J-A29024-13

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

BAC HOME LOANS SERVICING, LP            :     IN THE SUPERIOR COURT OF
f/k/a COUNTRYWIDE HOME LOANS            :          PENNSYLVANIA
SERVICING, LP,                          :
                                        :
                       Appellee         :
                                        :
           v.                           :
                                        :
KENT GUBRUD,                            :
                                        :
                       Appellant        :     No. 3285 EDA 2012


          Appeal from the Judgment Entered November 10, 2012,
          In the Court of Common Pleas of Northampton County,
                 Civil Division, at No. C 48 CV 2010-8820.


BEFORE: GANTMAN, SHOGAN and PLATT*, JJ.

MEMORANDUM BY SHOGAN, J.:                    FILED SEPTEMBER 11, 2014

                                                    pro se from the order

granting judgment in favor of BAC Home Loans Servicing, LP f/k/a



foreclosure action. We affirm.

     We summarize the history of this case as follows.   The mortgage at

issue in this matter, dated October 7, 2005 for $359,600.00, was recorded

on October 18, 2005, in Northampton County. The mortgage was originally




being Key Bank National Association).



__________________
*Retired Senior Judge assigned to the Superior Court.
J-A29024-13



       Gubrud failed to make several mortgage payments. In anticipation of

filing a foreclosure action against Gubrud, Appellee, which became holder of

the first lien mortgage, sent Gubrud pre-foreclosure Act 91 cure notices

dated June 1, 2010, via certified mail.     The notices were served upon

Gubrud, who signed for them. On August 13, 2010, Appellee filed an action

in mortgage foreclosure against Gubrud.     Gubrud filed an answer to the

complaint containing general denials.      Gubrud did not file preliminary

objections and did not file a new matter. On May 16, 2011, assignment of

the mortgage from MERS to Appellee was recorded.

       On April 11, 2012, Appellee filed a motion for summary judgment for

                                      On May 25, 2012, Gubrud filed a reply

opposing the motion for summary judgment and a cross-motion for

summary judgment, claiming that Appellee did not have standing to proceed

with the underlying foreclosure action. On June 25, 2012, Appellee filed a

repl                    -motion for summary judgment.     On September 4,

2012, oral argument was held on both motions for summary judgment. On



Supplemental Brief In Support Of Its Summary Judgment




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motion for summary j



for summary judgment, in the amount of $368,717.38, and in the same

                                                                 followed.

     Gubrud presents the following issues for our review:



     attorney had failed to verify the complaint on behalf of
     [Appellee] in accordance with Rule 1024 and also falsely claimed
     personal knowledge?


     Summary Judgment Motion which established that [Appellee]
     failed to establish possession of the Note?

     C. Did the trial Court
     Motion for Summary Judgment which established that [Appellee]
     (a stranger to the Note and Mortgage) failed to demonstrate that
     it had acquired from MERS the right to enforce the Note because
     MERS (also a stranger to the Note) had acquired a sufficient
     ownership interest in the Note?


     because [Gubrud] established that [Appellee] was unable to cure
     its lack of standing at the time it filed its complaint via
     subsequent Assignment?


     Judgment Motion when [Gubrud] established that [Appellee]
     failed to join an indispensible [sic] party?

                                                                    ]

     complaint failed to allege whether its Assignment was oral or
     written and failed to attach a copy of the Note?




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     G. Did the trial court err in granting [Appellee] Summary
                                   ] alleged failure to specifically
     deny Paragraphs 4-8 of the complaint, despite the court and
     [Appellee] admitting that [Gubrud] had sufficiently disputed
     Paragraphs 1 and 3?



