Wells Fargo Bank v. Barbera, G. ( 2017 )

J-A30021-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
WELLS FARGO BANK, N.A., SUCCESSOR IN THE SUPERIOR COURT OF
BY MERGER TO WACHOVIA MORTGAGE PENNSYLVANIA
CORPORATION,
Appellee
v.
GARY M. BARBERA AND LINDA
BARBERA,
Appellants No. 3623 EDA 2015
Appeal from the Judgment Entered October 21, 2015
In the Court of Common Pleas of Montgomery County
Civil Division at No(s): 2009-44350
BEFORE: BOWES, OLSON and STABILE, JJ.
MEMORANDUM BY OLSON, J.: FILED JANUARY 31, 2017
Gary M. Barbera and Linda Barbera (collectively “Appellants”) appeal
from the judgment entered on October 21, 2015. We affirm.
The factual background and procedural history of this case are as
follows. On June 30, 2006, Appellants executed a mortgage (“the first
mortgage”) in favor of Wachovia Mortgage Corporation (“Wachovia
Mortgage”). That same day, Appellants executed a promissory note in which
they agreed to pay $13,150.46 per month to repay the loan secured by the
first mortgage. In addition to the first mortgage issued by Wachovia
Mortgage, Appellants secured a second mortgage with Wachovia Bank, N.A.
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In conjunction with the second mortgage, Appellants also executed a
promissory note.
On October 18, 2009, Wells Fargo Home Mortgage, the servicer for the
first mortgage, sent separate notices pursuant to 35 P.S. § 1680.401c et
seq. (“Act 91”)1 to Gary M. Barbera and Linda Barbera. On December 23,
2009, Wachovia Mortgage instituted the instant mortgage foreclosure
proceeding. Thereafter, Wachovia Mortgage filed an amended complaint.
On March 29, 2010, Appellants filed preliminary objections which the
trial court overruled on July 19, 2010. On November 23, 2011, Appellants
filed a joint Chapter 7 bankruptcy petition. That filing acted as an automatic
stay with respect to the instant mortgage foreclosure action. See 11 U.S.C.
§ 362(a). On January 23, 2012, the United States Bankruptcy Court for the
Eastern District of Pennsylvania lifted the automatic stay as to this
proceeding. In re Barbera, 11bk18993 (Bankr. E.D. Pa. Jan. 23, 2012).
On March 15, 2012, Wells Fargo Bank, N.A. (“Wells Fargo”) was substituted
as the successor in interest to Wachovia Mortgage.
On April 3, 2015, the trial court presided over a bench trial. On July
20, 2015, the trial court entered findings of fact and conclusions of law.
1
“The purpose of an Act 91 notice is to instruct the mortgagor of different
means he may use to resolve his arrearages in order to avoid foreclosure on
his property and also gives him a timetable in which such means must be
accomplished.” Wells Fargo Bank N.A. v. Spivak, 104 A.3d 7, 15 (Pa.
Super. 2014) (citation omitted). The requirements for an Act 91 notice are
set forth in detail at 12 Pa. Code § 31.203.
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Contemporaneously therewith, the trial court entered its decision in favor of
Wells Fargo and against Appellants. On July 31, 2015, Appellants filed an
untimely post-trial motion. On October 20, 2015, the trial court denied the
post-trial motion.2 On October 21, 2015, the trial court entered an in rem
judgment in favor of Wells Fargo and against Appellants in the amount of
$3,097,308.60. This timely appeal followed.3
Appellants present one issue for our review:
Did the trial court err by failing to dismiss the complaint when
[Appellants] were never served with a proper and effective [Act
91 notice]?
Appellants’ Brief at 4.
2
Appellants’ post-trial motion was due on or before July 30, 2016. See
Pa.R.C.P. 227.1(c)(2). Nonetheless, Wells Fargo did not object to the
untimely filing of Appellants’ post-trial motion. See generally Wells Fargo’s
Brief in Opposition to Appellants’ Post-Trial Motion, 8/9/15. As the post-trial
motion was filed while the trial court still had jurisdiction over the matter,
Wells Fargo did not object to the timeliness of the motion, and the trial court
decided the motion on the merits, we must ignore the untimeliness of the
post-trial motion. See Watkins v. Watkins, 775 A.2d 841, 845 n.1 (Pa.
