U.S. Bank, National Assoc. v. Perez, J. ( 2016 )

J-A08018-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
U.S. BANK NATIONAL ASSOCIATION, AS IN THE SUPERIOR COURT OF
TRUSTEE FOR PORF-2013-S3-REMIC PENNSYLVANIA
TRUST,
Appellee
v.
JOSE PEREZ,
Appellant No. 1262 EDA 2015
Appeal from the Judgment Entered June 16, 2015
In the Court of Common Pleas of Delaware County
Civil Division at No(s): 13-1920
BEFORE: BOWES, OLSON AND STRASSBURGER,* JJ.
MEMORANDUM BY OLSON, J.: FILED JUNE 08, 2016
Appellant, Jose Perez, appeals pro se from the judgment entered on
June 16, 2015. We affirm.
As our disposition is based upon the procedural posture of this case,
we focus on the relevant procedural history of this case. On March 4, 2013,
U.S. Bank1 instituted the instant mortgage foreclosure proceeding. On
August 21, 2013, Appellant filed preliminary objections.2 In those
preliminary objections, he argued that the trial court lacked subject matter
1
For simplicity, we refer to U.S. Bank National Association and all of its
predecessors-in-interest, both individually and collectively, as U.S. Bank.
2
Appellant titled the filing a motion to dismiss.
* Retired Senior Judge assigned to the Superior Court
J-A08018-16
jurisdiction. On October 25, 2013, the trial court overruled Appellant’s
preliminary objections.
Trial commenced in January 2015. On March 10, 2015, the trial court
entered findings of fact and conclusions of law and found in favor of U.S.
Bank. On March 20, 2015, Appellant filed a post-trial motion. On March 25,
2015, the trial court denied the post-trial motion. On April 24, 2015,
Appellant filed a notice of appeal.3 The trial court ordered Appellant to file a
concise statement of errors complained of on appeal (“concise statement”).
See Pa.R.A.P. 1925(b). Thereafter, Appellant filed a concise statement and
the trial court issued a Rule 1925(a) opinion.
Appellant presents ten issues for our review:
1. Did [U.S. Bank] ever demand the full unpaid principle due
immediately from Appellant in writing pursuant to the mortgage
contract?
2. Is an Act 91 Notice an action to be taken before a mortgagee
can exercise its acceleration rights?
3. Did [U.S. Bank] present a forged signature [f]ixed [r]ate
[n]ote to the [t]rial [c]ourt?
4. Did [U.S. Bank] take affirmative action to let it be known to
Appellant that [U.S. Bank] exercised its acceleration rights?
5. Is [U.S. Bank’s] foreclosure proceeding premature?
6. Did [U.S. Bank] send Appellant a [n]otice of [a]cceleration
and [o]pportunity to [c]ure pursuant to the mortgage contract?
3
The notice of appeal was premature as judgment had not been entered
against Appellant. Therefore, this Court remanded the case to the trial court
which entered judgment against Appellant on June 16, 2015. Appellant’s
notice of appeal is considered filed as of that date. See Pa.R.A.P. 905(a)(5).
-2-
J-A08018-16
7. Did [U.S. Bank] perform all conditions precedent to
commencing its foreclosure action?
8. Did [U.S. Bank] exercise its acceleration rights prior to filing
for foreclosure?
9. Has [U.S. Bank] pleaded all material facts to have a perfected
or completed [a] cause of action?
10. Did [U.S. Bank] aver that all conditions precedent to filing its
foreclosure complaint were performed?
Appellant’s Brief at 1-2.4
“Prior to addressing the substance of [Appellant’s arguments] we must
determine whether [he] properly preserved [the issues]. An appellant’s
failure to include an issue in [his] Rule 1925(b) [concise] statement waives
that issue for purposes of appellate review.” Madrid v. Alpine Mountain
Corp., 24 A.3d 380, 382 (Pa. Super. 2011) (citation omitted); see Pa.R.A.P.
