LG Finacial Consultants v. Lawyers Funding Group ( 2022 )

J-A20032-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
LG FINANCIAL CONSULTANTS, INC. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
LAWYERS FUNDING GROUP, LLC :
AND ALAN R. ZIBELMAN, ESQUIRE :
: No. 717 EDA 2021
Appellant :
Appeal from the Judgment Entered October 16, 2020
In the Court of Common Pleas of Philadelphia County Civil Division at
No(s): No: 181002188
BEFORE: STABILE, J., McCAFFERY, J., and PELLEGRINI, J.*
MEMORANDUM BY PELLEGRINI, J.: FILED SEPTEMBER 08, 2022
Lawyers Funding Group, LLC and Alan R. Zibelman, Esquire (collectively,
Lawyers Funding) appeal from the judgment1 entered in favor of L.G. Financial
Consultants, Inc. (LG) in the Court of Common Pleas of Philadelphia County
(trial court). After a hearing, a judgment was entered against Lawyers
Funding for $63,003.50, which included $40,000.00 in principal, plus interest
and attorneys’ fees.
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1 Lawyers Funding purports to appeal from the March 2, 2021 order denying
their post-trial motions. However, an appeal lies from the judgment, not from
the order denying post-trial motions. See Jackson v. Kassab, 812 A.2d
1233 n.1 (Pa. Super. 2002), appeal denied, 825 A.2d 1261 (Pa. 2003). We
have amended the caption accordingly. See id.J-A20032-22
On appeal, Lawyers Funding argues that the court erred in assessing
damages where the loan service agent lacked standing and was unable to
provide evidence of the loan balance and in granting summary judgment as
to liability, improperly shifting the burden of proof. Discerning that its
arguments have no merit, we affirm.
I.
We take the following factual background and procedural history from
the trial court’s October 16, 2020, March 2, 2021, and January 19, 2022
opinions and our independent review of the record.
A.
Lawyers Funding is a law firm and Zibelman is its managing member.
Kenneth Rubin (Rubin) became the director of operations of Lawyers Funding
in 2012 and is responsible for maintaining its books. LG is a commercial lender
to small businesses, particularly attorneys and law firms. Rodney Green is
the principal and original owner of LG, and his son, Anthony P. Green, became
an owner in 2018. GFCIB Advisors (GFCIB) became the servicing agent for
LG in 2016, and H. Jack Miller (Miller) is its managing member.
On April 9, 2009, LG made a $100,000.00 loan (the Loan) to Lawyers
Funding, which was evidenced by a Confession of Judgment Promissory Note
(the Note). On April 14, 2009, Lawyers Funding executed and delivered a
Loan Agreement and Guaranty of Payment as security for the Loan.
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The parties entered into seven Loan Modification Agreements through
June 13, 2013, with Lawyers Funding borrowing additional money each time.
The final Loan Modification Agreement, memorialized in Loan Modification #9,
was entered on April 1, 2013, and Lawyers Funding borrowed $250,000. The
term of Loan Modification #9 was five years (which extended the maturity
date to March 31, 2018), with payments of $4,000.00 per month and a two
percent default rate of interest. All other terms and conditions of the original
April 14, 2009 Note remained in full force and effect, including a confession of
judgment provision that provided for attorneys’ fees in the amount of
whichever is greater of twenty percent of the unpaid principal at the time of
judgment or $2,000.00, plus expenses and costs of suit. From the inception
of the Loan relationship, the lender-creditor relationship and Lawyers Funding
payment history were both good.
B.
In approximately July or August 2016, Rodney Green retained the
services of GFCIB, commercial lenders and servicers of commercial real
estate, to act as the servicing agent for certain loans within the LG portfolio,
including that of Lawyers Funding, effective September 1, 2016.
Administering and servicing the Loan included collecting loan payments,
disbursing payments to LG, workout and legal matters.
Miller has been the managing member of GFCIB since 2011 and is
responsible for new funding of loans and servicing of existing loans. LG
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provided Miller with all documents related to Lawyers Funding, including
copies of loan documents, modifications, payment history and
correspondence. The servicing agreement required written consent from the
owner, at that time identified as LG and other entities controlled by Rodney
Green, to commence litigation.