     Initially, we observe that in reviewing matters of summary judgment,

we are governed by the following well-established principles:

            Our scope of review of an order granting summary
     judgment is plenary. We apply the same standard as the trial
     court, reviewing all the evidence of record to determine whether
     there exists a genuine issue of material fact. We view 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. Chenot v. A.P.
     Green Services, Inc., 895 A.2d 55, 60-61 (Pa. Super. 2006)
     (citation omitted).


     proof of the elements of his cause of action. Chenot, 895 A.2d

     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


     of any material fact as to a necessary element of the cause of
     action or defense which could be established by additional
     d
     moving party is entitled to judgment as a matter of law,
     summary judgment is appropriate. Thus, a record that supports
     summary judgment either (1) shows the material facts are
     undisputed or (2) contains insufficient evidence of facts to make
     out a prima facie cause of action or defense. Chenot, 895 A.2d
     at 61.




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           When reviewing a grant of summary judgment, we are not

     own conclusions. Id

     discretion requires action in conformity with law on facts and
     circumstances before the trial court after hearing and
                        Chenot, 895 A.2d at 61 (citation omitted).
     Consequently, the court abuses its discretion if, in resolving the
     issue for decision, it misapplies the law, exercises its discretion
     in a manner lacking reason, or does not follow legal procedure.
     Id. (citation omitted).

            Where the discretion exercised by the trial court is
     challenged on appeal, the party bringing the challenge bears a
     heavy burden. It is not sufficient to persuade the appellate court
     that it might have reached a different conclusion if charged with
     the duty imposed on the court below; it is necessary to go
     further and show an abuse of the discretionary power. Chenot,
     895 A.2d at 61 (citation omitted). An abuse of discretion is not
     merely an error of judgment, but if in reaching a conclusion the
     law is overridden or misapplied or the judgment exercised is
     manifestly unreasonable or the result of partiality, prejudice,
     bias or ill-will, as shown by the evidence or the record, discretion
     is abused. Id. at 61-62 (citation omitted).

Continental Casualty Company v. Pro Machine, 916 A.2d 1111, 1115-

1116 (Pa. Super. 2007).

     Gubrud first argues that the trial court erred when it failed to grant his



attorney failed to verify the complaint on behalf of Appellee.    Specifically,

Gubrud contends that the verification of the complaint filed by Appellee,

which initiated this matter, was not in accordance with Pa.R.C.P. 1024 and

                                                                            h he

did not have.



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         Before we may address the merits of this issue, we must first

determine whether Gubrud has properly preserved the issue before the trial

court.     Pennsylvania Rule of Civil Procedure 1032 addresses waiver of

defenses and provides, in relevant part, as follows:

         Rule 1032. Waiver of Defenses. Exceptions. Suggestion
         of Lack of Subject Matter Jurisdiction or Failure to Join
         Indispensable Party

            (a) A party waives all defenses and objections which are not
         presented either by preliminary objection, answer or reply,
         except a defense which is not required to be pleaded under Rule
         1030(b) [the affirmative defenses of assumption of the risk,
         comparative negligence and contributory negligence], the
         defense of failure to state a claim upon which relief can be
         granted, the defense of failure to join an indispensable party, the
         objection of failure to state a legal defense to a claim, the
         defenses of failure to exercise or exhaust a statutory remedy
         and an adequate remedy at law and any other nonwaivable
         defense or objection.

Pa.R.C.P. 1032(a).

         Pennsylvania Rule of Civil Procedure 1017 specifies the list of

permissible pleadings allowed in civil matters and provides, in relevant part,

as follows:

         Rule 1017. Pleadings Allowed

              (a) Except as provided by Rule 1041.1 [addressing
         asbestos litigation], the pleadings in an action are limited to

                     (1) a complaint and an answer thereto,

                    (2) a reply if the answer contains new matter,
               a counterclaim or a cross-claim,




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                  (3) a counter-reply if the reply to             a
             counterclaim or cross-claim contains new matter,

                   (4) a preliminary objection and a response
             thereto.

Pa.R.C.P. 1017(a).

        Pennsylvania Rule of Civil Procedure 1028 addresses preliminary

objections and provides, in relevant part, as follows:

        Rule 1028. Preliminary Objections

              (a) Preliminary objections may be filed by any party to any
        pleading and are limited to the following grounds:

                                   ***

               (2) failure of a pleading to conform to law or rule
             of court . . . .

