MEMORANDUM AND ORDER

JOYNER, District Judge.

This civil action is once again before the Court on cross-motions of Defendants Merscorp, Inc. and Mortgage Electronic Registration Systems, Inc. ("the MERS Defendants" or "MERS") and Plaintiff for summary judgment and partial summary judgment, respectively (Doc. Nos. 67 and 80). For the reasons set forth below, Plaintiff's motion shall be granted in part and Defendants' motion denied in its entirety.

Factual Background

As outlined in our previous Memoranda adjudicating the various motions filed earlier in this matter, Plaintiff, Nancy Becker, is the Recorder of Deeds in and for Montgomery County, Pennsylvania. She filed this lawsuit on behalf of herself and all other Pennsylvania Recorders of Deeds alleging that by creating and maintaining a private, members-only registry for recording and tracking conveyances of interests in real property, the MERS Defendants have violated 21 P.S. § 3511 which requires that such conveyances be publicly recorded in the county recorder of deeds offices. Specifically, Plaintiff is challenging the practice by which MERS serves as the mortgagee of record in the public land records as the "nominee" for a lender who holds the mortgage note and its successors and assigns and thereby circumvents the need to record the transfer of the note each time it is sold.

As a result of what Plaintiff contends are Defendants' negligent and willful violations of the foregoing statute, Plaintiff seeks both monetary and equitable relief in the form of a declaration and/or permanent injunction directing Defendants to record mortgage assignments as well as an order quieting title and finding that Defendants were unjustly enriched. By the motions which are now before us, the parties ask this Court to enter judgment and partial judgment in their favor as a matter of law, asserting that the dispute between them is primarily legal in nature and that there are no material facts in dispute. (See, e.g., MERS Defendants' Memorandum of Law in Support of Motion for Summary Judgment, p. 8).

Standards For Adjudicating Summary Judgment Motions

It is Fed.R.Civ.P. 56 which outlines the standards to be employed by the federal courts in considering motions for summary judgment. Subsection(a) of that rule provides the following in relevant part:

In reviewing the record before it for purposes of assessing the propriety of entering summary judgment, the court should view the facts in the light most favorable to the non-moving party and draw all reasonable inferences in that party's favor. Ma v. Westinghouse Electric Co., 559 Fed.Appx. 165, 168 (3d Cir.2014); Burton v. Teleflex, Inc., 707 F.3d 417, 425 (3d Cir.2013). The initial burden is on the party seeking summary judgment to point to the evidence "which it believes demonstrate the absence of a genuine issue of material fact." United States v. Donovan, 661 F.3d 174, 185 (3d Cir.2011) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). An issue is genuine only if there is a sufficient evidentiary basis on which a reasonable jury could find for the non-moving party, and a factual dispute is material only if it might affect the outcome of the suit under governing law. Kaucher v. County of Bucks, 455 F.3d 418, 423 (3d Cir.2006) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)).

However, to survive summary judgment, the non-moving party must present more than a mere scintilla of evidence; there must be evidence on which the jury could reasonably find for the nonmovant. Jakimas v. Hoffmann-La Roche, Inc., 485 F.3d 770, 777 (3d Cir.2007). And, "if there is a chance that a reasonable juror would not accept a moving party's necessary propositions of fact, summary judgment is inappropriate." Donovan, supra, (quoting El v. SEPTA, 479 F.3d 232, 238 (3d Cir. 2007)).

The rule is no different where there are cross-motions for summary judgment. As the Third Circuit Court of Appeals has observed: "cross-motions are no more than a claim by each side that it alone is entitled to summary judgment, and the making of such inherently contradictory claims does not constitute an agreement that if one is rejected the other is necessarily justified or that the losing party waives judicial consideration and determination whether genuine issues of material fact exist." Lawrence v. City of Philadelphia, 527 F.3d 299, 310 (3d Cir.2008) (quoting Rains v. Cascade Industries, Inc., 402 F.2d 241, 245 (3d Cir.1968)). And, the mere fact that "both parties seek summary judgment does not constitute a waiver of a full trial or the right to have the case presented to a jury." Facenda v. N.F.L. Films, Inc., 542 F.3d 1007, 1023 (3d Cir. 2008) (quoting 10A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 2720 (3d ed.1998), at 330-331).

Discussion

According to the MERS Defendants,

(Defendants' Memorandum of Law in Support of Motion for Summary Judgment, p. 9).

By her response in opposition and cross-motion for partial summary judgment, Plaintiff rejoins that the entry of an Order of Declaratory Judgment finding that Defendants have violated and are currently violating 21 P.S. § 351 with the result that they have been unjustly enriched at the expense of all of the county recorders of deeds in Pennsylvania is appropriate. More particularly, Plaintiff submits that because the promissory note and mortgage are inseparable and an assignment of mortgage constitutes a recordable conveyance of title in land, this Court should reject MERS' argument that its system is lawful because there is no legal requirement to publicly record promissory notes.

