OPINION BY STABILE, J.:
In this mortgage foreclosure action, the trial court entered summary judgment in favor of the mortgage holder, Appellee, Bank of America, N.A., successor by merger to BAC Home Loans Servicing, L.P., f/k/a Countrywide Home Loans Servicing, L.P. (Bank of America). William Gibson, Appellant and mortgagor, appeals from that order, arguing that disputed, genuine issues of material fact exist regarding an assignment of the mortgage, thus precluding
On April 26, 2007, Appellant mortgaged the subject property to National Bank of Kansas City, the Lender, with Mortgage Electronic Systems Inc. (MERS) "acting solely as nominee for Lender and Lender's successors and assigns." Mortgage ¶ (C).
The mortgage stated further:
Id. ¶ (Q). Appellant concurrently executed a promissory note in favor of National Bank of Kansas City. MERS later assigned the mortgage to Countrywide Home Loans, Inc., who then, in turn, assigned the mortgage to BAC Home Loans Servicing, LP, f/k/a Countrywide Home Loans Servicing, LP. Bank of America subsequently subsumed BAC Home Loans Servicing, LP, by merger.
Bank of America filed a complaint in foreclosure against Appellant on August 29, 2012. Bank of America pled that it held Appellant's mortgage, and the mortgage was in default. In his answer with new matter, Appellant responded with general denials and a claim that he never executed a mortgage in favor of MERS. Bank of America moved for summary judgment, which the trial court granted. This appeal followed.
Before this Court, Appellant assigns the following as error:
Appellant's Brief at 9. Appellant's argument is two-pronged. First, he claims that MERS lacked authority to assign the mortgage. Second, he contends that Bank of America does not hold the note securing the mortgage.
We review an order granting summary judgment for an abuse of discretion. Indalex, Inc. v. Nat'l Union Fire Ins. Co. of Pittsburgh, PA, 83 A.3d 418, 420 (Pa.Super.2013). Our scope of review is plenary, and we view the record in the light most favorable to the nonmoving party. Id. A party bearing the burden of proof at trial is entitled to summary judgment "whenever there is no genuine issue of any material fact as to a necessary element of the cause of action or defense which could be established by additional discovery or expert report[.]" Pa.R.C.P. No. 1035.2(1). In response to a summary judgment motion, the nonmoving party cannot rest upon the pleadings, but rather must set forth specific facts demonstrating a genuine issue of material fact. Pa.R.C.P. No. 1035.3.
The holder of a mortgage has the right, upon default, to bring a foreclosure action. Cunningham v. McWilliams, 714 A.2d 1054,
First, we reject Appellant's contention that MERS lacked the authority to assign the mortgage. Appellant cites no persuasive authority in support of this contention. The mortgage expressly granted the right to exercise all Lender's interests to MERS.
Appellant cites three cases that are in accord with his contention. We, however, find those cases wholly unpersuasive. In In re Agard, 444 B.R. 231, 250-54 (Bankr. E.D.N.Y.2011), a federal bankruptcy court—applying New York law—held that MERS lacks authority to assign mortgages. On appeal, however, a federal district court vacated the bankruptcy court's decision as an unconstitutional advisory opinion.
Appellant's other cases concern MERS' ability to maintain a private recording system-not its authority to assign mortgages under Pennsylvania law. See MERSCORP, Inc. v. Romaine, 8 N.Y.3d 90, 828 N.Y.S.2d 266, 861 N.E.2d 81, 82, 85 (2006) (holding that New York county clerks are required to record and index mortgages and assignments listing MERS as the lender's nominee or mortgagee of record); Montgomery County, Pa. Recorder of Deeds v. MERSCORP, Inc., 298 F.R.D. 202 (E.D.Pa.2014) (granting class action status to Pennsylvania's recorders of deeds seeking to compel MERS to judicially record all mortgage assignments on MERS' private recording system).
Finally, we are persuaded by the fact that Appellant made payments on his mortgage to Bank of America until his default. Only after Bank of America began foreclosure proceedings did Appellant contend that the mortgagee to whom he had been making payments was operating under an improperly transferred mortgage.
We next turn to Appellant's contention that Bank of America's note is "endorsed without date and not in favor of [Bank of America] as required." Appellant's Brief at 13. The law is inapposite.
Under the Pennsylvania Uniform Commercial Code (PUCC), the note securing a mortgage is a negotiable instrument. J.P. Morgan Chase Bank, N.A. v. Murray, 63 A.3d 1258 (Pa.Super.2013). A note endorsed in blank is a "bearer note," payable to anyone on demand regardless of who previously held the note. 13 Pa.C.S.A. §§ 3109(a), 3301. The note in this case, therefore, is an unconditional promise by Appellant to pay a fixed amount of money to Bank of America, with interest, at a definite time. The record in this case clearly shows that Bank of America holds the note, and therefore the mortgage. Appellant failed to put forth any evidence or legal authority to the contrary. Instead he cited only general definition sections of the PUCC and the section concerning lost or stolen instruments, which is inapplicable. See Appellant's Brief at 13 (citing 13 Pa.C.S.A. §§ 1201(21), 9109(a)(3), and 3309).
Finally, Appellant argues the entry of summary judgment violated the rule of Nanty-Glo v. American Surety Co., 309 Pa. 236, 163 A. 523 (1932), because the trial court relied on an affidavit that was inadmissible hearsay.
As noted above, Appellant responded with general denials to the material portions of Bank of America's complaint. General denials constitute admissions
In sum, the trial court did not abuse its discretion in granting Bank of America's motion for summary judgment.
Order affirmed.