The Bank of New York Mellon v. Brooks, R. ( 2017 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
THE BANK OF NEW YORK MELLON F/K/A IN THE SUPERIOR COURT OF
THE BANK OF NEW PENNSYLVANIA
YORK, AS
TRUSTEE FOR THE CERTIFICATE
HOLDERS OF CWALT, INC.,
ALTERNATIVE
LOAN TRUST 2007-HY6 MORTGAGE
PASS-THROUGH CERTIFICATES
SERIES 2007-HY6
v.
RICHARD H. BROOKS, JR.,
Appellant No. 1362 EDA 2016
Appeal from the Order Entered April 1, 2016
in the Court of Common Pleas of Northampton County Civil Division
at No(s): C-48-CV-2012-2395
BEFORE: OLSON, SOLANO, and FITZGERALD,* JJ.
MEMORANDUM BY FITZGERALD, J.: FILED APRIL 24, 2017
Appellant, Richard H. Brooks, Jr., appeals from the order of the
Northampton County Court of Common Pleas granting summary judgment in
favor of Appellee, The Bank of New York Mellon, in this mortgage foreclosure
action. Appellant argues that he submitted a complete loss mitigation
application, that Appellee’s servicer failed to respond properly, and that
Appellee violated 12 C.F.R. § 1024.41(g) by moving for summary judgment.
We remand for a determination under Pa.R.A.P. 1925(c)(1) as to whether
*
Former Justice specially assigned to the Superior Court.
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Appellant timely filed his Pa.R.A.P. 1925(b) statement of errors complained
of on appeal (“Rule 1925 statement”).
On April 1, 2016, the trial court entered summary judgment in favor of
Appellee. On April 28, 2016, Appellant timely appealed to this Court. On
Tuesday, May 3, 2016, the trial court ordered Appellant to file a Rule 1925
statement “no later than twenty-one (21) days from the date of this
[o]rder.” Order, 5/3/16. The order stated that “failure to comply with such
direction may be considered by the appellate court as a waiver of all
objections to the order, ruling, or other matter complained or, pursuant to
Pa.R.A.P. 1925(b).” Id. The docket states that the prothonotary docketed
and served the order on all parties on May 3, 2016.
On Wednesday, May 25, 2016, one day after expiration of the twenty-
one day response period, the prothonotary time-stamped and docketed
Appellant’s Rule 1925 statement.1 The record contains no indication that
Appellant sought, or that the trial court granted, an extension of time for
filing.
Notably, the certificate of service attached to the Rule 1925 statement
indicates that counsel for Appellant mailed this document on May 23, 2016—
within the response period—from Bethlehem, Pennsylvania.
1
Succinctly stated, the Rule 1925 statement asserts that Appellee is barred
from seeking judgment in its foreclosure action because it failed to follow the
loss mitigation requirements in Regulation X of the Real Estate Settlement
Procedures Act, 12 C.F.R. § 1024.41(g).
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Although Appellee does not challenge the timeliness of Appellant’s Rule
1925 statement, we must inquire sua sponte whether Appellant has
complied with Rule 1925. See Greater Erie Industrial Development
Corp. v. Presque Isle Downs, Inc., 88 A.3d 222, 223 n.3 (Pa. Super.
2014) (en banc) (citations omitted). Barring extraordinary circumstances,
the untimely filing of a Rule 1925 statement in a civil case constitutes waiver
of all issues on appeal. Id.; Pa.R.A.P. 1925(b)(3)(iv).
Rule 1925(b) provides in relevant part:
(b) Direction to file statement of errors complained
of on appeal; instructions to the appellant and the
trial court.—If the judge entering the order giving rise to
the notice of appeal (“judge”) desires clarification of the
errors complained of on appeal, the judge may enter an
order directing the appellant to file of record in the trial
court and serve on the judge a concise statement of the
errors complained of on appeal (“Statement”).
(1) Filing and service.—Appellant shall file of record the
Statement and concurrently shall serve the judge. Filing of
record and service on the judge shall be in person or by
mail as provided in Pa.R.A.P. 121(a) and shall be complete
on mailing if appellant obtains a United States Postal
Service Form 3817, Certificate of Mailing, or other similar
United States Postal Service form from which the date of
deposit can be verified in compliance with the
requirements set forth in Pa.R.A.P. 1112(c). Service on
parties shall be concurrent with filing and shall be by any
means of service specified under Pa.R.A.P. 121(c).
(2) Time for filing and service.—The judge shall allow the
appellant at least 21 days from the date of the order’s
entry on the docket for the filing and service of the
Statement. Upon application of the appellant and for good
cause shown, the judge may enlarge the time period
initially specified or permit an amended or supplemental
statement to be filed. In extraordinary circumstances, the
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judge may allow for the filing of a Statement or amended
or supplemental Statement nunc pro tunc.
