*1 increase the statute limitations
Public Code violations to Welfare five
years. concluding trial court erred Thus,
otherwise. we reverse the trial charges
court’s dismissing order based on four-year statute This limitations. abrogates
necessarily the court’s order no evidence these crimes would be
admissible in Vega- Ms.
Reyes continuing relative to her conduct 27,2009. after March occurred
Order reversed. Case remanded. Ju- relinquished.
risdiction
CITIMORTGAGE, INC., Appellee BARBEZAT, Appellant. F.
Edward
Superior Pennsylvania. Court of
Submitted Dec. 2014.
Filed Jan. *2 ELLIOTT, BY FORD
OPINION P.J.E.: F. Barbezat
Appellant appeals Edward 25, 2014, February order thé entered of Berks in the of Common Court Pleas CitiMortgage, granting appellee County, summary judgment Inn’s motion for this in rent foreclosure action. below, reasons forth we affirm. For the set ' 15,2003, August Oh consideration $152,793, principal loan in the amount appellant delivered a note executed and (See favor of and to Fulton Bank. Com- B.) 9/25/12, plaint, Exhibit To secure his note, obligations con- appellant under the to Mort- comitantly executed and delivered Registration Systems, Inc. gage Electronic (“MERS”) (“solely for Lender as nominee assigns”), ... and Lender’s successors and for at located property Street, County, Berkley Reading, Berks Pennsylvania, as for the note. C.) 2, 2012, (Id., August Exhibit On MERS assigned appellee, which on recorded same (Id,, D.) posses- Exhibit also is (Id., sion of note endorsed blank. B.) Exhibit September appellee filed a On against complaint appellant, requesting for, alia, (See $137,625.55. him inter id. at ¶ 9.) complaint, appellee In the alleged had to make appellant failed the scheduled April on payments since 2012; consequently, terms entire agreement, loan (See payable.' due id. balance became ¶ 8.) Moreover, it com- appellee alleged Thomas, Laurel, NJ, for Joshua L. Mt. (41 plied with the of Act 6 requirements appellant. 403) by sending appellant a written P.S. (“the Wesner, NJ, intention to No- Hill, for notice of foreclose Cherry Patrick J. (See ¶10.) tice”). appellee. Appellant id. at filed complaint, generally de- answer n ELLIOTT, P.J.E., appellee’s averments and nying raising BEFORE: FORD STABILE, SHOGAN and JJ. new matter. 18, 2013, appellee support -moved his
On November contention that (Id. 2.) summary judgment against not a real appellant interest. failed- the basis Appellant timely appealed to this court. in his genuine raise a issue material fact Following appellant’s filing of a Pa.R.A.P. *3 new matter and admitted answer and 1925(b) statement, trial court issued a vir- allegations against all him material 1925(a) opinion, largely Rule wherein (See motion for general tue of his denials. incorporated reasoning forth in set its ¶¶ 12.) 2, summary judgment, at 11/18/13 25, February 2014 memorandum of law. On Objecting appellee’s summary judg- appeal, appellant argues motion, court in granting appellee’s appellant princi- ment raised erred sum- two (a) First, mary judgment appel- motion because pal argued appellee he defenses. action, lee standing lacked initiate the comply 6. failed to with Act Specifically, (b) appellee appellant served on a appellant argued appellee that sent Act 6 deficient intention' to fore- 21, 2012, appellee when did on June debt, 7.)3, (Appellant’s close. brief at not own the because MERS did assign appellee until Au- Against this background, we are mindful - 2, gust (Appellant’s response to 2012. that: ¶¶ 38-42.) summary judgment,. at 12/13/13 scope [o]ur aof trial court’s review Appellant argued that the de- Notice was granting denying summary order appellee’s incorrectly fective because name judgment is our plenary, and standard Second, ar- appeared appellant thereon. of review is the trial order clear: court’s gued appellee that standing lacked only will be reversed where it is estab- bring this foreclosure action because that error lished court committed an judice sub were note of law or abused discretion. its appellee’s to establish insufficient owner- Summary is appropriate only ship. of relating debt subject clearly when the record that shows ¶¶ 66-72.) (Id. at property. no genuine issue of fact there material party that the moving is entitled 25, 2014, February
