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KAREN L. MULL v. COMMONWEALTH PENNSYLVANIA (08/13/87)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: August 13, 1987.

KAREN L. MULL, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA HOUSING FINANCE AGENCY, RESPONDENT

Appeal from the Order of the Pennsylvania Housing Finance Agency in case of Re: Karen L. Mull, dated November 14, 1985.

COUNSEL

David Abrams, Abrams & Mazer, for petitioner.

Lawana M. Johns, for respondent.

President Judge Crumlish, Jr., and Judge Palladino, and Senior Judge Narick, sitting as a panel of three. Opinion by Judge Palladino.

Author: Palladino

[ 108 Pa. Commw. Page 460]

Karen L. Mull (Petitioner) petitions for review of an order of The Pennsylvania Housing Finance Agency (Agency) which denied Petitioner's application for emergency mortgage assistance under the Pennsylvania Homeowner's Emergency Assistance Act (Act 91).*fn1

In 1968, Petitioner and her husband financed the purchase of a home in Pittsburgh, Pennsylvania with a mortgage from Landmark Savings Association (Landmark). In August, 1984, Petitioner filed an action in divorce and an action for protection from abuse against her husband, Robert C. Mull. On October 17, 1984, Landmark sent a letter to Petitioner and her husband indicating Landmark's intention to foreclose upon the mortgage. Along with this letter, Landmark also enclosed an "Act 91 Notice."*fn2 Petitioner took no action until she received a Complaint in Mortgage Foreclosure in December, 1984 and in January, 1985 had a face-to-face

[ 108 Pa. Commw. Page 461]

    meeting with a credit counseling agency as required by Act 91.*fn3

On February 18, 1985 Petitioner applied to the Agency for emergency mortgage assistance. On April 3, 1985, Petitioner's application was denied because Petitioner was not suffering from financial hardship due to circumstances beyond her control and because Petitioner failed to comply with the procedural requirements of Act 91.*fn4 Petitioner appealed and an administrative

[ 108 Pa. Commw. Page 462]

    hearing was held on October 29, 1985 before an Agency Hearing Examiner who affirmed the denial of Petitioner's application. The Hearing Examiner held that Petitioner failed to comply with procedural requirements of Act 91 and that Petitioner had insufficient income to meet the criteria of Section 404-C(a) of Act 91.*fn5

[ 108 Pa. Commw. Page 463]

On appeal to this Court, Petitioner asserts that she met the procedural requirements of Act 91 because she did attend a face-to-face meeting within 30 days of when she alleges to have received the Act 91 Notice. Petitioner also contends that she met the eligibility requirements of Act 91.

Our scope of review is limited to a determination of whether constitutional rights were violated, an error of law was committed, or whether the findings of fact are not supported by substantial evidence. Felegie v. Pennsylvania Housing Finance Agency, 104 Pa. Commonwealth Ct. 128, 523 A.2d 417 (1987). The Agency's interpretation of Act 91 is entitled to great weight and should be disregarded only if such construction is clearly erroneous. Johnson v. Pennsylvania Housing Finance Agency, 99 Pa. Commonwealth Ct. 77, 512 A.2d 1319 (1986).

First, Petitioner argues that the requirement to have a face-to-face meeting as outlined in Section 404-C should be interpreted liberally to allow a mortgagor 30 days from the date she actually received the Notice. Petitioner alleges that she did not receive the October 17, 1984 Act 91 Notice until December, 1984, the date she was served with the Complaint in Mortgage Foreclosure. Petitioner alleges that she did not receive the Act 91 Notice in October, 1984 because her husband intercepted the mail. As a result, she argues that since

[ 108 Pa. Commw. Page 464]

    she did not receive the Act 91 Notice until December, 1984, her January, 1985 face-to-face meeting was timely because Section 403 of Act 91 is silent as to whether the meeting must take place within 30 days of date of mailing or within 30 days of date of actual receipt of the Notice.

16 Pa. Code ยง 40.203(1) provides that:

(1) The homeowner shall arrange for and attend a face-to-face meeting with the lender or a consumer credit counseling agency listed in the notice. The purpose of this meeting is to attempt to restore the delinquency or default by restructuring the loan payment schedule or otherwise. The meeting shall be held within 30 days of the postmark date of the notice, plus an additional 3 days to allow for mailing period. For example, a notice mailed on March 9th is presumed to have been delivered on March 12th. Therefore, the homeowner shall hold a face-to-face meeting within 30 days of March 12th, or on or before April 11th.

(Emphasis added.)

We must point out, however, that the record contains a handwritten letter dated February 4, 1985 in which Petitioner admitted to receiving the Act 91 Notice in October of 1984:

To whom it may concern:

My husband left me any [sic] my two children in the fall of 1984.

A letter came in Oct [sic] concerning the Act 91 loan. I did not read the letter througly [sic] at this time due to the fact I was suffering, from alot [sic] of strain and stress, and under a doctors [sic] care. I really thought the letter was about not paying the mortgage. I also thought my husband would pay the mortgage in fear of losing the house. -- But he hasn't payed [sic] anything

[ 108 Pa. Commw. Page 465]

    towards the mortgage or any bills. In April there will be a hearing in court against my husband and I'm sure he will be made to contribute in paying towards some of the bills.

Therefore, the Agency properly determined that Petitioner, who received the Act 91 Notice in October, 1984 but did not have the required face-to-face meeting until January, 1985, did not comply with the procedural requirements of Act 91.

Next, Petitioner asserts that because a protection from abuse order is outstanding against her spouse and because of the economic circumstances, it was arbitrary and capricious to deny her emergency mortgage assistance. In essence, Petitioner asks us to re-evaluate the factual circumstances because they "militate towards the grant of emergency mortgage assistance." This, however, is outside our appellate purview. Felegie. On review, we will review the record to ensure that the findings of the Agency were supported by substantial evidence and that an error of law was not committed.

The Hearing Examiner concluded that there was no reasonable prospect that Petitioner would resume full mortgage payments within 36 months as required by Act 91. The Hearing Examiner outlined Petitioner's income and expenses and concluded that, although Petitioner was employed, there was insufficient income to meet monthly expenses. Our review of the record reveals that this determination is supported by substantial evidence in the record. It is within the discretion of the Hearing Examiner to conclude that Petitioner did not meet the Section 404-C(a)(5) eligibility criterion.

Because the findings were supported by substantial evidence and because we find no clear error by the Hearing Examiner in reaching his determination, the order of the Agency is affirmed.

[ 108 Pa. Commw. Page 466]

Order

And Now, August 13, 1987, the order of the Pennsylvania Housing Finance Agency in the above-captioned matter is affirmed.

Disposition

Affirmed.


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