J-S19041-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

BAYVIEW LOAN SERVICING, LLC,              :      IN THE SUPERIOR COURT OF
                                          :            PENNSYLVANIA
                  Appellee                :
                                          :
            v.                            :
                                          :
FARAH NAZ,                                :
                                          :
                  Appellant               :           No. 2839 EDA 2014

           Appeal from the Order entered on September 8, 2014
             in the Court of Common Pleas of Lehigh County,
                      Civil Division, No. 2013-C-1002

BEFORE: STABILE, JENKINS and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                          FILED APRIL 29, 2015

      In this mortgage foreclosure action, Farah Naz (“Naz”) appeals from

the Order entering summary judgment against her and in favor of Bayview

Loan Servicing, LLC (“Bayview”), and entering an in rem judgment against

her in the amount of $239,858.91. We affirm.

      In its Pa.R.A.P. 1925(a) Opinion, the trial court set forth the relevant

factual and procedural history underlying this appeal as follows:

            On October 17, 2005, [Naz] executed and delivered to
      Equity One, Inc.[,] d/b/a Popular Financial Services [“Equity
      One”], an Adjustable Rate Note [“the Note”] in the amount of
      $153,750.00 for the premises located at 202 North 7 th Street,
      Allentown, Lehigh County, Pennsylvania [hereinafter “the
      Property”]. The Mortgage was assigned to [Bayview] by way of
      an Assignment of Mortgage, recorded June 28, 2010 ….
      [Additionally, Equity One transferred the Note to Bayview.]

           On or about May 30, 2012, [Naz and Bayview] entered into
      an agreement [hereinafter “Loan Adjustment Agreement,”]
      whereby the unpaid principal balance on the Note was increased.
J-S19041-15


     Th[e Loan Adjustment A]greement was attached and marked as
     Exhibit D to [Bayview’s] Motion for Summary Judgment, and it
     includes [Naz’s] signature on the last page.

           [Bayview filed a] Complaint in Mortgage Foreclosure … on
     March 25, 2013[,] alleging default and seeking foreclosure based
     on payments and interest due August 1, 2011[,] and each month
     thereafter[,] being unpaid.

           [Bayview] filed a Motion for Summary Judgment on June
     25, 2014. [Naz] filed a response on July 24, 2014. …

            In response to the [M]otion for [S]ummary [J]udgment,
     [Naz] asserted that on the signature page of the [Loan
     Adjustment A]greement[,] she is the only person to have signed
     it.[1] …

            After oral argument[,] on … September 8, 2014, the [trial
     c]ourt entered an [O]rder granting summary judgment[, and
     entering a judgment of $239,858.91 against Naz]. On October
     3, 2014, [Naz timely filed] the instant appeal …. [Naz timely]
     filed a [Pa.R.A.P. 1925(b)] Concise Statement on October 27,
     2014.

Trial Court Opinion, 11/6/14, at 1-2 (unnumbered, footnote added).

     On appeal, Naz presents the following issues for our review:

       I. Whether or not the failure to plead the relevant facts
          concerning the [L]oan [Adjustment A]greement – unsigned
          by [Bayview] – requires the Motion for [S]ummary
          [J]udgment to be denied?

      II. Whether or not the failure of [Bayview] to sign [the Loan
          Adjustment Agreement] defeat[s] privity between the
          parties?

     III. Whether or not [Bayview] has standing to sue on a
          mortgage foreclosure when [Bayview] only becomes a
          party if it signed the Loan Adjustment Agreement …, and
          [Bayview] never signed the Loan [Adjustment Agreement]?

1
  It is undisputed that Naz was the only person/party to have signed the
Loan Adjustment Agreement.


                                -2-
J-S19041-15



      IV. Whether or not the trial court erred as a matter of law by
          holding that [Bayview] automatically had standing on an
          [E]quity [O]ne mortgage?

Brief for Appellant at 2 (capitalization omitted).

            [o]ur scope of review of a trial court’s order granting or
      denying summary judgment is plenary, and our standard of
      review is clear: the trial court’s order will be reversed only
      where it is established that the court committed an error of law
      or abused its discretion.

             Summary judgment is appropriate only when the record
      clearly shows that there is no genuine issue of material fact and
      that the moving party is entitled to judgment as a matter of law.
      The reviewing court must view the record in the light most
      favorable to the nonmoving party and resolve all doubts as to
      the existence of a genuine issue of material fact against the
      moving party. Only when the facts are so clear that reasonable
      minds could not differ can a trial court properly enter summary
      judgment.

Hovis v. Sunoco, Inc., 64 A.3d 1078, 1081 (Pa. Super. 2013) (citation

omitted).

