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HomeMy WebLinkAbout2010-691 Civil WELLS FARGO BANK, N.A., as : IN THE COURT OF COMMON PLEAS OF Trustee for the Certificateholders of : CUMBERLAND COUNTY, PENNSYLVANIA Soundview Home Loan Trust 2007- : OPT1, Asset-Backed Certificates, : Series 2007-OPT1, : PLAINTIFF : : V. : : WREN A. CLEGG, : DEFENDANT : 10-0691 CIVIL TERM OPINION AND ORDER OF COURT Masland, J., March 23, 2010:-- In this mortgage foreclosure action, defendant Wren A. Clegg, representing himself, presents verified motions to dismiss and to strike a sham DENIED pleading. For the following reasons, both motions are . At the outset, this court notes throughout both motions, defendant repeatedly cites fictitious Pennsylvania Rules of Civil Procedure. Upon closer review, it appears defendant is reciting Florida procedural rules and simply replacing “Florida” with “Pennsylvania.” Defendant shall cease this practice. Unrepresented litigants remain bound by the rules of court despite the absence of counsel. Cove Center, Inc. v. Westhaver Const., Inc., 965 A.2d 259, 262 (Pa. Super. 2009). Here, the applicable rules are the Pennsylvania Rules of Civil Procedure as promulgated by our Supreme Court pursuant to its exclusive authority to regulate the rules of court in the Commonwealth. Pa. Const. Art. V, § 10; Commonwealth v. Liston, 977 A.2d 1089, 1093 (Pa. 2009). Moving forward, defendant shall conform with the Pennsylvania Rules of Civil Procedure. 10-0691 CIVIL TERM Formal deficiencies notwithstanding, liberally construed, defendant's motions amount to an attack on the legal sufficiency of plaintiff's complaint. See Pa. R.C.P. No. 126 (establishing liberal construction of procedural rules). As such, this court now consolidates both motions to be analyzed as a demurrer to plaintiff's complaint in mortgage foreclosure. A demurrer asserts a complaint fails to state a cause of action or claim on which relief can be granted. Lerner v. Lerner, 954 A.2d 1229 (Pa. Super. 2008). To properly plead a mortgage foreclosure action, a plaintiff's complaint must set forth: (1) the parties to and the date of the mortgage, and of any assignments, and a statement of the place of record of the mortgage and assignments; (2) a description of the land subject to the mortgage; (3) the names, addresses and interest of the defendants in the action and that the present real owner is unknown if the real owner is not made a party; (4) a specific averment of default; (5) an itemized statement of the amount due; and (6) a demand for judgment for the amount due. Pa. R.C.P. No. 1147(a) (emphasis added). Defendant essentially argues plaintiff's complaint fails to include information required by subheading one, quoted above. Specifically, defendant asserts the complaint fails to include a copy of the mortgage or records of its subsequent assignment. Without this information, defendant argues plaintiff fails to establish it is a real party in interest, entitled to bring the instant foreclosure action. For those reasons, defendant asserts the complaint is fatally flawed and must be dismissed. This court disagrees. -2- 10-0691 CIVIL TERM A review of the complaint reveals no fatal flaws that would justify dismissal. First, the Rules do not require a plaintiff to attach a copy of the mortgage at issue to the complaint. Instead, the plaintiff may incorporate the document by reference if it is a matter of record within the county where the action is pending. Pa. R.C.P. No. 1019(g). Here, paragraph three of the plaintiff's complaint states, in relevant part: The information regarding the Mortgage being foreclosed is as follows: MORTGAGED PREMISES: 879 Alexander Spring Road MUNICIPALITY/TOWNSHIP/BOROUGH: Dickinson Township COUNTY: Cumberland DATE EXECUTED: 2/28/07 DATE RECORDED: 3/8/07 BOOK: 1984 PAGE: 2434[.] Compl. at ¶ 3 (emphasis added). Plaintiff clearly complied with the Rules by incorporating by reference the mortgage at issue, recorded in Cumberland 1 County. Defendant's next objection, based on plaintiff's failure to document subsequent assignment of the mortgage, fails on similar grounds. A plaintiff may avoid attaching copies of a mortgage's subsequent assignment so long as the relevant documents are recorded and incorporated by reference. Pa. R.C.P. Nos. 1147(a)(1) and 1019(g). Here, paragraph one of the complaint states, in relevant part: Plaintiff is the legal holder of the [m]ortgage that is subject of this action. Current assignments of mortgage of record are as follows: Assignor: Nations Home Mortgage Corporation Assignments of Record to: Option One Mortgage Corporation Recording Date: 1/22/08 Instrument No: 200802131 Assignor: Option One Mortgage Corporation 1 Plaintiff courteously attached a copy of the mortgage as exhibit C to its reply to defendant's motions. -3- 10-0691 CIVIL TERM Assignee: Wells Fargo Bank, N.A., as Trustee for the Certificateholders of Soundview Home Loan Trust 2007-OPT1, Asset-Backed Certificates, Series 2007-OPT1 Recording Date: 5/6/08 Instrument No: 200814838[.] Compl. at ¶ 1 (emphasis added). Again, plaintiff clearly complied with the Rules by incorporating by reference recorded documentation of the mortgage's 2 assignment. This conclusion also resolves defendant's related claim that the plaintiff is not a real party in interest. In its complaint, plaintiff has both averred it is the legal holder of the mortgage and incorporated by reference recorded documentation corroborating that fact. Accordingly, plaintiff’s “complaint sufficiently put [defendant] on notice of [plaintiff's] claim of interest with regard to the subject mortgage[,]” thereby establishing it is a real party in interest. U.S. Bank N.A. v. Mallory, 982 A.2d 986, 993 (Pa. Super. 2009). Accordingly, the following order of court is entered: ORDER OF COURT AND NOW, this day of March, 2010, defendant’s motions to DENIED dismiss and to strike a sham pleading are . Defendant is directed to file an answer to the complaint within ten days of the entry of this opinion and order. By the Court, Albert H. Masland, J. 2 Plaintiff also attached copies of the relevant assignments to its reply--exhibits A and B, respectively. -4- 10-0691 CIVIL TERM Marguerite L. Thomas, Esquire For Plaintiff Wren A. Clegg 870 Alexander Spring Road Carlisle, PA 17015 :sal -5- WELLS FARGO BANK, N.A., as : IN THE COURT OF COMMON PLEAS OF Trustee for the Certificateholders of : CUMBERLAND COUNTY, PENNSYLVANIA Soundview Home Loan Trust 2007- : OPT1, Asset-Backed Certificates, : Series 2007-OPT1, : PLAINTIFF : : V. : : WREN A. CLEGG, : DEFENDANT : 10-0691 CIVIL TERM ORDER OF COURT AND NOW, this day of March, 2010, defendant’s motions to DENIED dismiss and to strike a sham pleading are . Defendant is directed to file an answer to the complaint within ten days of the entry of this opinion and order. By the Court, Albert H. Masland, J. Marguerite L. Thomas, Esquire For Plaintiff Wren A. Clegg 870 Alexander Spring Road Carlisle, PA 17015 :sal