On trial court judgment as a- of law. The re- matter granted prejudice appellee’s motion , viewing court view the record judgment. In summary memoran- ' light most favorable the nonmov- order, accompanying dum law its ing party and as to resolve doubts trial court appel- determined meritless of genuine existence issue of mate- challenge to the Notice.. lant’s Particular- moving party. Only rial fact court ly, the trial concluded did not when the facts so clear are that reason- require that actual able minds could not differ can a .trial (Trial named in the notice. court memo- properly judg- court summary enter law, 1.) randum of The trial 2/25/14 ment. that, court also concluded based on the record, appellee Sunoco, established Inc., 1078, Hovis v. In regard, debt. the trial court (Pa.Super.2013), quoting Cassel-Hess valid, noted was appellee 80, “the of a holder[ ] Hoffer, 44 A.3d (Pa.Super.2012). 84-85 (Id.) assignment mortgage.” recorded Summary judgment foreclo- Moreover, the trial court determined that sure actions is to the rules as subject same failed to offer evidence be- civil action. See other Pa.R.C.P. yond 1141(b). alleged what in his pleadings was plaintiff ih a action ap mortgage foreclosure first
Appellant’s argument parties to the specifically to bring name standing to under pellee lacked any assignments. fact of premised upon mortgage and the lying action foreclosing on a Pa.R.C.P. A never appellant’s assertion however, or hold also must own mortgage, alleged Appellant debt. asserts owned possessed the note. This so because establish instrument only that ensures mortgage, and a valid indebtedness under assigned repayment or other never note Carpenter See property. note to real appellee. (Appellant’s wise transferred 6.) Longan, 83 U.S. Wall. Appellant therefore asserts brief (1872) (noting “all authorities not the L.Ed. *4 thing agree principal debt the and standing bring to this the lacked interest and accessory.”). A mort (Id.) mortgage an the action. Id. separate have no existence. gage can Rule of Civil Pennsylvania Procedure paid, mortgage expires. a note is the When provides, pro- “[e]xeept 2002 as otherwise hand, a Id. On the other prosecuted by shall be ... all actions vided a proceed only upon to in an action choose party in inter- and name real in the forego action in note an foreclosure and est, between contracts without distinction upon pledged secure re the collateral to parol under and contracts.” Pa. seal the See Luke payment Harper note. v. R.C.P.2002(a); Morgan see also Chase J.P. ns, 144, 636, A. Pa. 112 271 637 Bank, 1258, Murray, 63 A.3d 1258 N.A. v. expressly upon (noting “as suit is based debtor’s claim (Pa.Super.2013) (finding a note, necessary the prove to the was not real in that bank not a appellee party was collateral.”). agreement our For as the bring a foreclosure action was interest say is all to purposes, instant standing). challenge appellee’s “[A] in this ac standing establish foreclosure party [p]erson in interest is a who will real tion, plead ownership appellee had be entitled to benefits an action suc- 1147, mortgage under Rule have and in party party cessful .... is a real [A] upon note demand make legal right under the interest if it has by mortgage.1 secured applicable substantive law enforce the Bank, question.” claim U.S. N.A. in upon Based the record evidence (Pa.Su- 986, A.2d 993-994 Mallory, 982 its produced by support of (citation quotation marks per.2009) and summary judgment, reject motion for we omitted; original). some brackets Here, argument. appellant’s first action, averred, produced only not but also evi In a foreclosure the holder of the mort party real interest. dence Bank, Fargo gage. Specifically, appellee alleged in its Lupori, See N.A. Wells 919, “[Appellee] proper This is (Pa.Super.2010). complaint [a] 922 n. an party by way Assignment ... Pennsylvania made under our evident governing Mortgage Rules of Civil Procedure actions recorded (Complaint, require Instrument 2012032210.” foreclosure a relating upon property. note 1. The a “The and rules expressly require essential, exis- actions do that the inseparable; former are pled tence and holder be in the of the note its Longan, at latter as an incident.” 83 U.S. Nonetheless, mortgagee hold action. to foreclose note secured ¶ 6.) copies (Pa.Super.2014) of A.3d Appellee produced (rejecting an 9/25/12 argument). Appellee, original recorded re identical note, (Id. holder of a negotiable instrument appellee. assignment corded herein,, ¶¶ challenged 4-7.) effective, entitled to assignment Where upon make demand enforce the in the assignee stands shoes obligations Accordingly, under the note. assignor rights. of his See assumes . given appellee’s ownership of uncontested Ltd., Group, Smith v Cumberland note, (1997). Pa.Super. 687 A.2d the trial in concluding court not err evidence Accordingly, uncontroverted standing had as a appellee properly of record held indicates bring underlying foreclo- interest by way action. sure also, although appellant note MERS. We
argues
standing in appellee
that,
lack
although
We
appeal
observe
rights
mortgage, appel
grant
assert
under the
lies from
court’s
of sum-
opposition
mary
appellee,
lant
no evidence in
favor
appel-
offers
standing argument
lant
his
summary judgment
motion for
to establish
anchors
governing
If
genuine
pleadings.
