JP MORGAN CHASE BANK, N.A. v. MURRAY | Award Winning Filmmaker of Making CHASING JP MORGAN film - WINS Foreclosure SJ Appeal
JP MORGAN CHASE BANK, N.A. v. MURRAY
2013 PA Super 55
JP MORGAN CHASE BANK, N.A. Appellee, v. FRANCIS X. MURRAY Appellant.
No. 980 EDA 2012.
Superior Court of Pennsylvania.
Filed: March 18, 2013. BEFORE: PANELLA, J., LAZARUS, J., and WECHT, J. OPINION BY WECHT, J. end- For the foregoing reasons, the trial court's March 26, 2012 order granting Appellee summary judgment must be reversed and the case remanded for further proceedings. We do not rule out the possibility that, upon further discovery or other proceedings, the trial court may find itself in a position in which it is appropriate to rule as a matter of law that Appellee is the actual holder of the Note and, as such, is the appropriate party to maintain the instant action. However, the record presently before this Court is inadequate to justify such a ruling. Should the trial court determine that a fact question remains concerning the proper party in interest to seek to foreclose on the mortgage at issue, it must submit the issue to a fact-finder. Moreover, it is incumbent on Appellee, with the guidance of the trial court, to cure the above-identified deficiency in the verification of the Complaint. Order reversed. Case remanded with instructions. Jurisdiction relinquished. Footnotes 1. JP Morgan Chase Bank, N.A., having been substituted as plaintiff for the originally-captioned plaintiff by leave of the trial court, is identified as "Appellee" herein. JP Morgan Chase Bank, N.A., held itself out as agent for the originally captioned Plaintiff at the outset of this litigation. When we refer to Appellee in that capacity, we refer to it as "JPMorgan." Back to Reference 2. An allonge is "[a] slip of paper sometimes attached to a negotiable instrument for the purpose of receiving further indorsements when the original paper is filled with indorsements." Black's Law Dictionary 76 (Deluxe 7th ed.). Back to Reference 3. While Murray's statement of the questions involved conforms technically with the requirements of Pa.R.A.P. 2116(a) by squeezing the five questions into two densely packed, single-spaced pages, the statement defies the rule's spirit, because it is not "expressed in the terms and circumstances of the case . . . without unnecessary detail." As well, in violation of Pa.R.A.P. 2119(a), Murray fails to organize his argument into as many sections as there are questions stated. Murray is advised to prepare any future briefs fully in conformity with the requirements of these rules, on peril of waiver. See Pa.R.A.P. 2101. Back to Reference 4. In its Rule 1925 opinion, the trial court rejected Murray's challenge to Appellee's possession of the note as follows: "[A] mortgage foreclosure action is strictly an in rem action based on the mortgage." Opinion, 6/12/2012, at 2. In support of this proposition, the court cited Pa.R.C.P. 1141(a) and Newtown Village Partnership v. Kimmel, 621 A.2d 1036 (Pa. Super. 1993). However, we fail to see how the in rem character of the judgment that is entered at the conclusion of a successful foreclosure action speaks to what criteria must be satisfied to establish standing to foreclose for default upon the instrument the mortgage was established to secure. The trial court's brief response does not materially address this aspect of Murray's argument. Back to Reference 5. A special indorsement is one made by the holder of an instrument that identifies a person to whom it makes the instrument payable. 13 Pa.C.S. § 3204. Such an indorsement renders the instrument payable to the identified person, who is the only person who may transfer that note by subsequent indorsement. Back to Reference 6. Notably, under the PUCC, it may be the case that Appellee can substantiate possession of the Note by establishing, in the alternative, the transfer of the mortgage, i.e., the security interest in the Note. 13 Pa.C.S. § 3204(c) ("For the purpose of determining whether the transferee of an instrument is a holder, an indorsement that transfers a security interest is effective as an unqualified indorsement of the instrument.") It would be premature to address this possibility, given the state of the record. Back to Reference 7. Although the PUCC analysis set forth above may render this question moot on remand, we note that, should circumstances require the trial court to review the validity of the two assignments that preceded Appellee's alleged succession by merger to the Note and Mortgage here at issue, the court must attend to a patent irregularity on the face of the assignments. Despite Appellee's contentions to the contrary in its Complaint and by affidavit of its vice president, Selvin Lokmic, which inaccurately describe the documents in question, Murray is correct that the putative Assignee named in the Deutsche Bank Assignment differs in name from the putative Assignor named in the directly subsequent WaMu Assignment. Specifically, the Assignee named in the Deutsche Bank Assignment is "Deutsche Bank Trust Company Americas." However, the assignor named thereafter in the WaMu Assignment is "Deutsche Bank National Trust Company Americas, as Trustee," with the boldfaced words reflecting differences from the listed assignee's name in the Deutsche Bank Assignment. See Appellee's Brief in Support of Motion for Summary Judgment, Exh. B (Lokmic Affidavit, Exhs. 4 & 5 (assignments)). Appellee repeats this error before this Court, erroneously characterizing the assignments as follows:• An assignment dated August 15, 2000 [Deutsche Bank Assignment], which shows an assignment of the Mortgage from Washington Mutual Bank, successor by merger to Great Western, to Deutsche Bank Trust Company Americas. . . .
• An assignment dated March 23, 2010 [WaMu Assignment], which shows an assignment of the Mortgage from Deutsche Bank Trust Company Americas to Deutsche Bank National Trust company, as Trustee for Washington Mutual Mortgage Securities Corp. 2000-1. . . .
Brief for Appellee at 11. Appellee omits the word "National" from its description of the Assignor named in the WaMu Assignment. Having admitted that the presence or absence of the word "National" connotes two different corporate entities, it appears that Appellee may not be able to establish the regularity of the WaMu Assignment as documented. Moreover, this erroneous characterization renders Appellee materially silent as to this aspect of Murray's argument. While it might be contended that this was a typographical error, or that the irregularity is immaterial given that both named entities appear to be Deutsche Bank entities, we cannot, and the trial court should not, overlook the fact that Appellee acknowledged that these are distinct entities in its response to Murray's request for admissions. See Defendant's Memorandum of Law in Support of Answer to Plaintiff's Motion for Summary Judgment, Exh. D ("Admissions Requested") at 7 ¶31. We need not cite legal authorities for the self-evident proposition that separately named and established corporate entities, regardless of their degree of corporate consanguinity, must be treated as such; and that a party that does not possess an instrument in the first instance cannot validly assign that instrument to another party. Back to Reference 8. Rule 1018 provides: "Every pleading shall contain a caption setting forth the name of the court, the number of the action and the name of the pleading. The caption of a complaint shall set forth the form of the action and the names of all the parties . . . ." Pa.R.C.P. 1018 ("Caption"). Back to Reference 9. In light of the questions that this inevitably raises, which might be addressed by discovery regarding Ms. Hindman's relationship to Plaintiff and the controversy, we agree with Murray that Plaintiff's objection to Murray's interrogatory seeking Ms. Hindman's contact information and a description of her role for JPMorgan is problematic, inasmuch as her relationship to JPMorgan, Plaintiff, and the instant controversy plainly bear on her competency to verify the Complaint. See Brief for Murray at 29; Plaintiff's Response to Murray's Interrogatories at 8-9, ¶26. This may prove to be a moot consideration on remand, depending upon the trial court's consideration of who the proper plaintiff is in this matter, if any, and its determination of how the complaint must be amended if the case is to proceed.