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Wells Fargo Bank N.A. v. Spivak

Superior Court of Pennsylvania

October 31, 2014

WELLS FARGO BANK N.A., Appellee
v.
LOUIS I. SPIVAK, Appellant

Submitted May 19, 2014

Appeal from the Order of the Court of Common Pleas, Montgomery County, Civil Division, No(s): 2012-123721. Before MURPHY, J.

Michael H. Gaier, Philadelphia, for Spivak.

Robert W. Cusick, Cherry Hill, NJ, Steven J. Adams, Reading, and Christine M. Kovan, King of Prussia, for Wells Fargo Bank N.A.

BEFORE: GANTMAN, P.J., JENKINS, J., and FITZGERALD, J.[*]

OPINION

Page 8

JENKINS, J.

Louis I. Spivak (" Spivak" ) appeals from the order of the Court of Common Pleas of Montgomery County granting Wells Fargo Bank, N.A.'s (" Wells Fargo" ) motion for summary judgment in a mortgage foreclosure action. We reverse and remand. We conclude that when a residential mortgagee delivers an Act 6 notice, commences a foreclosure action against a mortgagor (" first action" ), discontinues that foreclosure action, and re-files another foreclosure action against a mortgagor for the same premises (" second action" ), the lack of a new notice prior to the second action is fatal to the second action.

On or about March 29, 2007, Spivak secured a mortgage loan from Trident Mortgage Company, L.P. (" Trident" ) in the amount of $223,750.00 (" Loan" ). Plaintiff's Reply to Defendant's New Matter, Exhibit A, Assignment of Mortgage, p. 1 (page number supplied). To evidence his obligation to repay the Loan, Spivak executed a promissory note in favor of Trident, its successors and assigns (the " Note" ). Id. at Exhibit C, Note, pp. 1-2 (page numbers supplied). To secure his obligations under the Note, Spivak executed a purchase money mortgage (the " Mortgage" ) in favor of Mortgage Electronic Registration Systems, Inc. (" MERS" ), as mortgagee and nominee for Trident, its successors and assigns, granting Trident a lien and security interest in the Property. Id. at Exhibit B, Mortgage, generally. On April 19, 2007, MERS recorded the Mortgage in the Office of the Recorder of Deeds for Montgomery County (the " Recorder of Deeds" ).

Page 9

After the Loan closing, on December 14, 2010, MERS sold the Note and assigned the Mortgage to Wells Fargo. See id. at Exhibit A, Assignment of Mortgage, p. 1 (page number supplied). On February 10, 2011, Wells Fargo recorded the assignment of Mortgage with the Recorder of Deeds.

In January 2010, Spivak defaulted on his obligations due under the Note and Mortgage by failing to make timely payments due under the Note on January 1, 2010 and each month thereafter. On October 30, 2010, Wells Fargo sent Spivak the combined notice of intention to foreclose in accordance with the Loan Interest and Protection Law, 41 P.S. § § 101 et seq. (" Act 6" ), and the Homeowner's Emergency Mortgage Assistance Act of 1983, 35 P.S. § § 1680.401c et seq. (" Act 91" ) (the " Notice" or the " 2010 Notice" ). See generally, Plaintiff's Brief in Support of its Motion For Summary Judgment, Exhibit F, Act 91 Notice Take Action to Save Your Home From Foreclosure.[1]

Spivak failed to cure his default under the Note and Mortgage. In December 2010, Wells Fargo filed a foreclosure action, which it subsequently discontinued in 2011 due to mortgage assignment deficiencies. Appellant's Brief at 7.

On May 24, 2012, Wells Fargo commenced the instant action,[2] its second in rem mortgage foreclosure action. On July 16, 2012, Spivak filed an answer with new matter wherein he admitted that he defaulted on his obligations under the Mortgage, and that Wells Fargo served him with the Notice in October 2010 -- approximately two years earlier, before instituting its prior action, and before it had any ownership interest in the Note or the property. See Notes 1 & 2; R.12b. On July 25, 2012, Wells Fargo filed its reply to the new matter.

On April 25, 2013, Wells Fargo filed a motion for summary judgment, attaching a copy of the Notice along with proof of mailing of the Notice and the affidavit of Jeremiah Herberg, Vice President of Loan Documentation at Wells Fargo Bank, N.A. (the " Affidavit" ). Herberg averred that: (a) Spivak had defaulted on his obligations under the Mortgage by failing to make the monthly payments due on January 1, 2010 and thereafter, (b) Wells Fargo provided Spivak with the Notice in 2010, and (c) Spivak had failed to cure the default under the Mortgage or take the necessary steps to avoid foreclosure.

On May 24, 2013,[3] Spivak filed a response to the motion, asserting that the motion should be denied because the Notice: (a) failed to accurately state the amounts due and owing or to properly identify the lender[4] and (b) had not been

Page 10

provided to him " within the prescribed one year period preceding the filing of the foreclosure action." R.186b-187b.[5] Additionally, he argued that he was never provided a notice of intention to foreclose in connection with the pending foreclosure action; rather, the Notice was sent in connection with Wells Fargo's prior foreclosure action. Id.

On September 19, 2013, the trial court granted summary judgment to Wells Fargo and entered an in rem judgment in its favor. On October 14, 2013, Spivak filed a timely notice of appeal. On January 2, 2014, the trial court, without ordering Spivak to file a concise statement of errors complained of on appeal pursuant to Pennsylvania Rule of Appellate Procedure 1925(b), issued its opinion pursuant to Pennsylvania Rule of Appellate Procedure 1925(a).[6]

Spivak now raises the following issue for our review:

I. Whether [], Wells Fargo Bank, which previously sued [Spivak] in a mortgage foreclosure action which was voluntarily withdrawn, should be required to send a new Notice of Intention to Foreclose to [Spivak] prior to filing a second mortgage foreclosure lawsuit against [Spivak].

Appellant's Brief at 4.[7] For the reasons that follow, we find Wells Fargo was required to send a new Act 6 notice to Spivak prior to commencing the ...


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