Bank of America v. Davis, M.
331 WDA 2016
| Pa. Super. Ct. | Nov 29, 2016Background
- In 1999 Mark R. Davis executed a mortgage and promissory note for $80,958.00 to Standard Federal Bank.
- The mortgage was assigned over time (record reflects assignments to Atlantic Mortgage & Investment Corp. in 2001 and to LaSalle Bank Midwest National in 2008); LaSalle later merged into Bank of America.
- Davis defaulted on the mortgage in February 2010; Bank of America filed a foreclosure complaint in March 2013.
- Bank of America moved for summary judgment in July 2015; the trial court entered judgment in rem on February 5, 2016 for $117,038.33 plus interest and costs, and ordered foreclosure and sale.
- Davis appealed, arguing (1) the mortgage assignment to the Bank (via predecessors) was invalid and (2) the Bank failed to produce the original note.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Validity of mortgage assignment / standing to challenge assignment | Davis: prior assignment to another entity makes Bank's claim invalid | Bank: it holds the note (a bearer instrument) and may enforce it regardless of chain questions | Court: Davis lacks standing to challenge assignment where Bank holds a bearer note; chain-of-possession disputes immaterial |
| Possession / production of original note at summary judgment | Davis: Bank did not produce the original note | Bank: asserted in its summary judgment motion that it possessed the note; Davis did not properly contest possession with affidavits/facts | Court: Davis failed to properly dispute possession; court could not consider unsupported argument in brief; summary judgment appropriate |
Key Cases Cited
- PHH Mortg. Co. v. Powell, 100 A.3d 611 (Pa. Super.) (standard of review and summary judgment principles)
- J.P. Morgan Chase Bank, N.A. v. Murray, 63 A.3d 1258 (Pa. Super.) (note as negotiable instrument; bearer-note enforcement and standing to challenge assignment)
- Maier v. Maretti, 671 A.2d 701 (Pa. Super.) (nonmoving party must set forth specific facts by affidavit to oppose summary judgment)
- Scopel v. Donegal Mutual Ins. Co., 698 A.2d 602 (Pa. Super.) (court cannot consider factual averments raised only in briefs supporting or opposing summary judgment)
- Erie Indemnity Co. v. Coal Operations Casualty Co., 272 A.2d 465 (Pa.) (supporting rule on inadmissible factual averments in briefs)
- Cunningham v. McWilliams, 714 A.2d 1054 (Pa. Super.) (summary judgment proper when no material fact remains in issue)