Court of Common Pleas of Northampton County Civil Division
                          at No(s): C-48-CV-2011-3134

BEFORE: PANELLA, LAZARUS, FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                      FILED JANUARY 25, 2017

        Pro se Appellant, Brian Humphreys, appeals from two separate orders

entered in the Northampton County Court of Common Pleas respectively

granting summary judgment in favor of Appellee, Wells Fargo Bank, in a

*
    Former Justice specially assigned to the Superior Court.
J-A27038-16


foreclosure action and dismissing Appellant’s second amended complaint

against Appellee in a quiet title action.1       Appellant contends, in this

consolidated appeal, that Appellee was not the proper “note holder” in

connection with the mortgage at issue and therefore did not have the

authority to pursue a foreclosure action against him. We affirm.

      We adopt the facts and procedural history set forth in the trial court’s

opinion.   See Trial Ct. Op., 3/31/16, at 1-4.   On April 6, 2011, Appellee2

filed a mortgage foreclosure action (“foreclosure action”) against the parties

because Appellee had not received the required monthly payments after

November 2010. On August 25, 2011, the parties filed an answer consisting

of general denials and three paragraphs of affirmative defenses. Thereafter,

on October 17, 2011, the parties filed a motion for summary judgment,

which the trial court denied on December 7, 2011.      Appellee filed its own

motion for summary judgment on April 27, 2015, which the trial court

granted via an order and opinion dated August 13, 2015 (“Foreclosure

Opinion”). Appellant filed a timely notice of appeal on September 10, 2015

and a court-ordered Pa.R.A.P. 1925(b) statement on October 1, 2015. The


1
  Initially, Appellant and his Mother, Virginia L. Humphreys (collectively the
“parties”) were jointly involved in both actions in this consolidated case.
After Virginia Humphreys passed away in March 2015, Appellant continued
to pursue this appeal individually.
2
 We note that Appellee is the successor in interest, by way of merger, to
Wachovia Bank.




                                    -2-
J-A27038-16


trial court filed a responsive Pa.R.A.P. 1925(a) statement, referencing the

court’s Foreclosure Opinion.

      Meanwhile, on December 30, 2014, the parties initiated a quiet title

action against Appellee regarding the same property that is the subject of

the foreclosure action. Appellee filed timely preliminary objections, and the

parties filed an amended complaint on February 9, 2015.          Appellee filed

additional preliminary objections on March 2, 2015, and the parties filed a

second amended complaint.       On April 8, 2015, Appellee filed preliminary

objections in response to the second amended complaint.         After the trial

court conducted oral argument on May 26, 2015, the court ultimately

sustained Appellee’s objections and dismissed the parties’ second amended

complaint by order and opinion, also dated August 13, 2015 (“Quiet Title

Opinion”). Appellant filed a timely notice of appeal on September 10, 2015

and a court-ordered Pa.R.A.P. 1925(b) statement on October 1, 2015. The

trial court filed a responsive Pa.R.A.P. 1925(a) statement, referencing the

court’s Quiet Title Opinion.

       On November 9, 2015, this Court consolidated the two above-

referenced appeals.     Appellant filed a single brief incorporating his issues

regarding both cases.

      Appellant raises the following issues for our review:

         On its own accord, should the Court have claimed that the
         argument put forth in PHH Mortgage Corp. v. Powell,
         100     A.3d   611,    619    (Pa.  Super.    2014),     was
         “indistinguishable” from that presented in the instant case?


                                      -3-
J-A27038-16



         The Appellant’s 2011 Answer to Wells Fargo’s Foreclosure
         Complaint contained general denials; most of which were
         argued in great detail in later pleadings. Did the Court
         unjustly presume that [Appellant’s] Answer was dishonest?

Appellant’s Brief at 3-4.3

      The crux of Appellant’s issues is his contention that Appellee was not

legally permitted to pursue a foreclosure action against him because

Appellee was not the legal “note holder” in connection with the mortgage at

issue. No relief is due.

      Regarding summary judgment, our review is guided by the following

principles:

         The standards which govern summary judgment are well
         settled. When a party seeks summary judgment, a court
         shall enter judgment whenever there is no genuine issue of
         any material fact as to a necessary element of the cause of
         action or defense that could be established by additional
         discovery. A motion for summary judgment is based on an
         evidentiary record that entitles the moving party to a

3
   Appellant initially raised seventeen issues.    Appellant’s Brief at 2-9.
However, in his reply brief, Appellant indicated his intention to abandon all
but two issues for purposes of appellate review. Appellant’s Reply Brief at 1.
As set forth by Appellant, his “core issues” are encapsulated within his two
remaining issues. Id. We note that on December 14, 2015, Appellee filed a
motion to quash Appellant’s appeal based upon the many “material” defects
within Appellant’s Brief. We note that Appellant’s pro se arguments are
difficult to discern.  We remind Appellant that his pro se status does not
relieve him of his obligation to raise and develop his appellate claims
properly and this court will not act as appellate counsel. Smathers v.
Smathers, 670 A.2d 1159, 1160 (Pa. Super. 1996). However, Appellant’s
brief does provide argument and citation to legal authority regarding his two
remaining issues. See Pa.R.A.P. 2119. Therefore, we decline to quash his
appeal.




