U.S. BANK, N.A., as Trustee Successor in Interest to Bank of America, N.A., as Trustee and Successor by Merger to LaSalle Bank, N.A., as Trustee for WaMu Mortgage Passthrough Certificates Series 2007-OA2 Trust, Appellants v. Christine PAUTENIS, Appellee.
Superior Court of Pennsylvania.
Filed May 29, 2015.
111 A.3d 386
BEFORE: BOWES, DONOHUE and STABILE, JJ. OPINION BY DONOHUE, J.
Argued March 18, 2015.
Michael P. Forbes, Wayne, for appellee.
BEFORE: BOWES, DONOHUE and STABILE, JJ.
OPINION BY DONOHUE, J.:
U.S. Bank, N.A. (“U.S. Bank“) appeals from the July 14, 2014 judgment entered by the Delaware County Court of Common Pleas finding in favor of Christine Pautenis1 (“Home Owner“) in this mortgage foreclosure action2 and dismissing its complaint with prejudice. On appeal, U.S. Bank challenges the denial of its post-trial motions as untimely; the verdict in favor of Home Owner based on allegedly erroneous evidentiary rulings by the trial court; and the trial court‘s dismissal of U.S. Bank‘s complaint with prejudice.3 Upon review, we reverse the trial court‘s denial of U.S. Bank‘s post-trial motion as untimely; in all other respects, we affirm.
As summarized by the trial court:
The undisputed facts surrounding the origination of this law suit [sic] are that
[Home Owner], borrowed the sum of $187,000.00 from Washington Mutual Bank, FA (“WaMu“) to finance the purchase of the subject property situated at 257 Windermere Avenue, Lansdowne, PA[,] pursuant to a deed recorded on May 22, 2007 in Book 4106, Page 940 in the Office of the Recorder of Deeds of Delaware County, PA. On January 25, 2007, [Home Owner] executed and delivered a promissory note and, to secure the obligation under the note, a purchase money mortgage to WaMu, the latter instrument having been subsequently recorded on May 22, 2007 in the Office of the Recorder of Deeds of Delaware County, PA[,] in Book 4106, Page 945. The terms of remuneration of the [n]ote required [Home Owner] to make initial monthly payments of $788.40 commencing on March 1, 2007, and continuing each month thereafter until the maturity date of February 1, 2037. [Home Owner] admittedly stopped making her required mortgage payments on or about September 1, 2011, and following her subsequent failure to cure the default, [U.S. Bank] commenced this action in mortgage foreclosure on August 8, 2012.[FN]1 [FN]1 [Home Owner]‘s [n]ote and [m]ortgage in favor of WaMu were assigned, on May 25, 2008, by the Federal Deposit Insurance [Corporation] [“FDIC“] to JPMorgan Chase Bank, N.A. [“Chase“], from whence it was reportedly assigned to [U.S. Bank].
Trial Court Opinion, 9/29/14, at 3 (footnote in the original).
Home Owner filed preliminary objections to U.S. Bank‘s complaint on November 7, 2012. Following receipt of U.S. Bank‘s response thereto, the trial court denied the preliminary objections on February 21, 2013 and ordered Home Owner to file an answer to the complaint within twenty days of the order. Home Owner filed an answer and new matter on March 21, 2013. U.S. Bank filed a reply to the new matter on April 8, 2013. On October 22, 2013, U.S. Bank filed a motion for summary judgment, which the trial court denied on December 6, 2013.
The one-day bench trial took place on February 25, 2014. At trial, the trial court sustained Home Owner‘s objection to the admission of U.S. Bank‘s trial exhibits P-2 through P-8. These exhibits included the adjustable rate note; the mortgage; the assignment of the mortgage from Chase to U.S. Bank; the payment history report compiled by Select Portfolio Servicing (“SPS“);4 the default notice allegedly sent to Home Owner by Chase; a calculation of the current payoff of the loan through February 25, 2014; and the original version of the note. The trial court found that the documents “totally lack trustworthiness,” and excluded the exhibits from evidence. N.T., 2/25/14, at 212.
