Superior Court: Appeal in mortgage foreclosure case lacks standing

By Nicholas Malfitano | Jan 6, 2017

HARRISBURG – The Superior Court decided late last week that an appeal in a mortgage foreclosure action would not move forward due to a perceived lack of basis for the appeal itself.

On Dec. 30, judges Judith Ference Olson, Carl A. Solano and James J. Fitzgerald III ruled the appeal of defendants Hasheem and Aliya Basil lacked standing and would not proceed further, in effect affirming the ruling of the trial court, the Philadelphia County Court of Common Pleas.

On Nov. 12, 2009, the Basils executed a mortgage in favor of Mortgage Electronic Registration Systems, Inc. (MERS), as nominee for Freedom Mortgage Corporation (FMC). The same day, the Basils entered into a promissory note where they agreed to pay $1571.64 monthly in order to repay the mortgage loan. Afterwards, MERS assigned the mortgage to FMC and the Basils stopped making the mortgage payments in December 2011.

On Sept. 8, 2012, FMC instituted the instant mortgage foreclosure proceedings and on Jan. 20, 2016, FMC filed a motion for summary judgment. On April 1 of this year, the trial court granted FMC’s motion and entered judgment in favor of FMC and against the Basils. On April 4, the trial court prothonotary noted on the docket that notice under Pennsylvania Rule of Civil Procedure 236 was given to the Basils, leading their appeal to follow.

The defendant presented six issues to the Superior Court for its review: “1) Can the trial court render in rem judgment for a debt collector; 2) was Government National Mortgage Association the holder of the Note; 3) did the mortgage get separated from the note prior to the foreclosure action being commenced; 4) does a mortgage being assigned alone nullify the enforceability of it; 5) is Freedom Mortgage Corporation an approved document custodian for Government National Mortgage Association; and 6) is Freedom Mortgage Corporation in possession of the original note?”

“All six of defendant’s issues challenge FMC’s standing. It is well-settled that in order to preserve an issue relating to standing, the issue must be raised in preliminary objections or an answer. In this case, defendant did not file preliminary objections nor did he raise the issue of standing in his answer. Accordingly, defendant has waived all six of his issues,” Olson said.

The plaintiff is represented by John Kolesnik, plus Allison F. Zuckerman, Jonathan Lobb, Francis S. Hallinan, Daniel G. Schmieg, Lauren Tabas, Justin Kobeski, Matthew Brushwood, Paul Cressman, Jeremy J. Kobeski, Peter Wapner, Lauren L. Schuler, James P. Shay, Vishal J. Dobaria and Jennie C. Tsai, all of Phelan Hallinan in Philadelphia.

Superior Court of Pennsylvania case 1521 EDA 2016

Philadelphia County Court of Common Pleas case 120900858

From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at

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