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Bayview Loan Servicing LLC v. Wicker

Superior Court of Pennsylvania

May 17, 2017

BAYVIEW LOAN SERVICING LLC, Appellee
v.
JAMES BERNARD WICKER AND BERYL G. WICKER, Appellants

         Appeal from the Judgment Entered November 4, 2015 In the Court of Common Pleas of Jefferson County Civil Division at No: No. 516-2012-CD.

          BEFORE: LAZARUS, STABILE, and STRASSBURGER, [*] JJ.

          OPINION

          STABILE, J.

         Appellants James Bernard and Beryl G. Wicker, husband and wife, appeal from the November 4, 2015 judgment entered in the Court of Common Pleas of Jefferson County ("trial court") against them and in favor of Appellee Bayview Loan Servicing, LLC ("Bayview") in this in rem mortgage foreclosure action. Upon review, we affirm.

         On February 11, 2008, in consideration of a loan in the principal amount of $119, 000.00, Appellants executed and delivered a note in favor of and to Countrywide Bank, FSB ("Countrywide"). To secure the obligations under the note, Appellant James Wicker executed and delivered to Mortgage Electronic Registration Systems, Inc. ("MERS") ("solely as nominee for Lender . . . and Lender's successors and assigns"), a mortgage for the property located at 643 Highland Park Road, Punxsutawney, Jefferson County, Pennsylvania, as security for the note. On September 28, 2011, MERS assigned the mortgage to Bank of America, N.A., successor by merger to BAC Home Loans Servicing L.P. F/K/A/ Countrywide Home Loans Servicing L.P. ("Bank of America"). Bank of America recorded the same on November 1, 2011.

         On May 30, 2012, Bank of America filed a mortgage foreclosure complaint against Appellants, requesting, inter alia, judgment against them for $127, 360.74. Bank of America alleged that Appellants had failed to make the scheduled payments on the mortgage since September 1, 2010. Bank of America also alleged that it complied with the requirements of Act 6 (41 P.S. § 403) by sending Appellants a written notice of intention to foreclose (the "Notice"). See Complaint, 5/30/12, at ¶¶ 10-11. Appellants eventually filed an answer to the complaint, generally denying Bank of America's averments and raising new matter.[1]

         On October 17, 2014, Bank of America moved for summary judgment, arguing that it was entitled to judgment as a matter of law. Specifically, Bank of America asserted that Appellants' general denials in their answer to the complaint were sufficient to establish that Appellants defaulted on their mortgage obligations. Bank of America also asserted that no factual dispute existed as to the amount of the mortgage, and the total amount of indebtedness. Following Appellants' response, the trial court granted in part and denied in part Bank of America's summary judgment motion. In particular, the trial court denied in part the summary judgment motion because a factual dispute existed as to the date of Appellants' default, the amount of indebtedness, and the date when Appellants received the Notice.

         On July 14, 2015, Bank of America filed a "Praecipe to Substitute Plaintiff" (the "Praecipe"), naming Bayview as the substitute plaintiff. Bank of America attached to the Praecipe a document titled "Corporate Assignment of Mortgage, " indicating that Appellants' mortgage had been assigned to Bayview. On August 3, 2015, Appellants filed a "Motion in Limine to Strike Praecipe to Substitute Plaintiff" ("Motion in Limine"), claiming that the substitution did not conform with Pa.R.C.P. No. 2352(a) because Bayview, as Bank of America's successor, failed to file "a statement of material facts." Motion in Limine, 8/3/15, at ¶¶ 3-6.

         The case proceeded to a bench trial, following which the trial court entered a verdict in favor of Bayview, as Bank of America's successor, and against Appellants. On the same day, the trial court denied Appellants' Motion in Limine, concluding, among other things, that attached to the Praecipe was a document titled "Corporate Assignment of Mortgage, " the contents of which obviated the need for Bayview to file a statement of material facts on which the right to substitution is based under Rule 2352. Specifically, the trial court concluded that the "Corporate Assignment of Mortgage" "establishes Bayview's legal interest in the mortgage and the factual circumstances." Trial Court Opinion, 9/4/15, at 1. On September 14, 2015, Appellants filed a motion for reconsideration, which we, like the trial court, treat as a motion for post-trial relief. See Mackall v. Fleegle, 801 A.2d 577, 580 n.1 (Pa. Super. 2002) ("Despite being improperly styled as a motion to reconsider, upon review, it appears that [a]ppellant's motion was actually a motion for post-trial relief, thus preserving the issues raised therein"). On September 16, 2015, the trial court denied Appellants' post-trial relief.

         Appellants timely appealed to this Court. The trial court directed Appellants to file a Pa.R.A.P. 1925(b) statement of errors complained of on appeal. They complied, raising 33 assertions of error.[2] In response, the trial court issued a Pa.R.A.P. 1925(a) opinion, concluding that Appellants' issues on appeal lacked merit.

         On appeal, Appellants raise four issues for our review:

I. Did the trial court err in granting partial summary judgment to . . . Bank of America, N.A.?
II. Did the trial court err and abuse its discretion in denying [Appellants'] motion in limine to strike substitution of Bayview . . . as the party plaintiff and by doing so only after trial had concluded?
III. Did the court commit prejudicial error by permitting the testimony of a witness without personal knowledge and by further receiving exhibits into evidence which did not satisfy the requirements of Pa.R.E. 803(6)?
IV. Is the judgment void due to fraud insofar as the securitization of the promissory note prior to trial obliterated Bayview's standing and removed all controversy before the court including any obligation of [Appellants] to repay?

Appellants' Brief at 19.[3]

         Appellants first argue that the trial court erred in granting Bank of America's summary judgment motion. Specifically, Appellants argue that a factual dispute existed concerning whether they had admitted in their pleadings that the mortgage was in default.

         It is well-settled that

[o]ur 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 ...

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