The trial court issued its verdict on March 3, 2014, finding in favor of Home Owner. The prothonotary sent notice of the verdict to the parties on March 5, 2014. U.S. Bank filed a motion for post-trial relief on March 17, 2014, which the trial court dismissed as untimely on June 18, 2014. Judgment was entered on July 14, 2014. Thereafter, U.S. Bank filed its notice of appeal, followed by a court-ordered concise statement of errors complained of on appeal. U.S. Bank now raises the following issues for our review, which we reordered for ease of disposition:
- Whether the [t]rial [c]ourt erred as a matter of law by striking and dis-
missing the [m]otion for [p]ost-[t]rial [r]elief as untimely and/or refusing to accept the [m]otion where it was filed on the tenth day following notice by the [p]rothonotary of the entry of the [v]erdict following a non-jury trial? - Whether the [t]rial [c]ourt committed prejudicial error and abused its discretion in refusing to take judicial notice of [Chase]‘s ownership of the [n]ote and [m]ortgage and of [Chase]‘s authority to assign the [m]ortgage and [n]ote to U.S. Bank?
- Whether the [t]rial [c]ourt‘s refusal to admit into evidence the copies or original of the [n]ote is prejudicial error and [an] abuse of discretion despite [Home Owner]‘s admission that she signed at least one of the copies?
- Whether the [t]rial [c]ourt‘s refusal to admit into evidence the [d]efault [n]otice sent to [Home Owner] is prejudicial error and [an] abuse of discretion[?]
- Whether the [t]rial [c]ourt committed prejudicial error and abused its discretion by excluding evidence of [Home Owner]‘s indebtedness and failing to deem admitted [Home Owner]‘s indebtedness as pleaded and proven by [U.S.] Bank?
- Whether the [t]rial [c]ourt erred as a matter of law by dismissing the case “with prejudice[ ]“[?]
U.S. Bank‘s Brief at 7-8.
1. Timeliness of Post-Trial Motion
As its first issue on appeal, U.S. Bank asserts that the trial court erroneously found that its post-trial motion was untimely. Id. at 13-14. In its written opinion pursuant to
Our review of the record reveals that U.S. Bank timely filed its post-trial motion. Rule 227.1(c) of the Pennsylvania Rules of Civil Procedure requires the filing of post-trial motions within ten days of the filing of the decision in a nonjury trial.
We further disagree with the trial court that remand is necessary in this case. In its written opinion, the trial court states that it believes U.S. Bank‘s “post-trial contentions are utterly lacking in merit,” and only recommends remand in “an abundance of judicial caution” to provide U.S. Bank with “a final and appealable order.” Trial Court Opinion, 9/29/14, at 23 (citing Diamond Reo Truck Co. v. Mid-Pac. Indus., Inc., 806 A.2d 423 (Pa.Super.2002)). This Court has made clear, however, that it is the failure to timely file post-trial motions that results in waiver of issues raised on appeal, not the trial court‘s failure to consider the merits thereof. D.L. Forrey & Associates, Inc. v. Fuel City Truck Stop, Inc., 71 A.3d 915, 919 (Pa.Super.2013).
Here, U.S. Bank timely filed post-trial motions. Although the trial court initially failed to consider the contentions raised therein, the trial court ultimately did so in its opinion authored for purposes of appeal. This is the functional equivalent of a case involving the dismissal of post-trial motions by operation of law, and in such cases, the trial court does not address the contentions raised in the post-trial motion, if at all, until it authors its 1925(a) opinion. See
“[T]he twofold purpose of post-trial motions: (1) to afford the trial court in the first instance, the opportunity to correct asserted trial errors[] and (2) to clearly and narrowly frame issues for appellate review,” Diamond Reo Truck Co., 806 A.2d at 430, have been met in this case. There is no purpose in remanding the case for the trial court to again address the issues raised in the motion. We therefore proceed to our review of the issues raised on appeal.