rules
ap-
issue of material fact as
challenge
desired to continue to
appellee’s
mortgage.
pellee’s
*5
standing
the summary judgment stage
argument
Appellant’s
appellee
upon
based
his
appellee
assertion
not
note,
ownership of
cannot establish
incumbent,
debt, it
own the
was
upon the
assigned or
because it
never
otherwise
was
appellant
produce
evidence
demon-
with
appellee,
similarly
transferred
strate
issue of
there was material
fact in
produced by
merit. The note
out
regard
this
to defeat appellee’s summary
appellant
in this
as
case identifies
judgment
Appellant’s attempt
motion.
“Borrower” and Fulton Bank as the
challenge standing
upon
continue to
based
by
The
“Lender.”
note
endorsed
Ful
of
pleadings
his
does not
averments
Bank
of
ton
without recourse
the order
judgment
for summary
purposes.
suffice
Principal
Mortgage
Residential
Inc.
1035.3(a) (an
See Pa.R.C.P.
adverse
(“PMI”).
in
PMI
turn
endorsed
note may not
upon
rest
the mere
or
averments
in
A
en
without recourse
blank.
note
Indeed,
pleadings).
in its
denials
as the
payable to “bear
dorsed in blank becomes
noted, appellant
court
point
trial
fails
negotiated by
of
er” and
transfer
of
any evidence
record to demonstrate the
possession
specially
alone until
endorsed.
any genuine
of
of
issue material
existence
3109(a), 3205(b).
§§
The
See
Pa.C.S.A.
respect
ownership
appellee’s
fact
negotiable
note
instrument entitles
summary judgment stage.
debt at the
the holder of the note to
enforcement
(See
law,
trial court memorandum of
obligation.
See
Pa.C.S.A.
(“[Appellant]
at 2
rests on [his]
2/25/14
3109(a),
Thus,
argu
§§
appellant’s
pleadings
present any
not
specif-
and does
ment that
of the note cannot be
indicating
assignment
ic facts
valid
established in
because there was
exist,
provides any
nor
does
indication
no formal
or transfer is una
discovery
that further
would uncover those
vailing,
possession
facts[,]”).)
“the chain
successfully
because
To
defend
motion,
by
party]
summary
which
hold the
appellee’s
[a
c[o]me[s]
enforceability
upon
immaterial to its
appellant
[is]
incumbent
establish
[n]ote
1266;
or
from
party].” Murray,
arising
[the
A.3d at
“one
of fact
more- issues
America,
Gibson,
controverting
Bank
N.A.
102 evidence in
the record
see
any security
or
the motion
take
support
cited
evidence
credibility
to the
of one
challenge
the residential
debtor
testifying
in support
obligation,
more witnesses
such residential
1035.3(a)(1); see
motion.” Pa.R.C.P.
give
shall
such
Tasman,
527 Pa.
Marks
in-
notice of such
debtor
(decided
(1991)
materially
thirty
in'
days
tention
least
ad-
1035(d)). Here,
Rule
predecessor
similar
this
provided
section.
vance
in his
merely alleges
new matter
(b)
of intention to take action as
response
summary judgment
to the
(a)
specified
subsection
has
established
motion that
writing,
shall be in
sent to
section
to no
ownership'
points
He
of the debt.1
debtor
the residential1
support
in the
bare
record
evidence
mail at his
registered
certified
assertion,
evi-
despite the above-recited
n
and,
different,
last known address
Accordingly,
dispute
of record.
no
dence
,
subject
at the residence which
any genuine
as to
issues of material
exists
mortgage.
of the residential
appellee’s ownership
respect
fact with
bring
standing to
had
debt.