We begin by noting that Defendants' Question 4 has already been effectively answered by our Memorandum of October 19, 2012 wherein we found no need to reach the question of whether Section 351 bestowed a private right of action because Pa. R.C.P. No. 1061(b)(3) permitted Plaintiff to pursue an action to quiet title.2 Thus, inasmuch as this finding established the law of the case, we see no need to discuss it further.3 To appropriately address and answer Defendants' other questions and the arguments advanced by Plaintiff, we must confront head-on the model upon which Defendants' entire business is built and in so doing determine whether the "splitting" of a promissory note from the mortgage lien that secures it obviates the recording requirements imposed under the Pennsylvania statute.4 Underscoring this inquiry are the threshold questions of what is a mortgage under Pennsylvania law and what are the purposes of the Pennsylvania recording laws?

A. What is a Mortgage?

As generally described above, the ordinary mortgage consists of two instruments — the note or bond5 and the mortgage instrument itself. The mortgage is simply security for the payment of the note, with a right of a lien on the mortgage premises to enforce payment. Philadelphia Federal Credit Union v. Ankrah, Civ. A. No. 13-3040, 2014 WL 644998 at *3, 2014 U.S. Dist. LEXIS 21095 at *8 (E.D.Pa. Jan. 30, 2014). "A mortgage, unless it contain some express covenant to that effect, is not of itself an instrument which imports any personal liability for the money it secures." Baum v. Tomkin, 110 Pa. 569, 572, 1 A. 535, 536 (1885). In Pennsylvania,

Hartje's Estate, 345 Pa. 570, 574, 28 A.2d 908, 910 (1942). Accordingly, under Pennsylvania state law, a valid mortgage can be created without requiring the mortgagor to assume personal liability under a note. In re Farris, 194 B.R. 931, 940 (Bankr. E.D.Pa.1996).6

Typically, a mortgagor's failure to pay the amounts due and owing under the note constitutes an event of default following which the holder may proceed to enforce the terms of the mortgage either through in rem foreclosure proceedings or by obtaining an in personam judgment on the note and seeking to execute. Amerco Real Estate Co. v. Appalachian Self-Storage, LLC, Civ. A. No. 3:11-CV-1166, 2012 WL 3597189 at *7, 2012 U.S. Dist. LEXIS 116997 at *21 (M.D.Pa. Aug. 20, 2012) (citing Wilson v. Parisi, 549 F.Supp.2d 637, 655 (M.D.Pa.2008)). See also, PFCU v. Ankrah, supra, ("The holder of a bond and mortgage can proceed in rem or in personam to enforce his claim; he may proceed by an action of mortgage foreclosure or by an action on the bond which the mortgage secures." (citing U.S. Bank, N.A. v. Mallory, 2009 PA Super 182, 982 A.2d 986, 992 n. 3 (Pa.Super.Ct.2009))); Levitt v. Patrick, 2009 PA Super 117, 976 A.2d 581 (2009) and Bank of Pennsylvania v. G/N Enterprises, Inc., 316 Pa.Super. 367, 371, 463 A.2d 4, 6 (1983). To be sure, by having a loan secured by both a mortgage and a bond or note, a mortgagee has a choice of remedies — one against the mortgaged property, the other against the mortgagor personally. See, Ladner, at § 22.05(b). See also, Easton Theatres, Inc. v. Wells Fargo Land & Mortgage Co., 498 Pa. 557, 565, 449 A.2d 1372, 1376 (1982) (Dissenting Opinion, Flaherty, J.) ("The effect of executing a bond or note secured by a mortgage, unless recourse on the bond is specifically limited, is to subject all of the real and personal property of the obligor to execution in the event of default."). While these remedies may be pursued concurrently or consecutively, the mortgage may have only one satisfaction. Schuylkill Trust Co. v. Sobolewski, 325 Pa. 422, 426-427, 190 A. 919, 922 (1937); Elmwood Federal Savings Bank v. Parker, 446 Pa.Super. 254, 666 A.2d 721, 724, n. 6 (1995).

Further, inasmuch as an action in mortgage foreclosure is strictly an in rem proceeding the sole purpose of which is to effect a judicial sale of the mortgaged real estate, it may not include an in personam action to enforce personal liability, unless the mortgagor waives any objection to the inclusion of the breach of contract action for a personal judgment in the mortgage foreclosure suit. Newtown Village Partnership v. Kimmel, 424 Pa.Super. 53, 55, 621 A.2d 1036, 1037 (1993); Insilco Corp. v. Rayburn, 374 Pa.Super. 362, 368, 543 A.2d 120, 123 (1988) (citing Pa. R.C.P. 1141 and Meco Realty Company v. Burns, 414 Pa. 495, 200 A.2d 869 (1964) and First Seneca Bank v. Greenville Distributing Company, 367 Pa.Super. 558, 533 A.2d 157 (1987)). To pursue both of these remedies, however, the creditor/mortgagee must possess both the note and the mortgage. See, e.g., U.S. Bank v. Montalvo, Civ. A. No. 3:08-CV-1504, 2013 WL 6058872 at *3, 2013 U.S. Dist. LEXIS 132595 at *8 (M.D.Pa. Nov. 14, 2013) (where defendant mortgagee signatory to mortgage only and not note, plaintiff could not have brought in personam action against him based on any alleged failures to pay obligations due under note).