                                    -4-
J-A27038-16


         judgment as a matter of law. In considering the merits of
         a motion for summary judgment, a court views 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.
         Finally, the court may grant summary judgment only when
         the right to such a judgment is clear and free from doubt.
         An appellate court may reverse the granting of a motion
         for summary judgment if there has been an error of law or
         an abuse of discretion. . . .

Varner-Mort v. Kapfhammer, 109 A.3d 244, 246-47 (Pa. Super. 2015)

(citation omitted).

      This Court’s standard of review of orders sustaining preliminary

objections in the nature of a demurrer is well-settled:

         In determining whether the trial court properly sustained
         preliminary objections, the appellate court must examine
         the averments in the complaint, together with the
         documents and exhibits attached thereto, in order to
         evaluate the sufficiency of the facts averred. The impetus
         of our inquiry is to determine the legal sufficiency of the
         complaint and whether the pleading would permit recovery
         if ultimately proven. This Court will reverse the trial
         court's decision regarding preliminary objections only
         where there has been an error of law or abuse of
         discretion. When sustaining the trial court's ruling will
         result in the denial of claim or dismissal of suit, preliminary
         objections will be sustained only where the case is free and
         clear of doubt.

Donaldson v. Davidson Bros., Inc., 144 A.3d 93, 100 (Pa. Super. 2016)

(citation omitted).   The trial court’s decision to grant or deny a demurrer

involves a matter of law; therefore, “our scope of review is plenary, allowing

us to review the whole record.” Mistick, Inc. v. Northwestern Nat. Cas.

Co., 806 A.2d 39, 42 (Pa. Super. 2002) (citation omitted).



                                      -5-
J-A27038-16


      Integral to this case is the legal precept that “[o]wnership of [a] Note

is irrelevant to the determination of whether [an entity] is entitled to enforce

the Note.”   PHH Mort. Corp. v. Powell, 100 A.3d 611, 621 (Pa. Super.

2014) (quotation marks and citation omitted) (holding that holder of

promissory note had standing to enforce the attendant mortgage regardless

of petitioner’s claim that another entity, Fannie Mae, owned the note).

      After a thorough review of the record, the briefs of the parties, the

applicable law, and the well-reasoned opinions of the Honorable Anthony S.

Beltrami, we conclude Appellant’s issues merit no relief.      The trial court’s

opinions comprehensively discuss and properly dispose of the questions

presented.    See Foreclosure Opinion at 6-14; Quiet Title Opinion at 3-6;

(finding that Appellee had proper standing to pursue a foreclosure action

against Appellant and, accordingly, Appellant’s quiet title action was legally

insufficient). Accordingly, we affirm on the basis of the trial court’s opinions.

      Orders affirmed. Motion to quash denied.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 1/25/2017




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                 IN THE COURT OF COMMON PLEAS OF                        •• • T         ......-      -·    ~

                                                                                                 r
                NORTHAMPTON COUNTY, PENNSYLVANIA                              .
                                                                                   I

                                                                                                 ·~

                           CIVIL ACTION                                                                           • ...!..")



VIRGINIA L. HUMPHREYS and                  )
BRIAN C. HUMPHREYS,                        )        No.C-48-CV-2014-12252
     Plaintiffs                            )
                                           )
           v.                              )
                                           )
WEL'-S FARGO BANK, N.A.,                   )
     Defendant                             )

                        OPINION OF THE COURT

     This matter is before the Court on "Defendant's Preliminary Objections

to Plaintiffs1 Second Amended Cornplalnt."     Plaintiffs initiated this action to

quiet title against Defendant by filing a Complaint on December 30, 2014.

The Complaint    was   met   with    "Defendant's    Preliminary   Objections                                                 to

Plaintiff's Complaint," which were filed on January 20, 2015.         Rather than

respond to those objections,    Plaintiffs filed an Amended        Complaint                                           on

February 9, 2015.   Defendant filed Preliminary Objections to the Amended

Complaint on March 2, 2015.         Again, rather than rebut the objections,




                                       1


                                                                                                                                    Iu
  Plaintiffs filed a Second Amended Complaint on March 19, 2015.1                 On April 8,

  2015, Defendant filed the instant Preliminary Objections.               On April 28, 2015,

  Defendant filed a Brief in support of its Preliminary           Objections.    On May 20,

  2015, Plaintiffs filed a Brief in opposition to the same.            Oral argument was

  heard on May 26, 2015, and the matter is now ready for disposition.

         Defendant's first objection     is a demurrer      in which Defendant argues

 that Plaintiffs'   Second Amended       Complaint      fails to state a valid action to

 quiet title.   In the Second Amended Complaint,            Pia intiffs aver that Plaintiff

 Virginia L. Humphreys      owned real estate located at 2253 Linden Street,                in

 Bethlehem,     Northampton     County, Pennsylvania        (the "Property").       (Second

 Am. Campi. ,i 2.)      Plaintiffs further aver that although "Defendant            claims a

 lien against said [P]roperty adverse          to Plaintiff[s,]     Defendant's     claim   is

 without any right whatsoever,      and Defendant has no estate, right, title, lien,

 or interest whatsoever     in or to said [P] roperty."     (Id. ,i 3.)     Plaintiffs allege

that Defendant's claimed interest in the Property is based on two mortgages

executed by Plaintiffs on April 16, 2007.        (Id. ,i 4.)      Plaintiffs go on to aver,

in their own pleading, that the first mortgage was recorded on May 8, 2007,

in the Northampton      County Recorder of Deeds Office at Book 2007-1, page

170260 and that the second mortgage was recorded on the same date in the

same book at page 170279.          (Id. ,i 4(a)-(b).)    Plaintiffs then claim that the


          The Second Amended Complaint states that Plaintiff Virginia L. Humphreys passed
away on March 61 2015. (Second Arn. Cornpl. at 1.) The Court will continue to refer to
"Plaintiffs" in the plural, in accordance with the caption.

