Bayview Loan Servicing v. Bucci, C. ( 2020 )

J-S09017-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
BAYVIEW LOAN SERVICING, INC. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
CAROL AND ROCCO BUCCI :
:
Appellants : No. 2925 EDA 2018
Appeal from the Judgment Entered August 13, 2018
In the Court of Common Pleas of Montgomery County Civil Division at
No(s): 2016-27225
BEFORE: SHOGAN, J., LAZARUS, J., and COLINS, J.*
MEMORANDUM BY LAZARUS, J.: FILED MARCH 10, 2020
Carol and Rocco Bucci (“the Buccis”) appeal from the judgment in rem
entered in the Court of Common Pleas of Montgomery County following the
grant of summary judgment in favor of appellee Bayview Loan Servicing, Inc.
(“Bayview”). Upon review, we affirm.
The trial court set forth the relevant factual and procedural history of
this matter as follows:
Carol Bucci signed a promissory note in the original principal
amount of $265,000.00 and both [Buccis] executed a mortgage
on January 22, 2007, securing property located at 1720 Hood
Lane, Maple Glen, Montgomery County, Pennsylvania
(“Property”). The note, endorsed by HSBC Mortgage Corporation,
was later transferred to Countrywide Bank, N.A., endorsed by
Countrywide Bank, N.A. to Countrywide Home Loans, Inc. and
then further endorsed in blank by Countrywide Home Loans, Inc.
and transferred to Bayview. [] Carol Bucci executed a loan
modification agreement on October 10, 2012. [The Buccis]
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* Retired Senior Judge assigned to the Superior Court.
J-S09017-20
defaulted on the mortgage when they failed to make the
September 1, 2013 payment. The recorded assignments of the
mortgage are a matter of public record with the Montgomery
County Office of the Recorder of Deeds as follows:
ASSIGNOR: Mortgage Electronic Registration Systems,
Inc., as nominee for HSBC Mortgage Corporation
ASSIGNEE: Bank of America, N.A., successor by merger to
BAC Home Loans Servicing, LP f/k/a Countrywide Home
Loans Servicing, LP
DATE OF ASSIGNMENT: December 5, 2012
RECORDING DATE: December 7, 2012
BOOK: 13471 PAGE: 1468
INSTRUMENT NUMBER: 2012123307
ASSIGNOR: Bank of America, N.A., successor by merger to
BAC Home Loans Servicing, LP f/k/a Countrywide Home
Loans Servicing, LP
ASSIGNEE: Bayview Loan Servicing, LLC
DATE OF ASSIGNMENT: August 11, 2015
RECORDING DATE: August 14, 2015
BOOK: 13995 PAGE: 2551
INSTRUMENT NUMBER: 2015061186
Pursuant to the notice provisions of Act 91 and Act 6, Bayview
sent the combined Notice of Intention to Foreclose Mortgage and
Act 91 Notice to [the Buccis] on January 20, 2016. When [the
Buccis] failed to cure the default, Bayview filed a complaint in
mortgage foreclosure on November 14, 2016. [The Buccis] filed
an answer to the complaint pro se on December 15, 2016,
consisting of limited admissions and general denials. Without
permission of Bayview or leave of court, [the Buccis] filed an
“Amended Answer to Complaint in Mortgage Foreclosure” on
December 27, 2016, in which they denied paragraphs one through
nine of the complaint and asserted boilerplate defenses in
response to paragraphs ten through fourteen of the fifteen
paragraph complaint.
Bayview filed a [motion for summary judgment] on April 18, 2017.
Bayview attached to its motion an Affidavit in support by Leticia
Sanchez, a senior document coordinator for Bayview in which Ms.
Sanchez states that Bayview has possession of the original note,
a copy of which is attached to the motion. [The Buccis] filed an
answer and motion to dismiss pro se on May 17, 2017. [The
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Buccis] filed a request for admissions and a request for production
on August 25, 2017.
[The Buccis] filed an amended motion to dismiss pro se on January
31, 2018. In their motion, [the Buccis] argued that they were
entitled to dismissal of the complaint because Bayview did not
properly verify the debt before resuming collection activity in
violation of the Fair Debt Collection Practices Act.
...