Pa.R.C.P. 1028(a)(2).

        Our review of the record reflects that, while Gubrud did file an answer



answer contained only cursory denials of the facts pled within the complaint.

                                                 ter. Furthermore, our review

of the record reflects that Gubrud failed to follow Rule 1028(a)(2) and file

preliminary objections to the complaint, in which he would have properly

                                                                             P.

1024.    Thus, we are constrained to conclude that, pursuant to Rule 1032,




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J-A29024-13




been waived.1

      In his second issue, Gubrud again argues that the trial court erred in

failing to grant his motion for summary judgment.       Specifically, Gubrud

contends that summary judgment should have been granted in his favor

because Appellee failed to establish possession of the original note, which

precipitated the instant mortgage foreclosure action.    Essentially, Gubrud



instant mortgage foreclosure action.    In support of his contention, Gubrud

                              JP Morgan Chase Bank, N.A. v. Murray, 63

A.3d 1258 (Pa. Super. 2013). For the following reasons, we conclude that

this issue is waived. In addition, we conclude that our decision in Murray

does not provide grounds for relief.



the instant action in mortgage foreclosure, we are constrained to conclude




1
 In addition, to the extent that Gubrud relies upon our decision in JP
Morgan Chase Bank, N.A. v. Murray, 63 A.3d 1258 (Pa. Super. 2013) to

we note that Murray, discussed infra, is readily distinguishable because the
defendant in Murray actually filed preliminary objections to the complaint
and included a challenge to the verification in his preliminary objections.
Such was not the case in the instant matter.


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J-A29024-13




cursory denials of the facts pled and did not contain any new matter. Thus,

we must conclude that, under Pa.R.C.P. 1032, the challenge to standing due

to an alleged lack of possession of the note in question is waived.

      Also, we must observe that our decision in Murray is distinguishable

from the instant case. In Murray, the defendant challenged the standing of

the mortgage holder to initiate the foreclosure proceedings in preliminary

objections. Instantly, Gubrud failed to make any such challenge in either his

answer to the complaint in mortgage foreclosure, or by filing preliminary

objections. Thus, we must conclude that Murray does not provide Gubrud

with the relief he seeks.

      In his third issue, Gubrud further argues that the trial court erred in

failing to grant his motion for summary judgment on the basis that proper

possession of the note was not established. He alleges that Appellee failed

to demonstrate that MERS had ever acquired any relevant ownership

interest in the note, which would have permitted MERS to transfer title to

Appellee. Gubrud concludes that, as a result, Appellee failed to prove a right

to enforce the note.

      In MERS v. Ralich, 982 A.2d 77 (Pa. Super. 2009), we addressed a

somewhat similar argument wherein the Ralichs alleged MERS lacked the




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were transferred from MERS to American Home Mortgage Servicing, Inc.

The mortgage and note were then transferred through bankruptcy from

American Home Mortgage Servicing, Inc. to AH Mortgage Acquisition Co. Inc.

     In concluding that MERS had the authority to act under the language

of the appropriate documents, we observed the following:

           The Mortgage provides at ¶ C that MERS is the mortgagee

     successors and assigns.

           The Mortgage also provides:

           Borrower understands and agrees that MERS holds
           only legal title to the interests granted by Borrower
           in this Security Instrument, but, if necessary to
           comply with law or custom, MERS (as nominee for

           right: to exercise any or all of those interests,
           including, but not limited to, the right to foreclose
           and sell the Property; and to take any action
           required of Lender including, but not limited to,
           releasing and canceling this Security Instrument.

     Id. at 3 (emphasis added).

        As the trial court correctly found, the Mortgage vests MERS
     with the authority, as nominee, to enforce the loan. The trial

     and deed must be set aside for want of authority is directly at
     odds with the explicit acknowledgement by [the] Ralich[s] at the
     time of refinancing that MERS would have precisely the authority




Ralich, 982 A.2d at 81 (emphasis in original).




