A. Turner v. PA Housing Finance Agency ( 2018 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Angelia Turner, :
Petitioner :
:
v. : No. 572 C.D. 2018
: Submitted: October 12, 2018
Pennsylvania Housing Finance :
Agency, :
Respondent :
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
JUDGE COHN JUBELIRER FILED: November 16, 2018
Angelia Turner (Turner), pro se, petitions for review of a February 16, 2018
Decision (Decision) of a Hearing Examiner of the Pennsylvania Housing Finance
Agency (PHFA) affirming the Homeowners’ Emergency Mortgage Assistance
Program’s (HEMAP) denial of Turner’s application for mortgage assistance under
the Act commonly known as the “Homeowner’s Emergency Mortgage Assistance
Loan Program” (Act 91).1 Upon review, we are without jurisdiction to decide the
merits of this untimely filed Petition for Review.
1
Act of December 3, 1959, P.L. 1688, as amended, added by Section 2 of the Act of
December 23, 1983, P.L. 385, 35 P.S. §§ 1680.401c-1680.412c.
Turner2 has a mortgage on her property held by TruMark Financial
(TruMark) in the amount of $240,000, with a monthly payment of $1678.50. The
mortgage was executed on September 1, 2015, and Turner made monthly payments
until June 2017. On August 28, 2017, TruMark, in compliance with Act 91,3
notified Turner by letter of the possibility of foreclosure and obtaining HEMAP
loan assistance. (Certified Record (C.R.) Item No. 23.) Turner timely complied
with HEMAP application requirements, and her request for a loan was denied on
December 6, 2017. (C.R. Item No. 34.) Turner appealed, submitting additional
financial information, and was again denied a loan on January 3, 2018. (C.R. Item
Nos. 35-37, 42.) PHFA cited as reasons for its denial that there was no reasonable
prospect that Turner could resume full payments within 24 months from the date of
delinquency based upon (1) insufficient income to maintain the mortgage, and (2)
insufficient income to maintain the mortgage for the past 2 years. (C.R. Item No.
42); see 35 P.S. § 1680.404c(a)(5).4 Turner timely appealed, and a hearing was
held on January 23, 2018.
2
We note that although the mortgage is held by both Turner and her husband, the
underlying Decision related only to Angelia Turner. Further, Turner makes no argument
regarding whether her husband’s income was incorrectly excluded from the Hearing Examiner’s
analysis.
3
Section 403-C(a) of Act 91 requires that “[a]ny mortgagee who desires to foreclose
upon a mortgage shall send to such mortgagor at his or her last known address the notice
provided” in the statute. 35 P.S. § 1680.403c(a).
4
Section 404-C(a) of Act 91 contains a list of requirements that must be established
before assistance can be provided to a mortgagor. In relevant part, this section of Act 91 states:
[n]o assistance may be made with respect to a mortgage or mortgagor under this
article unless . . . [t]he agency has determined that there is a reasonable prospect
that the mortgagor will be able to resume full mortgage payments within twenty-
four (24) months after the beginning of the period for which assistance payments
are provided under this article and pay the mortgage or mortgages in full by its
(Footnote continued on next page…)
2
Following the hearing and a review of the submitted financial
documentation for Turner and TEC Electric Company (TEC), owned by Turner
and her husband, the Hearing Examiner found in her Decision that Turner’s net
monthly income had declined and could not cover monthly living expenses,
including the mortgage payment.5 (Supplemental Reproduced Record (S.R.R.) at
6b.) For example, the Hearing Examiner noted that Turner’s average net monthly
income in 2017 was $660.43, but the monthly expenses reported on her application
were $4445.50, of which $2944.50 was devoted to housing expenses. Reviewing
income information of the past 24 months, the Hearing Examiner found the net
monthly income insufficient to maintain mortgage payments for that time. The
Hearing Examiner also acknowledged the existence of pending lawsuits on behalf
of TEC to collect on alleged past due contracts, as well as possible new contracts
to generate income for the business. However, given the speculative nature of the
prospective contracts and legal settlements, the Hearing Examiner found that it
remained uncertain if the anticipated funds would soon be paid to TEC and, in
turn, to Turner as salary. Therefore, the Hearing Examiner affirmed the denial of
loan assistance on February 16, 2018.
