Opinion
J-S34003-16 No. 1591 MDA 2015
06-06-2016
MARJER, INC. Appellant v. KIMBERLY POPLAWSKI, DECISION ONE MORTGAGE COMPANY, LLC, MERS, THEIR HEIRS, EXECUTORS, ADMINISTRATORS, ASSIGN AND ALL PERSONS CLAIMING ANY RIGHT, TITLE, AND INTEREST IN THE LAND DESCRIBED AS 624 BOULEVARD AVENUE, DICKINSON CITY, PENNSYLVANIA, LACKAWANNA COUNTY PIN 12408 040 049 Appellee
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Order Entered August 13, 2015
In the Court of Common Pleas of Lackawanna County
Civil Division at No(s): 2011-05082 BEFORE: PANELLA, J., STABILE, J., and JENKINS, J. MEMORANDUM BY PANELLA, J.
Appellant, Marjer, Inc., appeals from the order entered August 13, 2015, granting the motion for summary judgment filed by Appellee, Mortgage Registration Systems, Inc. ("MERS") and denying Appellant's cross-motion for summary judgment. On appeal, Appellant argues that the trial court's determination that MERS has standing to defend the underlying action to quiet title was in error. For the following reasons, we affirm.
MERS aims to facilitate "by streamlining, successive interbank sales of mortgages." Union County , Ill. v. MERSCORP , Inc., 735 F.3d 730, 732 (7th Cir. 2013).
The trial court summarized the facts and procedural history of this case as follows.
On May 13, 2004, Defendant Kimberly Poplawski executed a mortgage ("the mortgage") with Decision One Mortgage Company, LLC, with MERS acting as Nominee, on real property located at 624 Boulevard Avenue, Dickinson City, Pennsylvania ("the Property"). The Mortgage was properly recorded in the Lackawanna County Recorder of Deeds Office in Book 1233, Page 520. MERS is listed as the mortgagee in the terms of the mortgage.
About seven (7) years later, on August 10, 2011, [Appellant] purchased the Property from Ms. Poplawski. Shortly thereafter, (about eight days later) on August 18, 2011, [Appellant] filed the instant action seeking to quiet title to the Property, alleging that the deed for the property, now in possession of [Appellant], divested any claims MERS or any Defendant had in the Property. On October 31, 2011, MERS answered Plaintiff's complaint. However, default judgments were entered on November 4, 2011 against Decision One Mortgage Company, LLC and Ms. Poplawski.
MERS requested discovery of [Appellant], seeking information regarding the basis of their quiet title claim. [Appellant] produced no discovery that the mortgage executed on the property with Decision One Mortgage with MERS as the nominee had been satisfied at the time [Appellant] filed the quiet title action. Therefore, MERS filed a Motion for Summary Judgment on October 9, 2012.
[Appellant] filed a Response to MERS['] Motion and also filed a Cross-Motion for Summary Judgment on November 21, 2012. After hearing oral argument on the dueling motions, [the trial court] granted MERS' Motion for Summary Judgment by [c]ourt [o]rder dated March 6, 2013.
Plaintiff appealed [the trial court's] decision to the Superior Court of Pennsylvania. By Opinion and Order dated December 23, 2013, the Superior Court remanded this matter to the
Lackawanna County Court of Common Pleas, [with instructions] to consider MERS' standing and authority to proceed in this matter before disposing of the Motions for Summary Judgment. By [c]ourt [o]rder dated October 21, 2014, [the trial court] ordered that the Parties were to submit supplemental briefs regarding the aforementioned issues. ...Trial Court Opinion, 8/13/15 at 1-3. By order entered August 13, 2015, the trial court determined that MERS did have standing to defend the quiet title action and granted MERS' motion for summary judgment. This timely appeal followed.
Appellant raises the following issue for our review.
Did the trial court commit an error of law and abuse its discretion in granting the Appellee, MERS['] Motion for Summary Judgment when MERS lacks standing to pursue defend [sic] the instant action?Appellant's Brief at 3.
