Opinion
J-S63014-18 No. 107 WDA 2018
03-15-2019
LSF9 MASTER PARTICIPATION TRUST v. CHARLES MCGOWAN AND UNITED STATES OF AMERICA APPEAL OF: CHARLES MCGOWAN
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Order Entered December 20, 2017
In the Court of Common Pleas of Allegheny County
Civil Division at No(s): MG-16-000709 BEFORE: OTT, J., MURRAY, J., and STEVENS, P.J.E. MEMORANDUM BY OTT, J.:
Former Justice specially assigned to the Superior Court.
Charles McGowan appeals, pro se, from the order entered on December 20, 2017, in the Court of Common Pleas of Allegheny County. The court granted LSF9 Master Participation Trust's ("LSF9") motion for summary judgment against McGowan in a mortgage foreclosure action. On appeal, McGowan argues the trial court erred in granting summary judgment because (1) LSF9 did not properly serve the complaint; (2) LSF9 lacked standing because the action was res judicata and because it did not possess McGowan's promissory note; (3) LSF9 did not prove McGowan defaulted on the mortgage; (4) LSF9 did not send McGowan the proper notices of intent to foreclose; and (5) LSF9 did not attach a notice of undisputed facts to its motion for summary judgment. Based upon the following, we affirm.
LSF9 named the United States of America as a defendant in this action because of certain tax liens filed against McGowan. On June 22, 2017, the trial court entered a consent order in favor of LSF9 and against the United States for foreclosure of McGowan's property. Thus, the United States is not a party to this appeal.
McGowan raises a sixth issue in his statement of the questions involved. See McGowan's Brief, at 6. In it, McGowan alleges that LSF9 violated 15 U.S.C. § 1692g, relating to fair debt collection practices, because it filed the mortgage foreclosure action despite knowing that the statute of limitations had expired and that the action was res judicata. However, McGowan's res judicata claim is merely a reiteration of that argued in his second issue on appeal, and he did not include the fair debt collection practice or the statute of limitations claims in his Rule 1925(b) statement. As amended in 2007, Pennsylvania Rule of Appellate Procedure 1925 provides that issues that are not included in the Rule 1925(b) statement or raised in accordance with Rule 1925(b)(4) are waived. See Pa.R.A.P. 1925(b)(4)(vii); see also Commonwealth v. Lord , 719 A.2d 306, 308 (Pa. 1998), superseded by rule on other grounds as stated in Commonwealth v . Burton , 973 A.2d 428, 431 (Pa. Super. 2009). Thus, as McGowan's sixth issue is both waived and duplicative, we will not further discuss it.
The trial court set out the relevant facts and procedural history as follows:
On March 30, 2006, [] Charles McGowan executed a Promissory Note in which he promised to repay a mortgage loan extended by Accredited Home Lenders, Inc. in the principal amount of $171,000.00. At the same time, [] McGowan executed a Mortgage granting Accredited Home Lenders a first priority mortgage lien against the Property located at 540 New England Road a/k/a 540 Lisa Drive, West Mifflin, PA 15122. The Mortgage was recorded on April 10, 2006. By assignment of Mortgage dated March 30, 2015, the Mortgage was assigned to [LSF9]. LSF9 is the holder of the Mortgage. . . .
[] McGowan defaulted under the Mortgage by failing to make payments due from December 1, 2009. On May [13], 2016, LSF9 filed its Complaint in Mortgage Foreclosure.Trial Court Opinion, 3/22/2018, at 1-2. McGowan filed this timely appeal and submitted a Pa.R.A.P. 1925(b) concise statement of matters complained of on appeal.
On November 7, 2016, [] McGowan filed Preliminary Objections. [The trial court] overruled them on December 14, 2016. [] McGowan filed an Answer and New Matter on January 3, 2017. LSF9 replied to the New Matter on February 7, 2017[,] and then [] McGowan filed another Answer and New Matter on February 27, 2017. LSF9 filed a Motion for Summary Judgment on April 4, 2017. . . . [] McGowan filed a response to LSF9's Motion for Summary Judgment on April [2]8, 2017. [The trial c]ourt denied LSF9's Motion for Summary Judgment on June 26, 2017. LSF9 filed a Renewed Motion for Summary Judgment on September 22, 2017. [] McGowan responded to that Renewed Motion for Summary Judgment on October 23, 2017. [The trial c]ourt granted Summary Judgment on December [20], 2017, ordering in rem Judgment to be entered in favor of LSF9 and against [] McGowan in the amount of $356,043.45 together with interest from and after September 14, 2017. It was also ordered that LSF9 has the right to foreclose and sell the Property. It is from that decision that [] McGowan appeals.