2. Judicial Notice
U.S. Bank‘s second issue on appeal alleges error based on the trial court‘s failure to take judicial notice of Chase‘s acquisition of Home Owner‘s mortgage pursuant to the FDIC‘s takeover of WaMu and subsequent transfer of “substantially all” of WaMu‘s assets and liabilities to Chase. U.S. Bank‘s Brief at 17-20. We review challenges to the trial court‘s evidentiary rulings according to the following standard:
When we review a trial court ruling on admission of evidence, we must acknowledge that decisions on admissibility are within the sound discretion of the trial court and will not be overturned absent an abuse of discretion or misapplication of law. In addition, for a ruling on evidence to constitute reversible error, it must have been harmful or prejudicial to the complaining party.
An abuse of discretion is not merely an error of judgment, but if in reaching a conclusion the law is overridden or misapplied, or the judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, bias or ill-will, as shown by the evidence or the record, discretion is abused.
Phillips v. Lock, 86 A.3d 906, 920 (Pa.Super.2014) (citation omitted). Rule 201 of the Pennsylvania Rules of Evidence governs judicial notice, and states, in relevant part, as follows:
(b) Kinds of Facts That May Be Judicially Noticed. The court may judicially notice a fact that is not subject to reasonable dispute because it:
(1) is generally known within the trial court‘s territorial jurisdiction; or
(2) can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.
(c) Taking Notice. The court:
(1) may take judicial notice on its own; or
(2) must take judicial notice if a party requests it and the court is supplied with the necessary information.
The record reflects that without presenting supporting evidence of any kind, counsel for U.S. Bank stated, “It‘s public record that [WaMu] was seized and shut down by the FDIC[, a]nd all of those assets were taken from [WaMu] and taken over by [Chase].... We would ask that since these are public records and generally common knowledge that the [c]ourt take judicial notice of the same.” N.T., 2/25/14, at 52-53. The trial court responded by stating that the information was not within its common knowledge and refused to take judicial notice of the transfer of WaMu‘s assets and liabilities to Chase, in particular, the transfer of Home Owner‘s mortgage loan from WaMu to Chase. Id. at 53.
In its brief on appeal, U.S. Bank includes web addresses6 that detail the FDIC‘s takeover of WaMu and transfer of “all mortgage servicing rights and obligations” to Chase. See U.S. Bank‘s Brief
Moreover, even if the trial court abused its discretion by failing to take judicial notice, U.S. Bank would not be entitled to relief. As U.S. Bank acknowledges, this issue relates to its standing to bring this action in foreclosure. U.S. Bank‘s Brief at 17-18; U.S. Bank‘s Reply Brief at 3. The trial court, however, did not decide this case based upon U.S. Bank‘s lack of standing. See Trial Court Opinion, 9/29/14, at 21 (stating that U.S. Bank had standing and “proof of the chain of custody of the mortgage assignment was unnecessary“).8 Rather, the trial court entered a verdict in favor of Home Owner based upon its finding that U.S. Bank failed to satisfy its burden of proving the amount owed by Home Owner on the mortgage loan. Id. The law is clear: “[I]n order for a ruling on the admissibility of evidence to constitute reversible error, it must have been harmful or prejudicial to the complaining party.” Knowles v. Levan, 15 A.3d 504, 507 (Pa.Super.2011) (citation omitted); see also Peled v. Meridian Bank, 710 A.2d 620, 626 (Pa.Super.1998) (“To constitute reversible error, a ruling on evidence must be shown not only to have been erroneous but harmful to the party complaining. An evidentiary ruling which did not affect the verdict will not provide a basis for disturbing the [fact-finder]‘s judgment.“). As U.S. Bank suffered no prejudice as a result of the trial court‘s refusal to take judicial notice of the transfer of Home Owner‘s mortgage and note to Chase, this issue does not warrant relief.
