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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
BENEFICIAL CONSUMER DISCOUNT : IN THE SUPERIOR COURT OF
COMPANY D/B/A BENEFICIAL : PENNSYLVANIA
MORTGAGE COMPANY OF :
PENNSYLVANIA :
:
v. :
:
PAMELA A. VUKMAN, : No. 355 WDA 2014
:
Appellant :
Appeal from the Order Entered February 19, 2014,
in the Court of Common Pleas of Allegheny County
Civil Division at No. GD-06-024554
BEFORE: FORD ELLIOTT, P.J.E., DONOHUE AND ALLEN, JJ.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED APRIL 06, 2015
Appellant, Pamela A. Vukman (“Vukman”), appeals from the order
granting appellee, Beneficial Consumer Discount Company’s (“Beneficial”),
motion to confirm a sheriff’s sale. Finding no error in the issues raised on
appeal, we affirm.
On September 14, 2001, Beneficial extended a loan to Vukman to
purchase a house at 104 Dorf Drive in Pittsburgh, and the loan was secured
by a mortgage. In December of 2005, Vukman defaulted on the loan.
Subsequently, Beneficial filed the requisite Act 6 and Act 91 pre-foreclosure
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notices.1 The Act 91 notice was defective because it failed to inform Vukman
of the option of a face-to-face meeting with Beneficial. See 35 P.S.
§ 1680.403c(b)(1). After failed negotiations between the parties, Beneficial
filed a complaint in foreclosure on October 17, 2006. After further
negotiations, on May 6, 2009, the parties entered a consent judgment. The
trial court memorialized the terms of that consent judgment in its opinion:
It is hereby ORDERED and DECREED that
consent judgment is entered in favor of Plaintiff,
Beneficial Consumer Discount Company
(“Beneficial”) in mortgage foreclosure and against
Defendant, Pamela A. Vukman in the amount of
$217,508.81 together with interest at the rate of
$43.75 per diem for each day after May 6, 2009 and
costs. It is further ORDERED and DECREED that
Defendant Pamela A. Vukman’s (“Vukman”), New
Matter and Counterclaim are hereby DISMISSED
WITH PREJUDICE.
Beneficial agrees to NOT execute on the
Judgment as long as Vukman mets [sic] the
following requirements:
....
If any of the requirements are not met by the
[sic] Vukman, Beneficial may immediately execute
on the Judgment and proceed to Sheriffs Sale.
If all of the above requirements are met by
Vukman, Beneficial will vacate this judgment and
bring Vukman’s loan current with a balance of
$139,000.00 on July 19, 2010.
Vukman agrees to Release and hold harmless
any and all persons and business entities, including
1
Loan Interest and Protection Law, 41 P.S. § 403 (Act 6), and Housing
Finance Agency Law, 35 P.S. §§ 1680.402c, 1680.403c (Act 91).
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but not limited to Beneficial, Beneficial’s employees,
agents and representatives, . . . from any and all
claims set forth in Vukman’s New Matter and
Counterclaim and from any and all claims she
may have had or may have in the future
resulting from the matters brought forth in the above
referenced action.
This agreement has been on record in open
court with all parties present on May 6, 2009 at the
above-captioned docket [number].
Trial court opinion, 5/13/14 at 3 (emphasis added).
Vukman subsequently defaulted again. After pleadings were filed by
both parties, a sheriff’s sale went forward on August 2, 2010. On August 31,
2010, Vukman filed a motion to set aside the sheriff’s sale which argued that
the defective Act 91 notice deprived the trial court of subject matter
jurisdiction. On January 10, 2011, the trial court agreed with Vukman and
entered an order setting aside the sheriff’s sale and dismissing the complaint
in foreclosure.
Beneficial appealed the decision, and while this court affirmed the
decision on January 30, 2012, our supreme court reversed on
September 25, 2013. Beneficial Consumer Discount Co. v. Vukman, 37
A.3d 596 (Pa.Super. 2012), reversed, 77 A.3d 547 (Pa. 2013). The
supreme court found that while the Act 91 notice was indeed defective, it did
not deprive the trial court of subject matter jurisdiction, and remanded the
case.