We review a decision granting summary judgment according to the following standard.
A reviewing court may disturb the order of the trial court only where it is established that the court committed an error of law or abused its discretion. As with all questions of law, our review is plenary.
In evaluating the trial court's decision to enter summary judgment, we focus on the legal standard articulated in the summary judgment rule. Pa.R.C.P. 1035.2. The rule states that where there is no genuine issue of material fact and the moving party is entitled to relief as a matter of law, summary judgment may be entered. Where the non-moving party bears the burden of proof on an issue, he may not merely rely on his pleadings or answers in order to survive summary judgment. Failure of a nonmoving party to adduce sufficient evidence on an issue essential to his case and on which it bears the burden of proof establishes the entitlement of the moving party to judgment as a matter of law. Lastly, we will view the record in the light most
favorable to the non-moving party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party.JP Morgan Chase Bank , N.A. v. Murray , 63 A.3d 1258, 1261-62 (Pa. Super. 2013) (citation omitted).
Preliminarily, we are obliged to note the peculiarity of Appellant's argument. Appellant contends that MERS has no standing to defend or otherwise proceed in the quiet title action, despite the fact that Appellant in its complaint named MERS as a defendant to that action. Appellant completely ignores this obvious conundrum. Even more perplexing, Appellant fails to advance a focused argument against MERS' standing in this action, but rather focuses solely on MERS' authority to assign the underlying mortgage. The relevance of this issue to MERS' standing to defend against the quiet title action is lost on this Court. Nonetheless, we observe that in Bank of America , N.A. v. Gibson , 102 A.3d 462, 465-466 (Pa. Super. 2014), appeal denied , 112 A.3d 648 (Pa. 2015), this Court expressly held that MERS, as holder of legal title to the interests granted by the mortgagor in the mortgage, clearly has the authority to assign the mortgage.
Appellant's brief, in its entirety, contains not so much as a passing reference to this Commonwealth's case law underlying the legal concept standing.
In essence, Appellant has created a manufactured controversy by claiming that a named defendant to a lawsuit has no power to defend its interest therein. This argument is patently baseless. As the trial court correctly noted, the mortgage states that MERS is the mortgagee and is acting "as a nominee for Lender and Lender's successors and assigns." Mortgage at 1 ¶C. (emphasis added). The mortgage further provides that "if necessary to comply with law or custom, MERS (as nominee for Lender and Lender's successors and assigns) has the right: to exercise any or all of those interests, including but not limited to, the right to foreclose and sell the property; and to take any action required of Lender including, but not limited to, releasing and canceling this Security Instrument." Id. at 3 (emphasis added).
In Mortgage Elec. Registrations Systems , Inc. v. Ralich , 982 A.2d 77, 81 (Pa. Super. 2009), a panel of this Court, construing a mortgage with language identical to the mortgage in this case, held the mortgage vests MERS with the authority to enforce the loan. This authority clearly encompasses MERS' ability to defend its interests in the quiet title action. Appellant's argument to the contrary, such that it is, is clearly without merit.
Appellant correctly notes that the trial court's citation to this Court's memorandum decision in Deutsche Bank Trust Co. v. Kravitz , 1911 EDA 2013 (Pa. Super., filed July 2, 2014) (unpublished memorandum), was in error. Citing our memorandum decisions is prohibited by Superior Court Internal Operating Procedure § 65.37(A): "An unpublished memorandum decision shall not be relied upon or cited by a Court or a party in any other action or proceeding...." 210 Pa.Code § 65.37. (There are exceptions provided in § 65.37(A) that are not pertinent here.)
Appellant's brief focuses solely on the trial court's determination of MERS' standing and therefore fails to address the court's August 13, 2015 order to the extent that it entered summary judgment in favor of MERS in the quiet title action. Nonetheless, we note that we agree with the reasoning the trial court advanced in its August 13, 2015 opinion supporting this decision. We therefore affirm the trial court's order granting summary judgment in MERS' favor on that basis. See Trial Court Opinion, 8/13/15 at 6-8.
Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 6/6/2016
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