3. Exclusion of Promissory Note
Next, U.S. Bank asserts that the trial court erred by refusing to admit into evidence copies of the note submitted at trial.9 U.S. Bank‘s Brief at 31-34. Once
4. Exclusion of Default Notice
In its fourth issue, U.S. Bank claims that the trial court abused its discretion by refusing to admit into evidence the notice of default and mortgage acceleration it allegedly sent to Home Owner.10 U.S. Bank‘s Brief at 34-35. U.S. Bank includes no explanation of how, if at all, it was prejudiced by the trial court‘s exclusion of this document. “This Court will not act as counsel and will not develop arguments on behalf of an appellant.” Krauss v. Trane U.S. Inc., 104 A.3d 556, 584 (Pa.Super.2014) (quoting Irwin Union Nat. Bank and Trust Co. v. Famous, 4 A.3d 1099, 1103 (Pa.Super.2010)). As U.S. Bank failed to establish that this allegedly erroneous evidentiary ruling prejudiced it, we will not disturb the trial court‘s decision on this basis. See Knowles, 15 A.3d at 507; Peled, 710 A.2d at 626.
5. Exclusion of Evidence of Amount of Debt
U.S. Bank correctly states that proof of the amount of indebtedness is an “essential element of a claim in mortgage foreclosure.” U.S. Bank‘s Brief at 21; see
The record reflects that in its complaint, U.S. Bank included the following averment:
9. The following amounts are due as of May 7, 2012:
Principal Balance Due $189,312.78 Interest Currently Due and Owing at a variable rate From August 1, 2011 through May 7, 2012 $5,759.09 Late Charges $298.92 Escrow Advances $3,144.17
Property Inspection $144.00 TOTAL $198,658.96
Complaint, 8/8/12, ¶ 9. Home Owner‘s answer states, in relevant part:
By way of further answer, [Home Owner] den[ies] any allegation which calls for amounts of money claimed by [U.S. Bank], for which after reasonable investigation, answering [Home Owner] [is] without knowledge or information to form a believe as to the truth or falsity of [U.S. Bank]‘s allegation regarding the alleged amounts due referred to in [U.S. Bank]‘s [c]omplaint and the allegation is therefore denied.
Defendant‘s Answer and New Matter to Plaintiff‘s Complaint, 3/21/13, ¶ 9.
U.S. Bank is correct that in First Wisconsin Trust Co. this Court held that “in mortgage foreclosure actions, general denials by mortgagors that they are without information sufficient to form a belief as to the truth of averments as to the principal and interest owing must be considered an admission of those facts.” First Wisconsin Trust Co., 653 A.2d at 692. This holding was derived from two sources: (1) our prior decision in New York Guardian Mortgage Corp. v. Dietzel, 362 Pa.Super. 426, 524 A.2d 951, 952 (1987), wherein this Court stated, “Unquestionably, apart from [the mortgagee], [the mortgagors] are the only parties who would have sufficient knowledge on which to base a specific denial,” and (2) Rule 1029 of the Pennsylvania Rules of Civil Procedure, which states, in relevant part:
(b) Averments in a pleading to which a responsive pleading is required are admitted when not denied specifically or by necessary implication. A general denial or a demand for proof, except as provided by subdivision (c) of this rule, shall have the effect of an admission.
(c) A statement by a party that after reasonable investigation the party is without knowledge or information sufficient to form a belief as to the truth of an averment shall have the effect of a denial.
Note: Reliance on subdivision (c) does not excuse a failure to admit or deny a factual allegation when it is clear that the pleader must know whether a particular allegation is true or false. See Cercone v. Cercone, 254 Pa.Super. 381, 386 A.2d 1 (1978) [ (en banc) ].