                                           2
  mortgages are invalid because "Defendant transferred                  its enforcement    rights

 to others ...      and has since acted only in the capacity of servicer of the"

 mortgage      accounts.      (Id. 11 5.)      In their     Second Amended          Complaint,

 Plaintiffs   attempt    to establish     an action       to quiet     title by alleging    that

 "Defendant is in a position neither to perform its eventual obligation to clear

 the Plaintiff's title to her property,      nor to enforce the applicable mortgages."

 (Id. at 1-2.)      The Second Amended              Complaint     spans thirty      pages and

 suggests myriad        reasons why, in Plaintiffs'        opinion,    Defendant    is not the

 proper entity to enforce the aforementioned              mortgages.

         The question      presented     by a demurrer          is whether,     on the facts

 pleaded, the law says, with certainty,           that no recovery is possible.        Orange

Stones Co. v. City of Reading, 87 A.3d 1014, 1021 n.7 (Pa. Commw. 2014).

The Court must resolve a demurrer                 solely on the basis of the pleadings,

without reference to testimony          or other outside evidence.            Hill v. Ofalt, 85

A.3d 540, 546 (Pa. Super. 2014).            However, in a case such as this, the Court

can take judicial    notice of public documents,           such as recorded mortgages,

when ruling on a demurrer.             See Solomon v. U.S. Healthcare Sys. of Pa.,

Inc., 797 A.2d 346, 352 (Pa. Super. 2002).                When considering       a demurrer,

the Court must accept, as true, all material facts averred in the challenged

pleading,     as well    as all   inferences       that   can   be reasonably        deduced

therefrom.      Schemberg v. Smicherko, 85 A.3d                 1071,     1073 (Pa. Super.

2014).

                                              3
            Preliminary objections which seek the dismissal of a cause of
           action should be sustained only in cases in which it is clear and
           free from doubt that the pleader will be unable to prove facts
           legally sufficient to establish the right to relief.  If any doubt
           exists as to whether a demurrer should be sustained, it should
           be resolved in favor of overruling the preliminary objections.

 Id.

           An action to quiet title may be brought, inter alia, "to determine                  any

 right, lien, title or interest in the land or determine the validity or discharge

 of any document, obligation or deed affecting any right, lien, title or interest

 in land" or "to compel an adverse party to flle, record, cancel, surrender or

 satisfy    of record,    or admit   the validity,      invalidity     or discharge    of, any

 document,      obligation   or deed affecting       any right,      lien, title or interest     in

 land."    Pa.R.C.P. No. 1061(b)(2)-(3).        "The purpose of an action to quiet title

is to resolve       a conflict   over an interest        in property."         Nat'/ Christian

Conference Ctr. v. Schuylkill Twp., 597 A.2d 248, 250 (Pa. Commw. 1991).

"In Pennsylvania[,]       a mortgage duly executed will be presumed to be valid

until the contrary       is shown, and the burden is on the party attacking                    the

mortgage to prove its invalidity.''        Pitti v. Pocono Bus. Furniture, Inc., 859

A.2d 523, 526 n.3 (Pa. Commw. 2004).              A mortgage is valid, on its face, if it

dearly states that it is a mortgage, describes the property to be mortgaged,

is signed by the mortgagor,          is notarized,     and is duly recorded within six

months of execution.         See In re Berry, 11 B.R. 886, 891 (W.D. Pa. 1981);

21 P.S. § 621.


                                            4
              In their Second Amended Complaint,              Plaintiffs specifically identify the

  two mortgages that were executed in Defendant's favor, and Defendant has

  attached copies of the same to its Preliminary                    Objections.      (Second Am.

  Compl. 11 4(a)-(b);          Prelim. Objections         Exs. E, G.)      The mortgages       were

  originally executed in favor of Wachovia Bank, National Association, to which

  Defendant       is the successor        in interest       by way of merger,       a succession

  Plaintiffs concede.        (Second Am. Compl. ,1 8; Prelim. Objections Exs. E, G,

 H .)    Upon inspection, the mortgages are plainly valid, as they clearly state

 that they are mortgages,           describe the Property mortgaged,               bear Plaintiffs'

 signatures, which are notarized, and were duly recorded within six months of

 execution       in a   manner      consistent       with    that described       in the   Second

 Amended Complaint.             Moreover, there are no facts pleaded in the Second

 Amended Complaint             that can be fairly characterized            as an attack on the

 validity of the mortgages.         In fact, Plaintiffs do not really dispute the validity

of      the     mortgages.      Rather,     Plaintiffs'      allegations    primarily      concern

Defendant's        purported     lack of authority and/or standing              to enforce the

mortgages.        For a discussion of why this argument              has no merit, see Wells

Fargo Bank, N.A, s/i/i/t/         Wachovia Bank v. Humphreys,               No. C-48-CV-2011-

3134, slip op. (C.P. of Northampton              Cnty. Aug. *, 2015), an opinion that is

being filed contemporaneously             with this Opinion and that grants summary

judgment in the related            mortgage      foreclosure     action involving       the same

parties and the first mortgage described above.

