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Bank of New York Mellon v. Bach

Superior Court of Pennsylvania

March 29, 2017

BANK OF NEW YORK MELLON F/K/A THE BANK OF NEW YORK, AS TRUSTEE FOR THE HOLDERS OF THE CERTIFICATES, FIRST HORIZON MORTGAGE PASS-THROUGH CERTIFICATES SERIES FHASI 2004-7, BY FIRST TENNESSEE BANK NATIONAL ASSOCIATION, MASTER SERVICER, IN IT'S CAPACITY AS AGENT FOR THE TRUSTEE UNDER THE POOLING AND SERVICING AGREEMENT,
v.
STEVEN E. BACH AND BARBARA A. BACH, Appellants

         Appeal from the Judgment Entered June 28, 2016 In the Court of Common Pleas of Delaware County Civil Division at No(s): 14-005775

          BEFORE: DUBOW, RANSOM AND PLATT, [*] JJ.

          OPINION

          DUBOW, J.

         Appellants, Steven E. Bach and Barbara A. Bach, appeal pro se from the June 28, 2016 Judgment entered in the Delaware County Court of Common Pleas granting an in rem Judgment in mortgage foreclosure. After careful review, we affirm.

         We summarize the relevant portion of the factual and procedural history as follows. On September 28, 2004, Appellants purchased a home located at 10 Roberts Road, Newtown Square, Pennsylvania. To finance the purchase, Appellants obtained a loan from Financial Mortgage Corp. in the amount of $479, 200.00. Appellants executed a note, secured by a mortgage on the property at 10 Roberts Road.

         On December 1, 2008, Appellants defaulted on their obligations under the mortgage and the note by failing to make their required monthly payment. Appellants have not made a single payment in the more than eight years since they defaulted on their obligation. Nevertheless, they remained living in the residence at 10 Roberts Road.

         On July 2, 2014, Appellee filed a Complaint in foreclosure against Appellants. In the Complaint, Appellee listed two prior assignments of the mortgage: (i) from the original Mortgagee, Financial Mortgage Corp., to First Horizon Home Loan Corp. ("First Horizon"); and (ii) from First Horizon to Appellee.

         Appellants filed Preliminary Objections, which the trial court overruled. Appellants subsequently filed an Answer to the Complaint, denying "the validity of the assignments, the authority of the parties that executed the assignments and the standing of the parties to the assignments to execute same." Answer, filed 10/3/14, at 1 (unpaginated).

         The trial court held a non-jury trial on February 1, 2016. The parties entered 15 joint stipulations into the record. Exhibit J-1. Appellee introduced, inter alia, the original note, signed by Appellants and properly endorsed in blank. See Exhibit P-10; Trial Court Opinion, filed 7/25/16, at 10 ("[t]he original note in this case is endorsed in blank and in [Appellee's] possession at trial.").

         At trial, Appellants did not challenge the validity of the mortgage or their default in payment. Instead, Appellants attempted to challenge the assignment of the mortgage to Appellee and Appellee's standing to bring the foreclosure action. In addition, Appellants alleged, for the first time, that there existed an additional "assignment, " conducted prior to the assignment from First Horizon to Appellee, and that this assignment rendered the assignment to Appellee invalid.

         The court entered a verdict in favor of Appellee.[1] Appellants filed a timely Motion for Post-Trial Relief arguing, for the first time, that Appellee failed to include all prior assignments in the Complaint, and that this omission constituted a failure to comply with Pa.R.C.P. No. 1147. In an Order filed May 4, 2016, the trial court denied the Motion. On June 28, 2016, the trial court entered an in rem Judgment in favor of Appellee.

         Appellants timely appealed. Both Appellants and the trial court complied with Pa.R.A.P. 1925.

         Appellants raise two issues, each broken down into three sub arguments. See Appellants' Brief at 7-8. For ease of disposition, we summarize Appellants' arguments as follows. Appellants aver that, prior to the assignment from First Horizon to Appellee, an "assignment" had been made from First Horizon to First Horizon Asset Securities, Inc ("Prior Transaction"). All parties conceded that Appellee did not list this Prior Transaction in the Complaint. Appellants argue that this Prior Transaction rendered the assignment to Appellee invalid, and divested Appellee of standing to bring a complaint in foreclosure. Id. at 19-26. Appellants also aver ...


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