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J-A29024-13



      Our review of the record reflects that the mortgage at issue in this

case contains the identical language as the mortgage cited above in our

decision in Ralich.     See

Summary Judgment at p. 3 of 16. Accordingly, as this Court held in Ralich,

we are constrained to conclude that MERS had a valid ownership interest in

the security documents and the authority to enforce the loan in question.



Appellee lacks merit.

      In his fourth and fifth issues, Gubrud presents interrelated arguments.

Gubrud asserts that the trial court erred in failing to grant his motion for

summary judgment because Appellee was unable to cure its lack of standing

at the time it filed its complaint,

favor was necessary because Appellee failed to join as a plaintiff an

indispensable party who owned the note. Essentially, Gubrud believes that

Appellee could not cure its alleged lack of standing at the time it filed its

complaint in August of 2010, by subsequently obtaining possession of the

relevant documents by assignment from MERS in May of 2011.

      A plaintiff in a foreclosure action is required to set forth, in the

complaint, all assignments of the mortgage.     Pa.R.C.P. 1147(a)(1).   This

Court has previously held that setting forth the chain of assignments of a

mortgage in the complaint was critical to establishing standing in a




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foreclosure action.   See Wells Fargo Bank, N.A. v. Lupori, 8 A.3d 919,

922 (Pa. Super. 2010) (holding allegations by a purported mortgagee that it

owned the subject mortgage and that there was a pending assignment to

that mortgagee were sufficient to establish standing for foreclosure action);

US Bank N.A. v. Mallory, 982 A.2d 986, 993 (Pa. Super. 2009) (holding



interest with regard to the subject mortgage; Pa.R.C.P. 1147(a)(1) does not

require recorded assignment as prerequisite to filing complaint in mortgage

foreclosure).

      Our review of the record reflects that Appellee set forth the

assignment of the mortgage from MERS to Appellee and stated that Appellee



Assignment of Mortgage to be sent for              Complaint, 8/11/10, at ¶

1.   This language is sufficiently similar to the language found adequate in

Lupori, and we conclude that it adequately establishes the assignment of

the mortgage from MERS to Appellee. Lupori, 8 A.3d at 922.

      In addition, with regard to the note, in Murray this Court held that a

note secured by a mortgage is a negotiable instrument under the



possession by which [a party] come[s] to hold the [n]ote [is] immaterial to

                                  Id. at 1266. To have standing to bring a




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J-A29024-13



foreclosure action on property used to secure a note, a party need only

establish actual possession of the note. Id.

     Here, Gubrud argues that Appellee was required to produce the

original documents making the assignment of the mortgage and note to

Appellee.     However, in Mallory, we held that to establish standing, the

assignment need not even be recorded or finalized, so long as the bank

avers that it is the owner of the mortgage and that an assignment is

pending.      Mallory, 982 A.2d at 994.   We therefore discern no merit to



     In his sixth issue, Gubrud attempts to present yet another challenge to

                                                            judgment should



whether its assignment was oral or written and failed to attach a copy of the

mortgage note.

     As we previously discussed, an assignment need not be recorded prior

to the commencement of foreclosure proceedings. Lupori, 8 A.3d at 922;

Mallory, 982 A.2d at 993. As the complaint in mortgage foreclosure states,



formalizing    the   Assignment of Mortga




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contrary assertion lacks merit.

                                                    n that the mortgage note

was not attached to the complaint, our review of the record reflects that

such was indeed the case. However, Gubrud failed to raise this challenge to

the trial court either in a new matter or the filing of preliminary objections.

Therefore, we are constrained to conclude that the claim is waived for

purposes of this appeal.

      In his final issue presented on appeal, Gubrud argues that the trial

court erred in granting summary judgment in favor of Appellee based upon

                  to specifically deny various paragraphs contained in the

complaint filed by Appellee. Gubrud contends that it was not necessary for

him to specifically deny every paragraph of the complaint filed by Appellee.