Additionally, notes secured by mortgages have been determined to be negotiable instruments under the Pennsylvania Uniform Commercial Code,7 such that the holder of such an instrument may be entitled to the protections afforded thereunder to a holder in due course. JP Morgan Chase Bank, N.A. v. Murray, 2013 PA Super 55, 63 A.3d 1258, 1265 (2013); In re Walker, 466 B.R. 271, 282 (Bankr. E.D.Pa.2012); Deutsche Bank Nat'l Trust Company v. Carmichael, 448 B.R. 690, 694 (Bankr.E.D.Pa.2011). Under the Code, a note may be negotiated from one person to another by mere transfer of possession. See, 13 Pa.C.S. §§ 3201, 3203 (governing "Negotiation," and "Transfer of instrument; rights acquired by transfer"). From all of this, we conclude that Defendants are correct in their assertion that Pennsylvania law does indeed recognize a clear legal distinction between a promissory note and a mortgage and that promissory notes may generally be freely transferred without the requirement of recording.

This does not end the matter, however. Again, it is the Defendants' premise that because the debt transfers at issue occur by mere delivery of promissory notes, they are not "written instruments" subject to the recording requirement of Section 351. Accordingly, the question which this case presents and with which we are here confronted is whether a promissory note that is secured by a mortgage also falls within the purview and meaning of a "conveyance," "contract," or "other instrument of writing" "wherein it shall be the intention of the parties executing the same to grant, bargain, sell and convey any lands, tenements or hereditaments situate in th[e] Commonwealth [of Pennsylvania]." 21 P.S. § 351. If so, then the mandate of Section 351 is clear: it "shall be recorded in the office for the recording of deeds in the county where such lands, tenements and hereditaments are situate." Id. In an effort to resolve this question, we turn now to an examination of the purposes and intentions behind the Pennsylvania Recording statutes.

B. Pennsylvania Recording Law

Generally speaking, the primary purpose behind enactment of the Pennsylvania statutes governing recording of property conveyances was the provision of notice of the identities of those who held an interest in the real estate at issue, primarily to protect subsequent bona fide purchasers from injuries caused by secret pledges of property. 6 Summ. Pa. Jur.2d Property §§ 8:112, 9:17 (2d ed.) (2012).8 Indeed as early as 1848, the Pennsylvania Supreme Court noted that:

Mott v. Clark, 9 Pa. 399, 405 (1848). And, just two years later, the Court observed:

Salter v. Reed, 15 Pa. 260, 263-264 (1850). These holdings remain undisturbed despite the passage of more than 150 years and thus the underlying purpose behind the Pennsylvania recording acts remains clear — to provide notice to the public of the identities of those who hold an interest in real estate as well as notice of the true nature of the transaction on record. See, e.g., U.S. Bank, N.A. v. Mallory, 2009 PA Super 182, 982 A.2d 986, 994, n. 6 (2009) ("Mortgages are recorded to provide notice to the world as to whose interest encumbers title."); Weik v. Estate of Brown, 2002 PA Super 63, 794 A.2d 907, 911 (Pa.Super.Ct.2002); Roberts v. Estate of Pursley, 718 A.2d 837, 841 (Pa.Super.Ct.1998); Mancine v. Concord-Liberty Savings & Loan Ass'n., 299 Pa.Super. 260, 445 A.2d 744 (1982); Reiter v. Kille, 143 F.Supp. 590, 592-593 (E.D.Pa.1956) (holding that inasmuch as recording is obligatory in Pennsylvania so as to give public notice in whom title resides, federal tax lien premised on unrecorded deed ineffective as against subsequent purchaser for value); Capital Center Equities v. Estate of Gordon, 137 B.R. 600, 611 (Bankr. E.D.Pa.1992) (quoting Jaques v. Weeks, 7 Watts 261 (Pa.1838)). In accord, 1 West's Pa. Prac. § 803(14)-1 (3d ed.)(2012): ("The purpose of [the] statutes [providing for the recording of deeds and mortgages] is to give notice of who holds interests in the property, to provide evidence of title in case the original documents are lost or unavailable, and to protect the interest holders from the claims of others."). And in 1852, it was determined that assignments of mortgages also fell within the recording acts. Pepper's Appeal, 77 Pa. 373, 377 (1875); Philips v. Bank of Lewistown, 18 Pa. 394, 402 (1852).

While the earlier versions of the recording statutes did not make recording mandatory, nevertheless,

Pepper's Appeal, supra.

Thus, the benefits of recording an interest in land have long been recognized in Pennsylvania and in 1863, the Pennsylvania legislature first decreed that such recording should be mandatory.9

C. How Pennsylvania Law Treats Mortgages

Over the years, however, there was some confusion over how a mortgage should be viewed by the Pennsylvania courts — was it a conveyance of title, a lien or cloud on the title of the real estate, or merely security for the payment of money or performance of some other collateral contract? See, e.g., Wilson v. Shoenberger's Executors, 31 Pa. 295, 299 (1858) ("It is the settled law of the Pennsylvania mortgage, that though in form a conveyance of title, it is in reality, both at law and equity, only a security for the payment of money, or performance of other collateral contract."); McIntyre v. Velte, 153 Pa. 350, 25 A. 739 (1893) ("The mortgage is but a security for the payment of money with a right of lien upon the mortgaged premises to enforce payment."); Bulger v. Wilderman, 101 Pa.Super. 168 (1931) ("In form, a mortgage is certainly a conveyance; but it is unquestionably treated at law here, in the way it is treated in equity elsewhere, as a bare incumbrance, and the accessory of a debt. As between the parties it is a conveyance, so far as is necessary to enforce it as a security: as regards third persons, the mortgagor is the owner, even of the legal estate...") (quoting Presbyterian Corporation v. Wallace, 3 Rawle 109 (Pa.1831)).