1925(b)(4)(vii) (“Issues not included in the [concise s]tatement and/or not
raised in accordance with the provisions of this paragraph (b)(4) are
waived.”).
Appellant’s concise statement read as follows:
[Appellant] complains that the trial court[’s] order denying
[Appellant’s post-trial motion] was based upon bias and
prejudice opinions that [do not] support the trial court[’s] order.
The trial court [] denied [Appellant’s post-trial motion] without
allowing [U.S. Bank] to respond to [Appellant’s] post-trial motion
accordingly. [Appellant] filed a [post-trial motion] within a
timely manner and [U.S. Bank] had ten days to respond to the
[m]otion. [U.S. Bank’s] foreclosure action was commenced
prematurely due to the fact that [U.S. Bank] failed to fulfill all
4
We have re-numbered the issues for ease of disposition.
-3-
J-A08018-16
conditions precedent to filing a foreclosure action, which in this
action, is also fulfilling all provisions within the mortgage
contract [so that U.S. Bank may be] granted relief through such
contract. [U.S. Bank] failed to exercise its acceleration rights by
accelerating the mortgage debt pursuant to the mortgage
contract. [U.S. Bank] failed to send [Appellant] a [n]otice of
[a]cceleration and [o]pportunity to [c]ure pursuant to [the
m]ortgage contract prior to commencing its foreclosure action
against [Appellant. U.S. Bank] also failed to state a claim upon
which relief can be granted.
Concise Statement, 5/27/15, at 1. Appellant did not raise his first, second,
or third issue in his concise statement. As such, those issues are waived.5
Appellant’s fourth, fifth, sixth, seventh, and eighth all relate to the
sufficiency of the evidence at trial. The certified record in this case is devoid
of a transcript of the trial in this matter and there is no transcript request
from Appellant in the certified record. As this Court has explained:
With regard to missing transcripts, the Rules of Appellate
Procedure require an appellant to order and pay for any
transcript necessary to permit resolution of the issues raised on
appeal. Pa.R.A.P.1911(a). . . . When the appellant [] fails to
conform to the requirements of Rule 1911, any claims that
cannot be resolved in the absence of the necessary transcript or
transcripts must be deemed waived for the purpose of appellate
review. . . . It is not proper for either the Pennsylvania Supreme
Court or the Superior Court to order transcripts nor is it the
responsibility of the appellate courts to obtain the necessary
transcripts.
Commonwealth v. Preston, 904 A.2d 1, 7 (Pa. Super. 2006), appeal
denied, 916 A.2d 632 (Pa. 2007) (certain internal citations omitted).
5
Even if we were to conclude that Appellant’s concise statement could be
broadly construed to include issues one through three, we would find that
these issues were waived for the same reason that Appellant’s issues four
through eight are waived, as discussed infra.
-4-
J-A08018-16
We cannot evaluate Appellant’s fourth through eighth claims without
the trial transcript. As Appellant failed to request transcription of the notes
of testimony, and the trial transcript is not contained within the certified
record, Appellant’s fourth through eighth issues are waived. See Pa.R.A.P.
1911(d); Preston, 904 A.2d at 7.
In his ninth and tenth issues, Appellant argues that U.S. Bank was
required to plead that it had accelerated the mortgage and that U.S. Bank
failed to so plead. In essence, Appellant argues that the trial court erred by
overruling his preliminary objections. This argument is waived.
“Issues not raised in the lower court are waived and cannot be raised
for the first time on appeal.” Pa.R.A.P. 302(a). In his preliminary
objections, Appellant only argued that the trial court lacked subject matter
jurisdiction over the case. He did not argue that U.S. Bank failed to state a
claim upon which relief could be granted. Accordingly, he waived his
argument that the trial court should have sustained a preliminary objection
in the nature of a demurrer. As Appellant has waived all ten of his issues,
we affirm.
Judgment affirmed.
-5-
J-A08018-16
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/8/2016
-6-