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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    BMO HARRIS BANK, N.A., S/B/M M &           :    IN THE SUPERIOR COURT OF
    L BANK FSB                                 :         PENNSYLVANIA
                                               :
                                               :
                v.                             :
                                               :
                                               :
    FRANCES I. FISHER                          :
                                               :    No. 1835 WDA 2019
                       Appellant               :

               Appeal from the Order Entered November 12, 2019
       In the Court of Common Pleas of Allegheny County Civil Division at
                             No(s): MG-18-001276


BEFORE: MURRAY, J., McLAUGHLIN, J., and PELLEGRINI, J.*

MEMORANDUM BY PELLEGRINI, J.:                               FILED JUNE 25, 2020

        Frances I. Fisher (Fisher) appeals from the order entered in the Court of

Common Pleas of Allegheny County (trial court) granting summary judgment

in favor of BMO Harris Bank, N.A., s/b/m M & I Bank FSB (M & I Bank) in its

mortgage foreclosure action. We affirm.

        In May 2006, Fisher and her husband, John F. Fisher (collectively, the

Fishers), jointly executed and delivered an open-ended mortgage to Mortgage

Electronic Registration Systems, Inc. on property located at 110 North Star

Road, Imperial, Allegheny County, Pennsylvania. Fisher’s husband, however,

solely executed the promissory note.               Mortgage Electronic Registration



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*   Retired Senior Judge assigned to the Superior Court.
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Systems, Inc. eventually assigned the mortgage to M & I Bank, who recorded

the assignment in September 2018.

        On October 11, 2018, M & I Bank filed a complaint in mortgage

foreclosure against the Fishers, alleging that they were in default of the

promissory note and mortgage, and that pre-foreclosure notice had been sent

pursuant to Act 91.1           Fisher individually filed preliminary objections,

essentially arguing that M & I could not foreclose on the property because she

did not sign the promissory note. M & I Bank filed an amended complaint on

January 8, 2019, again averring that the Fishers were in default and had failed

to make any payments upon demand of payment. Fisher filed preliminary

objections reasserting that she did not sign the promissory note. M & I bank

responded that its complaint in mortgage foreclosure complied with Pa.R.C.P.

1147. After the trial court denied the preliminary objections, Fisher filed for

reconsideration, clarifying her position that when only one spouse signs a

promissory note, it does not bind the non-borrowing spouse in a jointly held

open-ended mortgage.          The trial court disagreed and denied the motion,

following which Fisher filed an answer and new matter.

        On July 30, 2019, M & I Bank filed a motion for summary judgment. In

its motion, M & I Bank averred that Fisher did not dispute that she co-signed

the mortgage and that there was a debt owed. On November 12, 2019, the


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1   35 P.S. §§ 1680.401.c-1680.412c.


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trial court granted summary judgment and entered judgment in rem in favor

of M & I Bank and against Fisher in the amount of $81,767.49 plus interest.

        After the denial of reconsideration, Fisher filed a timely notice of appeal.

In her court-ordered Rule Pa.R.A.P. 1925(b) statement, Fisher claimed that

summary judgment was improper because she did not sign the promissory

note.    In its Pa.R.A.P. 1925(a) opinion, the trial court answered Fisher’s

argument as follows:

        [Fisher] did not sign the note and therefore she cannot be
        personally responsible for the repayment of the debt under the
        note. [M & I Bank] cannot and is not suing her for a personal
        judgment on the note. However, as a signer of the mortgage,
        [Fisher] is bound by its terms. She, along with her husband, is a
        mortgagor and no genuine issues of material fact exist between
        the parties. Therefore, Summary Judgment for [M & I Bank] is
        proper.

Trial Court Opinion, 2/5/20, at 5 (unpaginated).2


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2 Our standard of review of an appeal from an order granting summary
judgment is well settled:

        [This court’s] 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



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       On appeal, Fisher reasserts that M & I Bank cannot foreclose on the

property because only her husband signed the promissory note. She contends

that the subject property was held as a tenancy by the entireties and is not

subject to process, petition, levy, execution or sale to discharge the

indebtedness of one of the spouses. Fisher admits that a creditor may execute

on entireties property if both spouses are joint debtors. However, because

she is not personally liable for the note that she did not sign, M & I Bank

cannot foreclose on the property as a means of discharging the debt on the

note. We disagree.