Rodney Green, on behalf of LG, sent a letter to all clients on August 11,
2016, advising them that he was retiring and that they were to remit all future
payments to GFCIB. On August 29, 2016, GFCIB sent correspondence to all
LG clients, including Lawyers Funding, to advise that they were now
administering the loan and that, beginning September 2016, all payments
should be sent to them. Although the GFCIB August 29, 2016 correspondence
included the September 2016 invoice, the letter advised that GFCIB would not
be mailing monthly invoices. After Lawyers Funding refused to make monthly
payments without receiving invoices, GFCIB provided some of them, but
generally, Lawyers Funding was required to calculate interest due each month.
On April 1, 2018, LG and GFCIB entered into an amendment to the
servicing agreement because “the Parties desire to continue with the
Agreement for an additional term of two (2) years effective 01 March 2018.”
(Exhibit P-2, Amendment to Loan Service Agreement, 4/01/18, at 1). The
amendment further provides, in pertinent part, that:
1. The term of this Agreement shall begin on the Effective Date
(i.e. March 1, 2018) and end on the second anniversary of the
Effective Date (the “Term”), unless sooner terminated in
accordance with Section 5, below. After the end of the Term, this
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Agreement shall be renewable upon the written agreement of the
Parties.
* * *
3. OWNER as specified in the executed AGREEMENT is amended
to include [LG], The RODNEY H. GREEN TRUST and other entities
controlled by RODNEY H. GREEN, ANTHONY P. GREEN, JESSE K.
GREEN (“OWNERs”);
* * *
5. This AGREEMENT will be automatically renewed subject to a
sixty-day notification from any party of their intent to withdraw
from this AGREEMENT.
(Id. at ¶¶ 1, 3, 5).
It is undisputed that GFCIB and LG did not issue a sixty-day notice of
intent to withdraw from the servicing agreement pursuant to Paragraph 5.
C.
In August, September and December 2017, Lawyers Funding admittedly
failed to pay on the Loan. (See N.T., 153); (Exhibit D-23, Vendor Quick
Report).2 The last payment was made on December 6, 2017, with no
payments made in 2018. (See N.T., 52-53, 159-60); (Exhibit P-3, Account
History as of July 31, 2020).
On October 16, 2018, LG, through GFCIB, confessed judgment against
Lawyers Funding for $93,280.28 for its breach of the Loan by failure to make
____________________________________________
2 (See also Exhibit C to Lawyers Funding’s November 1, 2019 Response to
the Motion for Summary Judgment).
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payment. Lawyers Funding filed a petition to strike or open the confessed
judgment on November 21, 2018. The petition did not dispute that Lawyers
Funding executed the Loan documents or that it defaulted, but stated that
Lawyers Funding only owed $40,000.00 on the principal balance. (See
Petition to Strike and/or Open, at 4). The trial court opened judgment on
December 26, 2018, because the factual dispute existed about the principal
amount due.
LG filed a motion for summary judgment on October 4, 2019. Zibelman
filed a pro se response on behalf of himself and the corporation on November
1, 2019, and a counseled response in opposition was filed on November 4,
2019. Lawyers Funding admitted it was in breach because of the default and
that monies were owed to LG, but disputed the outstanding amount, arguing
that only $40,000.00 was due on the principal balance. (Response in
Opposition to Plaintiff’s Motion for Summary Judgment, 11/01/19, at ¶¶ 13-
15 and 35-38); (Memorandum of Law, 11/01/19, at 4) (pagination provided);
(Response in Opposition to Plaintiff’s Motion for Summary Judgment,
11/04/19, at ¶ 16).
On February 27, 2020, the trial court “granted the motion for summary
judgment in favor of [LG] on liability[3] and denied the motion as to damages.
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3 “Pennsylvania law provides that summary judgment may be granted only in
those cases in which the record clearly shows that no genuine issues of
material fact exist and that the moving party is entitled to judgment as a
(Footnote Continued Next Page)
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The court found that disputed issues of material fact existed as to the amount
owed to [LG] by [Lawyers Funding] and Zibelman.” (Trial Court Opinion,
10/16/20, at ¶ 12).
D.
At the assessment of damages hearing, the parties presented
documentary and testimonial evidence on the amount due on the Loan.
