J-S43029-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 WILMINGTON SAVINGS FUND                 :    IN THE SUPERIOR COURT OF
 SOCIETY FSB, DBA CHRISTIANA             :         PENNSYLVANIA
 TRUST, NOT INDIVIDUALLY BUT AS          :
 TRUSTEE FOR PRETIUM MORTGAGE            :
 ACQUISTION TRUST                        :
                                         :
                                         :
              v.                         :
                                         :    No. 214 WDA 2018
                                         :
 CHARLOTTE L. ELLISON,                   :
                                         :
                    Appellant            :

                  Appeal from the Order December 18, 2017
      In the Court of Common Pleas of Allegheny County Civil Division at
                            No(s): GD-15-003644


BEFORE: STABILE, J., DUBOW, J., and NICHOLS, J.

MEMORANDUM BY DUBOW, J.:                          FILED JANUARY 29, 2019

      Appellant, Charlotte L. Ellison, appeals pro se from the Order entered in

the Allegheny County Court of Common Pleas granting Summary Judgment to

Appellee, Wilmington Savings Funds Society, FSB, D/B/A Christiana Trust, not

Individually but as Trustee for Pretium Mortgage Acquisition Trust (“Appellee”

or “WSFS”). We affirm.

      On August 29, 2005, Appellant borrowed $50,503 from Washington

Mutual Bank, FA, secured by a promissory note (the “Note”) and mortgage

(the “Mortgage”), on the property at 3534 Centralia Street, Pittsburgh, PA

15204. In 2007, Washington Mutual assigned the Note to Wells Fargo Bank,

NA.
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        On April 28, 2010, Appellant and Wells Fargo entered a Loan

Modification Agreement.

        Beginning in July 2014, Appellant stopped making monthly mortgage

payments. Wells Fargo complied with Act 91 and Act 6 requirements,1 giving

notice to Appellant that it intended to foreclose on the property. On March 6,

2015, Wells Fargo filed a Complaint in mortgage foreclosure against Appellant,

annexing a copy of the promissory note signed by Appellant and a copy of the

loan modification agreement. Appellant filed an Answer on March 23, 2015 in

which she challenged the original assignment of the Note from Washington

Mutual Bank to Wells Fargo, and contended that Wells Fargo Bank had refused

to accept her payments.

        On May 9, 2016, Wells Fargo assigned the Note and Mortgage to

Appellee WSFS. On December 19, 2016, WSFS filed a Praecipe for substitution

for party plaintiff.

        On May 19, 2017, WSFS filed a Motion for Summary Judgment, to which

Appellant filed a response on June 19, 2017.       In her response, Appellant

averred that “this cause of action exists due to the negligence of Wells Fargo

Home Mortgage to accept timely payments and the question of the validity of

the assignment of the mortgage exists.” See Appellant’s Objection to Motion

for Summary Judgement, dated 6/19/17, at 2.




____________________________________________


1   35 P.S. § 1680.401(c) and 41 P.S. § 403, respectively.

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     On December 18, 2017, the trial court granted Appellee’s Motion for

Summary Judgment.

     This timely appeal followed. Appellant and the trial court complied with

Pa.R.A.P. 1925.

     Appellant presents the following issues for our review:

     1. Whether the trial court erred as a matter of law by concluding
     Wilmington is a proper party by way of assignment of mortgage
     recorded on May 9, 2016 when a sworn deposition exists which
     calls into question Wilmington’s standing?

     2. Whether the trial court erred as a matter of law by waiving the
     negligence issue regarding the failure of Wells Fargo to accept
     timely payments during normal business hours?

     Appellant’s Brief at 5.

     An appellate court may reverse a grant of summary judgment if there

has been an error of law or an abuse of discretion. The issue of whether there

are no genuine issues as to any material fact presents a question of law and

our standard of review is de novo. Weaver v. Lancaster Newspapers, Inc.,

926 A.2d 899, 902-03 (Pa. 2007). When considering a motion for summary

judgment, the trial court must take all facts of record and reasonable

inferences in a light most favorable to the non-moving party.         Toy v.

Metropolitan Life Ins. Co., 928 A.2d 186, 195 (Pa. 2007).

     The party challenging a Motion for Summary Judgment may not rest

upon allegations or denials of the pleadings. Instead, the adverse party must

identify: “(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


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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. 1035.3(a).

      “Failure of a non-moving party to adduce sufficient evidence on an issue

essential to his case and on which it bears the burden of proof… establishes

the entitlement of the moving party to judgment as a matter of law.” Cigna

Corp. v. Executive Risk Indemnification Inc., 111 A.3d 204, 210 (Pa.