       While Fisher did not sign the promissory note, she did sign the

mortgage.      “[A] mortgage is only the security instrument that ensures

repayment of the indebtedness under a note to real property.” Bayview Loan

Servicing LLC v. Wicker, 163 A.3d 1039, 1045 (Pa. Super. 2017) (quotation

omitted). Under its own terms, the mortgage, which both Fisher and her

husband signed, secured the balance outstanding on the promissory note. As

a result, M & I Bank’s remedy as the mortgagee was to seek foreclosure of

the property when the Fishers defaulted on their payments. That Fisher did


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       when the facts are so clear that reasonable minds could not differ
       can a trial court properly enter summary judgment.

CitiMortgage, Inc. v. Barbezat, 131 A.3d 65, 67 (Pa. Super. 2016)
(citations omitted).     Additionally, “[s]ummary judgment in mortgage
foreclosure actions is subject to the same rules as any other civil action.” Id.;
Pa.R.C.P. 1141(b).


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not sign the promissory note did not render the property immune from

foreclosure, since the mortgage which she co-signed explicitly stated that it

was security for repayment of the note. None of the cases that Fisher cites

stand for the proposition that a mortgage to secure the payment of a

promissory note is immune from foreclosure simply because a signatory to

the mortgage did not also execute the note.3

       Fisher’s argument, as the trial court recognized, elides the distinction

between an in rem mortgage foreclosure action and an in personam action on

the note. This Court has explained:

       [A]n action on a promissory note and an action in foreclosure are
       two different actions.... In a promissory note action, an in
       personam judgment is sought. In a mortgage foreclosure action,
       however, the action is strictly an in rem proceeding. Pa.R.C.P.
       1141 provides:

       (a) As used in this chapter [regarding mortgage foreclosure,]
       ‘action’ means an action at law to foreclose a mortgage upon an
       estate, leasehold or interest in land but shall not include an action
       to enforce a personal liability.

       [ ] See also [N.Y. Guardian Mortgage Corp. v. Dietzel, 524
       A.2d 951, 953 (Pa.Super.1987) ] (holding that “[a]n action in
       mortgage foreclosure is strictly an in rem proceeding, and the
       purpose of a judgment in mortgage foreclosure is solely to effect
       a judicial sale of the mortgaged property.”).



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3 Among these cases, Fisher cites ISN Bank v. Rajaratnam, 83 A.3d 170
(Pa. Super. 2013). However, that case involved the question of “whether
separate judgments entered against a husband and wife may be consolidated
so that assets held as tenants by the entireties may be executed upon to
satisfy a joint indebtedness.” Id. at 171. ISN Bank did not, as this case
does, involve a mortgage foreclosure.

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First Wisconsin Trust Co. v. Strausser, 653 A.2d 688, 693 n.4 (Pa. Super.

1995).

     Having found that Fisher’s lack of signing the promissory note did not

prevent mortgage foreclosure, we then turn to whether there was any genuine

issue of material fact to prevent summary judgment.           In a mortgage

foreclosure complaint, the mortgagee must set forth the following:

     (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.

Pa.R.C.P. 1147(a).

     The holder of a mortgage has the right, upon default, to initiate a
     foreclosure action. Additionally, the mortgage holder 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.

Gerber v. Piergrossi, 142 A.3d 854, 859 (Pa. Super. 2016) (citation and

quotation marks omitted).

     Here, M & I Bank complied with Rule 1147 and included all of the

required averments, including “a specific averment of default.”      Fisher has


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never denied that there was a default on the payments, and concedes in her

brief that her husband “stopped paying the mortgage.” Fisher’s Brief at 6.

Though Fisher did not sign the promissory note, she did sign the mortgage

and was properly included as a defendant to the mortgage foreclosure.

Pa.R.C.P. 1144. Because there were no material issues of fact, the trial court

correctly granted summary judgment.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/25/2020




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