                                                 5
            Because Plaintiffs have pleaded no facts to rebut the presumptively

     valid mortgages,       the Second Amended Complaint creates no "conflict over

     an interest in property."         Nat'/ Christian, 597 A.2d at 250.     Thus, the action

    to quiet      title   is legally   insufficient,   and   Defendant's   demurrer     will   be

    sustained.2      Finally, because the Court cannot discern any way in which an

    additional pleading in this matter will vault Plaintiff's purported          claims into a

    place of legal sufficiency,          and in light of the Court's        opinion    granting

    summary judgment in the related mortgage foreclosure action, the Court will

    dismiss Plaintiffs'     Second Amended Complaint           with prejudice    and will not

    grant leave to file any further amended complaints.3               See Hill, 85 A.3d at

    557 (leave to amend following sustaining of demurrer may be refused where

    there is no reasonable probability that amendment will cure defect).

          WHEREFORE, the Court enters the following:




2
         For this reason, the Court need not reach Defendant's second objection asserting the
pendency of a prior action.
3
         It should be noted that Plaintiffs filed an almost identical action at docket number C-
48-CV-2014-1703.        In an Order filed on October 22, 2014, in response to preliminary
objections, the Honorable Stephen G. Baratta, President Judge, dismissed Plaintiffs'
Complaint without prejudice. Plaintiffs did not file an amended complaint within twenty
days in that action, as required by Pennsylvania Rule of Civil Procedure 1028(e). Rather,
Plaintiffs filed the instant action. Thus, Plaintiffs may not file an amended complaint at
either docket number.

                                                  6
                    IN THE COURT OF COM MON PLEAS OF
                  NORTHAMPTON COUNTY, PENNSYLVANIA
                              CIVIL ACTION

VIRGINIA L. HUMPHREYS and                    )
BRIAN C. HUMPHREYS,                          )
     Plaintiffs                              )
                                             )
             v.                              )
                                             )
WELLS FARGO BANK, N.A.,                      )
    Defendant                                )

                                ORDER OF COURT

      AND    NOW,    this 13th day of August,    2015, "Defendant's       Preliminary

Objections to Plaintiffs'   Second Amended    Complaint,"      filed on April 8, 2015,

are hereby SUSTAINED.          Plaintiffs' Second Amended        Complaint,   filed on

March 19, 2015, is hereby DISMISSED,         with prejudice.

                                                    BY THE COURT:




                                                                                J.




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                   IN THE COURT OF COMMON PLEAS OF                                                                             .
                  NORTHAMPTON COUNTY, PENNSYLVANIA                                                  ~·   .:        .:   •.     ~.     ",
                                                                                                                                ,:.:.·i
                             CIVIL ACTION

WELLS FARGO BANK, N.A. s/i/i/t/                  )
WACHOVIA BANK, N.A.,                             )       No. C-48-CV-2011-3134
    Plaintiff                                    )
                                                 )
                      v.                         )
                                                 )
BRIAN C. HUMPHREYS and                           )
VIRGINIA L. HUMPHREYS,                           )
     Defendants                                  )

                             OPINION OF THE COURT

      This matter      is before the Court on Plaintiffs          Motion for Summary

Judgment.      Briefs have been filed, oral argument was heard on May 26,

2015, and the matter is ready for disposition.            For the reasons that follow,

Plaintiff's Motion will be granted.

      On April 6, 2011, Plaintiff filed a Mortgage Foreclosure Complaint that

alleges the following facts.      On April 16, 2007, Defendants executed and

delivered a mortgage ("Mortgage")           to Wachovia Bank, N .A.1          on property

located   at   2253    Linden   Street,    in   Bethlehem,      Northampton             County,



     As discussed infra, Wachovia Bank, N.A. merged into Plaintiff and no longer exists.

                                            1
    Pennsylvania.          (Comp!.      <jl,i 4-5, Ex. A.)        The Mortgage is recorded                in the

    Office of the Recorder of Deeds for Northampton                           County at Deed Book 2007-

    1, Page 170260.            (Id. 'fl 4.)      The Complaint         alleges that the Mortgage is in

    default     because,      beginning       on November         15, 2010,         Defendants      have failed

    to make the required             monthly       payments.          (Id. ,i 6.)        The Complaint     avers

    that   Defendants         owe     $102,042.64             under     the    terms       of the    Mortgage,

    including    principal,     interest,       attorney's fees, late charges, and costs.                 (Id. ~

    7.)

           On August 25, 2011,              Defendants filed a "Notice of Verified Answer and

Verified Answer'' ("Answer").                    Defendants' Answer consists of general denials

to the allegations             in Plaintiff's      Complaint     and contains,            under the heading

"Affirmative        Defenses,''       three paragraphs purporting                   to assert recoupment,
                                                                                     2
unjust enrichment,             and fraud, as affirmative defenses.                        (Answer at 2.)     On

December           6,   2011,      Plaintiff      filed   a reply       to the purported            affirmative

defenses asserted in Defendant's                     Answer, essentially            denying all allegations

contained therein as conclusions                   of law.

