J-S68038-17


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

NATIONSTAR MORTGAGE, LLC,                 :   IN THE SUPERIOR COURT OF
                                          :         PENNSYLVANIA
                  Appellee                :
                                          :
          v.                              :
                                          :
MARK JOSEPH ELSESSER,                     :
                                          :
                  Appellant               :   No. 608 MDA 2017

                 Appeal from the Order Entered March 21, 2017
                 in the Court of Common Pleas of Berks County,
                       Civil Division, at No(s): 2013-15154

BEFORE:        LAZARUS, DUBOW, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:           FILED NOVEMBER 30, 2017

      Mark Joseph Elsesser appeals from the March 21, 2017 order that

denied his petition to set aside sheriff’s sale and vacate void judgment in

this mortgage foreclosure action. We affirm the order. Further, finding

Elsesser’s appeal to be dilatory, obdurate, and wholly frivolous, we remand

for a hearing to determine the amount of costs and counsel fees incurred by

Appellee Nationstar Mortgage, LLC (Nationstar) in litigating this appeal.

      In December 2006, Elsesser executed a promissory note and mortgage

in exchange for a loan of $173,000 from Countrywide Home Loans, Inc.

Elsesser stopped making his monthly mortgage payments in March 2012. In

June 2013, then-holder of the note Nationstar filed a complaint in

foreclosure.




*Retired Senior Judge assigned to the Superior Court.
J-S68038-17


       Nationstar eventually obtained summary judgment against Elsesser by

order of July 7, 2014. In his first appeal to this Court, Elsesser challenged,

inter alia, “the validity of the chain of assignments of the Mortgage and

Note….”      Nationstar Mortgage, LLC v. Elsesser, 120 A.3d 1054 (Pa.

Super. 2015) (unpublished memorandum at 7).               Upon examination of the

record, this Court determined that, because Nationstar possessed the

original note, which was a negotiable instrument, Nationstar had standing to

foreclose.    Id.     (unpublished memorandum at 9).         Therefore, “Elsesser’s

argument as to the chain of ownership of the loan fail[ed] as a matter of

law.” Id.

       Elsesser next filed in the trial court a petition to strike judgment,

“alleging that the judgment was void and unenforceable because the process

of   securitization    of   the   Note   stripped   Nationstar   of   any   standing.”

Nationstar Mortgage, LLC, v. Elsesser, 158 A.3d 178 (Pa. Super. 2016)

(unpublished memorandum at 4). Elsesser timely appealed the order that

denied his petition, and the case was stayed pending the appeal. This Court

first noted that the law of the case doctrine militated against addressing the

merits of the issue, because it is one that Elsesser could have raised in his

first appeal, but did not. Id. (unpublished memorandum at 5-7). Further,

this Court held that the “argument that the process of securitization

somehow ‘destroyed’ the Note and it ceased to be a secured asset or

negotiable instrument tied to any collateral or debt obligation is nonsense.”


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Id. at 8.     Therefore, this Court affirmed the order denying the petition to

strike.

      After the trial court granted Nationstar’s motion to lift the stay,

Nationstar bought the property at a sheriff’s sale on January 6, 2017.

Elsesser filed a petition to set aside the sale and vacate the judgment, which

the trial court denied by order entered March 21, 2017. Elsesser then filed

the instant appeal, and timely complied with the trial court’s order to file a

concise statement of errors complained of on appeal.

      Elsesser presents three questions for our review.

      (I).     Did the trial court err in denying the petition to set aside
               sheriff sale where [Elsesser] made a showing of extrinsic
               fraud?

      (II). Is [Nationstar’s] selectively timed production of two (2)
             competing promissory notes in the litigation evidence of
             intentional fraud sufficient to set aside the sheriff sale and
             void the underlying judgment?

      (III). Should equitable relief afford relief from both the judgment
             and sale inasmuch as circumstances have arisen making it
             inequitable to enforce the judgment and sale?

Elsesser’s Brief at 8 (suggested answers and unnecessary capitalization

omitted).

          Elsesser’s issues all relate to the fact that Nationstar attached to its

June 25, 2015 motion to reassess damages a copy of the note that was

made before it was endorsed, whereas the copy of the note attached to

Nationstar’s motion for summary judgment had an endorsement. While he



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acknowledges that Nationstar produced the original, endorsed note at a July

17, 2014 hearing, and it was that note that served as the basis of the trial

court’s decision to grant summary judgment to Nationstar, Elsesser now

claims that the existence of different photocopies of the note “calls into

serious question the authenticity” of the note produced at the hearing.

Elsesser’s Brief at 20.

      As recognized by the trial court, Elsesser’s argument is nothing more

than another attack on Nationstar’s standing, an issue decided by the trial

court long ago and twice affirmed by this Court.         Trial Court Opinion,

5/31/2017, at 4-5. As this Court explained in Elsesser’s last appeal, it is the

law of the case that Nationstar had standing to foreclose against the

mortgaged property as the holder of the note.       Elsesser, 158 A.3d 178

(unpublished memorandum at 5-7). Elsesser cannot relitigate the issue now

based upon something of which he was fully aware prior to his last appeal.

Kurns v. Soo Line R.R., 72 A.3d 636, 639 (Pa. Super. 2013) (“An appellant

cannot pursue in a subsequent appeal matters which he or she could have

pursued in a prior appeal.”) (citation and internal quotation marks omitted).

As such, it is patently clear to this Court that this appeal is dilatory,

obdurate, and wholly frivolous.

      This is the second frivolous appeal Elsesser has pursued in this matter.

See Elsesser, 158 A.3d 178 (unpublished memorandum at 8) (describing

Elsesser’s argument as “nonsense”). Additionally, two different judges in the


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trial court have opined that Elsesser should not be permitted to delay further

in this case. Trial Court Opinion, 5/31/2017, at 5. Accordingly, we hold that

Nationstar is entitled to recover costs of the appeal, including counsel fees,

the amount of which shall be determined by the trial court upon remand.

See Pa.R.A.P. 2744 (“[A]n appellate court may award as further costs

damages as may be just… if it determines that an appeal is frivolous or

taken solely for delay or that the conduct of the participant against whom

costs are to be imposed is dilatory, obdurate or vexatious.       The appellate

court may remand the case to the trial court to determine the amount of

damages authorized by this rule.”); Jackson v. Modern Mailers, Inc., 537

A.2d 878, 880 (Pa. Super. 1988) (“Because of the settled nature of the legal

issue presented and because of appellants’ two previous appeals to this

Court regarding the same cause of action, we conclude that the instant

appeal is frivolous and that counsel fees should be awarded.”).

      Order affirmed.     Case remanded for further proceedings consistent

with this memorandum. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/30/2017




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