In 2004, the Pennsylvania Supreme Court decided Pines v. Farrell, 577 Pa. 564, 848 A.2d 94 (2004). Specifically the issue presented in that case was whether certain financial regulations which had been promulgated by the Court Administrator of Pennsylvania interpreting the definition of "property transfer" in 42 Pa. C.S. § 3733(a.1)(1)(v)10 to include mortgage assignments, mortgage releases, and mortgage satisfactions were valid and enforceable. The Pines Court began its analysis with this observation:

Id., 848 A.2d at 99. Recognizing that there was ample authority for both theories under Pennsylvania common law, the Supreme Court nevertheless found that such actions were "property transfers" which bound the recorders of deeds, clerks of courts and equivalent officials throughout Pennsylvania who were charged with the duty of collecting fees in connection with such transfers. Indeed, the Court reasoned:

Id. at 100 (quoting In re Long's Appeal, 77 Pa. 151 (1874)). From there, the Court further opined:

Id. at 100-101 (citation omitted). The Court reached the same conclusion with respect to mortgage satisfactions and releases. That is, the effect of both a mortgage satisfaction and a mortgage release was to discharge the lien and release the mortgagor from the obligations under the mortgage and to "reconvey" the property to the mortgagor. Pines, 848 A.2d at 101, 102. See also, First Citizens National Bank v. Sherwood, 583 Pa. 466, 879 A.2d 178, 180, n. 2 (2005) ("A transfer of title is no insubstantial thing, but rather resembles a right or privilege which is permanent in nature. The fact that at one point, the mortgagor may fulfill the obligations of the mortgage, and thereby receive title to the mortgaged property, does not negate the fact that mortgaging the property transfers the title to the mortgagee.").

While Pines may not be on all fours with the case at hand inasmuch as we are charged here with interpreting a different statute, it nonetheless represents a clear statement of Pennsylvania law which is equally applicable in this case particularly in view of its specific reference to the recording acts. Hence, inasmuch as "conveyance" is defined, inter alia, as "a. Transfer of title to property from one person to another. b. The document by which this transfer is effected,"11 we likewise find that a mortgage assignment is a "conveyance" subject to the recording mandate of § 351.

D. Severability of Notes and Mortgages

In view of this finding, we next consider whether a note memorializing debt that is secured by a mortgage stands alone such that it may be freely transferred by change in possession or whether it too must be recorded.

Under well-settled, long-held American law, where "mortgaged premises are pledged as security for debt,"... "the note and mortgage are inseparable...." Carpenter v. Longan, 83 U.S. 271, 274, 16 Wall. 271, 21 L.Ed. 313, 315 (1872). Thus, "[a]n assignment of the note carries the mortgage with it, while an assignment of the latter alone is a nullity." Id. Indeed, "[a]ll the authorities agree that the debt is the principal thing and the mortgage an accessory.... The mortgage can have no separate existence. When the note is paid the mortgage expires." Id. 83 U.S. at 275, 21 L.Ed at 315. See also, National Live Stock Bank of Chicago v. First National Bank of Geneseo, 203 U.S. 296, 306, 27 S.Ct. 79, 81, 51 L.Ed. 192 (1906) (same).

These principles remain viable and are likewise embodied in the Restatement (Third) of Property: Mortgages, § 5.4 (1997), which reads as follows:

Pennsylvania law was and is in accord. See, e.g., In re North City Trust Co., 327 Pa. 356, 361, 194 A. 395, 398 (1937) ("[C]ollateral for a debt follows the obligation into the hands of the assignee thereof."); Beaver Trust Co. v. Morgan, 259 Pa. 567, 103 A. 367, 369 (1918) ("A purchase of a debt is a purchase of all the securities for it, whether named or not at the time of the assignment, unless expressly agreed at the time they shall not pass."); Moore v. Cornell, 68 Pa. 320, 322 (1871) ("A mortgage is discharged by payment, and an assignment of the debt transfers the right to the mortgage itself; for whatever will give the money secured by the mortgage, will carry the mortgaged premises along with it."); 13 Pa.C.S. § 9203(g) ("The attachment of a security interest in a right to payment or performance secured by a security interest or other lien on personal or real property is also attachment of a security interest in the security interest, mortgage or other lien."). See also, Russell's Appeal, 15 Pa. 319, 321, 322 (1851) ("Even, although a conveyance be absolute in its terms, if it is intended by the parties to be a mere security for the payment of a debt, it is a mortgage.... An article of agreement for the sale of land, accompanied by delivery of possession and payment of part of the purchase-money, is much more than a chose in action; it is an abiding interest in the land itself.").