Both First Wisconsin Trust Co. and New York Guardian Mortgage Corp. involved appeals from summary judgment decisions. As such, the borrowers presented no evidence to support a finding that they were unable to ascertain the amount owed on their loans. See Alderwoods (Pennsylvania), Inc. v. Duquesne Light Co., — Pa. —, 106 A.3d 27, 34 n. 5 (2014) (“A court of original jurisdiction may grant summary judgment only when the moving party demonstrates that there are no genuine issues of material fact and that it is entitled to judgment as a matter of law.“). In contrast, in the case at bar, Home Owner presented evidence at trial12 that she was unable to determine the amount due to U.S. Bank on the loan. Attorney Perry Liss testified that Home Owner retained him in 2011 or 2012 to
The record supports the trial court‘s finding that Home Owner did not have sufficient knowledge upon which to base a specific denial as to the amount owed on the loan. Therefore, pursuant to Rule 1029(b) and (c), Home Owner‘s statement in her answer that she was unable to determine the truth or falsity of the amount of indebtedness claimed by U.S. Bank in its complaint does not have the effect of an admission. See
We now turn to U.S. Bank‘s argument that the trial court abused its discretion by excluding the evidence it presented of the amount owed on the loan by Home Owner. First, relying on the obligation of consumers to challenge debt amounts as set forth in the Debt Collection Practices Act,
Even if not waived, the argument is meritless. Section 1692g of the Debt Collection Practices Act provides, in relevant part, as follows:
(a) Notice of debt; contents
Within five days after the initial communication with a consumer in connection with the collection of any debt, a debt collector shall, unless the following information is contained in the initial communication or the consumer has paid the debt, send the consumer a written notice containing—
(1) the amount of the debt;
(2) the name of the creditor to whom the debt is owed;
(3) a statement that unless the consumer, within thirty days after receipt of the notice, disputes the validity of the debt, or any portion thereof, the debt will be assumed to be valid by the debt collector;
(4) a statement that if the consumer notifies the debt collector in writing within the thirty-day period that the debt, or any portion thereof, is disputed, the debt collector will obtain verification of the debt or a copy of a judgment against the consumer and a copy of such verification or judgment will be mailed to the consumer by the debt collector; and
(5) a statement that, upon the consumer‘s written request within the thirty-day period, the debt collector will provide the consumer with the name and address of the original creditor, if different from the current creditor.
(b) Disputed debts
If the consumer notifies the debt collector in writing within the thirty-day period described in subsection (a) of this section that the debt, or any portion thereof, is disputed, or that the consumer requests the name and address of the original creditor, the debt collector shall cease collection of the debt, or any disputed portion thereof, until the debt collector obtains verification of the debt or a copy of a judgment, or the name and address of the original creditor, and a copy of such verification or judgment, or name and address of the original creditor, is mailed to the consumer by the debt collector. Collection activities and communications that do not otherwise violate this subchapter may continue during the 30-day period referred to in subsection (a) of this section unless the consumer has notified the debt collector in writing that the debt, or any portion of the debt, is disputed or that the consumer requests the name and address of the original creditor. Any collection activities and communication during the 30-day period may not overshadow or be inconsistent with the disclosure of the consumer‘s right to dispute the debt or request the name and address of the original creditor.
(c) Admission of liability
At trial, U.S. Bank attempted to establish the amount of the indebtedness based upon the testimony of KaJay Williams (“Williams“), a mediation specialist with SPS, who explained the manner by which SPS transferred loan information from Chase into its computer system. Relying upon Commonwealth Fin. Sys. v. Smith, 15 A.3d 492 (Pa.Super.2011) (”CFS“), the trial court excluded the evidence. Trial Court Opinion, 9/29/14, at 15, 19-21. U.S. Bank contends that this was error, as CFS is inapposite to the case at bar. U.S. Bank‘s Brief at 25-31.