           On October 17, 2011,               Defendants       filed a "Notice of Motion and Motion

for Summary             Judgment,         Rule     1035.2(a)."          Plaintiff    filed a Response        to

2
          On the same date, Defendants filed an "Affidavit of Defendant Virginia L.
Humphreys,"    which states that Defendant Virginia      L. Humphreys did not execute the
Mortgage and does not owe Plaintiff any money. However, the affidavit was not executed
by Virginia L. Humphreys.     Rather, it was signed by "Brian C. Humphreys, affiant." On the
same date, Defendants also filed an "Affidavit of Defendant Brian C. Humphreys," which
states that Defendant Brian C. Humphreys did not execute the Mortgage and does not owe
Plaintiff any money. However, the affidavit was not executed by Brian C. Humphreys in his
individual capacity.   Rather, it was signed by "Brian C. Humphreys, P.O.A. for Virginia L.
Humphreys, Affiant."      In any event, the Mortgage was signed by Defendants and is
notarized. (Pl.'s Mot. for Summ. J., Ex. B.)

                                                          2
 Defendants' Motion for Summary Judgment on November 25, 2011.                    In an

 Order of Court with Statement of Reasons filed on December 7, 2011, the

 undersigned denied Defendants' Motion for Summary Judgment, without

 prejudice.

         Plaintiff filed their instant Motion for Summary Judgment ("Motion'') on

 April 27, 2015.     On May 20, 2015, Defendants filed a Response to Plaintiff's

 Motion ("Response").      Attached to Plaintiff's Motion, as Exhibit A, is a copy of

the promissory note ("Note") that Defendants signed simultaneously                with

the execution of the Mortgage.           In the Note, Defendants promise to repay

the debt secured by the Mortgage and agree that "[t]he              Lender or anyone

who takes [the] Note and who is entitled to receive payments under [the]

Note will be called the 'Note Holder."'        (Mot. ~ 2, Ex. A at 1.) Plaintiff is in

possession of the original Note, which passed to it as a result of the merger

of Wachovia Bank, N.A. into Plaintiff.           (Mot. ,i,i 5-6.)   Also attached to

Plaintiff's Motion, as Exhibit F, is Plaintiff's Affidavit in Support of its Motion

("Plaintiff's   Affidavit"),   wherein     Plaintiff's   Vice   President   of    Loan

Documentation, Stephanie Casarez, states that Plaintiff is in possession of

the Note, that Defendants' Mortgage is in default as of November 15, 2010,

and that Defendants have failed to cure the default.        (Id. ,i 14, Ex. F.)




                                           3
                            3
              Defendants,        in their            Response,         include       their     own "Statement            of

    Facts,"    in which they admit that they executed                                  the Mortgage.4              (Resp.,

    Statement        of Facts    'fl'fl    1, 9.-)     Defendants further admit that they stopped

    making      payments        on the Mortgage                    after    October       15, 2010,         (Id. 'fl 8.)

    However,      Defendants              raise concerns            about the relationship               between       the

    Note and Mortgage           and the Federal National Mortgage Association                                 ("Fannie

    Mae").     Defendants claim that Plaintiff has informed them via telephone that

    the Mortgage. has been "transferred"                            to Fannie Mae.               (See id. ,i,i 5-6.)

    Defendants also claim that they are "in receipt of a letter, dated October 9,

    2012,     from     [Fannie            Mae]       stating       that     [Fannie       Mae]     now      owns      the

    mortgage."       (Id. ,i 14.)

            Defendants'         Response             also      includes        a     section     entitled     "Factual

Allegations."         However, upon further review, this section is actually identical

to     Defendants'        Brief.            Nevertheless,            Defendants           concede        therein     that

"[s]uccession         of [Defendants']                Note from Wachovia                  Bank, N.A.      (Wachovia)

to [Plaintiff]       is not an issue in this case."                        (Resp.,    Factual Allegations ,i 1.)

In addition,         Defendants           assert that an "Experian credit report Exhibited                              in

the Complaint           is intended              to offer          evidence        that    [Plaintiff]    transferred




3
         Throughout their Response, Defendants often mislabel themselves as "the Plaintiffs."
This is likely due to Defendants' status as the plaintiffs in Humphreys v, Wells Fargo Bank,
N.A., an action to quiet title docketed in Northampton County at No. C-48-CV-2014-12252
(the "Action to Quiet Title").       An Opinion and Order are being filed in that case
contemporaneously with the flling of the instant Opinion.
4
         Although the Response includes a "Statement of Facts," it does not contain a
verification or notice to plead.

                                                               4
 [Defendants']           Equity Account to another                   lender, and no-longer         holds the

Account.    If    (Id. 'fl 2.)

          Neither the letter from Fannie Mae informing                          Defendants that Fannie

 Mae owns the Mortgage nor the Experian credit report appear in the instant

record, but they are attached to Defendants' Second Amended Complaint in

the Action to Quiet Title.              "[A] court may not ordinarily take judicial notice in

one case of the records of another case."                            Gulentz v. Schanno Trensp., Inc.,

513 A.2d 440, 443 (Pa. Super. 1986).                           Nevertheless, even if the Court could

consider         these     materials,          they    would     not    be helpful       to   Defendants   in

opposing summary judgment.

          The letter from Fannie Mae, which is attached to the Second Amended

Complaint in the Action to Quiet Title as Exhibit E, does confirm that Fannie

Mae owns/invests                 in the        Mortgage        and that      Plaintiff    is the   servicer.

