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PHH Mortgage Corporation v. Powell

Superior Court of Pennsylvania

September 10, 2014


Appeal from the Order November 4, 2013, Court of Common Pleas, Mercer County, Civil Division at No. 2010-137. Before YEATTS, J.

Rachel and Richard H. Powell, appellants, pro se.

Edward J. Krug, Moon Township and Robert P. Wendt, Pittsburgh, for appellee.



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Appellants, Richard H. Powell and Rachel M. Powell (together, the " Powells" ), appeal pro se from the trial court's grant of summary judgment in favor of Appellee, PHH Mortgage Corporation (" PHH" ), in this in rem mortgage foreclosure action.

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The Powells contend that they never signed a mortgage note, but if they did sign it, PHH does not have the right to enforce it. For the reasons that follow, we affirm the trial court's order in favor of PHH.

On January 12, 2010, PHH filed a mortgage foreclosure action against the Powells. PHH alleged that on September 28, 2007, the Powells executed a purchase money mortgage (" the Mortgage" ) for $162,500, to Butler ARMCO Employees Credit Union (" ARMCO" ) to purchase the property at 326 Hosack Road in Jackson Center, Pennsylvania. Amended Complaint, 8/16/2010, at ¶ 3. PHH further alleged that the Powells executed a promissory note (" the Note" ) for the same amount in favor of ARMCO. Id. On September 28, 2007, the sellers transferred the deed to the property to the Powells, and on October 1, 2007, the deed and the Mortgage were recorded in the Office of the Recorder of Deeds of Mercer County. Id. On November 13, 2007, an assignment of the Mortgage to PHH (" the Assignment" ) was also recorded. Id.

According to PHH, the Powells defaulted on the payments under the Note in May 2009. Id. at § 8. The Powells filed preliminary objections to PHH's initial complaint, and on September 16, 2010, PHH filed an amended complaint. Attached to the amended complaint as exhibits are the Mortgage, the Note, and the Assignment. Id. at § 3 (Exhibits A, B, and C). Attached to the Note is an allonge [1] dated October 4, 2007 (" the Allonge" ), in which a representative of the original lender (Randall W. Cypher of ARMCO) indorsed the Note payable to the order of PHH. Id. at § § 3, 4 (Exhibit B). On January 5, 2011, the trial court overruled the Powells' preliminary objections to the Amended Complaint, and on January 25, 2011, the trial court denied the Powells' motion for reconsideration of its decision. On May 20, 2011, the Powells filed an answer and new matter, and on June 10, 2011, PHH filed a reply to the new matter.

On January 12, 2012, PHH filed a motion for summary judgment, which the trial court denied by order dated March 5, 2012. After taking discovery, on June 13, 2012, PHH filed its second motion for summary judgment, to which the Powells filed an opposition and brief with supporting documents and affidavits. After oral argument, on November 4, 2013, the trial court granted PHH's second motion for summary judgment, entering an in rem judgment in the amount of $223,536.22 plus interest from June 16, 2013 and other costs and charges. On November 18, 2014, the trial court denied the Powells' motion for reconsideration.

On December 3, 2013, the Powells filed a notice of appeal, and on December 10, 2013, the trial court ordered the Powells to file a concise statement of errors to be presented on appeal pursuant to Rule 1925(b) of the Pennsylvania Rules of Appellate Procedure. On December 30, 2013, the Powells filed a Rule 1925(b) statement listing 40 issues. The trial court filed a short written opinion pursuant to Rule 1925(a) on January 8, 2014. The Powells filed their appellate brief with this Court on April 21, 2014, and PHH filed its appellate brief on July 3, 2014. On May 2, 2014, PHH filed a motion to strike various affidavits attached to the Powells' appellate brief, and on May 6, 2014, PHH filed a motion to quash this appeal on the grounds that the Powells' Rule 1925(b) statement

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did not comply with our appellate rules and that the Powells had failed to attach a copy of the trial court's Rule 1925(a) opinion to their appellate brief. This Court denied both motions without prejudice to PHH's right to raise the issues again with the merits panel.

In its subsequently filed appellate brief, PHH again raises the issues in their motions to quash and strike, and we thus address them now at the outset. First, PHH's motion to strike is granted. The Powells have attached to their appellate brief the affidavits of five affiants who purport to provide information relating to the oral argument on PHH's second motion for summary judgment, and one of the affidavits includes a rough transcript of the affiant's observation of that proceeding. Rule 1921 of our appellate rules describes the composition of the certified record on appeal, and this Court may consider only the facts that have been duly certified in the record when deciding an appeal. See Pa.R.A.P. 1921 Note (citing Commonwealth v. Young, 456 Pa. 102, 317 A.2d 258, 264 (Pa. 1974)). None of the attachments to the Powells' appellate brief appear in the certified record on appeal and therefore must be stricken. This Court has not considered the contents of these affidavits in deciding the present appeal.

Second, PHH's motion to quash the appeal is denied. The Powells' Rule 1925(b) statement fails in most respects to comply with the requirements of the Rule, including, most notably, that it is not concise. The Powells' Rule 1925(b) statement includes 40 separate paragraphs and is 10 pages in length. As such, the Powells plainly made no attempt to winnow appropriate issues for appeal. On the other hand, Rule 1925(b)(4)(iv) provides that " the number of errors raised will not alone be grounds for finding waiver." Pa.R.A.P. 1925(b)(4)(iv). Moreover, in Eiser v. Brown & Williamson Tobacco Corp., 595 Pa. 366, 938 A.2d 417 (Pa. 2007), our Supreme Court instructed that with respect to lengthy Rule 1925(b) statements, no violation is sufficient to find waiver of issues unless the trial court finds that the appellant acted in bad faith. Id. at 420-21. Here, the trial court reached no finding of bad faith, instead merely noting that the Powells' Rule 1925(b) statement reflects " a profound misunderstanding of the judicial process and the banking industry." Trial Court Opinion, 1/8/2014, at 1. In the absence of a finding of bad faith, we will not quash the Powells' appeal on this basis.

Finally, with respect to PHH's contention that the Powells' failure to attach a copy of the trial court's opinion violated Pa.R.A.P. 2111(b), we agree that the Powells violated this Rule. Because the trial court's opinion appears in the certified record on appeal, however, this violation of the Rule does not impair our ability to conduct appellate review. As a result, we decline to quash the appeal for this reason.

We turn then to the Powells' appellate brief. In addition to the violation of Pa.R.A.P. 2111(b) referenced above, the Powells' pro se appellate brief also violates, at a minimum, Rules 2116, 2117, 2118 and 2119. Rule 2116 requires the appellant to provide a " Statement of Questions Involved" in accordance with specific technical requirements, including that the issues be stated in a concise manner, without details or argument. Pa.R.A.P. 2116. The Powells' appellate brief does not comply with these requirements, as their " Statement of Questions Involved" covers more than 15 pages and includes argument regarding the apparent correctness of their position on each of the 11 identified issues. Powells' Brief at 11-26.

Rule 2117 delineates the necessary contents of the " Statement of the Case," including,

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inter alia, a procedural history of the case and a closely condensed chronological statement of the facts necessary to decide the appeal. Pa.R.A.P. 2117. The " Statement of the Case" in the Powells' appellate brief consists of a single sentence, indicating only that this is a mortgage ...

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