Super. 2001) (citation omitted) (“Whenever a party files post-trial motions
at a time when the court has jurisdiction over the matter but outside the
ten-day requirement of [Pennsylvania Rule of Civil Procedure] 227.1, the
trial court’s decision to consider the motions should not be subject to review
unless the opposing party objects.”).
3
On November 17, 2015, the trial court ordered Appellants to file a concise
statement of errors complained of on appeal (“concise statement”). See
Pa.R.A.P. 1925(b). On December 3, 2015, Appellants filed their concise
statement. On January 11, 2016, the trial court issued its Rule 1925(a)
opinion. Appellants included their lone issue raised on appeal in their
concise statement.
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Appellants’ lone issue raises a mixed question of fact and law. “[W]e
review the [trial] court’s legal conclusions de novo and the scope of our
review is plenary.” In re Estate of Rood, 121 A.3d 1104, 1106 (Pa. Super.
2015). We will not disturb the trial court’s factual findings if they are
supported by the record. See Lomas v. Kravitz, 130 A.3d 107, 128 (Pa.
Super. 2015) (en banc), appeal granted on other grounds, 147 A.3d 517(Pa. 2016).
Appellants argue that the Act 91 notices were defective in the
following manner: (1) they were sent by Wells Fargo Home Mortgage, the
mortgage servicer, instead of Wachovia Mortgage, the lender; (2) they did
not include the assignment of the mortgage; and (3) they did not list
Wachovia Mortgage as the original lender. Appellants’ argument that a
mortgage servicer cannot send an Act 91 notice is without merit. 4 The
relevant provisions of Act 91 state that a person other than the lender, e.g.,
4
Appellants also argue that, in addition to Act 91, the terms of their
mortgage documents required Wachovia Mortgage to send the Act 91
notices. This argument too is without merit. The general rule is that “[a]
notification given by an agent is effective as notification given by the
principal if the agent has actual or apparent authority to give the
notification[.]” Restatement (Third) of Agency § 5.02(2). In this case, Wells
Fargo Home Mortgage had actual or apparent authority to send the Act 91
notices. The mortgage documents did not state that only Wachovia Mortgage
could send the Act 91 notices. Thus, the general rule applies in this case
and Wachovia Mortgage’s agent (Wells Fargo Home Mortgage) could send
the Act 91 notices on Wachovia Mortgage’s behalf.
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the mortgage servicer, can send the Act 91 notice. Specifically, those
provisions provide that:
The mortgagee or other person sending the notice to the
mortgagor shall simultaneously send a copy of each notice
issued to the agency by regular mail, facsimile, electronic mail or
another means of electronic transfer in accordance with agency
guidelines. In lieu of sending a copy of each notice, the
mortgagee or other person charged with sending the
notice may provide the agency, within thirty (30) days of the
end of each calendar quarter, a report listing the notices sent
during the prior calendar quarter arranged by property address
including zip code.
35 P.S. § 1680.403c(b)(1) (emphasis added). Thus, although in other
portions of section 1680.403c the term “mortgagee” is used when
referencing who must send an Act 91 notice, it is obvious that the term
“mortgagee” in this section encompasses “[an]other person sending the
notice[.]” 35 P.S. § 1680.403c(b)(1). Therefore, we conclude that the
servicer (Wells Fargo Home Mortgage) was permitted to send the Act 91
notices to Appellants. See CitiMortgage, Inc. v. Smiler, 32 Pa.D.&C.5th
561, 566-567 (C.C.P. Chester 2013); GMAC Mortg. v. Smith, 2012 Phila.
Ct. Com. Pl. LEXIS 278, *13-15 (Aug. 24, 2012).
Appellants’ argument that the Act 91 notices were defective because of
the failure to include the mortgage assignment is also without merit. The
assignment in this case was executed after the mortgage foreclosure
complaint was filed. Thus, there was no assignment to be included with the
Act 91 notices. Furthermore, neither Act 91 nor the relevant regulations
require that an assignment be included with an Act 91 notice.