This notion that notes and mortgages are legally inter-woven is further supported by the language employed by the Multistate Fixed Rate Uniform Instrument Note and Pennsylvania Mortgage forms12 which appear to be currently utilized in most loan settlement transactions in which MERS is designated as the mortgagee. Beginning with the Note form, at paragraph 10, the following verbiage appears:

The Mortgage, in turn, includes the following language in excerpted relevant parts:

(Emphasis in original)

It therefore appears obvious from all of the foregoing, that whether effectuated via a writing or a mere "transfer of possession" of a note, the result is the same by operation of law-an interest in and/or title to the property which secures it has been assigned and conveyed from one party to another under Pennsylvania law.13 As to the requirement of a writing, 21 P.S. § 623-114 is crystal clear: "Hereafter no assignment of any mortgage shall be entered of record in any county of the second class, unless such assignment shall be in writing, and acknowledged by the assignor or assignors before an officer or person duly authorized to take such acknowledgments." Accordingly, in answer to Defendants' question No. 2 as formulated in its motion papers, we now hereby find that the Pennsylvania Recording Act does in fact require the transfer of secured debt to first be documented in a form suitable for recording and then recorded in the land records because it creates in the transferee an equitable interest in the mortgage.15

We endeavor now to answer Defendants' first and third questions and to confront what is perhaps the most challenging issue in this case: whether the MERS Defendants have been the transferor or transferee of unrecorded secured debt and if not, whether they are the proper parties who are subject to the mandates contained in the recording statutes.

E. MERS as "Nominee"

The MERS Defendants have repeatedly taken the position that, in commencing the instant action, Plaintiffs sued the wrong parties because "MERS has not and does not negotiate or transfer promissory notes secured by mortgages recorded in Montgomery County, Pennsylvania." (MERS' Memorandum of Law in Support of Their Motion for Summary Judgment, at p. 44). More particularly, MERS argues:

(MERS' Memo of Law in Support of Motion for Summary Judgment at p. 45).

At first blush, this argument appears compelling. However, now that it is clear that transfer of the note by operation of law also transfers the mortgage, the argument loses much of its original luster. What's more, as recited in the MERS Defendants' Memorandum of Law in Support of Their Motion for Summary Judgment at page 10:

Thus, in apparent contradiction to its argument, MERS at least initially acknowledges that it in fact is "involved with the transfer of the note" by virtue of its service as the mortgagee of record as the nominee for a lender/noteholder and its successors and assigns and that when required to facilitate a foreclosure, MERS itself can become a "note-holder."

The relationship between the MERS Defendants ("MERS") and its members is more particularly described by William C. Hultman, the Vice President of Legislative Affairs for MERSCORP and a former officer of MERS, in his Declaration which is attached to Defendants' Memorandum of Law in Support of Motion for Summary Judgment as Exhibit "A." According to Mr. Hultman,

(Hultman Declaration, Exhibit "A," at pp. 3-4, 5). See also, Deposition of William C. Hultman of October 18, 2013, at p. 65-66, annexed to Plaintiff's Memorandum of Law in Opposition to Defendants' Motion for Summary Judgment and in Support of Cross-Motion for Summary Judgment as Exhibit "A13".

Therefore according also to Mr. Hultman, MERS is both named as the mortgagee and acts as agent for the lenders — not only the lender which originates the loan to the borrower, but also those lenders to whom the note is ultimately sold and transferred. It is MERS that "from time to time" will assign and record the mortgages over which it has charge in the public local land records and ensure that any associated fees therefor are paid. See also, Plaintiff's Exhibit "A10," MERS' System Rules of Membership, Section 10, p. 45. Clearly then, MERS is involved with the transfer of the note and mortgage and we find, is an appropriate party to this action.

We likewise reject the proposition that MERS is not subject to liability because it is only an agent for its member-lenders. Indeed, as a general matter, an "agent" is a "person authorized by another (principal) to act for or in place of him; one intrusted with another's business." BLACK'S LAW DICTIONARY 63 (6th ed.1990). An agent holds the power to alter the legal relations between the principal and third persons. Tribune-Review Publishing Co. v. Westmoreland County Housing Authority, 574 Pa. 661, 675, 833 A.2d 112, 120 (2003). An agency relationship arises when the following basic elements coalesce: there is a manifestation by the principal that the agent shall act for him, the agent accepts the undertaking, and the parties understand that the principal is to be in control of the undertaking. V-Tech Services, Inc. v. Street, 2013 PA Super 166, 72 A.3d 270, 278 (2013) (quoting Walton v. Robert Wood Johnson, University Hospital, 2013 PA Super 108, 66 A.3d 782, 787 (2013)). The party asserting the existence of an agency relationship bears the burden of proving it by a fair preponderance of the evidence. Id. (quoting Id.).