However, as will be discussed in greater detail infra, this does nothing to

inhibit    Plaintiff's       ability      to     enforce       the     Mortgage    through       foreclosure

proceedings.          As for the Experian credit report,                     which is attached        to the

Second Amended               Complaint           in the Action          to Quiet Title        as Exhibit   G,

Defendants         contend        that said report             indicates   that Plaintiff "reported        to

Experian that it had transferred                      the Account, making it obvious, if correct,

that [ Plaintiff]        is not in a position to litigate over the Account, which they

apparently        admittedly       no-longer           own."         (Resp. Factual Allegations        ~ 2.)

Again, Defendants conflate the concepts of ownership                               of the Mortgage and


                                                           5
 the right to enforce the same through foreclosure,    a distinction   that, as will

 be shown infra, is fatal to Defendants' argument.

         Pennsylvania Rule of Civil Procedure 1035.2 establishes the standard

 of review for a motion for summary judgment as follows:

               After the relevant pleadings are closed, but within such
         time as not to unreasonably delay trial, any party may move for
         summary judgment in whole or in part as a matter of law

                    (1) 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, or

                     (2) if, after the completion of discovery relevant to
              the motion, including the production of expert reports, an
              adverse party who will bear the burden of proof at trial has
              failed to produce evidence of facts essential to the cause of
              action or defense which in a jury trial would require the
              issues to be submitted to a jury.

Pa.R.C.P. No. 1035.2.      These two prongs represent the

      two main avenues per which summary relief may be granted.
       Employing    the first of these, a movant         may rely on
      uncontroverted facts, and/or allow that the factual allegations
      made by the non-moving party could be true, while contending
      that, even accepting such facts, judgment should be rendered
      for the movant as a matter of law. See Pa.R.C.P. No. 1035.2(1).
      Alternatively, after discovery, a party may challenge the ability
      of the non-moving party to adduce evidence of facts material to
      establishing a claim or defense. See id. No. 1035.2(2).

Lance v. Wyeth, 85 A.3d 434, 449-450 (Pa. 2014).

      Under either avenue, summary judgment may only be granted when

the record clearly shows that no genuine issue of material fact exists and the

moving    party   is entitled   to judgment as a matter of law. Summers v,


                                         6
  Certainteed Cotp., 997 A.2d 1152,               1159 (Pa. 2010).       The moving        party

  bears the     burden    of   proving    that    no genuine     issue of material          fact

 exists.    Barnish v. KWI Bldg. Co., 916 A.2d 642, 645 (Pa. Super. 2007).                    In

 deciding a motion for summary judgment,              the record must be viewed in the

 light most favorable       to the non-moving        party,   and any doubt as to the

 existence of a genuine issue of material fact must be resolved against the

 moving party. Ario v. Ingram Micro, Inc., 965 A.2d 1194, 1200 (Pa. 2009).

 Even where the facts are agreed                 upon, summary     judgment cannot           be

 entered     if the facts can support       conflicting    inferences.      Washington v.

 Baxter, 719 A.2d 733, 740 n.10 (Pa. 1998).

          The party opposing a motion for summary judgment

          may not rest upon the mere allegations or denials of the
          pleadings but must file a response within thirty days after
          service of the motion identifying

                     (1) one or more issues of fact arising from
               evidence in the record controverting the evidence
               cited in support of the motion or from a challenge to
               the credibility of one or more witnesses testifying in
               support of the motion, or

                     (2) evidence in the record establishing the facts
               essential to the cause of action or defense which the
               motion cites as not having been produced.

Pa.R.C.P. No. 1035.3(a)(1)-(2).          In other    words, the "[f]ailure        of a non-

moving party to adduce sufficient evidence on an issue essential to its case

and on which it bears the burden of proof such that a jury could return a

verdict    in its favor   establishes    the entitlement      of the     moving    party    to


                                             7
    judgment as a matter of law." Young v. Commonwealth,                 Dep 't of Transp.,

    744 A.2d 1276, 1277 (Pa. 2000). In deciding a motion                     for summary

    judgment,   the "record" available for the court's examination            includes the

    pleadings, discovery materials, affidavits, and expert reports.          Pa.R.C.P. No.

    1035.1.

                In a mortgage foreclosure action, summary judgment is
         appropriate if the mortgagors "admit that the mortgage is in
         default, that they have failed to pay interest on the obligation,
         and that the recorded mortgage is in the specified amount."
         Cunningham v. McWilliams, 714 A.2d 1054, 1057 (Pa. Super. Ct.
          1998) (citing Landau v. W. Pa. Nat'/ Bank, 445 Pa. 217, 282
         A. 2d 335, 340 (Pa. 1971) ). Summary judgment may be granted
         "even if the mortgagors have not admitted the total amount of
         the indebtedness in their pleadings." Id.

 U.S. Bank, Nat. Ass'n v. Zimmer,        No. 3: 12-CV-644, 2015 WL 412389, at *2

 (M.D. Pa. Jan. 30, 2015).          In the instant case, Defendants admit these

 requisite elements, because the general denials contained in their Answer

 act as admissions to all of the relevant allegations in Plaintiff's Complaint.5

As a result, there is no dispute that Defendants executed the Mortgage in

favor of Wachovia Bank, to which Plaintiff is the successor in interest by way

of merger, and that the Mortgage is in default.             In addition to the deemed


5
        "Averments in a pleading to which a responsive pleading is required are admitted
when not denied specifically or by necessary implication. A general denial or a demand for
 proof ...   shall have the effect of an admission."     Pa.R.C.P. No. 1029(b).    Generally
speaking, "for a denial to be specific, it must deny what is averred and then must
affirmatively aver what did occur in place of the facts that are denied."        5 STANDARD
PENNSYLVANIA PRACTICE 2d § 26:41. General denials by mortgagors in a foreclosure action,
"as to the principal and interest owing[,] must be considered an admission of those facts."
First Wisconsin Trust Co. v. Strausser, 653 A.2d 688, 692 (Pa. Super. 1995). In this case,
Defendants' Answer simply states "the allegation ... is denied" in response to each relevant
averment contained in Plaintiff's Complaint.    (Answer ,i,i 5-11.) Thus, paragraphs five
through eleven of Plaintiff's Complaint are deemed admitted.