Super. 2015).    Thus, “[t]he holder of a mortgage is entitled to summary

judgment if the mortgagor admits that the mortgage is in default, the

mortgagor has failed to pay on the obligation, and the recorded mortgage is

in the specified amount.” Bank of America, N.A. v. Gibson, 102 A.3d 462,

465 (Pa. Super. 2014).

      A note holder is entitled to enforce the note’s obligations in a mortgage

foreclosure action, regardless of the lack of a formal assignment or transfer of

the note.   CitiMortgage, Inc. v. Barbezat, 131 A.3d 65, 69 (Pa. Super.

2016); 13 Pa.C.S. § 3301. The chain of possession by which holder came to

hold the note is immaterial to its enforceability. Barbezat, 131 A.3d at 69.

      In her first issue, Appellant challenges Appellee’s standing. Appellant

avers that because of an “admitted robo-signing” by an employee of

Washington Mutual Bank, the assignment of the Note and Mortgage from

Washington Mutual Bank to WFB was invalid, thereby invalidating all

subsequent assignments. Appellant’s Brief at 10.

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      Appellant predicates her     “robo-signing”   argument on      deposition

testimony given by Mr. Bryan Bly, an employee of Washington Mutual Bank,

in a different proceeding in 2010. Appellant’s Brief at 12-14. The record,

however, contains no transcript of this deposition testimony. See Pa.R.A.P.

1911(d) (pertaining to effect of failure to supply transcript); See also Smith

v. Smith, 637 A.2d 622, 623-24 (Pa. Super. 1993) (explaining that “it is black

letter law in this jurisdiction that an appellate court cannot consider anything

which is not a part of the record in the case,” and that “a failure by an

Appellant to insure that the original record certified for appeal contains

sufficient information to conduct a proper review constitutes a waiver of the

issue(s) sought to be examined.”) (citations omitted).

      Moreover, in light of Appellant’s entering a loan modification agreement

with Wells Fargo in 2010, and complying with that agreement for the next four

years, Appellant’s challenge to the assignment of the mortgage from

Washington Mutual to Wells Fargo fails. See Gibson, supra, 102 A.3d at

465-66 (upholding grant of summary judgment in favor of mortgage holder

after mortgagor challenged the mortgage’s assignment, concluding that, “we

are [also] persuaded by the fact that Appellant made payments on his

mortgage [after assignment] to [Appellee] until his default.         Only after

[Appellee] began foreclosure proceedings did Appellant contend that the




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mortgagee to whom he had been making payments was operating under an

improperly transferred mortgage.”).2

       In her second issue, Appellant argues that Wells Fargo negligently failed

to accept Appellee’s attempted Mortgage payments during its standard

business hours. Appellant’s Brief at 11-12. She argues that the trial court

erred when it found that Appellant waived this argument because she did not

raise it until she filed her Pa.R.A.P. 1925(b) Statement of Matters Complained

of on Appeal.

       Our review indicates that Appellant did raise this issue in both her

Answer to the Complaint and her written Opposition to Appellee’s Motion for

Summary Judgment. See Answer, 3/23/15, at ¶9; Opposition, 6/19/17, at 1.

We, thus, disagree with the trial court’s determination of waiver for failing to

raise the issue in her Rule 1925(b) Statement.

       We conclude, however, that based on her failure to develop her

argument properly, Appellant waived the issue.       Appellant does not cite to

any evidence of record to support her bald assertion that Wells Fargo

negligently failed to accept Appellant’s attempted Mortgage payments during


____________________________________________


2 Appellant also argues that the assignment from Washington Mutual to WFB
is invalid because of an improper notary signature. Appellant’s Brief at 15.
Appellant, however, did not raise this issue in her 1925(b) statement. Thus,
it is waived. Pa.R.A.P. 1925(b)(4)(vii); U.S. Bank, N.A. for
Certificateholders of LXS 2007-7N Trust Fund v. Hua, 193 A.3d 994, 997
(Pa. Super. 2018).




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its standard business hours.           Further, she provides absolutely no legal

argument to provide any merit to her claim.3           The failure to develop an

argument with citation to legal authority and record evidence waives the issue

on appeal.      Bombar v. West American Ins. Co., 932 A.2d 78, 93 (Pa.

Super. 2007). See also Pa.R.A.P. 2119 (briefing requirements). Accordingly,

this issue is waived.

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/29/2019




____________________________________________


3 Appellant similarly did not provide any evidence in support of this claim in
the Answer to the Complaint or in her Opposition to Appellee’s Motion for
Summary Judgment.

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