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On February 14, 2014, Beneficial moved to confirm the sheriff’s sale.
In response, Vukman argued that the trial court had to grant her relief under
Act 70 because of Beneficial’s defective Act 91 notice.2 On February 19,
2014, the court entered an order granting Beneficial’s motion to confirm the
sheriff’s sale. The court found that Vukman had surrendered any Act 70
remedy by the consent judgment. This timely appeal followed.
Although Vukman purports to frame three issues on appeal, she is
effectively raising two issues:
1. Did Vukman waive her Act 70 rights by the
consent judgment?
2. Is waiver of Act 70 rights barred by statute or
public policy?
We will address these issues in the order presented.
Preliminarily, we note that the parties are in conflict as to what
standard we should review the issues on appeal. Beneficial propounds an
abuse of discretion standard as appropriate to a trial court’s decision on a
motion to set aside a sheriff’s sale. See Nationstar Mortgage, LLC v.
Lark, 73 A.3d 1265, 1267 (Pa.Super. 2013). Vukman, on the other hand,
asserts that because our review involves statutory interpretation, our
standard of review is de novo, and our scope of review plenary. See Egan
2
Act 70 is the Homeowner Assistance Settlement Act, 35 P.S. §§ 1681.1 to
1681.7. Section 1681.5 of Act 70 enables the court to remedy violations of
the notice sections of Act 91.
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v. USI Mid-Atlantic, Inc., 92 A.3d 1, 4 (Pa.Super. 2014), appeal
granted, 108 A.3d 30 (Pa. 2015).
We agree with Vukman. Although this appeal is taken from an order
confirming a sheriff’s sale, in the first issue we are called upon to interpret
the terms of a consent judgment. A consent judgment is a contract and is
construed like a contract. Laird v. Clearfield & Mahoning Railway Co.,
846 A.2d 118, 122 (Pa.Super. 2004), reversed on other grounds, 916
A.2d 1091 (Pa. 2007); see also Commonwealth ex rel. Fisher v. Phillip
Morris, Inc., 736 A.2d 693, 698 n.14 (Pa.Cmwlth. 1999), cert. denied,
Sklaroff v. Pennsylvania ex rel. Fisher, 531 U.S. 917 (2000). It is well
settled that where we are called upon to interpret a contract, our standard of
review is de novo and our scope of review is plenary. Newman
Development Group of Pottstown, LLC v. Genuardi’s Family Market,
Inc., 98 A.3d 645, 653 (Pa.Super. 2014). As for the second issue, as noted
by Vukman, an issue involving statutory interpretation carries the identical
standard of review. We now turn to the issues.
We first find that Vukman’s issues are moot because the consent
judgment effectively provided Vukman Act 70 relief. Act 70 provides as
follows:
The following provisions shall apply relating to the
Homeowner’s Emergency Mortgage Assistance
Program:
(1) If there has been a failure to comply with
the notice requirements of sections
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402-C and 403-C of [Act 91], known as
the Housing Finance Agency Law, and
such failure has been properly raised in a
legal action, including an action in
foreclosure, for money due under the
mortgage obligation or to take
possession of the mortgagor’s security,
the court may dismiss the action without
prejudice, order the service of a
corrected notice during the action,
impose a stay on any action or impose
other appropriate remedies in the action
to address the interests, if any, of the
mortgagor who has been prejudiced
thereby.
35 P.S. § 1681.5(1).
The clear purpose of this section is to provide the trial court with
remedial options to forestall a foreclosure action until the mortgagor has
been provided with accurate Act 91 notice. In this regard, the court may:
1) dismiss the foreclosure action outright, but without prejudice to re-file
and provide proper Act 91 notice; 2) order corrected Act 91 notice;
3) impose a stay; or 4) impose any other appropriate remedy to address the
interest of the mortgagor.