CFS involved an action to collect a credit card debt brought by CFS, which had purchased the debt from NCOP Capital, Inc., which had itself purchased the debt from Citibank, the original holder of the debt. CFS, 15 A.3d at 493-94. CFS, through its corporate representative, attempted to enter into evidence the following:
(a) two monthly billing statements: the first issued on February 25, 2002, reflecting receipt of a payment posted on February 7, 2002, asserting a payment due of $44.00 and a balance of $2,267.01 as of March 20, 2002; the second issued on March 26, 2002, reflecting a late fee of $35.00 on a past due payment (Complaint Exhibit A; Trial Exhibit P-2);
(b) an unsigned, standard form copy of a 1996 “Citibank Card Agreement,” issued seven years after Ms. Smith‘s Citibank account was opened, bearing no direct relationship to Ms. Smith‘s account, and reflecting 1996/1997 interest rates (Complaint Exhibit B; Trial Exhibit P-1);
(c) a “Bill of Sale, Assignment and Assumption Agreement” dated July 14, 2004, between Citibank and NCOP Capital, Inc. (“NCOP“), wherein Citibank sold to NCOP, its successors and assigns, “the Accounts described in Section 1.2 of the Agreement,” including Ms. Smith‘s account (Trial Exhibit P-3);
(d) a “Bill of Sale, Assignment and Assumption Agreement” dated July 19, 2004 between NCOP and CFS, wherein NCOP sold to CFS, its successors and assigns “the Accounts described in Section 1.2 of the Agreement,” including Ms. Smith‘s account (Trial Exhibit P-4).
(d) a notarized affidavit of Michael Chiodo, an employee of NCOP, dated September 24, 2004, which referenced Ms. Smith‘s account and her Social Security Number in the heading and provided as follows:
Michael Chiodo, being sworn, deposes and says that the affiant making this affidavit is an employee of NCO Portfolio Management, Inc.; it‘s [sic] Subsidiaries and Affiliates, (the “Company“), which is located at 507 Prudential Road, Horsham, PA 19044. The affiant is authorized to make the statements and representations herein. The Company‘s business records show that as of July 19, 2004, there was due and payable
from Account # [xxx-8465] the amount of $2,780.04. The Company‘s business records show that this account was opened on 11/1/89. The affiant states that to the best of affiant‘s knowledge, information and belief there are no uncredited payments against said debt.
Id. CFS’ corporate representative testified that he did not know how Citibank or NCOP created or maintained their records; whether the entries in the documents were made at or near the time of the events; if someone with knowledge transmitted the information contained in the records; or if the credit card agreement presented applied to Smith‘s account. Id. at 494. The trial court sustained Smith‘s objection to these documents, concluding that they did not satisfy the business records exception to the hearsay rule under Rule 803(6) or the Uniform Business Records as Evidence Act,
Following the entry of judgment in Smith‘s favor, CFS appealed to this Court and we affirmed, finding no abuse of discretion by the trial court in excluding the proffered exhibits. The Uniform Business Records as Evidence Act and Rule of Evidence 803(6) required CFS to establish the “circumstantial trustworthiness” of the documents and have a qualified witness testify in support of the documents, and the record supported the trial court‘s conclusion that CFS failed to comply with either requirement. Id. at 499-500.
We find no error in the trial court‘s exclusion of the loan history documents in the case at bar based upon the holding in CFS. As stated above, at trial, U.S. Bank presented loan history documents created by Chase through Williams’ testimony. He testified that SPS does not originate new loans, but keeps track of payments on existing loans for other companies. Williams stated that SPS employs “a very rigorous loan validation process” when entering loan information into its system to ensure the accuracy of the data obtained from the prior holder of the debt. N.T., 2/25/14, at 25-26. It involves reviewing “the account information, contact history notes, payment history notes[,] the address, borrower‘s name, social security number, ... [and other] information in reference to that loan.” Id. at 25. According to Williams, members of SPS’ data conversion department “look for irregularities,” including any dispute made by the debtor indicating that the information is inaccurate, and by running an amortization schedule of the loan to ensure the numbers “match up” with the prior servicer‘s numbers. Id. at 41-42. Upon completion of the validation process, SPS adopts the prior loan servicer‘s records as its own. Id. at 43-44.
The document presented to the trial court to detail Home Owner‘s payment history on the loan was created by Chase, and U.S. Bank sought to admit this exhibit into evidence as its own record. N.T., 2/25/14, at 58-59; see Trial Exhibit P-5 at 3. Williams testified to having no knowledge as to how Chase created or maintained its records. N.T., 2/25/14, at 25. U.S. Bank insists that its validation process somehow differentiates the evidence presented in this case from that in CFS. Our review of CFS, however, reveals that it too provided evidence that it “cross-confirm[ed][] the information contained in the electronic data provided to CFS on purchase of the account and the information contained in the account statements it sought to admit into evidence at trial.” CFS, 15 A.3d at 498. In CFS, double-checking the records of the prior debt holder was deemed insufficient to overcome the rule against the admission of hearsay.
