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Jobe v. Wells Fargo Bank, N.A.

United States District Court, Third Circuit

January 23, 2014

IAN and CATHERINE JOBE, Plaintiffs,
WELLS FARGO BANK, N.A., et al., Defendants


MALACHY E. MANNION, District Judge.

Pending before the court is a report and recommendation filed by Judge Carlson on December 23, 2013, (Doc. No. 77), to which the plaintiffs have filed an objection. (Doc. No. 78). In his report, Judge Carlson recommends that defendants' motion for summary judgment, (Doc. No. 53), should be granted. The plaintiffs object to four determinations made by Judge Carlson: (1) that a purported copy of a promissory note is admissible and therefore creates a genuine issue of material fact as to the assignment of said note; (2) the determination that an assignment of mortgage was self-authenticating was erroneous; (3) the expert opinion of Javier Toboas creates a genuine issue of material fact for trial; and (4) the determination that the defendants are holders in due course and have the rights and privileges stemming from being a holder in due course.


On March 25, 2005, Plaintiff Catherine Jobe executed an adjustable rate note in the sum of $248, 800 in favor of Argent Mortgage Company, LLC. (Doc. No. 54, Exh. A). On that same date, the plaintiffs both signed and executed a mortgage with an adjustable rate rider in favor of Argent encumbering property at 16 Laurel Lane, Mount Pocono in Monroe County Pennsylvania. ( Id., Exh. B). That Mortgage was subsequently recorded on April 7, 2005 in Record Book 2221, page 3725 by the Monroe County Recorded of Deeds. On April 5, 2005, Argent executed an assignment of mortgage to Wells Fargo Bank, N.A. as Trustee for the certificate of holders of Asset-Backed Pass-Through Certificates, Series 2005-WCW2. ( Id., Exh. C). The assignment of the mortgage was not recorded until August 20, 2013. ( Id., Exh. D). There is no dispute that the note and mortgage in favor of Argent were validly executed. ( Id., Exh. X).

The promissory note was subsequently assigned, in blank, by Argent to Wells Fargo. ( Id., Exh. A). The physical note is now held by Wells Fargo's custodian, Select Portfolio Servicing, Inc., and a copy of the note with the assignment have been produced by the defendant. (Doc. No. 54). The parties dispute when this assignment occurred.

Sometime later, the plaintiffs mortgage fell into default. ( Id., Exh. X). On September 29, 2009, the plaintiffs sent a letter to their servicing bank, Bank of America, requesting information related to the loan, including the current owner of the note. (Doc. No. 63, Exh. D). Through counsel, Bank of America replied on January 15, 2010, stating that Wells Fargo, N.A. was the current holder of the note. ( Id., Exh. E). In August 2010, the plaintiffs were sent a copy of the note from Bank of America that did not contain any endorsements or assignments. ( Id., Exh. F). There is no indication from Bank of America or any other person with personal knowledge about this copy, including when it was made and whether it represents a copy of the original note, or a copy of a copy.

The plaintiffs have also produced an expert opinion from Javier Taboas, a purported expert in mortgage fraud and the forensic analysis of notes and mortgages. (Doc. No. 65). Regarding the validity and timing of the endorsement, he opines "[t]here is no way to determine if the Lender actually held ownership of the Borrowers' loan at the time the instant action commenced." He further concludes that more discovery, including the depositions of Argent's former president and executive vice president, is necessary. (Id.). He notes that the Pooling and Servicing Agreement that governs the trust in which the note was placed in June 2005 requires an assignment have additional endorsements if it was endorsed after the trust closed. He opines that the trust may have never been validly created and there could be possible tax consequences. He finally states that significant discovery is necessary to bolster his opinions, including review of the original note, depositions, and access to various trust documents. (Id.).