      We will address Naz’s four related issues simultaneously, as they all

concern whether the Statute of Frauds was satisfied in this case (based upon

the fact that Naz was the only party to have signed the Loan Adjustment

Agreement), and whether there was an enforceable contract between the

parties upon which Bayview could sue.

      The Statute of Frauds, 33 P.S. § 1 et seq., generally requires that

interests in land may be granted, assigned or surrendered only by a writing.

             The Statute of Frauds is satisfied by the existence of a
      written memorandum signed by the party to be charged and
      sufficiently indicating the terms of the oral agreement so that


                                   -3-
J-S19041-15


      there is no serious possibility of consummating fraud by its
      enforcement. … The purpose of the Statute of Frauds is to
      prevent the enforcement of unfounded fraudulent claims by
      requiring that contracts pertaining to interests in real estate[,
      which includes mortgage agreements,] be supported by written
      evidence.

Strausser v. Pramco, III, 944 A.2d 761, 765 (Pa. Super. 2008) (citations

omitted).

      Naz asserts that the Statute of Frauds was not satisfied, arguing as

follows:

      [Bayview] attempted to put itself onto the share of Equity
      [concerning the Property,] but the Loan Adjustment Agreement
      was not signed by it. Without the signature of both sides of the
      agreement, there is no valid Loan Adjustment Agreement. If
      there is no valid Loan Adjustment Agreement, [Naz] cannot be
      sued for breaching it.

Brief for Appellant at 5. Relatedly, Naz claims that because Bayview did not

have a representative sign the Loan Adjustment Agreement, there is no

privity of contract between the parties. Id. at 5-6. Finally, Naz challenges

Bayview’s standing to sue, pointing out that Equity One, not Bayview,

executed the initial mortgage agreement, and, according to Naz, Bayview

failed to proffer sufficient evidence that Equity One had effectuated an

enforceable assignment of the mortgage to Bayview. Id. at 6-7.

      First, concerning the Statute of Frauds, we discern no violation

because Naz signed the Loan Adjustment Agreement. It is of no moment for

purposes    of   the   Statute   of   Frauds   that   Bayview   did   not   have   a

representative sign the Loan Adjustment Agreement, because Naz, the party



                                      -4-
J-S19041-15


sought to be bound, signed the Agreement, thereby acknowledging its

existence and its terms. See Strausser, supra; see also Hessenthaler v.

Farzin, 564 A.2d 990, 994 (Pa. Super. 1989) (stating that “[a] writing

required by the Statute of Frauds need only include an adequate description

of the property, a recital of the consideration and the signature of the party

to be charged.” (emphasis added)). Additionally, Naz signed the Note, and

Bayview, as Equity One’s predecessor in interest, was the holder of the Note.

See Strausser, 944 A.2d at 765 (stating that the Statute of Frauds can be

satisfied by any combination of multiple documents that, taken together

make out the necessary terms of the parties’ agreement).

      Additionally, there is no merit to Naz’s challenge to Bayview’s

standing, as Equity One had assigned the mortgage to the Property to

Bayview via an Assignment of Mortgage recorded on June 28, 2010.         See

Complaint, 3/25/13, Exhibit E (Assignment of Mortgage); see also US Bank

N.A. v. Mallory, 982 A.2d 986, 993 (Pa. Super. 2009) (observing that the

assignment of a mortgage confers standing to the assignee, even in some

cases, unlike the instant case, where the assignment was not recorded).

Indeed, Naz concedes that Bayview attached the Assignment of Mortgage to

its Complaint. Brief for Appellant at 6. Accordingly, it is clear that Bayview

has standing.

      Finally, by virtue of the Assignment of Mortgage, there is no merit to

Naz’s claim that Bayview failed to present sufficient evidence that there was



                                 -5-
J-S19041-15


privity of contract between the parties. See Crawford Cent. Sch. Dist. v.

Commonwealth, 888 A.2d 616, 620 (Pa. 2005) (stating that where an

assignment is effective, “an assignee stands in the shoes of the assignor.

Privity is not an issue in cases involving assignment claims; an assignee

does not pursue a cause of action in its own right.” (citations omitted)).

Moreover, Bayview was the holder of the Note.           See 13 Pa.C.S.A.

§§ 3205(b) and 3109(a) (collectively providing that when indorsed in blank,

such as the Note here, an instrument becomes payable to the bearer and

the bearer has the right to enforce the Note).   Accordingly, none of Naz’s

issues on appeal entitle her to relief.

      Because we discern no abuse of discretion or error of law by the trial

court in granting Bayview’s Motion for Summary Judgment, and entering

judgment against Naz, we affirm the Order on appeal.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 4/29/2015




                                   -6-
