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U.S. Bank, N.A. v. Hua

Superior Court of Pennsylvania

July 20, 2018

U.S. BANK, N.A. AS TRUSTEE FOR CERTIFICATEHOLDERS OF THE LXS 2007-7N TRUST FUND
v.
TRACY HUA AND CHI HUNG MU, Appellants

          Appeal from the Judgment Entered November 21, 2017 In the Court of Common Pleas of Philadelphia County Civil Division at No(s): No. 140602801

          BEFORE: SHOGAN, J., LAZARUS, J., and DUBOW, J.

          OPINION

          SHOGAN, J.

         Tracy Hua and Chi Hung Mu, Appellants, appeal from the judgment in favor of Appellee, U.S. Bank, N.A. as Trustee for Certificateholders of the LXS 2007-7N Trust Fund ("U.S. Bank"). Upon review, we affirm.

         The trial court set forth the following facts and procedural history:

On June 19, 2014, [U.S. Bank] commenced this action by filing a Complaint against [Appellants]. [U.S. Bank's] Complaint alleged that [Appellants] defaulted on their mortgage and that [U.S. Bank was] owed $178, 857.88, with interest due and owing at a variable rate, which was $11.17 per diem at the time of filing. [U.S. Bank] also alleged that [it was] due other costs and charges collectible under the mortgage, and for the foreclosure and sale of the mortgaged property. [Appellants] filed an Answer and New Matter on July 17, 2014. The case was deferred on June 10, 2015, and again, on October 20, 2015, due to [Appellant] Tracy Hua filing for [C]hapter 13 bankruptcy in the United States Bankruptcy Court for the District of New Jersey (Trenton).
On March 15, 2016, [U.S. Bank] filed a Motion for Summary Judgment. On April 8, 2016, [Appellants] filed a pro se response to [U.S. Bank's] Motion for Summary Judgment. On June 8, 2016, [U.S. Bank's] Motion for Summary Judgment was denied. On September 12, 2016, [U.S. Bank] filed a second Motion for Summary Judgment. [Appellants] filed a pro se response on September 12, 2016. On November 28, 2016, the second Motion for Summary Judgment was denied as premature. On February 10, 2017, [U.S. Bank] filed a Motion to Strike [Appellants'] jury demand. [Appellants], now represented by counsel, filed a response to [U.S. Bank's] Motion to Strike on March 6, 2017. On March 20, 2017, [U.S. Bank's] Motion to Strike was denied. On June 5, 2017, [U.S. Bank] filed a Motion for Summary Judgment. On July 7, 2017, [Appellants] filed a response to [U.S. Bank's] Motion for Summary Judgment. On August 22, 2017, [U.S. Bank's] Motion for Summary Judgment was denied.
On August 22, 2017, a jury trial commenced before the Honorable Kenneth J. Powell Jr. On August 23, 2017, the jury found by a preponderance of the evidence that[: Appellants] executed the Note and Mortgage on March 19, 2007, [Appellants] defaulted under the terms of the subject note by failing to make monthly mortgage loan payments due on February 1, 2011, and all subsequent payment, and that [U.S. Bank], was owed $204, 209.22 plus any additional interest, advances, fees, and costs which accrue pursuant to the terms of the mortgage loan. On September 4, 2017, [Appellants] filed a post-trial motion, which was denied by [the trial court on] September 14, 2017. On September 21, 2017, [Appellants'] Notice of Appeal to the Superior Court was docketed. On September 22, 2017, [the trial court] filed a Rule 1925(b) order, which required [Appellants] to file a concise statement of matters complained of on appeal no later than twenty-one days after the date of the Order.

Amended Trial Court Opinion, 12/7/17, at 1-3.[1]

         The trial court's Pa.R.A.P 1925(b) order required Appellants to file a concise statement on or before October 13, 2017. Amended Trial Court Opinion, 12/7/17, at 3. Appellants failed to comply until October 29, 2017. Id. at 3-4; Appellants' Concise Statement of Matters Complained of on Appeal, 10/29/17.[2] In its Pa.R.A.P. 1925(a) opinion, the trial court did not address the merits of Appellants' issues; rather, it asserted that Appellants waived all issues on appeal by failing to timely file the court-ordered Pa.R.A.P. 1925(b) statement. Amended Trial Court Opinion, 12/7/17, at 1, 3-4.

         Upon preliminary review of the record in this case, this Court observed that judgment had not been entered on the docket as required. Pa.R.A.P. 301, "Requisites for an Appealable Order," provides that "no order of the court shall be appealable until it has been entered upon the appropriate docket in the lower court." Thus, on November 9, 2017, by per curiam order, we stated, in pertinent part:

Pursuant to this Court's policy, the appellant is directed to praecipe the trial court Prothonotary to enter judgment on the decision of the trial court . . . . Upon compliance with Pa.R.A.P. 301, the notice of appeal previously filed in this case will be treated as filed after the entry of judgment. See Pa.R.A.P. 905(a).

Order, 11/9/17. Appellants eventually complied, and judgment was entered on the trial court docket on November 21, 2017. Amended Trial Court Opinion, 12/7/17, at 3.

         On January 5, 2018, U.S. Bank filed a Motion to Quash the Appeal in this Court alleging that Appellants had not timely filed a Pa.R.A.P. 1925(b) statement. Therefore, U.S. Bank averred that Appellants waived all issues on appeal. Appellants did not file an answer to U.S. Bank's Motion to Quash the Appeal. This Court entered the following order: "The motion to quash this appeal is DENIED without prejudice to the moving party's right to again raise this issue . . . in the appellate brief. . . ." Order, 3/8/18 (emphasis in original). When Appellants filed their appellate brief, they did not address the untimeliness of their Pa.R.A.P. 1925(b) statement. Currently, U.S. Bank has renewed the issue in its appellate brief. U.S. Bank's ...


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