Zibelman and Rubin testified on behalf of Lawyers Funding and Miller testified
on behalf of LG. In addition to the foregoing facts, the following facts pertinent
to our review were adduced.
1.
Miller testified that he has been the managing member of GFCIB since
2011 and is responsible for funding of loans and servicing of existing loans.
Specific to this matter, this entails acting on behalf of LG in servicing the loans,
including “administering the loan, collecting payments on a loan, self-
____________________________________________
matter of law. The moving party has the burden of proving that no genuine
issues of material fact exist. In determining whether to grant summary
judgment, the trial court must view the record in the light most favorable to
the non-moving party and must resolve all doubts as to the existence of a
genuine issue of material fact against the moving party. Thus, summary
judgment is proper only when uncontroverted allegations in the pleadings,
depositions, answers to interrogatories, admissions of record, and submitted
affidavits demonstrate that no genuine issue of material fact exists, and that
the moving party is entitled to judgment as a matter of law. In sum, only
when the facts are so clear that reasonable minds cannot differ, may a trial
court properly enter summary judgment.” Milshteyn v. Fitness
International, LLC, 271 A.3d 498, 502-03 (Pa. Super. 2022) (citation
omitted).
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understood, disbursing the payments to L.G., any workouts on a loan [and]
any legal matters[, including lawsuits].” (N.T., at 38; see id. at 37). He
stated that he spoke to Rodney Green six months before trial and to Anthony
Green “every step of the way as we’ve gone through the … legal process. …
[W]e keep him informed what’s going on with it.” (Id. at 139-40); (see id.
at 90). When asked if he had written permission to proceed with the legal
action, Miller responded that “L.G., both Rodney and Tony Green, are well
aware of the legal action. Not only aware, they have been paying the bills
monthly or whenever we get the bills for the attorneys[.]” (Id. at 93). He
testified that GFCIB had not regularly sent a statement to Lawyers Funding
since July 2016 because that was not the company’s practice, but if one was
requested, it was sent. (See id. at 59-61, 67). GFCIB did not present
evidence of written notice sent to Lawyers Funding containing the monthly
amount needed to clear the late fees or with the principal amount due. (See
id. at 69-70, 103, 177).
Over the objection of Lawyers Funding, LG admitted Exhibit P-3. (See
id. at 49-50). Miller’s testimony explaining the amount Lawyers Funding’s
default relied on Exhibit P-3, a balance spreadsheet and summary of Lawyers
Funding’s loan payments which showed when payments were due, the
beginning balance, the principal, interest and total amounts due, amounts
received and not received, the account’s ending balance and interest. (See
id. at 51). Miller explained that it reflects payments made from December
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2014 and records “zero” in the payment received column for February and
September 2016, and September, October and November 2017. (See id.);
(Exhibit P-3). Exhibit P-3 shows that Lawyers Funding was charged a five
percent late fee every month due to missed payments and/or overdue
payments from December 2014 through July 2020. (See N.T., at 61-62);
(Exhibit P-3). He explained that as of July 31, 2020, Exhibit P-3 showed an
ending balance of $157,825.30, which consisted of principal, interest and late
fees. (See id. at 88).
Miller affirmed that the document admitted as Exhibit P-3 was
“maintained in the ordinary course of [GFCIB]’s business” and that it was “a
regular practice of [GFCIB] to make this account” even though it had been
prepared after litigation had started. (N.T., at 50-51). Miller testified that
Exhibit P-3 was prepared by a bookkeeper in his office, Holly Cooper. (See
id. at 99). He was not certain exactly what date it was created but observed
that it reflected the loan balance as of July 31, 2020. On cross-examination,
when asked whether it was prepared for litigation, he stated he believed so.
(See id. at 100).
2.
Rubin and Zibelman testified on behalf of Lawyers Funding. Lawyers
Funding entered Exhibit D-23, the QuickBooks history of checks paid on the
Loan in 2017, into evidence. (See id. at 169). Exhibit D-23 showed that the
beginning balance for 2017 was $76,000.00, which Rubin explained was the
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result of missed payments in August and September 2016. (See id. at 186-
87); (Exhibit D-23). Exhibit D-23 reflected that Lawyers Funding missed three
loan payments in August, September and December of 2017. (See N.T., at
153); (Exhibit D-23). Rubin testified that the Loan balance was $48,000.00
in August 2017 due to payments from January through July and, as of
December 2017, the balance was $40,000.00 due to the October and
November payments. (See id. at 153-54); (Exhibit D-23).