Counsel for [the Buccis] entered an appearance on May 10, 2018.
This court issued an order denying [the Buccis’] motion to dismiss
and amended motion to dismiss on August 13, 2018. The court
entered its order granting Bayview’s motion for summary
judgment by order docketed on August 14, 2018. [The Buccis]
filed a notice of appeal on September 10, 2018. The undersigned
did not receive a copy of the notice. Once the court discovered
that [the Buccis] had filed a notice of appeal, by order docketed
on January 16, 2019, the undersigned directed [them] to file a
concise statement of errors complained of on appeal
(“Statement”) pursuant to Pa.R.A.P. 1925(b). Appellants filed
their Statement on February 5, 2019.
Trial Court Opinion, 10/29/19, at 1-5 (footnote and citations to the record
omitted).
Prior to addressing the issues raised by the Buccis in their statement of
the questions involved, we must address whether they have preserved any
issues on appeal.
Rule 1925(b) provides that an appellant’s concise statement of errors
complained of on appeal “shall concisely identify each error that the appellant
intends to assert with sufficient detail to identify the issue to be raised for the
judge.” Pa.R.A.P. 1925(b)(4)(ii). Rule 1925(b) exists primarily to require the
appellant to identify with certainty each of the issues to be addressed on
appeal. Commonwealth v. Lemon, 804 A.2d 34, 37 (Pa. Super. 2002).
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“An appellant must have an opportunity to frame his/her own issues which
will guide the trial court’s subsequent opinion.” Id. at 38. It is not up to the
trial court to frame the issues for an appellant, either by “guessing or
anticipating.” Id. “When an appellant fails to identify in a vague Pa.R.A.P.
1925(b) statement the specific issue he/she wants to raise on appeal, the
issue is waived, even if the trial court guesses correctly and addresses the
issue in its Pa.R.A.P. 1925(a) opinion.” Id.Here, the trial court correctly observed that the Buccis’ Rule 1925(b)
statement “contain[ed] four bald claims of court error[.]” Trial Court Opinion,
10/29/19, at 6. Specifically, the Buccis raised the following issues:
1. The court erred by not granting [the Buccis’] motions.
2. The court erred by granting plaintiff’s motion.
3. The court erred by not permitting this case to go to trial.
4. The court committed an error of law in finding for the plaintiff
despite [the Buccis’] sound arguments in fact and law.
Pa.R.A.P. 1925(b) Statement, 2/1/19.
The Buccis’ Rule 1925(b) statement did not allege any specific errors on
the part of the trial court. For example, it did not identify what the Buccis
believed to be a genuine issue of material fact precluding the entry of
summary judgment, or even aver that a genuine issue of material fact existed.
It failed even to identify with specificity the “motions” the Buccis believed to
be incorrectly decided. Taken together, the Buccis’ four claims amount to
nothing more than a bald assertion that the court should not have granted
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summary judgment in favor of Bayside. Such vague assertions of error make
it nearly impossible for a trial court to discern what issues to address in its
Rule 1925(a) opinion.
Nevertheless, in response to the Buccis’ concise statement, the trial
court authored a thorough opinion defending its grant of summary judgment.
However, because of the vagueness of the Buccis’ Rule 1925(b) statement,
the court was unable address a key component of the argument raised by the
Buccis in their appellate brief—a claim that Bayside failed to respond to
discovery and “completely ignored” requests for admissions. See Brief of
Appellants, at 4, 11. “When the trial court has to guess what issues an
appellant is appealing, that is not enough for meaningful review.”
Commonwealth v. Dowling, 778 A.2d 683, 686 (Pa. Super. 2001). As the
trial court was left to speculate as to the specific nature of the Buccis’
assignments of error, it was prevented from fully addressing the Buccis’
appellate claims, particularly the discovery issue raised for the first time in
their brief.1 Accordingly, our ability to perform meaningful appellate review is
substantially hampered and we are constrained to conclude that the Buccis
have waived their claims on appeal. See id.; Lemon, supra.Judgment affirmed.
____________________________________________
1 This is particularly so in this instance because matters of discovery are left
to the sound discretion of the trial court and the trial court was unable to
prepare a legal analysis pertinent to that issue.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/10/20
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