_____________________________
(continued…)
maturity date or by a later date agreed to by the mortgagee or mortgagees for
completing mortgage payments.
35 P.S. § 1680.404c(a)(5).
5
Specifically, the Hearing Examiner reviewed: Federal Income Tax Returns for the
years 2014, 2015, and 2016; TEC profit and loss statements prepared by Turner for January 1,
2017 through December 14, 2017, and January 1, 2018, through February 7, 2018; Turner’s
HEMAP application; and Turner’s personal checking account statements for November 2017,
December 2017, and January 2018. (Supplemental Reproduced Record (S.R.R.) at 2b-4b.)
3
By letter to this Court received on February 27, 2018, Turner sought appeal
of the Decision. On February 27, 2018, this Court, in compliance with Section 211
of this Court’s Internal Operating Procedures, 210 Pa. Code § 69.211 (Section
211),6 sent notice (Notice) to Turner instructing her how to perfect her appeal. As
set forth in the Notice, perfecting the appeal required filing a petition for review
“within 30 days of the date of this notice.” (Letter from the Commonwealth
Court to Turner (February 27, 2018) at 2 (emphasis in original).) Turner did not
file a petition for review within 30 days, and, by letter dated April 10, 2018, this
Court notified her that no further action would be taken. On April 24, 2018,
Turner filed a Petition for Review with documentation indicating she had served an
incomplete petition for review on the Pennsylvania Office of Attorney General
within the requisite 30 days,7 but did not file it with the Court. Rather than quash
6
Section 211 provides:
When the chief clerk receives a written communication that evidences an
intention to appeal an adjudication of a state administrative agency but does not
conform to the rules for an appellate petition for review, the chief clerk shall time-
stamp the written communication with the date of receipt. The chief clerk shall
advise the party by letter (1) of the procedures necessary to perfect the appeal and
(2) that the date of receipt of the communication will be preserved as the date of
filing of the appeal if that party files a fully conforming petition for review within
30 days of the date of the chief clerk’s letter. If the party fails to file a fully
conforming petition for review within that period, the chief clerk shall advise the
party by letter that the court will take no further action in the matter.
210 Pa. Code § 69.211.
7
From a review of the record, it appears that Turner filled out portions of the form
petition for review provided to her in the Notice. Turner filled out party names and the docket
number, but did not provide an explanation for why she sought to appeal. However, she attached
to the petition the Decision and proof of service on PHFA, TruMark, and the Pennsylvania
Office of Attorney General. PHFA contends in its brief that it was not served with this petition
and received it only after the Office of Attorney General forwarded it to PHFA. (PHFA’s Brief
(Br.) at 12-13.)
4
the appeal, this Court, by order dated May 9, 2018, directed the parties to address
in their briefs on the merits whether the appeal is timely.
On appeal,8 Turner does not address the question of timeliness, but argues
there is substantial evidence showing an income sufficient to bring the mortgage
current and continue payments. Turner asserts that the pending lawsuits and
contracts involving TEC will soon produce income for TEC, which will allow her
to make future mortgage payments.
PHFA first argues that the appeal is untimely because Turner did not file her
perfected Petition for Review within 30 days of February 27, 2018, the date her
letter evidencing her intention to appeal was received by this Court, as required by
Section 211. Given this, PHFA asserts that we do not have jurisdiction to decide
this appeal on the merits. PHFA also argues the record evidence supports the
Hearing Examiner’s conclusion that Turner has no reasonable prospect of
resuming full mortgage payments within 24 months. PHFA points to the
uncertainty of the settlement of TEC’s lawsuits, the deficiency of current and
future TEC contracts, and the current state of Turner’s and TEC’s income and
expenses to assert that Turner has insufficient income to make mortgage payments.
Rule 1512(a)(1) of the Pennsylvania Rules of Appellate Procedure,
Pa.R.A.P. 1512(a)(1), (Rule 1512(a)(1)), requires that “[a] petition for review of a
quasijudicial order, or an order appealable under 42 Pa. C.S. § 763(b) (awards of
arbitrators) or under any other provision of law, shall be filed with the
prothonotary of the appellate court within 30 days after the entry of the order.”