We find that the consent judgment effectively provided Act 70 relief.
At the time the consent judgment was entered, Vukman not only was aware
that she had the right to a face-to-face meeting with Beneficial, she had
actually had that meeting because it resulted in the consent judgment.
Furthermore, as a result of the consent judgment, not only was foreclosure
forestalled, it was prevented altogether so long as Vukman complied with
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the payment obligations provided in the consent judgment. Thus, although
Act 70 had not been enacted at the time of the consent judgment, the
consent judgment effectively provided the relief envisioned by Act 70.
Moreover, even if the consent judgment did not serve as Act 70 relief,
Vukman is not entitled to such relief now. In her first issue, Vukman
contends that in the consent judgment she waived only those claims set
forth in her New Matter and Counterclaim, but not any of her defenses, such
as Act 70. We disagree. The language of the consent decree clearly and
unambiguously included a waiver of far more than just the claims Vukman
set forth in her New Matter and Counterclaim: “Vukman agrees to Release
and hold harmless any and all persons and business entities . . . from any
and all claims set forth in Vukman’s New Matter and Counterclaim and from
any and all claims she may have had or may have in the future.” If
we interpreted this language as limiting the waiver to just the claims
contained in the New Matter and Counterclaim, the highlighted language
would be rendered mere surplusage.
When a written contract is clear and unequivocal, its
meaning must be determined by its contents alone.
In construing a contract, we must determine the
intent of the parties and give effect to all of the
provisions therein. An interpretation will not be
given to one part of the contract which will annul
another part of it.
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Gaffer Insurance Co., Ltd. v. Discover Reinsurance Co., 936 A.2d 1109,
1113 (Pa.Super. 2007), quoting Capek v. Devito, 767 A.2d 1047, 1050 (Pa.
2001) (citations and quotation marks omitted).
Vukman’s proposed interpretation does not give effect to the
highlighted language but instead annuls it. Clearly, Vukman intended to
waive any and all claims both past and present. This would include any
claims under Act 70. We also reject Vukman’s argument that she could not
waive an Act 70 claim in the consent judgment because Act 70 had not been
enacted at the time. The language of the consent judgment waives all
claims Vukman may have in the future. Such a waiver clearly anticipates all
future remedies whether known or unknown. There is no merit here.
In her second issue, Vukman asserts that Act 70 cannot be waived
either as a matter of statute or public policy. Vukman’s statutory argument
is predicated upon the no-waiver provision of Act 6:
Notwithstanding any other law, the provisions of this
act may not be waived by any oral or written
agreement executed by any person.
41 P.S. § 408. Vukman then states, “[t]herefore, statutory rights under
Act 70 cannot be waived because Act 6 was incorporated into Act 91 and
Act 91 was amended by Act 70.” (Vukman brief at 8.)
Neither Act 70 nor Act 91 has a no-waiver provision. Act 91 did
incorporate the notice information required under Act 6. See 35 P.S.
§ 1680.403c(b)(1). However, Act 91 did not incorporate the no-waiver
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provision. Moreover, both Act 70 and the notice requirements of Act 91
were enacted after the no-waiver provision of Act 6 was enacted. Obviously,
the Legislature was aware that it had barred waiver under Act 6 and could
also have done so under Act 70 and Act 91, but chose not to do so.
Therefore, we find no statutory bar to waiver of Act 70.
As for public policy prohibiting waiver, Vukman merely quotes a nearly
80-year-old case stating that the then existing usury statute was part of the
public policy of the state and could not be waived by the debtor. While we
agree that usury is against the public policy of this state, we are not
prepared to rule that this public policy extends to the waiver of Act 70 under
the circumstances of this case. We again note that the Legislature could
have barred waiver of Act 70 provisions but chose not to do so. Thus, we
find no public policy barring Vukman’s waiver of Act 70 in the context of this
case.
Accordingly, having found no merit to the issues on appeal, we will
affirm the order below.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/6/2015
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