It is a basic tenet of agency law that an individual acting as an agent for a disclosed principal is not personally liable on a contract between the principal and a third party unless the agent specifically agrees to assume liability. Azarchi-Steinhauser v. Protective Life Insurance Co., 629 F.Supp.2d 495, 499-500 (E.D.Pa. 2009) (quoting Vernon D. Cox & Co. v. Giles, 267 Pa.Super. 411, 406 A.2d 1107, 1110 (1979)). Instead, the principal is liable for and bound by any acts that the agent performs with actual or implied authority from the principal that are within the scope of the agent's employment. Id. However, an authorized agent who enters into a contract on behalf of a principal without disclosing that it is acting for the principal, is personally liable on the contract. Burton v. Boland, 339 Pa.Super. 444, 446, 489 A.2d 243, 245 (1985) (citing Revere Press, Inc. v. Blumberg, 431 Pa. 370, 246 A.2d 407 (1968) and Dwyer v. Rothman, 288 Pa.Super. 256, 431 A.2d 1035 (1981)). See also, Strawbridge & Clothier v. Garment Manufacturers, Inc., 189 Pa.Super. 43, 46, 149 A.2d 471, 472 (1959) ("An agent for undisclosed principals bears the legal consequences of assuming liability for those undertakings which his principals would have undertaken, had he made a disclosure."); Pennsylvania Railway Co. v. Rothstein, 116 Pa.Super. 156, 161, 176 A. 861, 862 (1935) ("It is an elemental principle of agency that to relieve himself from liability, an agent in dealing with a third party must not only disclose the fact of the agency, but also the name of his principal.").

As per Mr. Hultman,

(Hultman Declaration, at pp. 3-4).

Hence as Mr. Hultman's declaration attests, the identities of the lenders for whom MERS is acting as agent are only revealed to other MERS members by MERS members, as "neither MERS nor MERSCORP is involved in reporting the transfer, sale or purchase of any promissory notes" by one member to another nor to anyone who is not a member. (See also, Exhibit "A20" to Plaintiff's Memorandum of Law in Opposition to Defendant's Motion for Summary Judgment and in Support of Cross Motion for Summary Judgment, Deposition Testimony of R.K. Arnold in Henderson v. MERS, Case No. CV 2008-900805 in the Circuit Court of Montgomery County, AL, dated 9/25/09, at p. 112, lines 10-12: "The members utilize the [MERS] system to track the note."). That the identities of the lenders/note holders for whom MERS is ostensibly acting as agent are likewise inaccessible to licensed title agents and consumers has also been attested. (See, Plaintiff's Exhibits "B," p. 5, "G," pp. 6-7 and "H," p. 6).

From this we conclude that ample evidence exists to support the argument that MERS may alternatively be held responsible as an undisclosed agent of the lenders for whom it was acting as "nominee." Accordingly, we now hold that the MERS Defendants are proper parties who may be liable for and subject to the mandates of the Pennsylvania Recording Statutes in general and Section 351 in particular. Defendants' motion for summary judgment is therefore denied as to Count I of the Complaint.

F. Plaintiff's Claims for Unjust Enrichment and Quiet Title

Defendants also move for summary judgment in their favor on Plaintiff's causes of action for unjust enrichment and to quiet title,17 asserting as the reasons therefor that Plaintiff has failed to prove the essential elements of each. We note at the outset that to survive a summary judgment motion, the non-moving party is not required to prove its case, although it must present sufficient evidence on which a jury could reasonably find in its favor. See, e.g., Jakimas, and Kaucher, both supra. After reviewing the evidentiary materials in the record of this matter in the light most favorable to the plaintiff, we find that it has indeed mustered sufficient evidence to proceed to trial.

Pursuant to Pa. R.C.P. 1061(b)(3), an action to quiet title may be brought to compel an adverse party to file, record, cancel, surrender or satisfy of record, or admit the validity, invalidity or discharge of, any document, obligation or deed affecting any right, lien, title or interest in land. Kean v. Forman, 752 A.2d 906, 908 (2000), appeal denied, 564 Pa. 712, 764 A.2d 1070 (2000). Rule 1061 was intended to be liberally construed. Brennan v. Shore Brothers, Inc., 380 Pa. 283, 286, 110 A.2d 401, 402 (1955).

In our Memorandum Opinion of October 19, 2012, we held that Plaintiff had sufficiently pled a quiet title claim by alleging that she was a "party in any manner interested in the assignment — i.e. conveyance — of mortgages recorded in the name of MERS as nominee," and that she had pled "a pecuniary interest which is affected by whether the mortgage assignments which MERS tracks are recorded." See, 904 F.Supp.2d at 451. The evidentiary materials produced by Plaintiff in opposition to Defendants' Motion for Summary Judgment include, among other things, a statewide summary from the Pennsylvania Department of Revenue showing the total number of instruments (deeds, mortgages and other writs) recorded in each county Recorder of Deeds office and the amounts collected in recording fees for the 2011 calendar year and a survey prepared by the Philadelphia Department of Records for the period between 2000 and 2012 of the number of MERS and non-MERS recorded documents, as well as a number of Affidavits from attorneys and former attorneys from Community Legal Services, the Pennsylvania Legal Aid Network, and the Housing Alliance of Pennsylvania. (See, Plaintiff's Exhibits "B," "C," "D," "E" and "F"). As these Exhibits demonstrate, over the last twelve years, the number of documents recorded by MERS has steadily increased, while the number of documents recorded by others has steadily decreased. There has, in turn, been a corresponding decrease in the amount of recording fees collected by the county Recorders of Deeds. Inasmuch as Community Legal Services, the Legal Aid Network and the Housing Alliance receive much of their funding and financial support from the collection of, inter alia, fees paid to the Recorders of Deeds offices, they too have suffered monetary injury.

