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.”
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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.).
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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.
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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.
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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.
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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.
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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.
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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”).
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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.

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