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We agree with Appellants, however, that the Act 91 notices sent by
Wells Fargo Home Mortgage were defective for failure to list Wachovia
Mortgage as the original lender.5 In 2009, the Act 91 notice that was
required by 12 Pa. Code § 31.203(a) included a section where the original
lender was to be listed. See 12 Pa. Code Part I, Subpt. D, Ch. 31, Appendix
A (2009). The Act 91 notices sent by Wells Fargo Home Mortgage did not
list Wachovia Mortgage as the original lender.
Although the Act 91 notices received by Appellants were defective,
Pennsylvania law requires a showing of prejudice in order for Appellants to
be entitled to relief. Specifically,
If there has been a failure to comply with the notice
requirements of [Act 91], and such failure has been properly
raised in a legal action, including an action in foreclosure . . . ,
the court may dismiss the action without prejudice, order the
service of a corrected notice during the action, impose a stay on
any action or impose other appropriate remedies in the action to
address the interests, if any, of the mortgagor who has been
prejudiced thereby.
35 P.S. § 1681.5(1) (emphasis added); see Wells Fargo Bank, N.A. ex
rel. Certificate Holders of Asset Backed Pass-through Certificates
Series 2004-MCWI v. Monroe, 966 A.2d 1140, 1143–1144 (Pa. Super.
5
For purposes of our analysis, we assume arguendo that Wachovia
Mortgage was required to send Appellants Act 91 notices. We note,
however, that Wells Fargo argues that its predecessor was not required to
send Appellants Act 91 notices because the amount due under the mortgage
was greater than $60,000.00 at the time the mortgage complaint was filed.
See 35 P.S. § 1680.403c(f)(2).
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2009) (In order to be entitled to relief because of defective Act 91 notices,
the mortgagor must show actual prejudice). In this case, the trial court
found that Appellants failed to show prejudice resulting from the defective
Act 91 notices. See Trial Court Opinion, 1/11/16, at 6-7. We conclude that
this factual finding is supported by the record.
Appellants argue that they were prejudiced because they “were not
able to pursue their options under [Act 91], which is the very purpose of the
Act 91 [n]otices.” Appellants’ Brief at 15. Appellants fail to cite to any
portion of the record that supports this argument. Thus, it is waived. See
Pa.R.A.P. 2119(a). Moreover, even if it were preserved, our review of the
record reveals that Appellants’ claim of prejudice is wholly without merit.
The Act 91 notices fully explained how Appellants could apply for
assistance under Act 91. E.g. Act 91 Notices, 10/18/09, at 1 (certain
capitalization, bolding, and underlining omitted) (“To see if [Act 91] can
help, you must meet with a consumer credit counselling agency within 33
days of the date of this notice.”); id. at 2 (“Your mortgage is in default for
the reasons set forth later in this [n]otice (see following pages for specific
information about the nature of your default). You have the right to apply
for financial assistance from the Homeowner’s Emergency Mortgage
Assistance Program. To do so, you must fill out, sign and file a completed
Homeowners’ Emergency Assistance Program Application with one of the
designated consumer credit counseling agencies listed at the end of this
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Notice.”); id. (certain capitalization, bolding, and underlining omitted)
(“[Y]ou must arrange and attend a ‘face-to-face’ meeting with one of the
consumer credit counseling agencies listed at the end of this [n]otice. This
meeting must occur within [33] days of the date of this notice.”). The fact
that the original lender was not listed on the Act 91 notices in no way
hindered Appellants from contacting a consumer credit counseling agency as
directed by the Act 91 notices. Thus, Appellants’ only claim of prejudice,
that they were unable to pursue assistance under Act 91, is without merit.
Accordingly, we affirm the judgment entered in favor of Wells Fargo and
against Appellants.
Application to Lodge a Form of the Act 91 Notice along with Related
Materials, Application to Lodge Recent and Relevant Federal Agency Findings
Against Appellee, and Application to File Supplemental Brief granted.
Judgment affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/31/2017
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