This case commenced on August 16, 2010 when the plaintiffs filed their complaint pro se. (Doc. No. 1). After a motion to dismiss was granted, (Doc. No. 45), the sole surviving claim is an action to quiet title. Plaintiffs are now represented by counsel. (Doc. No. 49). The discovery period in this case closed on August 19, 2013, nearly three years after the commencement of this suit. (Doc. No. 48). After the close of discovery, the defendants filed a motion for summary judgment, statement of facts, and supporting materials on September 9, 2013. (Doc. No. 53, 54, 55, and 56). Plaintiffs filed their brief in opposition, statement of facts, and supporting materials on September 30, 2013. (Doc. No. 61, 62, 63, and 64). The defendants filed a reply brief on October 17, 2013. (Doc. No. 68). The plaintiffs moved to file a sur-reply brief that was granted, (Doc. No. 71), and they filed an additional brief on November 19, 2013. (Doc. No. 72). Having reviewed the parties' four briefs and supporting documents, Judge Carlson issued his report on December 23, 2013 recommending the defendants' motion for summary judgment be granted. (Doc. No. 77). The plaintiffs filed objections to the report and recommendation on January 9, 2014. (Doc. No. 78). Having canvassed the five memoranda of law and supporting materials, this matter is ripe for the court's decision.


When objections are timely filed to the report and recommendation of a magistrate judge, the district court must review de novo those portions of the report to which objections are made. 28 U.S.C. §636(b)(1); Brown v. Astrue, 649 F.3d 193, 195 (3d Cir. 2011). Although the standard is de novo, the extent of review is committed to the sound discretion of the district judge, and the court may rely on the recommendations of the magistrate judge to the extent it deems proper. Rieder v. Apfel, 115 F.Supp.2d 496, 499 (M.D.Pa. 2000) ( citing United States v. Raddatz, 447 U.S. 667, 676 (1980)).

For those sections of the report and recommendation to which no objection is made, the court should, as a matter of good practice, "satisfy itself that there is no clear error on the face of the record in order to accept the recommendation." Fed.R.Civ.P. 72(b), advisory committee notes; see also Univac Dental Co. v. Dentsply Intern., Inc., 702 F.Supp.2d 465, 469 (M.D.Pa. 2010) ( citing Henderson v. Carlson, 812 F.2d 874, 878 (3d Cir. 1987) (explaining judges should give some review to every report and recommendation)). Nevertheless, whether timely objections are made or not, the district court may accept, not accept or modify, in whole or in part, the findings or recommendations made by the magistrate judge. 28 U.S.C. §636(b)(1); Local Rule 72.31.

Summary judgment is appropriate "if the pleadings, the discovery [including, depositions, answers to interrogatories, and admissions on file] and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56; see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Turner v. Schering-Plough Corp., 901 F.2d 335, 340 (3d Cir. 1990). A factual dispute is genuine if a reasonable jury could find for the non-moving party, and is material if it will affect the outcome of the trial under governing substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Aetna Cas. & Sur. Co. v. Ericksen, 903 F.Supp. 836, 838 (M.D. Pa. 1995). At the summary judgment stage, "the judge's function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Anderson, 477 U.S. at 249; see also Marino v. Indus. Crating Co., 358 F.3d 241, 247 (3d Cir. 2004) (a court may not weigh the evidence or make credibility determinations). Rather, the court must consider all evidence and inferences drawn therefrom in the light most favorable to the non-moving party. See Andreoli v. Gates, 482 F.3d 641, 647 (3d Cir. 2007).

To prevail on summary judgment, the moving party must affirmatively identify those portions of the record which demonstrate the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323-24. The moving party can discharge the burden by showing that "on all the essential elements of its case on which it bears the burden of proof at trial, no reasonable jury could find for the non-moving party." In re Bressman, 327 F.3d 229, 238 (3d Cir.2003); see also Celotex, 477 U.S. at 325. If the moving party meets this initial burden, the non-moving party "must do more than simply show that there is some metaphysical doubt as to material facts, " but must show sufficient evidence to support a jury verdict in its favor. Boyle v. County of Allegheny, 139 F.3d 386, 393 (3d Cir. 1998) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)). However, if the non-moving party "fails to make a showing sufficient to establish the existence of an element essential to [the non-movant's] case, and on which [the non-movant] will bear the burden of proof at trial, " Rule 56 mandates the entry of summary judgment because such a failure "necessarily renders all other facts immaterial." Celotex, 477 U.S. at 322-23; see also Jakimas v. Hoffman-La Roche, Inc., 485 F.3d ...

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