J-S33016-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 DEUTSCHE BANK NATIONAL TRUST            :   IN THE SUPERIOR COURT OF
 COMPANY                                 :        PENNSYLVANIA
                                         :
                                         :
              v.                         :
                                         :
                                         :
 CARMEN SIERRA                           :
                                         :   No. 615 EDA 2017
                    Appellant            :

              Appeal from the Order Entered January 5, 2017
    In the Court of Common Pleas of Philadelphia County Civil Division at
                  No(s): October Term, 2015 No. 1510022


BEFORE:     OTT, J., McLAUGHLIN, J., and STEVENS*, P.J.E.

MEMORANDUM BY McLAUGHLIN, J.:                         FILED JULY 11, 2018

      Carmen Sierra appeals from the order denying her motion to strike

following entry of a default judgment in favor of Deutsche Bank National Trust

Company, Trustee for Home Equity Mortgage Loan Asset-Backed Trust Series

INABS 2006-C (“Deutsche Bank”). Because no fatal defect appears on the face

of the record, we affirm.

      Deutsche Bank filed a Complaint in Mortgage Foreclosure on October

21, 2015, alleging Sierra had defaulted on her mortgage payments for

property located on North 3rd Street in Philadelphia. Complaint at ¶¶ 5-6. The

Complaint alleged the mortgage was assigned to Deutsche Bank through the

following transactions:

          Assignor: Mortgage Electronic Registration Systems, Inc.
          (“MERS”), solely as nominee for IndyMac Bank, F.S.B., a
          federally chartered savings bank, its successors and/or
          assigns
____________________________________
* Former Justice specially assigned to the Superior Court.
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          Assignee: Deutsche Bank National Trust Company, as
          Trustee for Home Equity Mortgage Loan -Asset Backed Trust
          Series INABS 2006-C, Home Equity Mortgage Loan Asset -
          Backed Certificate Series INABS 2006-C.

          Date of Assignment: 03/20/2015

          Recorded Date: 04/09/2015

          Book/Instrument #: DocID: 52901513

          Page: N/A

Complaint at ¶ 1. The Complaint also included an itemized statement of the

amount due, id. at ¶ 6, and a demand for judgment for the amount due, id.

at 3. Sierra did not file an answer to the Complaint. On January 8, 2016, the

trial court entered a default judgment.

       On December 16, 2016, Sierra filed a Petition to Strike Plaintiff’s

Judgment.1 The trial court denied the motion on January 5, 2017. Sierra filed

a timely Notice of Appeal.

       Sierra raises the following issues on appeal:

          1 Did the Appellee have standing to enforce the note and
          foreclose on the mortgage attributable to Appellant[’]s
          property at 4703 N 3rd Street Philadelphia, Pennsylvania
          19120 on or before October 21, 2015?

          2. Is Appellee’s lack of standing to sue Appellant on or
          before October 21, 2015 a Fatal Defect and Irregularity on
          the record?

          3. Is the Appellee’s Lack of Ratification of Commencement
          on or before October 21, 2015 a Fatal Defect on the record?



____________________________________________


1On September 1, 2016, Sierra filed a Motion for Payment into the Court,
which the trial court denied.

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       4. Was the Appellee the Appellant[’]s Creditor on or before
       October 21, 2015?

       5. Is the Appellee governed solely by the Substantive Laws
       of the State of New York State?

       6. Is Deutsche Bank National Trust Company Trustee For
       Home Equity Mortgage Loan Asset-Backed Trust Series
       INABS 2006-C (hereinafter DBNTC) bound exclusively to the
       terms of its trust indenture?

       7. Does Appellee failure to strictly abide by the terms of its
       Trust Indenture constitute a Fatal Defect or irregularity on
       the record?

       8. Did Appellee own the promissory note attributed to
       Appellant on or before October 21, 2015?

       9. Does Appellee lack of ownership of the promissory note
       attributed to Appellant on or before October 21, 2015
       constitute a Fatal Defect or irregularity on the record?

       10. Was DBNTC a Real Party in Interest regarding
       Appellant[’]s property at 4703 N 3rd Street Philadelphia,
       Pennsylvania 19120 on or before October 21, 2015?