(A) the record was made at or near the time by—or from information transmitted by—someone with knowledge;
(B) the record was kept in the course of a regularly conducted activity of a “business“, which term includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit;
(C) making the record was a regular practice of that activity;
(D) all these conditions are shown by the testimony of the custodian or another qualified witness, or by a certification that complies with Rule 902(11) or (12) or with a statute permitting certification; and
(E) neither the source of information nor other circumstances indicate a lack of trustworthiness.
A record of an act, condition or event shall, insofar as relevant, be competent evidence if the custodian or other qualified witness testifies to its identity and the mode of its preparation, and if it was made in the regular course of business at or near the time of the act, condition or event, and if, in the opinion of the tribunal, the sources of information, method and time of preparation were such as to justify its admission.
As stated above, Williams had no knowledge of how Chase kept its records and whether those records themselves would have been admissible under Rule 803(6). Williams therefore could not authenticate the documents created by Chase or establish their trustworthiness, and instead attempted to authenticate them as SPS’ records created through the aforementioned validation process. Despite the “very rigorous loan validation process” CFS allegedly performed, the payment records provided by U.S. Bank at trial dated back only to February 1, 2008, more than a year after the origination of the loan. N.T., 2/25/14, at 141-42; Trial Exhibit P-5. Williams provided no testimony as to knowledge of any payment activity that occurred between January 25, 2007 and February 1, 2008.
Furthermore, as of February 1, 2008, the document U.S. Bank presented indicated that the principal loan amount was $193,103.71—over $6000 more than it was at the inception of the loan. Id. When asked to explain the growth in principal, Williams had no answer. He testified that Home Owner had several options for paying the loan, including “a negative amortized payment, ... an interest only
Additionally, although Williams indicated that a customer dispute would have triggered an investigation into the accuracy of the payments made, he admitted that he did not review the QWR sent to Chase by Attorney Liss on Home Owner‘s behalf challenging the correctness of the stated amount owed on the loan. N.T., 2/25/14, at 105-06. According to Williams’ testimony, SPS never engaged in any additional investigation into the accuracy of the amount purportedly due on the loan apart from reviewing the payment history information it received from Chase, which, as stated above, was incomplete. See Trial Exhibit P-5; see also Trial Exhibit D-5.
The trial court found that U.S. Bank “failed to present complete, accurate and trustworthy records evincing the actual amount due and owing from [Home Owner] on this loan obligation[.]” Trial Court Opinion, 9/29/14, at 18. The record supports that finding. As such, we discern no abuse of discretion in the trial court‘s exclusion of the loan history documents U.S. Bank presented as proof of the amount owed by Home Owner on the loan.
The complaint framed the issues for trial, and the matters raised therein have been adjudicated and decided by the trial court. The vitality of the complaint ceased once the verdict was entered. We suppose that it is an accurate statement that following trial and verdict, any complaint is dismissed with prejudice since a party cannot relitigate the issues raised in a complaint that has gone to verdict, and every verdict brings claims raised in a complaint to an end. Thus, in this regard, we conclude that the trial court‘s dismissal of U.S. Bank‘s complaint in its order announcing the verdict was surplusage.
