Argued June 25, 2014
Appeal from the Judgment of the Court of Common Pleas, Delaware County, Civil Division, No(s). 12-000866. Before FIZZANO CANNON, J.
Paul A.R. Stewart, Wynnewood, for appellant.
Kimberly A. Bonner, Mechanicsburg, for appellee.
BEFORE: GANTMAN, P.J., PANELLA, and STABILE, JJ. OPINION BY STABILE, J.
Appellant Amy C. Donaghy appeals from the judgment entered September 6, 2013, following the Court of Common Pleas of Delaware County's (trial court) grant of Appellee HSBC Bank, NA as trustee's motion for summary judgment in this in rem mortgage foreclosure action. For the reasons set forth below, we reverse and remand.
On January 31, 2012, Appellee filed a mortgage foreclosure complaint against Appellant in the trial court, requesting judgment against her for " $609,367.58, with interest thereon at the daily per diem amount of $95.25 plus additional late charges, and costs (including escrow advances), additional attorneys' fees and costs." Complaint, 1/31/12, at ¶ 3. In the complaint, Appellee specifically alleged that Appellant failed to make the scheduled payments on the mortgage since August 2011 and consequently, under the terms of the mortgage agreement, the entire loan balance became due and payable. Id. at ¶ 7. Moreover, Appellee alleged that it was not required to provide Appellant a written notice of foreclosure under Act 6 (41 P.S. § 403), because " the original principal balance of the  [m]ortgage [was] more than the original principal balance threshold of the Act." Id. at ¶ 9.
On March 19, 2012, upon Appellee's petition, the trial court entered default judgment against Appellant, because she had failed to answer the complaint. On August 2, 2012, Appellant petitioned the trial court to vacate the default judgment against her, alleging, inter alia, Appellee failed to provide her with notices required under Sections 20 and 22 of the mortgage agreement. Appellee did not answer Appellant's petition to vacate, and on October 24, 2012, the trial court issued an order granting the petition and opening the judgment.
On November 13, 2012, Appellant filed an answer to the complaint, generally denying Appellee's allegations and raising new matter, in which she averred, inter alia, that Appellee failed to provide her notices required under Sections 20 and 22 of the mortgage agreement. Appellee's Answer, 11/13/12, at ¶ ¶ 14-15. On November 29, 2012, Appellee replied to the new matter, specifically denying Appellant's averments.
On February 1, 2013, Appellee moved for summary judgment against Appellant on the basis that Appellant " has failed to raise a genuine issue of material fact in her [a]nswer and [n]ew [m]atter and has effectively admitted all material allegations against her by virtue of her general denials." Motion for Summary Judgment, 2/1/13, at ¶ 16. Additionally, addressing Appellant's averment that Appellee failed to comply with the notice provisions of the mortgage agreement, Appellee asserted it indeed provided to Appellant a notice of intent to foreclose.Id. at ¶ 13.
Objecting to Appellee's motion for summary judgment, Appellant reiterated her argument that Appellee had failed to comply with the notice provisions (Sections 20 and 22) of the mortgage agreement. Moreover, Appellant, for the first time, asserted that Appellee violated federal law, because it had failed to comply with HAMP. Specifically, Appellant claimed that Appellee failed to complete her eligibility evaluation for HAMP. See Appellant's Response to Summary Judgment, 3/4/13, at ¶ 1. Also, relying upon the Making Home Affordable (MHA) handbook, Appellant claimed ...