The trial court found Exhibit D-23 and Rubin’s testimony credible. (See
Trial Ct. Op., 10/16/20, at ¶¶ 44, 48).
E.
On October 16, 2020, the court entered an Assessment of Damages in
favor of LG and against Lawyers Funding in the amount of $63,003.50, which
included $40,000.00 in principal, plus interest and attorneys’ fees. It
explained:
[LG] failed to produce competent, reliable and credible
evidence of the loan balance at the time of [Lawyers Funding]’s
default. [LG] introduced Plaintiff’s Exhibit 3 (“P-3”) as evidence
of [Lawyer’s Funding]’s loan balance. P-3, an account history
of the [Lawyers Funding] loan from December 2014 to
present, fails to provide credible evidence of the principal
balance at the time of [Lawyers Funding]'s default[.] …
Defendants’ Exhibit D-23 (“D-23”), on the other hand,
is evidence that is credible, reliable and competent and
supported by the testimony of [Lawyers Funding]’s Director of
Operations Kenneth Rubin and managing member Alan Zibelman.
The court finds that the principal loan balance at the time of
default was $40,000. D-23 is a complete payment history that
dates to the actual beginning of the lending relationship between
[LG] and [Lawyers Funding] that started in 2009. While D-23
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does not provide a running balance of the principal due on the
loan, it identifies actual dates, check numbers and payments
made on the loans. D-23 also shows which checks were
negotiated or voided. The court finds D-23 and Rubin’s testimony
to be persuasive that the principal balance at the time of [Lawyers
Funding]’s default is $40,000. Defendants’ Exhibit 15 (“D-15”) is
also persuasive in support of this finding.
Defendants’ Exhibit 23 and Rubin’s testimony are clear that
in 2016 [Lawyers Funding] missed two monthly payments in July
2016 and August 2016. The evidence also shows [Lawyers
Funding] missed three monthly payments in 2017 and three more
in 2017. Rubin testified that when he prepared [Lawyers
Funding]’s 2017 final financial results regarding the [LG] loan, he
took into account the two missed payments in 2016 and only
counted ten payments made in 2016 to calculate the loan balance
in January 2017 to be $76,000. Rubin further testified that in
2017 [Lawyers Funding] made nine timely payments on the loan
and missed three. D-15 shows the loan balance of $76,000 and
then accounts for the nine payments in 2017 leaving a balance of
$40,000. Rubin also testified that no further payments were made
on the loan. Hence, at the time of default the principal
balance on the loan was $40,000.
Based on the [foregoing], the court finds that the principal
balance at the time of default was $40,000. The court further
finds that Loan Modification #9 which adopts and incorporates the
terms and conditions in the original note dated April 2009,
supports our finding that that [LG] is entitled to default interest at
the rate of 24% per year, late fees on the three missed payments
and attorney's fees at 20% of the principal balance at the time of
default.
(Trial Ct. Op., 10/16/20, at 6-7) (emphases added; footnotes omitted).
On December 29, 2020, Lawyers Funding filed a post-trial motion
seeking to vacate the assessment of damages on the bases that the trial court
erred: in granting partial summary judgment on the issue of liability, in
entering judgment in favor of LG where the amended servicing agreement
expired, in relying on the testimony of Jack Miller, in not permitting the parties
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to provide proposed findings of fact and in assessing attorneys’ fees and
interest. (See Trial Court Opinion, 3/02/21, at 4-7). The court denied the
motion on March 2, 2021, finding that the issues were either waived or lacked
merit. (See id.). Lawyers Funding timely appealed and filed a court-ordered
statement of errors complained of on appeal. See Pa.R.A.P. 1925(b). The
trial court filed a Rule 1925(a) opinion on January 19, 2022. See Pa.R.A.P.
1925(a).
II.