(c)
clearly
shall
The‘Written notice
underlying foreclosure action.
conspicuously state:
considering appellant’s
In
second
(1)
or real
particular obligation
conclude the
court did
argument, wé
interest;
estate
sub
determining
not err
the Notide
(2)
claimed;
The nature of the default
judice
proper.
6 was
under Act
to cure the
the debtor
Pennsylvania Legislature
In
provided
default as
section
seq.,
41 P.S.
101"et
enacted Act No..
*6
exactly
per-
act
of this
what
commonly
to as
6.” Bankers
referred
“Act
what
of
including
formance
sum
Foust,
89,
621
Trust Co.
Pa.Super.
any,
if
money,
must be tendered to
1054,
(1993),
denied,
appeal
default;
cure the
(1993).
73 Foust, Pa.Super. any, Co. 424 be Bankers Trust must tendered cure the default; 89, 1054, (1993), de- appeal 621 A.2d 1056
nied, (1993). 635, Pa. 631 1007 535 A.2d (4) within The time which the debtor essentially 6 comprehensive “Act inter- default; cure usury est func- law numerous (5) or The method methods which (citation omitted). Act’s tions.” Id. The or possession debtor’s ownership provision regulating notice of foreclosure real, terminated; may of the estate be relatively for of owners modest homes was to afford homeowners are in intended who (6) debtor, right any, of if The protec- dire economic straits a measure of transfer estate another overly tion from residential mort- zealous person subject security to the interest gage lenders. Id. obligation or to refinance the and of of pre- forth Section 403 sets if right, any, the transferee’s to cure requirements imposed foreclosure the default. upon mortgage residential lenders cer- mortgages. tain 403 residential 403(a)-(c) added). § 41 (emphasis P.S. provides part: 6 Act further defines “residential mort-
(a) any Before residential gage “any person lender” as lends .who may maturity money accelerate the of grants lender or, extends credit and obligation, residential to- residential assure obtains any legal including commence action of payment debt. term shall The also recover under of the holder at time a residen- include obligation, or take such obligation.” § 41 tial P.S. any security the residential statute, interpreting a this Court When such debtor for ob- guided Statutory Construction give ligation, such res- shall (Act) 1972, §§ Act Pa.C.S.A. 1501- mortgage debtor notice of such idential object provides “[t]he which thirty days intention at least in advance interpretation construction stat provided in this section. is to in utes ascertain and effectuate the (b) of intention to take action as Assembly.” tention Pa. General (a) specified subsection of this section 1921(a). § C.S.A. “The indication clearest writing, shall be sent to residen- legislative is generally plain intent by registered tial debtor language Eleby, of a statute.” Walker mail last certified at his known address (2004). 577 Pa. 842 A.2d and, different, at the which residence the words a statute are clear and “When subject the residential mort- ambiguity, from all letter of it is free gage. disregarded not to the pretext (c) clearly The written notice shall S.T.S., Jr., In pursuing spirit.” re conspicuously state: (Pa.Super.2013) (citing Sec (1) particular obligation or real 1921(b) Act, tion Pa.C.S.A. interest; estate 1921(b)). “(w]hen § Only words (2) claimed; The nature of the default explicit” are not statute Court of the debtor to cure statutory' construction. Pa. resort provided 1921(c). Indeed, default as section 404 of “[ejvery C.S.A. statute " *9 exactly construed, perform- and if possible, this act to ef give what shall be including money, provisions.” sum of 1 ance what fect Pa.C.S.A. its 74 Act 6 1921(a). gation, to send notice. This presumed is Gen-
§ “[t]hat It Court, is by be as statute cannot sanctioned it Assembly the entire intends eral give to the obligated to full effect clear and and Pa.C.S.A. effective certain.” be by unambiguous language employed Thus, 1922(2). of a statute § no provision, legislature language and not render surplusage.” to mere “reduced shall. be 403(a) Construing superfluous. Section it Finally,, is Walker, A.2d at 400. any person send the Act notice permit Assembly the General presumed “[t]hat of language clear would violate the absurd, that not intend result does express reduce reference statute* or of unreasonable.” execution impossible ' n mortgage lender” to to “residential mere 1922(1). § lPa.C.S.A. surplusage. Section To construe my of Section of on review Based persons an interest permit without 6,1 the Notice sent must conclude that Act mortgage obligation to an Act 6 no- send 6,Act comply not Appellant did also might tice chaos and invite uncertain- mortgage not Appellee was because 403(c) ty process. into this Section lends Appellant at the time lender to to this support because construction Sec- Appellant. As the Act 6 Notice to the sent 403(c) requires of tion that the content acknowledged by