J-A12032-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
JEBEH KAWAH, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
PHH MORTGAGE CORPORATION, F/K/A
CENDANT MORTGAGE D/B/A PHH
MORTGAGE SERVICES, FEDERAL
NATIONAL MORTGAGE ASSOCIATION,
D/B/A/ FANNIE MAE,
Appellees No. 2096 EDA 2015
Appeal from the Order Entered June 5, 2015
In the Court of Common Pleas of Philadelphia County
Civil Division at No(s): November Term 2013, No. 01923
BEFORE: BENDER, P.J.E., PANELLA, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED JULY 08, 2016
Appellant Jebeh Kawah appeals pro se from the June 5, 2015, Order
which sustained the preliminary objections of PHH Mortgage Corporation
(“PHH”) and the Federal National Mortgage Association (d/b/a “Fannie Mae”)
(collectively “Appellees”), and dismissed Appellant’s amended complaint with
prejudice. We affirm.
The relevant facts and procedural history have been aptly set forth by
the trial court as follows:
On January 3, 2005, Appellant executed a Mortgage upon
the premises of 12135 Academy Road #26, Philadelphia, PA,
19154-2942. The Mortgage was recorded at the Office of the
Recorder of Deeds of Philadelphia County[.]
*Former Justice specially assigned to the Superior Court.
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On June 1, 2008, Appellant defaulted on her Mortgage; by
the terms of the Mortgage, upon default of payment the entire
debt was immediately collectible. See [Appellees’] Preliminary
Objections, ¶¶ 2-3.
On May 19, 2009, PHH filed its Complaint in Mortgage
Foreclosure.
On April 16, 2010, default judgment was entered against
Appellant for her failure to file an Answer to the Complaint in
Mortgage Foreclosure.
The instant case commenced [on] November 18, 2013,
when Appellant filed her complaint pro se and accompanying
petition to proceed in forma pauperis, alleging discrimination
under federal laws, violations of the Home Affordable
Modification Program (“HAMP”) guidelines, violations of the
Pennsylvania Unfair Trade Practices and Consumer Protection
Law, and negligence in the processing and/or reviewing of her
loan modification application. In her complaint, [Appellant]
sought a Temporary Restraining Order and Preliminary
Injunctive Relief preventing her ejectment from 12135 Academy
Road, the rescinding of the foreclosure, and unspecified
monetary damages.
On December 13, 2013, Appellant filed a preliminary
injunction seeking the same relief as that in her Complaint,
which was denied on December 26, 2013, as moot.
On December 26, 2013, a judgment of non pros was
entered for failure to pay the appropriate filing fee; however, the
same day, the case was placed back into active status due to
being non prossed in error.
On February 12, 2014, [Appellees] filed preliminary
objections to [Appellant’s] Complaint, on the grounds that the
Complaint was frivolous litigation pursuant to Pa.R.C.P. 233.1(a)
as the arguments were the same as those raised in her
preliminary injunction and would have been more properly
brought as an Answer and New Matter in the underlying
foreclosure action; and that the Complaint did not conform to
Pa.R.C.P. 1028(a)(3), requiring specificity in pleading, as the
Complaint was “replete with conclusory allegations” and failed to
present facts to support her accusations. See [Appellees’]
Preliminary Objections, ¶¶ 19-22.
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[Appellant] did not respond to [Appellees’] Preliminary
Objections.
On March 12, 2014, [the trial court] entered an order
sustaining [Appellees’] Preliminary Objections and dismissing
[Appellant’s] Complaint [without prejudice].
On March 17, 2014, Appellant filed a timely Motion for
Reconsideration, alleging that Appellees had continued to send
her “contradictory and confusing communication” regarding her
mortgage status despite having admitted to processing errors,
and arguing that a manifest injustice had occurred because she
was a pro se party and had been treated unfairly. See
[Appellant’s] Motion for Reconsideration, ¶¶ 2-3, 6.
On April 8, 2014, [Appellees] filed a timely response to
[Appellant’s] motion, denying [Appellant’s] averments and
noting that [Appellant] failed to file a responsive pleading to
contradict the averments of [Appellees’] Preliminary Objections.