In reality, U.S. Bank is asking this Court to answer the question of whether it or its successor in interest may file another foreclosure action against Home Owner on the same mortgage and note for future defaults by Home Owner. We do not (indeed, we cannot) decide the future repercussions of this decision, as it would violate the prohibition against the issuance of an advisory opinion. See Sedat, Inc. v. Fisher, 420 Pa.Super. 469, 617 A.2d 1, 4 (1992) (“An advisory opinion is one which is unnecessary to decide the issue before the court, and ... the courts of this Commonwealth are precluded from issuing such advisory opinions.“). Moreover, even if we could decide this question, the issue is insufficiently briefed, as U.S. Bank relies solely upon an unpublished decision of a trial court, which this Court affirmed in an unpublished memorandum without a separate opinion. See Reinoso v. Heritage Warminster SPE LLC, 108 A.3d 80, n. 4 (Pa.Super.2015) (en banc) (“In accordance with § 65.37 of the Superior Court‘s Internal Operating Procedures, an unpublished memorandum decision of this Court is not to be relied upon or cited by a court or a party in any proceeding, except under limited circumstances that do not exist here.“).
Conclusion
In summary, we find error in the trial court‘s conclusion that U.S. Bank‘s post-trial motion was untimely, but need not remand the case for decision on the motion. In all other respects, we affirm the trial court‘s verdict in favor of Home Owner.
Judgment affirmed.
Notes
- https://www.fdic.gov/news/news/press/2008/pr08085.html;
- http://www.wsj.com/news/articles/SB122238415586576687; and
- https://www.fdic.gov/about/freedom/WashingtonMutualPandA.pdf.
Cunningham, 714 A.2d at 1057 (emphasis added). The facts of Cunningham are readily distinguishable from the case at bar. The mortgage in that case was a fixed rate mortgage and the mortgagors admitted that they defaulted on the mortgage, failed to pay interest from a specified date, and that the recorded mortgage was in the amount stated by the mortgagee in its complaint. Id. Thus, despite the mortgagors’ denial in their answer of the amount of indebtedness claimed by the mortgagee, that figure was a simple calculation, readily ascertainable and indisputable based upon the terms of the mortgage. See id. As such, summary judgment was proper. The mortgage in the case at bar, on the other hand, was an adjustable rate mortgage, which did not permit a simple calculation of the amount due (as evidenced by the testimony provided by U.S. Bank‘s witness, discussed infra). Therefore, despite Home Owner‘s admission that the mortgage was in default, she failed to make any payments on the obligation (which would include interest), and the mortgage was recorded in the amount of $187,000, see N.T., 2/25/14, at 151, 152; Trial Exhibit D-5, this did not permit the entry of judgment in U.S. Bank‘s favor in the absence of proof of the amount owed by Home Owner on the mortgage loan. The Landau case, upon which the Cunningham Court relied, was an anomalous case and is likewise distinguishable from the case at bar. In Landau, the bank voluntarily subordinated its interest in the property to the mortgagor‘s lessee. Landau, 282 A.2d at 337. The bank, as the mortgagee in possession, was collecting rent, expending money for capital improvements, and paying taxes. Id. at 339. Therefore, it was unknown at the time of the foreclosure proceeding what amount was owed to the bank; an accounting was required prior to a sheriff‘s sale. See id. at 339, 340. Furthermore, a judicial sale of the property was not immediately contemplated, rendering it unnecessary to determine at the time of the foreclosure proceeding the exact amount due to the bank. See id. at 340; see also Meco Realty Co., 200 A.2d at 871.In an action for mortgage foreclosure, the entry of summary judgment is proper if the mortgagors admit that the mortgage is in default, that they have failed to pay interest on the obligation, and that the recorded mortgage is in the specified amount. Landau v. Western Pennsylvania National Bank, 445 Pa. 217, 282 A.2d 335, 340 (1971). This is so even if the mortgagors have not admitted the total amount of the indebtedness in their pleadings. Id. See generally 22 Standard Pennsylvania Practice 2d § [121:72] (discussing motions for summary judgment in a foreclosure action).
For purposes of this subsection, a qualified written request shall be a written correspondence, other than notice on a payment coupon or other payment medium supplied by the servicer, that—
(i) includes, or otherwise enables the servicer to identify, the name and account of the borrower; and
(ii) includes a statement of the reasons for the belief of the borrower, to the extent applicable, that the account is in error or provides sufficient detail to the servicer regarding other information sought by the borrower.