The Bank of New York Mellon v. Williams, D.

J-A13026-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
THE BANK OF NEW YORK MELLON : IN THE SUPERIOR COURT OF
AS TRUSTEE FOR CIT MORTGAGE : PENNSYLVANIA
LOAN TRUST 2007-1 :
:
Appellant :
:
:
v. :
: No. 1665 WDA 2017
:
DAVID C. WILLIAMS :
Appeal from the Order Entered October 10, 2017
In the Court of Common Pleas of Allegheny County Civil Division at
No(s): MG-16-001360
BEFORE: OLSON, J., DUBOW, J., and MUSMANNO, J.
DISSENTING MEMORANDUM BY OLSON, J.: FILED NOVEMBER 21, 2018
I must respectfully dissent from my learned colleagues. I do not believe
that there is “a fatal defect or irregularity [that] is apparent from the face of
the record” in this case; therefore, I would vacate the trial court’s order in full.
I will explain.
To summarize, on October 13, 2016, Appellant, the Bank of New York
Mellon, as Trustee for CIT Mortgage Loan Trust 2007-1, filed a complaint in
mortgage foreclosure against David C. Williams (hereinafter “Mr. Williams”),
seeking to foreclose upon Mr. Williams’ residential mortgage. Within its
complaint, Appellant averred:
On or about January 15, 2016, [Mr. Williams] was mailed
Notice of Homeowner’s Emergency Assistance Act of 1983, in
compliance with the Homeowner’s Emergency Assistance Act,
Act 91 of 1983 and pursuant to 12 PA Code Chapter 31,
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Subchapter B, Section 31.201 et seq. A true and correct copy
of said Notice is attached hereto as Exhibit “D.”
Appellant’s Complaint, 10/13/16, at ¶ 9. Appellant then attached the Act 91
notice to its complaint. See id. at Exhibit “D.”
Mr. Williams did not respond to the complaint and, after the requisite
notice, the prothonotary entered a default judgment, in rem, in favor of
Appellant and against Mr. Williams. Default Judgment, 12/20/16, at 1.
On March 3, 2017, Mr. Williams filed a motion to strike the default
judgment. As is relevant to the current appeal, Mr. Williams claimed that the
judgment must be stricken because “there is nothing in the complaint or
record [that] avers or substantiates that the notice required under Section
403 of the Loan Interest and Protection Law [(hereinafter “Act 6”)] was sent
by registered or certified mail.” Mr. Williams’ Motion to Strike Default
Judgment, 3/3/17, at ¶ 21 (internal emphasis and some internal capitalization
omitted). The trial court agreed with Mr. Williams and struck the default
judgment because “the record lack[s] any indication that the notice of
intention to foreclose had been sent by [Appellant] to [Mr. Williams] via
registered or certified mail.” Trial Court Opinion, 12/5/17, at 1. The majority
affirms this aspect of the trial court’s order. Respectfully, I believe that the
trial court erred when it struck the default judgment and that we must
therefore vacate the trial court’s order.
The trial court and the majority cited the proper standard that a court
must apply when ruling upon a motion to strike a default judgment. To
repeat:
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A petition to strike does not involve the discretion of the
court. Instead, it operates as a demurrer to the record. A
demurrer admits all well-pleaded facts for the purpose of
testing conclusions of law drawn from those facts. Because
a petition to strike operates as a demurrer, a court may only
look at the facts of record at the time the judgment was
entered to decide if the record supports the judgment. A
petition to strike can only be granted if a fatal defect appears
on the face of the record.
Cintas Corp. v. Lee’s Cleaning Servs., Inc., 700 A.2d 915, 918-919
(internal citations omitted). Moreover, since a motion to strike a default
judgment is solely a question of law, our standard of review on appeal is de
novo and our scope of review is plenary. Oswald v. WB Public Square
Assocs., LLC, 80 A.3d 790, 793 (Pa. Super. 2013).
However, while the trial court and the majority cited the proper standard
for striking a default judgment, I believe that the courts incorrectly applied
the standard in the case at bar.