                                             8
  admissions,       Defendants         affirmatively     admit     the    relevant      allegations         of

  Plaintiff in their Response.           (Resp., Statement        of Facts    ~«Jl   1, 8, 9.)     Despite

  this, Defendants oppose the entry of summary judgment on a ground that is

  quickly   becoming a tired one in this Commonwealth-that                             Plaintiff    is not

  entitled to enforce the Mortgage and/or is not the real party in interest.

        To begin with, this argument is, in essence, a claim that Plaintiff lacks

 the capacity to sue. "[P]reliminary objections                   [are] the appropriate            method

 by which to challenge a [plaintiff's]                 capacity to sue. 11       In re Adoption of

 S.P. T., 783 A.2d 779, 782 (Pa. Super. 2001);                      Pa.R.C.P. No. 1028(a)(S).

 "Lack of capacity to sue is waived if not raised on preliminary                          objections.       11




 Carroll v. Exeter Twp., No. 1580 C.D.2013, 2014 WL 3812323,                               at *6 n. 18

 (Pa. Commw. Aug. 4, 2014).               Defendants did not file preliminary              objections.

 Thus, Defendants have waived this argument.

       Even if this        argument       had not been waived,               it is without         merit.

Initially, the Court notes that there are no facts pleaded in Defendants'

response     to     Plaintiff's     Complaint    to     support    this   argument.              Further,

Defendants        have adduced no evidence in response to Plaintiff's                       Motion to

support this argument.               Rather, Defendants       reply upon bald assertions               in

their unverified      Response to the Motion and documents                       contained         in the

record of the Action              to Quiet Title which suggest            that Fannie Mae has

invested in or owns the Note.              As noted above, a party opposing a motion

for summary judgment may not rest upon the mere allegations or denials of


                                                 9
 the pleadings, nor the record in a collateral case, but must identify evidence

 in the record which establishes an issue of material fact or supports a valid

 defense.   Defendants have done neither.

       Finally, even if the Court accepted Defendants' bald assertions as true

and substantively     considered    the    record    in the   Action    to Quiet   Title,

Defendants' argument      lacks merit.     Defendants' argument        is focused on an

allegation that Fannie Mae is the true owner of the Note and, thus, must be

the one to enforce it.   However, a similar argument was recently rejected by

the Superior Court.      In PHH Mortgage Corp. v. Powell, 100 A.3d 611, 619

(Pa. Super. 2014), the appellant mortgagors           "insist[ed] that the document

in [the appellee mortgage company]'s           possession [could not] be the original

Note because they ha[d]      presented     evidence that the original       Note must

instead [have] be[en] in the possession of Fannie Mae."           A recitation of the

court's response to this argument is necessary and is as follows:

            The Powells' claim that PHH does not possess the original
      Note and Allonge is based solely on their insistence that the
      documents in PHH's possession cannot be the originals because
     they produced evidence showing that Fannie Mae possesses the
     originals. Specifically, the Powells attached to their response to
     PHH's second motion for summary judgment an affidavit from
     Mary Gutowski ("Gutowski"), in which she represents that she
     has expertise in searching for, obtaining, and understanding
     business and corporate records.      According to Gutowski, two
     documents (one obtained from the office of Congressman Mike
     Kelly and another from a search of a Fannie Mae database)
     describe Fannie Mae as the "investor" and "owner" of the
     Powells' loan. Gutowski concludes that these documents call into
     question PH H's "claim of ownership" of the Powells' Note.



                                          10
             PHH, however, does not claim to be the "owner" of the
       Note, but rather avers that it is a "person entitled to enforce" the
       Note because it is the holder in due course based upon its
       possession of the original Note and Allonge. Ownership of the
       Note is irrelevant to the determination      of whether PHH is a
       "person entitled to enforce" the Note, as the Comment to section
       3203 of the PUCC makes clear:

               The right to enforce an instrument and ownership of
               the instrument are two different concepts.   A thief
               who steals a check payable to bearer becomes the
               holder of the check and a person entitled to enforce
               it, but does not become the owner of the check ....
              Ownership rights in instruments may be determined
              by principles of the law of property, independent of
              Article 3, which do not depend upon whether the
              instrument was transferred under Section 3-203.
              Moreover, a person who has an ownership right in an
              instrument might not be a person entitled to enforce
             the instrument. ... · Although [a] document may be
             effective to give Y a claim to ownership of the
             instrument, Y is not a person entitled to enforce the
             instrument     until Y obtains    possession of the
             instrument.