8
Our scope of review of PHFA decisions “is limited to a determination of whether
constitutional rights were violated, an error of law was committed, or the findings of fact are not
supported by substantial evidence.” Johnson v. Pa. Hous. Fin. Agency, 512 A.2d 1319, 1321
(Pa. Cmwlth. 1986); 2 Pa. C.S. § 704.
5
Pa.R.A.P. 1512(a)(1). Section 211 of our Court’s Internal Operating Procedures
allows a petitioner to preserve a date of filing after a written communication of
intent to appeal is received by the Chief Clerk so long as a conforming petition for
review is filed within 30 days of the Notice from this Court. 210 Pa. Code
§ 69.211. If a petitioner does not file the petition in that time, this “[C]ourt will
take no further action on the matter.” Id. Untimeliness is a jurisdictional defect
that cannot be waived nor can the time for taking an appeal “be extended as a
matter of grace or mere indulgence.” Sofronski v. Civil Serv. Comm’n, City of
Phila., 695 A.2d 921, 924 (Pa. Cmwlth. 1997); see also Tishok v. Dep’t of Educ.,
133 A.3d 118, 122 n.2 (Pa. Cmwlth. 2016).
Turner notified this Court of her intent to appeal within 30 days of the
Decision. As per the Notice she received thereafter, she then had 30 days from
February 27, 2018, in which to file her petition for review in order to perfect the
appeal. The Notice provided clear instructions on perfecting the appeal, the 30-day
deadline, and the consequence of noncompliance. This was reiterated once more at
the end of the Notice, where a checklist set forth “what you must file with this
Court at the address below within 30 days.” (Letter from the Commonwealth
Court to Turner (February 27, 2018) at 2 (emphasis in original).) While we
acknowledge that Turner attempted to serve the necessary parties with a petition
for review within 30 days of the Notice, that does not satisfy the requirement of
timely filing the petition for review with this Court. Turner did not file her Petition
for Review until April 24, 2018, well beyond 30 days of the Notice.
6
Thus, this appeal is untimely, and we are without jurisdiction.9
_____________________________________
RENÉE COHN JUBELIRER, Judge
9
Although we do not have jurisdiction to decide the merits, we briefly note that reversal
of the Decision is not warranted. When reviewing a HEMAP application for whether there is a
reasonable prospect that the mortgagor will resume full mortgage payments within 24 months,
PHFA may consider the potential for future changes in financial prospects, the ability to make
monthly payments based upon income prospects, and available household income. 12 Pa. Code
§ 31.206(a). Here, the Hearing Examiner evaluated Turner’s income for the past three years, the
household expenses, and TEC’s pending lawsuits and contracts as potential income sources.
Following a thorough analysis of this information, the Hearing Examiner found no reasonable
prospect that Turner could resume mortgage payments within the next 24 months. See Mull v.
Pa. Hous. Fin. Agency, 529 A.2d 1185, 1188 (Pa. Cmwlth. 1987) (finding it was within the
hearing examiner’s discretion to determine that an applicant’s income was insufficient to meet
monthly expenses and, therefore, applicant did not meet the eligibility requirements for
emergency loan assistance). Further, the Hearing Examiner found too speculative the evidence
of potential TEC lawsuit settlements and contracts to reasonably produce income for Turner in
the near future. See R.M. v. Pa. Hous. Fin. Agency, 740 A.2d 302, 308 (Pa. Cmwlth. 1999)
(finding no error where the hearing examiner affirmed HEMAP denial because there was no
evidence of when speculative future income would be realized). The facts are supported by
substantial evidence, and the Hearing Examiner did not err or abuse her discretion. Therefore,
even if the Petition for Review was timely filed, we would affirm the Decision.
7
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Angelia Turner, :
Petitioner :
:
v. : No. 572 C.D. 2018
:
Pennsylvania Housing Finance :
Agency, :
Respondent :
ORDER
NOW, November 16, 2018, Angelia Turner’s Petition for Review from the
Decision of the Pennsylvania Housing Finance Agency, dated February 16, 2018,
in the above-captioned matter, is QUASHED as untimely.
_____________________________________
RENÉE COHN JUBELIRER, Judge