Wells Fargo Bank v. Ferreri, L.
403 EDA 2015
| Pa. Super. Ct. | Nov 15, 2016Background
- In 2006 Ferreri executed a promissory note and mortgage in favor of Wachovia for property in Wynnewood; she later defaulted and Wachovia filed foreclosure in 2009 alleging $269,015.93 owed.
- Ferreri answered with general denials, admitted she gave the mortgage to Wachovia, and raised 26 affirmative defenses and counterclaims; the court dismissed her new matter and counterclaims.
- Wachovia merged into Wells Fargo; Wells Fargo filed a substitution as successor and moved for summary judgment in 2014. Ferreri filed a response admitting the note/mortgage and default but alleging fraud, improper Act 91 notice, securitization/ownership defects, and TILA/RESPA violations.
- Ferreri did not attach affidavits or evidentiary materials to oppose the summary judgment motion; she later filed a 424‑page motion for reconsideration with expert affidavits but appealed before the trial court ruled on reconsideration.
- The trial court granted summary judgment for Wells Fargo; the Superior Court affirmed, holding Ferreri failed to produce admissible evidence creating genuine issues of material fact and had waived certain claims by not raising them below.
Issues
| Issue | Plaintiff's Argument (Wells Fargo) | Defendant's Argument (Ferreri) | Held |
|---|---|---|---|
| 1. Standing/ownership of the note | Successor-by-merger (Wells Fargo) acquired Wachovia’s assets and therefore had standing to enforce the note | Wells Fargo is not owner/holder in due course; securitization/Fannie Mae ownership means Wells Fargo lacked standing | Court: Wells Fargo had standing via succession and Ferreri’s admissions; no genuine dispute |
| 2. Fraud/predatory lending defense | No competent evidence was submitted opposing summary judgment | Ferreri alleged loan origination fraud and predatory practices | Court: Ferreri failed to produce admissible evidence in opposition (affidavits came only after judgment); no fact issue shown |
| 3. Act 91 notice defects | Wells Fargo produced Act 91 notice and argued compliance | Ferreri claimed notice was defective (on bank letterhead; listed multiple counseling agencies; payoff discrepancy) | Court: Ferreri did not submit the notices she received or evidence of confusion; challenge insufficient to defeat summary judgment |
| 4. TILA/RESPA claims | Wells Fargo: no specific response below; argued claims not properly raised | Ferreri contended Wells Fargo failed to respond to requests under TILA/RESPA | Court: These federal claims were waived on appeal for failure to raise them in opposition to summary judgment in the trial court |
Key Cases Cited
- Summers v. Certainteed Corp., 997 A.2d 1152 (Pa. 2010) (standard of appellate review for summary judgment and no genuine issue of material fact)
- Gateway Towers Condominium Ass'n v. Krohn, 845 A.2d 855 (Pa. Super. 2004) (summary judgment proper in foreclosure where defendant admits default and offers no cognizable defense)
- Bank of America, N.A. v. Gibson, 102 A.3d 462 (Pa. Super. 2014) (general denials in foreclosure pleadings operate as admissions of indebtedness)
- PHH Mortgage Corp. v. Powell, 100 A.3d 611 (Pa. Super. 2014) (possession of original note is critical; mere documents showing an entity as investor are insufficient to create triable issue)
- J.P. Morgan Chase, N.A. v. Murray, 63 A.3d 1258 (Pa. Super. 2013) (discusses proof required to show possession/ownership of note; succession by merger can suffice under facts)
- First Wis. Trust Co. v. Strausser, 653 A.2d 688 (Pa. Super. 1995) (summary judgment in foreclosure when mortgagor admits default and indebtedness)
- Nanty-Glo v. American Surety Co., 163 A. 523 (Pa. 1932) (affidavit use and challenges to summary judgment; noted Ferreri waived reliance on this case by not raising it below)