See [Appellees’] Answer to [Appellant’s] Motion for
Reconsideration, ¶¶ 1-6.
On April 14, 2014, prior to th[e] [trial court’s] ruling on the
Motion for Reconsideration, Appellant filed a Notice of Appeal to
the Superior Court.
On April 22, 2014, [the trial court] formally denied
Appellant’s Motion for Reconsideration.
On April 28, 2014, [the trial court] filed its Order pursuant
to Pa.R.A.P. 1925(b), directing Appellant to file a Concise
Statement of Matters Complained of on Appeal within twenty-
one (21) days.
On April 29, 2014, Appellant filed her Statement of Errors
Complained of on Appeal, arguing that [the trial court] erred in
“dismissing [Appellant’s] Complaint due to no response.” See
Appellant’s Concise Statement of Errors Complained of on
Appeal, ¶¶ 1-3.
On July 1, 2014, the Property was sold at [a] Sheriff’s sale
[to Fannie Mae]. See Appellees’ Preliminary Objections, ¶ 18.
On July 25, 2014, [the trial court] issued its opinion
pursuant to Pa.R.A.P. 1925(a).
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On February 27, 2015, Appellees filed a Rule to file a
Complaint.
On April 1, 2015, Appellant filed an Amended Complaint,
raising several counts. Her Complaint averred that Appellees
discriminated against Appellant in regard to loan modification of
the mortgage on the Property in violation of various federal
laws; violations of HAMP; “wrongful foreclosure;” breach of
contract; breach of the covenant of good faith and fair dealing;
violations of Pennsylvania’s Unfair Trade Practices and Consumer
Protection Law; and “willful, negligent, and continued
misrepresentations.”
On April 15, 2015, the Superior Court of Pennsylvania
quashed Appellant’s April 14, 2014, appeal [on the basis it was
taken from a non-appealable interlocutory order].
On May 13, 2015, Appellees filed Preliminary Objections to
Appellant’s [Amended] Complaint, averring that Appellant’s
Amended Complaint should be dismissed pursuant to Pa.R.C.P.
233.1 as frivolous litigation [based on the theory of res
judicata];. . .pursuant to Pa.R.C.P. 1028(a)(3) as the Complaint
lacked sufficient specificity; and. . .pursuant to Pa.R.C.P.
1028(a)(4) [since the Complaint failed to state a cause of
action].
On June 5, 2015, [the trial court] sustained Appellees’
Preliminary Objections and dismissed Appellant’s Amended
Complaint with prejudice.
On June 7, 2015, [despite the dismissal of her Amended
Complaint with prejudice,] Appellant filed a Second Amended
Complaint, averring that she did not receive electronic notice of
the Preliminary Objections in accordance with Pa.R.C.P. 205.4.
On June 10, 2015, Appellees filed a Motion to Strike
Appellant’s [Second] Amended Complaint, averring that
Appellant’s [Second] Amended Complaint was untimely, filed not
only after the response was due, but after she received notice of
[the trial court’s] June 5, 2015, Order granting Appellees’
Preliminary Objections, [ ] that service of the objections had
been completed[,] and that Appellant had not raised sufficient
facts to rebut the presumption of proper service.
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On June 12, 2015, [before the trial court ruled on
Appellees’ Motion to Strike], Appellant filed a Motion for
Reconsideration [of the June 5, 2015, Order]. [The Motion] did
not raise any additional facts or law that would require granting
said Motion, [and it was summarily denied]. Appellant argued
that as Appellees “filed multiple Praecipes to Discontinue and
End Matter. . .any subsequent foreclosure action should have
been initiated with appropriate notice to [Appellant].” However,
an examination of the docket in Appellees’ Mortgage Foreclosure
case against Appellant reflects that a Judgment by Default was
entered April 16, 2010; that a sheriff’s sale was held in 2010 but
set aside by Appellees on April 18, 2011; that the Property was
resold on July 1, 2014; and that a Satisfaction of Judgment and
Praecipe to Discontinue were then filed on April 23, 2015.