Lawyers Funding raises four issues for our review: (1) the trial court
erred or abused its discretion in assessing damages based on an improperly
verified affidavit and unauthenticated business records without a hearsay
exception; (2) the trial court abused its discretion in assessing damages
“where it found … Jack Miller … was unable to produce any competent, reliable,
credible or admissible evidence of the loan balance at the time of default;” (3)
the trial court erred in granting summary judgment on liability, improperly
shifting the burden; and (4) the trial court erred in assessing damages where
Jack Miller lacked standing. (See Lawyers Funding’s Brief, at 17, 28, 30, 32).4
____________________________________________
4 We rely on the headings of the argument sections to provide Lawyers
Fundings issues because they are phrased differently than in the statement of
issues.
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A.
In their first two issues, Lawyers Funding argues that the trial court
erred or abused its discretion in assessing damages based on an
unauthenticated business record (Exhibit P-3), which showed that it owed
$157,825.30, which consisted of principal, interest and late fees. (See id. at
88). It argues that this exhibit should not have been admitted because it was
prepared in anticipation of litigation, and the court should not have relied on
the testimony of Miller in which he failed to produce “any competent, reliable,
credible or admissible evidence of the loan balance at the time of default.”
(Id. at 28); (see id. at 17-29).5 Because it should not have been admitted,
Lawyers Funding stated that there was no evidence to support a monetary
award.
We are a bit nonplussed by this argument. While the exhibit was offered
into evidence, the trial court did not use it in calculating the amount of the
____________________________________________
5 Our standard of review of this issue is well-settled:
Admission of evidence is within the sound discretion of the trial
court and a trial court’s rulings on the admission of evidence will
not be overturned absent an abuse of discretion or misapplication
of law. An abuse of discretion is not merely an error of judgment,
but if in reaching a conclusion the law is overridden or misapplied,
or the judgment exercised is manifestly unreasonable, or the
result of partiality, prejudice, bias or ill-will, as shown by the
evidence or the record, discretion is abused.
Schuenemann v. Dreemz, LLC, 34 A.3d 94, 100-01 (Pa. Super. 2011)
(citations and quotation marks omitted).
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judgment. Instead, it relied on the amount Lawyer’s Funding admitted that it
owed—$40,000.00 As explained by the trial court:
[This] claim of error [is] meritless since the court did not rely on
P-3 or Miller’s testimony to determine [] the principal balance
owed by [Lawyers Funding] at the time of their default.
[L.G.] admitted Exhibit-3 (“P-3”) as evidence of [Lawyers
Funding]’s loan balance. It is an account history of the [Lawyers
Funding] loans from December 14, 2013 to the present. However,
P-3 shows that late fees were assessed by [L.G.] automatically, at
all times that the loan was in default. This late fee was imposed
even when [Lawyers Funding] paid a particular monthly bill on
time. Accordingly, the court did not accept P-3 or Jack Miller’s
testimony as probative evidence on calculation of principal and
late fees. Nor were P-3 or Jack Miller probative on whether Loan
Modification #9 had incorporated all previous late fees going back
to 2009—or whether this was relevant at all. In short, we did not
use P-3 or Jack Miller’s testimony in finding how much money is
legally owed by [Lawyers Funding].
(Trial Court Opinion, 1/19/22, at 7-8); (see also Trial Ct. Op., 10/16/20, at
6-7) (declining to rely on Exhibit P-3 and instead relying solely on Defendants’
exhibits and the testimony of Rubin).
Accordingly, even if the admission of Exhibit P-3 and Miller’s testimony
about it was erroneous, Lawyers Funding would be due no relief because it
was not prejudiced in any way by the evidence’s admission where the trial
court did not consider it in making its decision and instead relied on the
amount that Lawyer’s Funding admitted that was owed, which the trial court
properly relied on in finding that amount owed.
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B.
Lawyers Funding next claims that the trial court erred in granting
summary judgment in LG’s favor on the issue of liability because Miller’s
affidavit in support of the motion was defective.6
The claims against Lawyers Funding were based on breach of contract
for failure to make payments under the Loan agreement. (See Complaint in
Confession of Judgment, ¶¶ 4-17). To demonstrate a claim for breach of
contract, a claimant must establish: (i) the existence of a contract, (ii)
defendant’s breach of a duty imposed by the contract, and (iii) damages
resulting from the breach. See Pittsburgh Constr. Co. v. Griffith, 834 A.2d
572, 580 (Pa. Super. 2003).
