WILMINGTON TRUST, NATIONAL ASSOCIATION, NOT IN ITS INDIVIDUAL CAPACITY, BUT SOLELY AS TRUSTEE FOR VM TRUST SERIES 3, A DELAWARE STATUTORY TRUST
UNKNOWN HEIRS, SUCCESSORS, ASSIGNS, AND ALL PERSONS, FIRMS OR ASSOCIATIONS CLAIMING RIGHT, TITLE OR INTEREST FROM OR UNDER HELEN A. BROLLEY, DECEASED, AND JAMES M. BROLLEY, (REAL OWNER) APPEAL OF: JAMES M. BROLLEY
from the Order Entered March 9, 2017 In the Court of Common
Pleas of Luzerne County Civil Division at No(s): 2985 of 2012
BEFORE: BOWES, J., DUBOW, J., and MUSMANNO, J.
M. Brolley appeals from the March 9, 2017 in rem
judgment in mortgage foreclosure entered in favor of
Wilmington Trust, National Association, as Trustee for VM
Trust Series 3, a Delaware Statutory Trust
("Mortgagee"). We vacate the judgment and dismiss
the action with prejudice.
following facts are relevant to our review. On February 7,
2003, Helen Brolley executed a mortgage and note in the
principal amount of $65,000, in favor of Wells Fargo Home
Mortgage, Inc., on her property at 150 Laurel Drive, Mountain
Top, Pennsylvania 18707 ("the Property"). The
mortgage was duly recorded with the Recorder of Deeds of
Luzerne County. The note provided for interest at an annual
rate of 8.250%. On November 13, 2003, she transferred her
interest to her son via deed, which was duly recorded. Helen
Brolley died on March 15, 2006.
undisputed that no monthly payments of principal and interest
were made on or after April 1, 2006. On August 8, 2007, Wells
Fargo filed a complaint in mortgage foreclosure against James
Brolley, seeking the amount owing from April 1, 2006, and
each month thereafter. That action was docketed at No. 8805
of 2007. By order dated September 9, 2009, an in rem
summary judgment was entered in favor of Wells Fargo and
against Mr. Brolley. That judgment was subsequently amended on
September 27, 2010, to $99,263.92 plus interest from August
6, 2010 through the date of sale at six percent per year.
There was no sale of the Property.
October 28, 2011, Residential Credit Solutions, Inc., the
servicer of the mortgage, sent notice of intent to foreclose
on the mortgage addressed to the Estate of Helen Brolley at
the Property. That notice recited that the mortgage was in
serious default, no monthly payment having been made since
April 1, 2006. On March 12, 2012, EMC Mortgage LLC commenced
the instant action at No. 2985 of 2012, by filing a complaint
in mortgage foreclosure. Mr. Brolley filed a pro se
answer to the complaint in which he pled that, "a legal
judgment has already been rendered in this matter by Judge
Peter Paul Olszewski." Answer in Mortgage Foreclosure,
5/17/12, at 1.
April 22, 2013, EMC Mortgage Corporation filed a
praecipe to vacate and discontinue the prior
judgment at No. 8805 of 2007 "without prejudice,"
and thereafter the Mortgagee herein filed two motions for
summary judgment, which the court denied. After a bench
trial, the court entered judgment in favor of EMC Mortgage
Brolley filed post-trial motions, which were denied, and a
timely appeal to this Court. In his Rule 1925(b) statement,
he asserted that the trial court erred in failing to consider
the affirmative defenses of collateral estoppel and res
judicata that he raised in his pro se answer.
The trial court, in its Rule 1925(a) opinion, found the
defenses waived as Mr. Brolley failed to plead them as new
matter pursuant to Pa.R.C.P. 1030(a). This Court disagreed,
vacated the judgment, and remanded the matter to the trial
court "for consideration on the merits of [Mr.
Brolley's] affirmative defenses." EMC Mortgage,
LLC v. Unknown Heirs, 153 A.3d 1110 (Pa.Super. 2016)
(unpublished memorandum at 4).
remand, the trial court held a status conference. It issued
an order directing the parties to brief the legal issues and
ordering that "the transcript, evidence, and
stipulations of March 31, 2015" be made part of the new
record. Order, 7/13/16, at 1. The order further stated that
if the parties subsequently determined that they needed to
present additional evidence, they could either stipulate to
that evidence or request a phone conference with the court.
submission of briefs and argument, the trial court ruled that
the defense of res judicata applied to the prior
judgment in mortgage foreclosure at No. 8805 of 2007, but not
to subsequent defaults under the mortgage. Order, 12/8/16.
That same day, the court issued a trial management order
scheduling a non-jury trial for February 3, 2017, and
ordering the parties to submit witness lists, expert reports,
exhibit lists, proposed findings of fact and conclusions of
law, and designating portions of depositions that they
intended to offer.
Brolley filed a motion for reconsideration, alleging that the
trial court erred in not finding the action barred based on
res judicata and collateral estoppel, as well as the
lack of Act 91 notice. The court ruled that the motion was
premature as it had not ruled on the specific dates of
alleged defaults, and that the arguments were more
appropriate for the scheduled trial. See Order,
12/29/16, at 1. The parties complied with the pretrial order,
and the caption was corrected to reflect EMC Mortgage
LLC's earlier assignment of the mortgage to Wilmington
Trust, National Association, not in its Individual Capacity,
but solely as Trustee for VM Trust Series 3, a Delaware
proceeded on February 3, 2017, although Mr. Brolley was not
present. N.T., Bench Trial, 2/3/17, at 7. Mortgagee called
Kimberly Harmstad from Shellpoint Mortgage Servicing, the
servicer of the loan at issue. Id. at 8. She
testified regarding the preparation of a document setting
forth the payment history for the subject loan post-judgment
on September 1, 2010, which was a screenshot marked and
admitted as Plaintiff's Exhibit 9. It showed that the
principal balance as of that date would be $59,859.75 as of
the new default date, for a total payoff of $128,313.64. Mr.
Brolley offered no testimony. Counsel argued, however, that
as a result of the res judicata ruling, the Act 91
notice included with the instant complaint provided incorrect
amounts, and was thus defective. Id. at 29-30. He
urged that the complaint be dismissed on that basis as well.
after the conclusion of the trial, the court issued an order
directing Mr. Brolley to brief his argument that Mortgagee
had failed to comply with the notice requirements of Act 91
in its October 28, 2011 notice. Order, 2/8/17, at 1. Mr.
Brolley complied, representing therein that although he
received Act 91 notice on or about October 28, 2011, the
Mortgagee failed to adduce any evidence that a proper Act 91
notice was sent with the correct deficiencies and amounts
remaining on the mortgage after the court ruled that res