For the following reasons, we conclude this claim lacks merit.

      We have long stated that in a mortgage foreclosure action, summary

judgment is proper if there is no genuine dispute that: (1) the recorded

mortgage is in the specified amount, (2) the mortgage is in default, and (3)

the mortgagor failed to pay interest on the obligation.      Cunningham v.

McWilliams, 714 A.2d 1054, 1057 (Pa. Super. 1998). This is true even if

the mortgagor has not admitted the specific amount of indebtedness in their

pleadings. Id.




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      Pennsylvania Rule of Civil Procedure 1029 requires a defendant to

admit or deny each averment of fact within a complaint with specificity.

Rule 1029 addresses the effect of denials in responsive pleadings and

provides, in relevant part, as follows:

      Rule 1029. Denials. Effect of Failure to Deny


      (a) A responsive pleading shall admit or deny each averment of
      fact in the preceding pleading or any part thereof to which it is
      responsive. A party denying only a part of an averment shall
      specify so much of it as is admitted and shall deny the
      remainder. Admissions and denials in a responsive pleading
      shall refer specifically to the paragraph in which the averment
      admitted or denied is set forth.

      (b) 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, except as provided by subdivisions (c) and
      (e) of this rule, shall have the effect of an admission.

      (c) A statement by a party that after reasonable investigation
      the party is without knowledge or information sufficient to form
      a belief as to the truth of an averment shall have the effect of a
      denial.

            Note: Reliance on subdivision (c) does not
            excuse a failure to admit or deny a factual
            allegation when it is clear that the pleader
            must know whether a particular allegation is
            true or false. See Cercone v. Cercone, 254 Pa.
            Super. 381, 386 A.2d 1 (1978).

Pa.R.C.P. 1029(a)-(c) (emphasis added). While Pa.R.C.P. 1029(c) allows a

response to a pleading to deny allegations by indicating that, after

reasonable investigation, the pleader is without sufficient information to



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form a belief as to the truth of the allegation, the rule does not excuse a

pleader from admitting or denying a factual allegation when it is clear that

the pleader must know whether a particular allegation is true or false.

Pa.R.C.P. 1029(c) Note.

      It is well settled that lack of knowledge constitutes an admission where

it is clear that the responder should possess adequate knowledge or that the

means of obtaining information are within the control of the responder. Elia

v. Olszewski, 84 A.2d 188 (Pa. 1951).          See Cercone v. Cercone, 386

A.2d 1, 3 (Pa. Super. 1978) (finding defendant was required to specifically

deny factual allegations in complaint where defendant was in position to

know truth or falsity of allegation).   In a mortgage foreclosure action, the

mortgagors and mortgagee are the only parties with sufficient knowledge

upon which to base a specific denial. New York Guardian Mortg. Corp. v.

Dietzel, 524 A.2d 951, 952 (Pa. Super. 1987).             General denials by

mortgagors that they are without information sufficient to form a belief as to

the truth of averments 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).

      As   the   mortgagor,   Gubrud    possessed   sufficient   knowledge   to

                                                                      Dietzel,

524 A.2d at 952. However, our review of the certified record reflects that,




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with the exception of two paragraphs, the general denials set forth in



                                                                    -8.2 Thus,

                          calculation of sums due provided by Appellee is an

averment that offers factual situations of which Gubrud had knowledge, and

therefore constitutes an admission. Indeed, the sums due to Appellee are

easily calculable under the terms of the mortgage, the contents of which



knowledge   of,   and   the   means   necessary   for   obtaining   the   denied

information, including the total sums due.    Hence, the denials purportedly

presented by Gubrud in his answer amounted to admissions of facts and



the trial court in granting summary judgment in this matter.

     Judgment affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/11/2014



2

Gubrud as the defendant in the complaint and paragraph 3 addresses the
recording of the mortgage in Northampton County.


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