Majority, the record “exactly per- 6Act include notice what the Notice was here demonstrates .,. formance must be tendered cure the on Appellant June by Appellee to sent 403(c)(3). § it Clearly, P.S. default.” prior to when almost two months it' (or mortgage its authorized lender way mortgage by actually received the agent) possesses binding authority who on 2012. Section obligation and upon demand on make 403(a), above, emphasized plainly identi- rely may justifiably a debtor to pro- whom - (cid:127) mortgage is the residential fies vide required information cure a required provide lender resi- who Moreover, sending act of default. mortgage its inten- dential debtor actual prior Appellee’s to foreclose mortgage tion a residential type preci- mortgage suggests suit before accelerate commence action pitous an overzealous lender that 403(a). obligation. 41 P.S. legislature sought to avoid enacting Act 6. of this plain spirit letter and lan- require guage that the lender who holds reject reasoning I also the trial court’s legally one able to the Notice not because defective provide 403(c) notice to the residential require not Section does name permit debtor. To someone oth- in the notice intention 403(c) er than the holder of the send to foreclose. It is true Section does essentially require notice would us to re- not require the name the mortgag- 403(a) Section Act 6 to allow chain write or the the note ee in,the person, regardless pérson of whether the and the no- be identified 403(a) However, possesses any in the debt obli- tice.1 Section does make interest however, I, Majority protections disagree. 1. The Op. observes n. 2. provided requirements for an Act 6 notice debtor Section do should require analogized buying selling how the disclosure of holder to the gained possession Mortgagors experi- of the note and instruments. consequences interpretation disruptions and asserts that ence minimal bought buying 403 "is the real world when instruments are consistent with Here, above, selling explained of Maj. instruments.” sold. when an *10 it is explicitly Majority clear that To approves the residential the extent the is trial Appellee’s to this court’s and on provide lender who reliance non-binding decision Federal notice. flaw in the trial court’s rea- National Mortgage Association v. give Woody, 25 soning is that full Pa. D. it failed effect (Phi & C.3d 198 WL provisions of all the Section 403. Section la.Com.Pl.1982) support 403(a) proposi procedural prerequi- identifies the tion a mortgage that lender’s name need resi- site must be satisfied before on appear, notice intention to lender dential file foreclo- foreclose, I disagree. must Unlike action, ie„ sure the residential case, entity that issued notice of exercising is to lender send notice before intention foreclose in Federal National commencing any remedy any action either lender mortgage obligation. the residential Sec- (“Since agent. Id. 6Ó6 this notice 403(b) tion addresses the manner which it clear makes that Lomas & Nettleton prepared the notice must be sent Company mortgagee either the or the the residential debtor. Section agent payments service for it that the 403(e) details what information the notice referred therein if compa made that1 conspicuously state the debtor. ny default, cure would it is the opinion provisions operate These three in tandem sufficient.”). of the court that this is' In respect with to the notice to given be stantly, the facts of Appel- record indicate the residential debtor. To reit- lee mortgagee here was neither the nor its erate, obligated this Court is full give agent servicing when Appellee issued the provision effect each and not render Notice. parts surplusage. Viewing, light record in the most I, likewise, disagree Majority’s with the non-moving party favorable re- . anyone conclusion can send Act an solving all doubts as to the existence aof long they notice so were a genuine material fact issue Maj. Op. “at time.” If I moving party,- conclude to adopt Court were con- Majority’s in granting Appellee’s court erred motion struction of then certainly Section we summary a matter of law inviting Again, be con- would chaos. complaint. on its foreclosure Accordingly, permit persons strue 403 to with- I court’s would reverse the trial order. an out interest in a obligation to an send would, invite uncer-
tainty process. Majority into this also Act
claims an 6 notice “is not fore- true,
closure action.” em- Although Id. I
phasize of an Act notice issuance an important prerequisite filing foreclosure., Therefore, action im- LLC, Appellee v. CREDITONE, portance such notice cannot mini- n . mized. . issued, proper Act notice is the effect and conse- Act 6 notice from the lend- severe, quence on er, borrowers often detailing required performance is what' Thus, possibility looming, of foreclosure stave off foreclosure. imperative that borrowers receive an