Lawyers Funding argues that the court erred in granting summary
judgment on liability because it relied on Miller’s invalid supporting affidavit
that was not properly verified, failed to attach referenced exhibits and lacked
“evidentiary weight.”7 (See Lawyers Funding’s Brief, at 30-32).
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6 “On appeal from a grant of summary judgment, we must examine the record
in a light most favorable to the non-moving party. With regard to questions
of law, an appellate court’s scope of review is plenary.” Milshteyn, infra at
503 (citation omitted). “The Superior Court will reverse a grant of summary
judgment only if the trial court has committed an error of law or abused its
discretion. Judicial discretion requires action in conformity with law based on
the facts and circumstances before the trial court after hearing and
consideration.” Id. (citation omitted).
7 Pursuant to Pennsylvania Rule of Civil Procedure 1035.4:
(Footnote Continued Next Page)
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Again, Lawyers Funding misstates the trial court’s basis for its decision.
As stated by the court and as confirmed by our independent review of the
record, the trial court entered summary judgment on liability because
“[Lawyers Funding]’s own pleadings admit that they were in default and that
a sum of $40,000 was due and owing.” (Trial Ct. Op., 1/19/22, at 3). Lawyers
Funding admitted liability in response to the motion for summary judgment
and at every time before and after that, merely disputing the amount owed.
(See, e.g., Petition to Strike/Open Confessed Judgment, at ¶ 10) (“the
amount Defendants … owe is $40,000 plus accrued interest, if any[, which is]
substantially lower than the $93,280.28 alleged in the Complaint[.]”);
(Response to Motion for Summary Judgment, 11/01/19,n at ¶ 2 (Lawyers
Funding “admit[s] signing the Loan Documents and that a balance is due to
[LG, but that] the amount due … remains in dispute.”); (see id. at ¶¶ 5-15,
35-38 (same); (Memorandum of Law in Response to Motion for Summary
Judgment, 11/01/19, at 1, 4) (pagination provided) (stating this is a breach
____________________________________________
Supporting and opposing affidavits shall be made on personal
knowledge, shall set forth such facts as would be admissible in
evidence, and shall show affirmatively that the signer is
competent to testify to the matters stated therein. Verified or
certified copies of all papers or parts thereof referred to in an
affidavit shall be attached thereto or served therewith. The court
may permit affidavits to be supplemented or opposed by
depositions, answers to interrogatories, or further affidavits.
Pa.R.C.P. 1035.4.
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of contract action in which they admit they breached but dispute amount of
damages); (Response to Motion for Summary Judgment, 11/04/19, at ¶ 16)
(“the evidence clearly establishes that at the end of 2017 [Lawyers Funding]
only owed $40,000 and not $89581.03 [plus interest and attorney fees] as
[LG] contends.”).
It is on this repeated admission by Lawyers Funding that the trial court
relied in entering summary judgment on liability, not on the representations
made in the affidavit of Miller. (See Trial Ct. Op., 3/02/21, at 5) (explaining
court granted summary judgment as to liability because Lawyers Funding’s
“own pleadings admit they were in default and that a sum of $40,000 was due
and owing.”).
Again, much like in the previous issues, whether Miller’s affidavit
supporting the motion for summary judgment was properly authenticated or
attached the proper documents is irrelevant where the trial court did not rely
on it and Lawyers Funding admitted liability. Because there is no genuine
issue of material fact on the issue of Lawyers Funding’s liability, the trial court
properly entered summary judgment on this issue. See Milshteyn, supra at
502-03.
C.
Next, Lawyers Funding argues that the trial court erred in assessing
damages because Miller (i.e., GFCIB) lacked authority to bring this action on
behalf of LG because the servicing agreement between LG and GFCIB had
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expired, and Rodney Green did not provide written consent to commence
litigation. (See Lawyers Funding’s Brief, at 32-33).
As properly observed by the trial court, Lawyers Funding waived the
standing/lack of authority issue by failing to raise it in its post-trial motion.
(See Trial Ct. Op., 1/19/22, at 6); (Post-Trial Motion, 10/29/20, at ¶¶ 1-12).
It is well-settled that issues not raised in a post-trial motion are waived for
appeal. See Diener Brick Co. v. Mastro Masonry Contractor, 885 A.2d
1034, 1038 (Pa. Super. 2005) (issues not raised in post-trial motions are
waived for purposes of appeal).