In addition, Plaintiff has produced reports from two of its proposed expert witnesses with experience in forensic analysis of chain of title issues and real estate law — Marie T. McDonnell and Charles W. Proctor, III. Ms. McDonnell reported on her analysis of a MERS mortgage for a residential property in Montgomery County which was originated with Countrywide Home Loans, Inc. in June, 2005, was securitized in late August, 2005, sold at least three times and foreclosed in March, 2013. (See, Plaintiff's Exhibit "G," pp. 3-5). Throughout the process, Ms. McDonnell found that there were five missing assignments that should have been recorded with the Montgomery County Recorder of Deeds, that the MERS Milestones data was incomplete and in contradiction to the securitization deal documents, and that title to the property had been corrupted by MERS' failure to record a complete chain of title. (Exhibit "G," p. 7).

In his Declaration, Mr. Proctor attests that licensed title agents have no access to the information in the bar codes which MERS adds to every document that it records or to the MERS data base of exchanges, sales and assignments that MERS facilitates for the benefit of its customers/members. This means that title searchers and consumers are denied the ability to ascertain who currently owns the note secured by a MERS mortgage and that neither the mortgagor nor the courts can ascertain the chain of events or the validity of a transaction. This results, according to Mr. Proctor, in an erosion of Pennsylvania's land records and the inability to evaluate the marketability of title and credit worthiness of the consumer. (See, Plaintiff's Exhibit "H," pp. 6-7).

Plaintiff Becker herself also testified that it is the obligation of the Recorders of Deeds to make sure that the chain of title of properties in their county is clear and complete. (See, Plaintiff's Exhibit "A9," Deposition of Nancy Becker dated July 17, 2013, p. 48). Indeed, the Pennsylvania Superior Court has found that "the primary duty of the recorder of deeds is to serve the public by receiving and duly recording any recordable instruments as to serve the future necessities of the law," and that "as the custodian of the county deed books, the recorder of deeds is obligated to protect the public in preserving the integrity of the official records of his or her office." Schaeffer v. Frey, 403 Pa.Super. 560, 567-568, 589 A.2d 752, 756 (1991) (internal citations omitted). However, over the past several years, a number of residents who were facing foreclosure didn't know who owned their mortgage or to whom they should be making their mortgage payments. (Id., 66). Plaintiff attributes this to the fact that MERS is not recording all of the note assignments with the result that not only is there a loss in revenue, but also the land title records are incomplete to the public. (Id., 65-68, 176-177).

Finally, Plaintiff also testified that based on a forensic audit which revealed that a MERS-affiliated mortgage was transferred on average between 4 and 12 times, she conservatively estimates that Montgomery County alone has lost $15.7 million in recording fees. (Id., 178-180). Because we find that all of this evidence is sufficient to demonstrate that a genuine issue of material fact exists with respect to Plaintiff's entitlement to quiet title relief, Defendants' motion for the entry of judgment in their favor as a matter of law on this claim is also denied.

We reach the same conclusion with regard to Plaintiff's unjust enrichment claim. A cause of action for unjust enrichment is a claim by which the plaintiff seeks restitution for benefits conferred on and retained by a defendant who offered no compensation in circumstances where compensation was reasonably expected. White v. Conestoga Title Insurance Co., 617 Pa. 498, 504, 53 A.3d 720, 723 (2012). A showing of unjust enrichment requires a demonstration that: (1) a benefit was conferred on the defendant; (2) appreciation of such benefits by defendant; and (3) acceptance and retention of such benefits under circumstances that it would be inequitable for defendant to retain the benefit without payment to the plaintiff. EBC, Inc. v. Clark Building Systems, Inc., 618 F.3d 253, 273 (3d Cir.2010); Durst v. Milroy General Contracting, 2012 PA Super 179, 52 A.3d 357, 360 (2012). Here, Plaintiff proffers the videotaped deposition testimony of its former President and CEO, R.K. Arnold in Henderson v. Merscorp, Inc., et. al., a similar action before the Circuit Court for Montgomery County, Alabama:

(See, Plaintiff's Exhibit "A20," 111-112). This testimony is, we find, essentially tantamount to an admission that by maintaining the recording system in Pennsylvania, the county recorders of deeds confer a benefit upon defendants which is in fact appreciated by defendants. Because Defendants do not pay any fees when a note is transferred between its membership fee-paying members, we find that a genuine issue of material fact exists as to whether it would be unjust to allow Defendants to retain the benefits conferred on them without paying Plaintiff and the class whom she represents therefor. Consequently, Defendants' motion for summary judgment as to Count III of the Complaint is also denied.

G. Plaintiff's Cross Motion for Partial Summary Judgment

In addition to opposing Defendants' Motion for Summary Judgment, Plaintiff also seeks the entry of partial judgment in her favor as a matter of law pursuant to Count IV of her Complaint and asserts that this Court should now enter an order declaring that Defendants' past and present failures to record note assignments among its members constitutes a violation of Section 351 and that Defendants have been unjustly enriched by their actions.