       13 Pa.C.S.A. § 3203 Comment.

              In its Second Motion for Summary Judgment, including its
       affidavits and other exhibits (e.g., the Note, Allonge, Mortgage,
       and Assignment), PHH has established as a matter of law that it
       is a holder in due course of the Powells' Note and thus is
      "entitled to enforce" it pursuant to section 3301 of the PUCC.
      Evidence that some other entity may be the "owner" or an
       "investor" in the Note is not relevant to this determination, as
      the entity with the right to enforce the Note may well not be the
      entity entitled to receive the economic benefits from payments
      received thereon. The Powells have produced no evidence that
      creates a genuine issue of material fact with respect to PHH's
      claim of entitlement to enforce the Note, including no evidence
      that Fannie Mae (rather than PHH) has possession of the original
      Note.

Powell, 100 A.3d at 620-21 (citations omitted)   (emphasis added).


                                      11
         The Powell court went 011 to affirm the trial court's entry of summary

  judgment in favor of the appellee mortgage company.                        Id. at 621. Here, like

  the Powells, Defendants             argue that "[t] he facts in the record prove that

  Wachovia transferred          [Defendants']      Note to [Fannie Mae] before Wachovia's

  merger with [Plaintiff]."           (Defs.' Br. at 4.)        But the instant record does not

 reveal any evidence           in support       of that contention,         and Defendants        have

 produced none.          Continuing on, Defendants argue that the proper parties to

 enforce the Note may well be the "investors who purchased shares of Fannie

 Mae."       (Id.    at 5.)      In    line with      Powell,     this    argument     is   meritless.

 Defendants additionally         argue, "The [Uniform Commercial]                  Code is clear:       A

 person either owns the instrument,               with all of its associated rights, or does

 not own the instrument,          and has none of the associated rights."                   (Id. at 7.)

Again, even assuming, arguendo,                 that Fannie Mae is the true owner of the

Note/debt,      Powell        makes     clear    that    the    concepts      of   ownership       and

enforcement         rights   are wholly distinct.         That is, an entity can enforce a

mortgage debt without owning it, and vice versa.                         As Defendants' array of

arguments and sub-arguments               continue, they begin to trip themselves               up by

acknowledging        that "there is nothing in the record to indicate that the Note

was ever held by any singular               entity      other than [Plaintiff]."        (Id.   at 8.)

Defendants are correct           in at least that respect.               The Note is payable to

Plaintiff's predecessor by merger, as the original lender, and has not been

assigned to another servicer as in Powell, making this an even stronger case


                                                 12
  than Powell when it comes to any a_lleged claim that Fannie Mae must be the

  one to enforce the Note.

       Quite simply,    Plaintiff has attached a copy of the Note to its Motion,

 and the Note is clearly signed by Defendants.             The fact that the section of

 the Note labeled "Endorsement"           is completely    blank is irrelevant     because

 there is no evidence that anyone other than Pia inti ff or its predecessor by

 merger    ever held the Note.          Furthermore,      the Court sees no material

 difference between Powell, where the mortgagee produced the original note,

 and this case, where     Plaintiff    has produced       a copy bearing    Defendants'

 signatures and an affidavit stating that it possesses the original,             especially

 when there are no issues in this case, as there were in Powell, concerning

 any assignments, transfers, or endorsements of payment rights to any entity

other than the original lender.       Keeping in mind that Defendants, in opposing

a motion for summary      judgment, bear the burden of coming forward with

evidence that rebuts the evidence in support of Plaintiff's          Motion, it is clear

that the instant case is indistinguishable          from Powell, as well as an ever-

growing list of similar cases where mortgage debtors fail to deny the prime

facie elements of a mortgage          foreclosure    action yet oppose the entry of

judgment   due to an allegedly        faulty chain of possession of the pertinent

mortgage documentation.      See Bank of America, N.A. v. Gibson, 102 A.3d

462 (Pa. Super. 2014); see also Jobe v. Wells Fargo Bank, N.A., Civil Action

No. 3:10-1710    2014   WL 271654         (M.D. Pa. Jan. 23, 2014);         Nationstar


                                           13
Mortgage    LLC v. Masucci,    No. 201303627      2014    WL 7896604      (C.P. of

Montgomery Cnty. Feb. 3, 2014); BAC Home Loans Servicing,            L.P. v. Viola,

No. 00101 2014 WL 786387 (C.P. of Phila. Cnty. Jan. 28, 2014).           For all of

the above reasons, even if the issue Defendants          now raise had not been

waived, it would not assist Defendants in demonstrating       that Plaintiff is not

entitled to judgment as a matter of law.

      As all of the elements of Plaintiff's claim have been established,       and

since Defendants   have not identified     any genuine    issue of material   fact

arising from evidence in the record, Plaintiff is entitled    to judgment     as a

matter of law.

      WHEREFORE, the Court enters the following:




                                     14
                 IN THE COURT OF COMMON PLEAS OF
                NORTHAMPTON COUNTY, PENNSYLVANIA
                           CIVIL ACTION

WELLS FARGO BANK, N,A. s/i/i/t/          )
WACHOVIA BANK, N.A.,                     )     No.C-48-CV-2011-3134
    Plaintiff                            )
                                         )
                                                                           r--'
                  v.                     )                                 C::::>


                                         )
BRIAN C. HUMPHltEYS and                  )
VIRGINIA L. HUMPHREYS,                   )
     Defendants                          )

                            ORDER OF COURT



Summary Judgment is hereby GRANTED.          An in rem judgment is hereby

entered in favor of Plaintiff   and against Defendants in the amount of

$137,770.28,   plus costs and interest, at the per diem rate of $17.67, from

December 8, 2014, and for foreclosure and sale of the mortgaged premises.

                                         BY THE COURT:




                                                                      ],



                                     1