To preserve a claim of error for appellate review, a party
must make a specific objection to the alleged error before the trial
court in a timely fashion and at the appropriate stage of the
proceedings; failure to raise such objection results in waiver of the
underlying issue on appeal. Additionally, the law is clear that
issues, even those of constitutional dimension, are waived if not
raised in the trial court. A new and different theory of relief may
not be successfully advanced for the first time on appeal.
PCS Chadago v. Torres, 252 A.3d 1154, 1157-58 (Pa. Super. 2021)
(citations and quotation marks omitted); see also Pa.R.A.P. 302(a).
Moreover, our independent review of the record reveals that Lawyers
Funding never raised the lack of authority issue anywhere below. In fact,
Lawyers Funding’s counsel stated that Miller was the agent for LG and did not
object to his authority to testify on behalf of LG when he was introduced as a
witness. (See N.T. at 19-20, 36-37). Moreover, Lawyers Funding never
raised the issue of lack of authority in the trial court, either in support of its
petition to strike/open the confession of judgment or in the hearing before the
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trial court on damages. (See Petition to Strike/Open, at ¶¶ 1-24); (N.T., at
92-94, 201-05). Hence, it is waived for our review.8 See Pa.R.A.P. 302(a)
(“Issues not raised in the trial court are waived and cannot be raised for the
first time on appeal.”). Moreover, we briefly note that it would lack merit.9
In its Rule 1925(a) opinion, the trial court explained that despite the
waiver, “[s]ince there were no notifications from either party to withdraw from
the Agreement and this matter was filed prior to the date of termination
(March 2020), the Agreement automatically renewed and did not expire.
Accordingly, GFCIB did not lack authority to bring this action.” (Trial Ct. Op.,
1/19/22, at 7).
We discern no error of law in the trial court’s interpretation of the
servicing agreement’s terms. The amendment provided that the parties
wished to extend the term of the servicing agreement from March 1, 2018,
until March 1, 2020, and that it would automatically renew upon the expiration
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8 Lawyers Funding also waived this issue for failing to provide any argument
in the form of legal citation or discussion thereof, merely providing a recitation
of the facts. (See Lawyers Funding’s Brief, at 32-33); Pa.R.A.P. 2101,
2119(a)-(b)).
9 “Our standard of review regarding contract interpretation is well-settled.
Because contract interpretation is a question of law, our standard of review is
de novo, and the scope of review is plenary.” Ragnar Benson, Inc. v.
Hempfield Township Municipal Authority, 916 A.2d 1183, 1188 (Pa.
Super. 2007). Similarly, “[t]hreshold issues of standing are questions of law;
thus, our standard of review is de novo and our scope of review is plenary.”
S.G. v. J.M.G., 186 A.3d 995, 997 (Pa. Super. 2018), appeal denied, 197 A.3d
1177 (Pa. 2018) (citation omitted).
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of the term unless terminated by sixty days written notice. The agreement
also stated that it would be renewable upon written agreement of the parties.
(See Amendment, at ¶¶ 1, 5). The subject default occurred in 2017 and the
matter was filed in October 2018, well within the extended term, particularly
where it is undisputed that GFCIB was not a party itself, but was merely acting
on behalf of LG, which clearly had an interest in the outcome of the litigation.
Furthermore, we note that although mentioned by the trial court in its
Rule 1925(a) opinion, the court did not address Lawyers Funding’s waived
claim that GFCIB lacked standing in this matter because Green did not consent
to the litigation in writing pursuant to Paragraphs 8 and 9 of the servicing
agreement. However, the April 1, 2018 amendment amended the term
“Owner” was to include LG and entities owned by Anthony P. Green, among
others. (See Amendment, at ¶ 3). Clearly, LG authorized the legal action
commenced in October 2018 as Anthony P. Green discussed it with Miller via
both phone calls and written texts and he signed checks to pay the associated
legal fees, thus ratifying the action. (See N.T., at 92-94). Accordingly, for all
these reasons, even if not waived, this standing/authorization issue would lack
merit where GFCIB had standing to file this action against Lawyers Funding as
the servicing agent for LG.
For all the foregoing reasons, we affirm the judgment entered on
October 16, 2020.
Judgment affirmed.
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J-A20032-22
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/8/2022
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