Under the Declaratory Judgment Act, 28 U.S.C. § 2201,

This language has been said to "place a remedial arrow in the district court's quiver," and to confer "a unique and substantial discretion on federal courts to determine whether to declare litigants' rights." Reifer v. Westport Insurance Corp., 751 F.3d 129, 139 (3d Cir.2014) (quoting Wilton v. Seven Falls Co., 515 U.S. 277, 286, 288, 115 S.Ct. 2137, 132 L.Ed.2d 214 (1995)). Generally, the judgment in a suit for declaratory judgment must be responsive to the pleadings and issues presented. Westport Insurance Corp. v. Bayer, 284 F.3d 489, 499 (3d Cir.2002). Indeed, "[w]hen all is said and done," the Supreme Court has concluded, "the propriety of declaratory relief in a particular case will depend upon a circumspect sense of its fitness informed by the teachings and experience concerning the functions and extent of federal judicial power." Wilton, 515 U.S. at 287, 115 S.Ct. at 2143. A declaratory judgment action is appropriate when the declaration will settle the question presented and terminate the entire controversy — courts are to avoid using declaratory judgment to make abstract determinations or to try the controversy in piecemeal fashion. Pennsylvania Video Operators v. United States, 731 F.Supp. 717, 719 (W.D.Pa.1990), aff'd w/o opinion, 919 F.2d 136 (3d Cir.1990) (citing Maryland Casualty Co. v. Rosen, 445 F.2d 1012 (2d Cir.1971) and Rowland v. Tarr, 378 F.Supp. 766, 769 (E.D.Pa.1974)).

Over the years, the Third Circuit has enumerated the following factors for district courts to consider when exercising Declaratory Judgment Act discretion. These are:

Reifer v. Westport Insurance Co., 751 F.3d at 140 (citing United States v. Pa. Dep't of Envtl. Res., 923 F.2d 1071, 1075 (3d Cir.1991), Terra Nova Ins. Co. v. 900 Bar, Inc., 887 F.2d 1213, 1224 (3d Cir. 1989) and Bituminous Coal Operators' Assoc. v. Int'l Union, United Mine Workers of America, 585 F.2d 586, 596 (3d Cir. 1978), abrogated on other grounds by Carbon Fuel Co. v. United Mine Workers of Am., 444 U.S. 212, 100 S.Ct. 410, 62 L.Ed.2d 394 (1979)).

In this matter and in light of the rationale outlined in the preceding sections of this opinion, we must concur with Plaintiff's assertion that declaratory judgment is now properly entered in her favor with regard to Count I of the Complaint such that we now formally declare that the assignment or transfer of a promissory note secured by a mortgage on real estate is, in Pennsylvania, equivalent to a mortgage assignment. We further declare that Defendants' failure to create and record documents evincing the transfers of promissory notes secured by mortgages on real estate in the Commonwealth of Pennsylvania is, was and will in the future be, in violation of the Pennsylvania Recording law-most particularly 21 P.S. §§ 351.18 Plaintiff's motion for partial summary judgment is therefore granted as to Defendants' liability under Count I with the issue of the extent of the damages as a consequence of these violations to be addressed at the trial of this matter.

We must decline to enter summary judgment in Plaintiff's favor as to Count III however. To be sure, while there clearly is evidence that Defendants may have been unjustly enriched as a result of the conduct complained of, we do not find the record to have been sufficiently developed on this claim to allow the entry of judgment as a matter of law or to make an award of damages at this time. Therefore, we leave this claim to be further and finally thrashed out at trial. So saying, Plaintiff's motion for partial summary judgment shall be granted in part.19

Conclusion

For all of the reasons set forth above, the Defendants' Motion for Summary Judgment shall be denied in its entirety and the Plaintiff's Cross-Motion for Partial Summary Judgment shall be granted in part. An appropriate order follows.

ORDER

AND NOW, this 30th Day of June, 2014, upon consideration of the Motion for Summary Judgment of Defendants, Merscorp, Inc. and Mortgage Electronic Registration Systems, Inc. (collectively "MERS Defendants") (Doc. No. 66) and Plaintiff's Cross-Motion for Partial Summary Judgment (Doc. No. 80) and the parties' further Memoranda of Law in Support and in Opposition, it is hereby ORDERED that Defendants' Motion is DENIED in its entirety and Plaintiff's Motion is GRANTED IN PART as outlined in the preceding Memorandum Opinion.

IT IS FURTHER ORDERED that Declaratory Judgment is hereby entered in favor of Plaintiff and against Defendants such that Defendants' are declared to be obligated to create and record written documents memorializing the transfers of debt/promissory notes which are secured by real estate mortgages in the Commonwealth of Pennsylvania for all such debt transfers past, present and future in the Office for the Recording of Deeds in the County where such property is situate.

IT IS STILL FURTHER ORDERED AND DECLARED that inasmuch as such debt/mortgage note transfers are conveyances within the meaning of Pennsylvania law, the failure to so document and record is violative of the Pennsylvania Recording Statute(s).