(3) Contents of order.—The judge’s order directing the
filing and service of a Statement shall specify:
(i) the number of days after the date of entry of the
judge’s order within which the appellant must file and
serve the Statement;
(ii) that the Statement shall be filed of record;
(iii) that the Statement shall be served on the judge
pursuant to paragraph (b)(1);
(iv) that any issue not properly included in the
Statement timely filed and served pursuant to
subdivision (b) shall be deemed waived.
Pa.R.A.P. 1925(b)(1)-(3). Furthermore, Rule 1925(c)(1) provides: “An
appellate court may remand in either a civil or criminal case for a
determination as to whether a Statement had been . . . timely filed . . . .”
Pa.R.A.P. 1925(c)(1).
Our decision in Presque Isle is instructive—although, as discussed
below, it is distinguishable in one critical respect. The trial court in Presque
Isle directed the appellant to file its Rule 1925 statement within twenty-one
days. Presque Isle, 88 A.3d at 226. On the twenty-first day, the appellant
mailed its Rule 1925 statement to the court. Id. The prothonotary
docketed the Rule 1925 statement three days after expiration of the twenty-
one day period. Id. The appellant did not seek, nor did the trial court
grant, an extension of time within which to file the Rule 1925 statement.
Id. The appellant also failed to present a certificate of mailing that verified
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the date it mailed the Rule 1925 statement to the court. Id. Consequently,
we held that the appellant waived all issues on appeal due to the
“unequivocal” untimeliness of the Rule 1925 statement. Id. at 227 n.7.
We further reasoned:
The proof of service attached to [the appellant]’s Rule
1925(b) statement was dated February 3, 2012. See [the
appellant]’s Rule 1925(b) Statement Proof of Service,
2/6/2012, at 1 (unpaginated). Pa.R.C.P. 205.1 provides:
“Any legal paper not requiring the signature of, or action
by, a judge prior to filing may be delivered or mailed to the
prothonotary . . . . A paper sent by mail shall not be
deemed filed until received by the appropriate officer.”
Pa.R.C.P. 205.1. Additionally, Pa.R.A.P. 121 provides:
“Filing may be accomplished by mail addressed to the
prothonotary, but . . . filing shall not be timely unless the
papers are received by the prothonotary within the time
fixed for filing.” Pa.R.A.P. 121(a) . . . Even assuming,
arguendo, that [the appellant] mailed a copy of its Rule
1925(b) statement on February 3, 2012, it has failed to
comply with Pennsylvania statute and case law by failing to
file that statement until February 6, 2012. Regardless of
the date listed on its proof of service, [the appellant] failed
timely to file its Rule 1925(b) statement.
Id. at 226 n.5. Finally, we noted that Rule 1925(c)(1) authorized us to
“remand [in a civil case] for a determination as to whether a [Rule 1925(b)]
Statement had been . . . timely filed . . . .” Id. at 227 n.7 (citing Pa.R.A.P.
1925(c)(1)). We determined, however, that remand was unnecessary,
because the record “unequivocal[ly]” established that the Rule 1925
statement was mailed on the final day of the twenty-one day period and
thus did not reach the prothonotary until after the deadline. Id.
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The present case is distinguishable from Presque Isle because the
record does not unequivocally establish that Appellant’s Rule 1925
statement is untimely. The certificate of service indicates that counsel for
Appellant mailed the Rule 1925 statement one day before the twenty-one
day deadline. Thus, it is possible that the prothonotary received the Rule
1925 statement on the twenty-first day, within the deadline. See Presque
Isle, 88 A.3d at 226 n.5 (Rule 1925 statement is timely filed if prothonotary
receives it within time fixed for filing).
Accordingly, we remand this case under Rule 1925(c)(1) and direct the
trial court, within the next forty-five days, to enter an order determining
whether Appellant timely filed his Rule 1925 statement. If necessary, the
court shall order discovery,2 convene an evidentiary hearing,3 and/or enter
findings of fact and conclusions of law. We will then take all other necessary
steps to resolve this appeal.
2
Cf. Griffin v. Central Sprinkler Corp., 823 A.2d 191 (Pa. Super. 2003)
(reversing entry of summary judgment in favor of defendant on basis of
statute of limitations, where deposition of deputy prothonotary established
genuine issue of material fact as to whether prothonotary received plaintiff’s
praecipe for writ of summons before expiration of statute).
3
An evidentiary hearing will not be necessary if Appellant produces “a
United States Postal Service Form 3817, Certificate of Mailing, or other
similar United States Postal Service form from which the date of deposit can
be verified in compliance with the requirements set forth in Pa.R.A.P.
1112(c).” Pa.R.A.P. 1925(b)(1). Production of any such form that
establishes a timely date of deposit will make Appellant’s Rule 1925
statement timely as a matter of law.
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Case remanded for proceedings consistent with this memorandum.
Jurisdiction retained.
Judge Olson joins the Memorandum.
Judge Solano Concurs in the Result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/24/2017
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