February 7, 2014
U.S. BANK, N.A., SUCCESSOR-IN-INTEREST TO BANK OF AMERICA, N.A. AS TRUSTEE FOR STRUCTURED ASSET INVESTMENT LOAN TRUST MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2003-BC13,
AARON A. THOMAS AND ANDREA MARTIN-THOMAS, APPEAL OF: AARON A. THOMAS
Appeal from the Order May 3, 2013, Court of Common Pleas, Berks County, Civil Division at No. 11-17398.
BEFORE: DONOHUE, OTT and PLATT[*], JJ.
Aaron Thomas ("Thomas") appeals pro se from the order of court granting the motion for summary judgment filed by U.S. Bank, N.A. ("U.S. Bank") in this mortgage foreclosure action. We affirm.
The facts underlying this appeal are relatively straightforward. The trial court summarized them as follows:
On August 29, 2003, [Thomas] executed a promissory note regarding a $52, 200 loan for the purchase of real property. The lender was Option One Mortgage Corporation. The same day, … [Thomas] and Andrea Martin-Thomas executed a mortgage on the property in favor of Option One, securing the debt obligation under the note. Both Thomases also signed a rider to the note that contained additional agreements.
On February 27, 2007, Option One assigned the mortgage and note to LaSalle Bank, N.A., as Trustee for Structured Securities Corporation Structured Asset Investment Loan Trust Mortgage Pass Through Certificates, Series 2003-BC13. LaSalle Bank then merged with Bank of America on October 17, 2008. On September 6, 2011, after this case had already begun, Bank of America executed an agreement with [U.S. Bank], under which U.S. Bank became the successor trustee of the above-named trust, the trust property of which includes the mortgage and note at issue. Each of these events was confirmed by documentation attached to [U.S. Bank's] motion for summary judgment. The servicer of the loan has also changed at least once, with Wells Fargo Home Mortgage, Inc., taking over servicing in December 2003.
[Thomas] missed the payment due October 1, 2009, and has made no payments since. Both the note and the mortgage expressly obligate [Thomas] to make monthly payments on the debt evidenced by the note.
As a result of this default, [the Plaintiff], at the time Bank of America, sent [Thomas] the proper notices and then filed a complaint in mortgage foreclosure on July 13, 2011. On August 11, 2011, [Thomas] filed an answer with new matter and counterclaim. Plaintiff, still listed as bank of America, filed a response to the new matter and counterclaim on September 20, 2011. On July 20, 2012, [Thomas] filed an amended new matter and counterclaim. On August 28, 2012, Plaintiff, now identifying itself as U.S. Bank although it was not yet formally substituted as a party, filed a response to the amended new matter and counterclaim.
[Thomas] then filed a motion to strike the response, apparently on the basis of U.S. Bank's failure to formally intervene. The court denied the motion, as well as a subsequent motion for reconsideration. … .
[U.S. Bank] filed a motion for summary judgment on January 29, 2013. On March 1, 2013, [U.S. Bank] filed a praecipe to formally substitute U.S. Bank as successor in interest to Bank of America and to change the caption accordingly. On March 7, 2013, [Thomas] filed a 'Motion to Dismiss with Prejudice for Lack of Standing, ' which essentially functioned as his response to the motion for summary judgment. The court heard oral argument on both motions on April 19, 2013, and took the matter under advisement. The court issued two orders on May 3, 2013, denying [Thomas'] motion to dismiss and granting [U.S. Bank's] motion for summary judgment. [Thomas] filed a notice of appeal on May 20, 2013.
Trial Court Opinion, 7/17/13, at 3-4 (footnotes omitted).
Thomas raises three issues on appeal, which he presents as follows:
Is [Thomas] entitled to vacation of summary judgment and remand for trial when the trial court abused its discretion and/or misapplied the law by:
I. Omitting or failing to adequately deliberate the evidence presented by [Thomas] in a non bias [sic], impartial and fair manner;
II. Omitting or failing to determine beyond a reasonable doubt who the real [p]arty-in-interest suing in the present matter is;
III. Whether the trial court violated [Thomas'] [r]ight to [t]rial by [j]ury where controversy existed when requested[.]
Appellant's Brief at 4.
Preliminarily, we must note that Thomas did not include the first issue stated above in his Pa.R.A.P. 1925(b) statement of matters complained of on appeal. See Concise Statement of Errors Complained of on Appeal, 6/4/13. It is firmly established that issues not included in a statement filed pursuant to Pa.R.A.P. 1925(b) are waived for purposes of appeal. Cobbs v. SEPTA, 985 A.2d 249, 256 (Pa.Super. 2009); Pa.R.A.P. 1925(b)(4)(vii). This issue was not included in Thomas' statement of matters complained of on appeal, and so it is waived.
We also find the third issue presented by Thomas, alleging a violation of his right to a jury trial, waived. In the trial court, Thomas alleged that his right to a jury trial was violated because a controversy existed, and he set forth alleged factual disputes that would necessitate a trial by jury. Concise Statement of Errors on Complained of on Appeal, 6/4/13, at 1-2. He presents a completely different argument in support of this issue on appeal, as he argues for the first time that the United States and Pennsylvania Constitutions provide him with an "inviolate" right to a trial by jury in this dispute. Appellant's Brief at 10, 12. A new theory of relief may not be advanced for the first time on appeal, as "before appellate review can be had, that the grounds relied upon [must] be raised sometime during the lower court proceedings." McCloud v. McLaughlin, 837 A.2d 541, 544 (Pa.Super. 2003); see also Pa.R.A.P. 302(a). Because Thomas did not raise this theory of relief before the trial court, we will not entertain it on appeal.
In his remaining issue, Thomas argues that the trial court erred in determining that U.S. Bank is a party in interest in the underlying matter such that it can be awarded summary judgment. Appellant's Brief at 8-9.
In reviewing an order granting summary judgment, our scope of review is plenary, and our standard of review is the same as that applied by the trial court. We may reverse the entry of a summary judgment only where the lower court erred in concluding that the matter presented no genuine issue as to any material fact and that it is clear that the moving party was entitled to a judgment as a matter of law.
Rosenberry v. Evans, 48 A.3d 1255, 1258 (Pa.Super. 2012) (citations omitted).
We find no issue of material fact concerning the status of U.S. Bank as a party in interest. As the trial court noted, attached to U.S. Bank's motion for summary judgment are documents that establish the transfer of the mortgage and note from their origination with Option One Mortgage Corporation to U.S. Bank. See Plaintiff's Motion for Summary Judgment, 1/29/13, at Exhibits N-P. Thomas has produced nothing to dispute this evidence of the assignments. Thomas argues only that "unless [U.S. Bank] can provide proof that they held both the note and the mortgage at the commencement of the claim, they would not be entitled to judgment." Appellant's Brief at 9 (emphasis added). However, he provides no authority to support this position. U.S. Bank has established the assignments of the mortgage and the note and that it is the owner of both; therefore, U.S. Bank has established that it is a party in interest. See Wells Fargo Bank, N.A. v. Lupori, 8 A.3d 919, 922 (Pa.Super. 2010) (holding that where plaintiff avers ownership of mortgage through assignments, plaintiff has established standing for foreclosure action). There is no merit to this claim.