On appeal, McGowan raises six issues in support of his contention that the trial court erred in granting LSF9's motion for summary judgment. See McGowan's Brief at 5-6. We have disposed of the sixth issue; we summarize his arguments on the remaining issues as follows. The trial court erred in granting summary judgment because LSF9 did not properly serve the complaint. See id. At 9-11. The trial court did not have subject matter jurisdiction over the action because LSF9 lacked standing to pursue the case under the doctrine of res judicata and because it did not prove it had possession of McGowan's promissory note. See id. at 12-23. The trial court should not have granted summary judgment because LSF9 did not show that McGowan defaulted on the mortgage. See id. at 24-35. The trial court wrongly granted summary judgment because LSF9 did not send notice of intent to foreclose as required by Pennsylvania law. See id. at 35-37. Lastly, McGowan claims that LSF9 did not attach a statement of undisputed facts to its motion for summary judgment as required by 25 Pa. Code §§ 1021.94a(b)(1)(ii) and (d). See id. at 37-42.
Our standard of review is well-settled:
[o]ur scope of review of a trial court's order granting or denying summary judgment is plenary, and our standard of review is clear: the trial court's order will be reversed only where it is established that the court committed an error of law or abused its discretion.Bayview Loan Servicing LLC v. Wicker , 163 A.3d 1039, 1043-44 (Pa. Super. 2017), appeal granted in part by 178 A.3d 1289 (Pa. 2018) (citation omitted). Moreover, "[i]n response to a summary judgment motion, the nonmoving party cannot rest upon the pleadings, but rather must set forth specific facts demonstrating a genuine issue of material fact." Bank of Am., N.A. v. Gibson , 102 A.3d 462, 464 (Pa. Super. 2014), appeal denied, 112 A.3d 648 (Pa. 2015) (citation omitted). We have also stated, "[t]he holder of a mortgage has the right, upon default, to bring a foreclosure action. The holder of a mortgage is entitled to summary judgment if the mortgagor admits that the mortgage is in default, the mortgagor has failed to pay on the obligation, and the recorded mortgage is in the specified amount." Id. at 464-465 (citation omitted). "This is so even if the mortgagors have not admitted the total amount of the indebtedness in their pleadings." Cunningham v. McWilliams , 714 A.2d 1054, 1057 (Pa. Super. 1998), appeal denied, 734 A.2d 861 (Pa. 1999).
Summary judgment is appropriate only when the record clearly shows that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. The reviewing court must view the record in the light most favorable to the nonmoving party and resolve all doubts as to the existence of a genuine issue of material fact against the moving party. Only when the facts are so clear that reasonable minds could not differ can a trial court properly enter summary judgment.
Here, the trial court in its Rule 1925(a) opinion provided a thorough and well-reasoned discussion of McGowan's first four arguments on appeal. See Trial Court Opinion, 3/22/2018, at 2-5 (finding (1) McGowan failed to provide a material defense to this action; (2) the Sheriff personally served McGowan with the complaint and there was no evidence of fraud; (3) LSF9 demonstrated that it possessed the original note and was entitled to enforce it; (4) LSF9 proved that McGowan was in default of the mortgage; (5) LSF9 did provide McGowan with notice of its intent to foreclose as required by law; and (6) the doctrine of res judicata does not bar this complaint because the trial court had previously vacated the judgment in an earlier mortgage foreclosure action).
In his fifth argument on appeal, McGowan complains that the trial court erred in granting summary judgment because LSF9 failed to comply with 25 Pa. Code §§ 1021.94(b)(1)(ii) and (d). However, this section of the Pennsylvania Code only applies to proceedings before the Pennsylvania Environmental Hearing Board and is thus inapplicable to this action. See 25 Pa. Code 1021.1(a). To the extent that McGowan also maintains that LSF9 failed to properly verify its motion for summary judgment, see McGowan's brief at 39-42, he has waived this issue because he did not raise it in his Rule 1925(b) statement. See Lord , supra at 308.
We briefly note that, subsequent to the trial court's writing of its opinion, the Pennsylvania Supreme Court issued its decision in JPMC Bank , N.A. v. Taggart , ___ A.3d ___, 2019 WL 692810 (Pa. Feb. 20, 2019). In Taggart , our Supreme Court held that where there were two mortgage foreclosure proceedings, the lender could not rely on a stale Act 6 notice issued in the older proceeding but must send a new notice prior to initiating the second action. Id. at *9. Here, our review of the record demonstrates that LSF9 sent out a new Act 6 notice in the fall of 2015, prior to filing the instant action in the spring of 2016. Thus, this matter does not conflict with the holding in Taggart.
Our review of the record reveals ample support for the trial court's conclusions. Accordingly, we adopt the reasoning of the trial court and affirm its order in favor of LSF9.
Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 3/15/2019
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