       11. Is DBNTC a Holder in Due Course of the promissory note
       attributed to Appellant on or before October 21, 2015?

       12. Was DBNTC just an unknown and unrelated third party
       Debt Collector regarding Appellants property at 4703 N 3rd
       Street Philadelphia, Pennsylvania 19120 on or before
       October 21, 2015?

       13. Is the Appellant a consumer?

       14. Did the Appellee claim the Appellant owed a debt to the
       Appellee associated with the case at bar?

       15. Did the Appellant dispute the debt claim of the Appellee
       associated with the case at bar?

       16. Did the Appellee validate the debt it claimed the
       Appellant owed the Appellee associated with the case at
       bar?




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         17. Did the Appellee verif[y] the debt it claimed the
         Appellant owed the Appellee associated with the case at
         bar?

         18. Is an unvalidated debt from a Debt Collector a Fatal
         Defect on the record?

         19. Is an unverified debt from a Debt Collector a Fatal Defect
         on the record?

         20. Is an unverified complaint of the actual Appellee an
         irregularity and Fatal Defect on the record?

         21. Did the Appellee provide any facts on the record to
         substantiate their rights to the possession of Appellants
         property at 4703 N 3rd Street Philadelphia, Pennsylvania
         19120 on or before October 21, 2015?

         22. Did the Appellee and Appellant have a Security
         Agreement with each other?

         23. Do[es] the lack of a security agreement between the
         Appellant and Appellee constitutes a Fatal Defect and
         irregularity on the record?

Sierra’s Br. at 14-21 (suggested answers omitted). In the 23 issues, Sierra

claims that the assignment to Deutsche Bank was invalid, Deutsche Bank did

not own the promissory note, and Deutsche Bank does not have standing and

is not a real party in interest.

      “An appeal regarding a petition to strike a default judgment implicates

the Pennsylvania Rules of Civil Procedure.” Bank of New York Mellon v.

Johnson, 121 A.3d 1056, 1059 (Pa.Super. 2015) (quoting Green Acres

Rehabilitation and Nursing Ctr. v. Sullivan, 113 A.3d 1261, 1267

(Pa.Super. 2015)). Because “[i]ssues regarding the operation of procedural

rules of court present us with questions of law,” we apply a de novo standard

of review to orders denying petitions to strike a judgment. Id. at 1060.


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       “A petition to strike a judgment is a common law proceeding which

operates as a demurrer to the record.” Wells Fargo Bank, N.A. v. Lupori, 8

A.3d 919, 921 (Pa.Super. 2010) (quoting U.S. Bank, N.A. v. Mallory, 982

A.2d 986, 991 (Pa.Super. 2009). When addressing a motion to strike a default

judgment, “[a] court may only look at the facts of record at the time judgment

was entered to decide if the record supports the judgment.” Id. at 920. “A

petition to strike does not involve the discretion of the court” and a court

should not grant a petition to strike a judgment “unless a fatal defect in the

judgment appears on the face of the record.” Id.2

       The trial court denied the motion to strike, reasoning that Sierra had

alleged no fatal defects or irregularities on the record. The court explained

that rather than do so, “she has attempted to substantively attack the

judgment arguing that Deutsche Bank failed to prove it owned or had signed



____________________________________________


2 Pennsylvania Rule of Civil Procedure 1147 requires a complaint in mortgage
foreclosure to allege:
          (1) the parties to and the date of the mortgage, and of any
          assignments, and a statement of the place of record of the
          mortgage and assignments;
          (2) a description of the land subject to the mortgage;
          (3) the names, addresses and interest of the defendants in the
          action and that the present real owner is unknown if the real
          owner is not made a party;
          (4) a specific averment of default;
          (5) an itemized statement of the amount due; and
          (6) a demand for judgment for the amount due.

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the promissory note, or that the note had been assigned to it.” Trial Court

Opinion, filed Dec. 28, 2017, at 3.

      The court did not err. Sierra does not allege a defect that would have

prevented entry of default judgment, and a review of the record does not

reveal such a defect. See Mallory, 982 A.2d at 994 (affirming denial of motion

to strike where complaint alleged plaintiff was legal owner of mortgage and it

was not apparent from face of record that plaintiff was not real party in

interest).

     Order affirmed.
Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/11/18




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