In a recent case, U.S. Bank National Association v. Primiano, Superior Court of Pennsylvania, June 8, 2021, 2021 WL 2395158, defendant, John Primiano appealed from a motion for summary judgment in favor of plaintiff. The Court affirmed the decision of the lower court. In February 2006, Primiano entered into a mortgage with Washington Mutual Bank, FA for property located at 2413 Grays Ferry Avenue, Philadelphia, Pennsylvania, and executed a note in favor of WaMu in the principal amount of $192,500.00. The Note was endorsed by WaMu and made payable in blank, without recourse. The Mortgage was recorded on February 15, 2006. The Mortgage was subsequently acquired by JPMorgan Chase Bank, through a purchase and assumption agreement with the FDIC, as receiver of WaMu. It was further assigned by Chase to Wells Fargo Bank, N.A., which recorded the assignment on May 9, 2011.
In February 2012, Wells Fargo filed a mortgage foreclosure action against Primiano. In that case, Primiano entered into a judgment by stipulation in favor of Wells Fargo in August 2014 in the amount of $250,220.45, plus interest. The judgment was subsequently vacated when Primiano made a payment in January 2016 in the agreed-upon reinstatement amount and the action was discontinued.
The Mortgage was later assigned a second time —by Wells Fargo to U.S. Bank, appellee herein. The second assignment was recorded on December 28, 2016.
On February 1, 2018, U.S. Bank filed a mortgage foreclosure complaint against Primiano alleging he was in default of the Note and Mortgage for failing to make the monthly payments since March 1, 2016. Primiano filed an answer to the complaint, in which he denied being in default of the loan, claimed he was overcharged, and challenged U.S. Bank’s standing to bring this action.
On March 2, 2020, U.S. Bank moved for summary judgment against Primiano alleging that there were no genuine issues of material fact. Attached to the motion was an affidavit attesting to the fact that U.S. Bank held the Note, the Mortgage was in default because no payment had been made since March 1, 2016, and certifying the amount of interest, costs, and total amount due. Primiano filed a response to the motion for summary judgment. On June 11, 2020, the trial court granted summary judgment in favor of U.S. Bank, and awarded U.S. Bank an in rem judgment in the amount of $224,503.26, plus interest.
“[S]ummary judgment is only appropriate in cases where there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law.” Id. (citing Pa.R.C.P. 1035.2(1)). “When considering a motion for summary judgment, the trial court must take all facts of record and reasonable inferences therefrom in a light most favorable to the non-moving party and must resolve all doubts as to the existence of a genuine issue of material fact against the moving party.” Id. In responding to a motion for summary judgment, “the nonmoving party cannot rest upon the pleadings, but rather must set forth specific facts demonstrating a genuine issue of material fact.” Bank of Am., N.A. v. Gibson, 102 A.3d 462, 464 (Pa.Super. 2014) (citing Pa.R.C.P. 1035.3). We “reverse a grant of summary judgment if there has been an error of law or an abuse of discretion.” Nicolaou, 195 A.3d at 892. Summary judgment in a mortgage foreclosure action is subject to the same rules as other civil actions. CitiMortgage, Inc. v. Barbezat, 131 A.3d 65, 67 (Pa.Super. 2016) (citing Pa.R.C.P. 1141(b)).
In a mortgage foreclosure action, summary judgment is appropriate “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).
Primiano’s first argument is that U.S. Bank lacks standing because it is not the real party in interest. Primiano points out that in the 2012 Action, the copy of the Note that Wells Fargo (the plaintiff in that case) presented in its complaint and motion for summary judgment did not contain an endorsement. In the instant case filed by U.S. Bank, the Note attached to the complaint and motion for summary judgment is the same Note as presented in the 2012 Action but contains a blank endorsement. Primiano contends that the “issue of the two conflicting notes” creates a genuine issue of material fact such that summary judgment should not have been granted.
A plaintiff in a mortgage foreclosure action “can prove standing either by showing that it (i) originated or was assigned the mortgage, or (ii) is the holder of the note specially indorsed to it or indorsed in blank.” Gerber, 142 A.3d at 859-60 (quoting J.P. Morgan Chase, N.A. v. Murray, 63 A.3d 1258, 1267-68 n.6 (Pa.Super. 2013)) Pennsylvania permits assignments of mortgages and “[w]here an assignment is effective, the assignee stands in the shoes of the assignor and assumes all of his rights.” Barbezat, 131 A.3d at 69.
U.S. Bank alleged in its complaint that it “is the proper party by way of an Assignment of Mortgage recorded December 28, 2016 as Instrument #53154549.” It produced copies of the original recorded Note and Mortgage, as well as the recorded assignments from Chase to Wells Fargo and from Wells Fargo to U.S. Bank as exhibits to its Motion for Summary Judgment. Additionally, U.S. Bank’s motion for summary judgment also included an affidavit from the mortgage servicer confirming that U.S. Bank was in possession of the original Note.
U.S. Bank produced sufficient evidence to establish that it had standing to pursue this action by virtue of the assignments, recorded prior to the commencement of this action, and the fact that U.S. Bank possessed the Note. Primiano failed to point to any evidence in the record in support of his assertion that a genuine issue of material fact exists regarding the validity of the assignments.
Primiano’s argument that there is a genuine issue of fact as to the validity of the endorsement was unavailing. The 2012 Action was brought by Wells Fargo, not U.S. Bank. U.S. Bank was not a party to the 2012 Action and was not involved in that case. U.S. Bank did not have the burden in this case of explaining the existence of an unendorsed note in a case in which it was not a party. Therefore, evidence used in the 2012 Action were found not relevant to U.S. Bank’s instant action and thus, the trial court did not err in failing to consider them. Moreover, the signature on an endorsement is presumed to be authentic and authorized. Primiano produced no evidence to rebut that presumption.
Finally, Primiano argued that U.S. Bank overcharged him for “forced-placed” insurance despite him carrying and paying for his own hazard insurance. Primiano’s amended answer and new matter only contained general denials and claims of lack of knowledge in response to U.S. Bank’s assertions of default and amount due under the loan. These were bald assertions with no supporting evidence.
The only supposed support presented by Primiano was his self-serving affidavit, in which he conclusory states he is not in default of the loan and that he was overcharged for insurance payments.
The Court therefore concluded that the trial court did not commit an error of law or abuse its discretion when it granted U.S. Bank’s motion for summary judgment. For any questions regarding this case, please contact Deborah Gallo, Esq. at email@example.com.