Opinion
J-A24005-16 No. 3329 EDA 2015
09-19-2016
DEUSTCHE BANK NATIONAL TRUST COMPANY, AS INDENTURE TRUSTEE FOR AEGIS ASSET BACKED SECURITIES TRUST 2006-1, MORTGAGE BACKED NOTES, BY ITS SERVICER, OCWEN LOAN SERVICING, LLC v. HANIF BEY AND HANIFAH EL Appellants
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Order Entered September 30, 2015
In the Court of Common Pleas of Pike County
Civil Division at No(s): 1662 CV 2013 BEFORE: BOWES, OTT AND SOLANO, JJ. MEMORANDUM BY BOWES, J.:
Hanif Bey and Hanifah El (collectively the "Mortgagors") appeal from the September 30, 2015 order granting summary judgment in favor of Deustche Bank National Trust Company, as Indenture Trustee for Aegis Asset Back Securities Trust 2006-1, Mortgage Backed Notes, By its Servicer, Ocwen Loan Servicing, LLC ("Deustche"). We affirm.
We summarize the facts as provided by the trial court. See Trial Court Opinion, 12/23/15, at 1-4. The Mortgagors executed a mortgage, which was recorded, securing the real property located at 3580 Section 37, Warwick Circle, Lehman Township, Pennsylvania. This mortgage secured a promissory note, which the Mortgagors provided to Mortgage Electronic Registration System ("MERS") as a nominee for Aegis Funding Corporation ("Aegis"), in consideration of a loan to them in the amount of $195,000.00, with payments to commence on October 1, 2006. This note was endorsed by Aegis without recourse payable to the order of Aegis Mortgage Corporation. Aegis Mortgage Corporation in turn endorsed the note without recourse in blank. The mortgage was assigned to Deutsche, and properly recorded.
On July 1, 2012, Mortgagors defaulted on the note and mortgage by failing to make their monthly payment. Subsequently, Deutsche provided them with the requisite notice of default, and an Act 6 and Act 91 combined notice, which included notice of its intention to foreclose. Deutsche commenced the underlying mortgage foreclosure action on October 15, 2013, by the filing of a complaint in mortgage foreclosure, appending the mortgage and assignment thereto. The Mortgagors filed an answer to Deutsche's complaint admitting to executing a mortgage with MERS, but denying they executed a note with MERS or Deutsche, and disputing the amount owed to Deutsche.
Deutsche then filed a motion for summary judgment, and attached a copy of the note to that filing. The court granted summary judgment in Deutsche's favor, and the Mortgagors filed a timely notice of appeal. The court directed Mortgagors to file a Rule 1925(b) concise statement of errors complained of on appeal, they complied, and the court authored its Rule 1925(a) opinion.
Mortgagors raise three questions for our review:
A. Did the trial court err in granting summary judgment in favor of [Deutsche], where the record fails to show [Deutsche's] ownership of the original promissory note of the [Mortgagors'] mortgage transaction?Appellant's brief at 4-5.
B. Did the trial court [err] in granting summary judgment in favor of [Deutsche] where the record fails to show [Deutsche's] right to enforce the recorded mortgage as [Deutsche] is not the [holder] of the [Mortgagors'] original mortgage, as recorded in the Pike County Recorded of Deed's Office, or where the record otherwise fails to show [Deutsche's] right to enforce the [Mortgagors'] mortgage?
C. Did the trial court err in granting summary judgment in favor of [Deutsche] where the record fails to contain evidence of [Deutsche's] status as a proper party to this litigation?
Our scope and standard of review of a trial court's order granting summary judgment is as follows.
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 . . . [a]n appellate court may reverse the entry of a summary judgment only where it finds that 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 judgment as a matter of law. In making this assessment, we view the record in the light most favorable to the nonmoving party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party. Where our analysis involves solely questions of law, our review is de novo.
Thus, our responsibility as an appellate court is to determine whether the record either established that the
material facts are undisputed or contains insufficient evidence of facts to make out a prima facie cause of action, such that there is no issue to be decided by the fact finder.Gerber v. Piergrossi , 2016 WL 3414993 (Pa.Super. 2016) at *3 (citation omitted).
Mortgagors first argue that, pursuant to our holding in CitiMortgage v. Barbezat , 131 A.3d 65 (Pa.Super. 2016), Deutsche must prove it holds the underlying promissory note in order to foreclose on their property. Mortgagors suggest that until Deutsche provides evidence that it holds their note, there exists a genuine issue of material fact, and summary judgment is inappropriate.
The Honorable Joseph F. Kameen authored a thorough and well-reasoned opinion rejecting the Mortgagors' contention. After reviewing the certified record, we affirm on this issue on the basis of the trial court's opinion. See Trial Court Opinion, 12/23/15, at 7-8 (concluding that Deutsche provided a copy of the note and Mortgagors admitted at oral argument that Deutsche possessed the original note).
In addition, we note that Mortgagors' reliance upon Barbezat , supra , is misplaced. In Barbezat , we found, under substantially similar circumstances, that the bank therein had authority to enforce its rights under the mortgage. Barbezat , supra at 69. We reasoned that since the note was endorsed in blank, it was payable to the bearer by transfer of possession alone. Id. We concluded that the bank therein, as the holder of the note, was entitled to enforce those obligations. Id. Similarly here, Deutsche has provided evidence that the mortgage was assigned to it, and that it is currently the holder of the note which is endorsed in blank. Hence, it is authorized to make demand upon Mortgagors to enforce their obligations under the note.
Mortgagors next contend that summary judgment is inappropriate since Deutsche did not produce evidence of the assignment by which it received its foreclosable mortgage interest. After reviewing the certified record, we affirm on the basis of the trial court's opinion. See Trial Court Opinion, 12/23/15, at 8-9 (concluding that the assignment of the original mortgage from MERS to Deutsche established that Deutsche possessed and owned the mortgage as the express language of the mortgage granted MERS the right to assign the mortgage).
Finally, Mortgagors assert that Deutsche did not demonstrate that it has standing to bring an action in foreclosure against them since Deutsche was not a party to the original mortgage and note, and they did not otherwise demonstrate a valid assignment of an interest in their property. After review of the certified record, we again affirm on the basis of the trial court opinion. See Trial Court Opinion, 9-15 (concluding that as the holder in due course of a negotiable instrument, Deutsche had the right, as the party in interest, to seek mortgage foreclosure against Mortgagors).
Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 9/19/2016
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