As the majority recognizes, “[a]n Act 91 notice must contain all of the
required information of Act 6.” Majority Memorandum at *6; see also 35
P.S. § 1680.403c(b)(1) (“[t]he [Pennsylvania Housing Finance Agency] shall
prepare a notice which shall include all the information required by this
subsection and by section 403 of” Act 6). Further, like Act 6, Act 91 mandates
that the combined Act 6/Act 91 notice be sent to the homeowner “[b]y
registered or certified mail.” 12 Pa. Code § 31.203(a)(6)(ii); see also 41 P.S.
403(b) (under Act 6, “[n]otice of intention to take action as specified in
subsection (a) of this section shall be in writing, sent to the residential
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mortgage debtor by registered or certified mail at his last known address and,
if different, at the residence which is the subject of the residential mortgage”).
Therefore, when Appellant averred in its complaint that, “[o]n or about
January 15, 2016, [Mr. Williams] was mailed Notice of Homeowner’s
Emergency Assistance Act of 1983, in compliance with” Act 91, Appellant
was not merely averring that the information sent in the notice was proper
(i.e., that the notice contained all information required by Act 91 and, ergo,
Act 6), but also that the notice satisfied all other requirements of Act 91,
including that the notice was sent to Mr. Williams “[b]y registered or certified
mail.” Appellant’s Complaint, 10/13/16, at ¶ 9 (emphasis added); 12 Pa.
Code § 31.203(a)(6)(ii). Therefore, I would vacate the trial court’s order on
this basis alone, as the record indicates that Appellant, in fact, sent the
combined Act 6/Act 91 notice by registered or certified mail.
Moreover, even if the majority disagrees with how I interpret paragraph
9 of Appellant’s complaint, it certainly cannot be said that paragraph 9 of, or
Exhibit “D” to, Appellant’s complaint demonstrates that Appellant did not
send the requisite notice by registered or certified mail. As noted, “[a] petition
to strike can only be granted if a fatal defect appears on the face of the
record.” Cintas Corp., 700 A.2d at 918-919 (emphasis added). In the
absence of any evidence or allegation in the complaint that Appellant failed
to send the combined Act 6/Act 91 notice by registered or certified mail, I
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believe that we must vacate the trial court’s order, as no defect regarding the
mailing or the notice appears “on the face of the record.”1
____________________________________________
1Moreover, no rule or law mandates that a plaintiff affirmatively aver that the
combined Act 6/Act 91 notice was sent by registered or certified mail. To be
sure, Pennsylvania Rule of Civil Procedure 1147 declares:
(a) The plaintiff [in a foreclosure action] shall set forth in the
complaint:
(1) the parties to and the date of the mortgage, and of
any assignments, and a statement of the place of record
of the mortgage and assignments;
(2) a description of the land subject to the mortgage;
(3) the names, addresses and interest of the defendants
in the action and that the present real owner is unknown
if the real owner is not made a party;
(4) a specific averment of default;
(5) an itemized statement of the amount due; and
(6) a demand for judgment for the amount due.
Pa.R.C.P. 1147(a). Simply stated, Rule 1147 contains no requirement that a
plaintiff aver the manner in which it mailed the notice.
I also observe that the note to Rule 1147 declares: “[i]f the mortgage is a
residential mortgage under Act No. 6 of 1974, 41 P.S. § 101, the complaint
should set forth an averment of compliance with the provisions of Section 403
of Act No. 6, 41 P.S. § 403.” Id. at Note. We have held that the language in
the Rule’s note is merely precatory. The Ministers and Missionaries
Benefit Bd. of the Am. Baptist Churches v. Goldsworthy, 385 A.2d 358,
364 (Pa. Super. 1978), disapproved of on other grounds by Marra v. Stocker,
615 A.2d 326 (Pa. 1992). Regardless, in the case at bar, Appellant averred
that, “[o]n or about January 15, 2016, [Mr. Williams] was mailed Notice of
Homeowner’s Emergency Assistance Act of 1983, in compliance with” Act
91. Appellant’s Complaint, 10/13/16, at ¶ 9 (emphasis added). As explained
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I thus respectfully dissent.
____________________________________________
above, I believe this statement necessarily includes the averment that
Appellant sent the combined Act 6/Act 91 notice “[b]y registered or certified
mail.” See 12 Pa. Code § 31.203(a)(6)(ii). At the very least, the averment
cannot be construed to mean that Appellant did not send the notice by
registered or certified mail.
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