Despite Appellant’s averments, none of this activity amounts to
the creation of a “subsequent foreclosure notice.”
On June 25, 2014, Appellant filed a timely Notice of Appeal
to the Superior Court.
On June 29, 2015, [the trial court] issued its Order
pursuant to Pa.R.A.P. 1925(b), directing Appellant to file her
Concise Statement of Matters Complained of on Appeal within
twenty-one (21) days.
On July 15, 2015, Appellant filed her Concise Statement of
Matters Complained of on Appeal, averring that [the trial court]
erred: in sustaining Appellees’ Preliminary Objections and
misapplied the theory of res judicata because the case is based
upon a “different transaction—namely the TPP (Trial Period Plan)
agreement;” in concluding that Appellant failed to state a
sufficient cause of action; and in dismissing Appellant’s Motion
for Reconsideration “without regard to the Notice deficiency of all
of [Appellees’] subsequent foreclosure actions against
[Appellant].”
[On July 24, 2015, the trial court filed a responsive
Pa.R.A.P. 1925(a) Opinion.]
Trial Court Pa.R.A.P. 1925(a) Opinion, filed 7/24/15, at 1-5 (footnotes and
bold omitted).
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In its Opinion, the trial court explained it dismissed Appellant’s
amended complaint with prejudice based on the application of the doctrine
of res judicata. Moreover, the trial court indicated that, even if Appellant’s
claims were not barred by res judicata, her amended complaint failed to
state a cause of action for which relief could be granted such that dismissal
was proper. Finally, the trial court found meritless Appellant’s claim that the
court abused its discretion in failing to grant Appellant’s June 12, 2015,
motion for reconsideration.
Our standard of review of a trial court ruling sustaining preliminary
objections is as follows:
[We must] determine whether the trial court committed an
error of law. When considering the appropriateness of a ruling on
preliminary objections, the appellate court must apply the same
standard as the trial court.
Preliminary objections in the nature of a demurrer test the
legal sufficiency of the complaint. When considering preliminary
objections, all material facts set forth in the challenged pleadings
are admitted as true, as well as all inferences reasonably
deducible therefrom. Preliminary objections which seek the
dismissal of a cause of action should be sustained only in cases
in which it is clear and free from doubt that the pleader will be
unable to prove facts legally sufficient to establish the right to
relief. If any doubt exists as to whether a demurrer should be
sustained, it should be resolved in favor of overruling the
preliminary objections.
Majorsky v. Douglas, 58 A.3d 1250, 1268-69 (Pa.Super. 2012) (quotation
omitted).
On appeal, Appellant has presented this Court with a largely
incomprehensible, undeveloped argument. For instance, as it pertains to the
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trial court dismissing her amended complaint on the basis of res judicata,
Appellant’s entire argument with regard thereto is found in the “Summary of
Argument” portion of her appellate brief, wherein she states:
Appellees maintain [Appellant’s] claims are barred by res
judicata, but the facts of the case indicate otherwise: the bases
of [Appellant’s] claims could not have been brought up during
any prior adjudications since they were undisclosed during the
prior processes. In essence, PHH’s actions in breaching its
contract with [Appellant] are so fraught with previously
undisclosed misrepresentation as to constitute constructive fraud
based on their concealment of material fact and [Appellant’s]
justifiable reliance on PHH’s misrepresentations.
Appellant’s Brief, Summary of Argument.1
Appellant’s conclusory, undeveloped paragraph lacking citation to
authority is insufficient to permit meaningful review of whether the trial
court erred in dismissing Appellant’s amended complaint on the basis of res
judicata. Accordingly, although we are not insensitive to the fact Appellant
is proceeding pro se, we decline to address this issue further. See Wilkins
v. Marsico, 903 A.2d 1281, 1284 (Pa.Super. 2006) (holding that, although
this Court is willing to liberally construe materials filed by a pro se litigant,
pro se status confers no special benefit upon the appellant);
Commonwealth v. Miller, 721 A.2d 1121, 1124 (Pa.Super. 1998) (“When
issues are not properly raised and developed in briefs,. . .a court will not
consider the merits thereof.”) (citations omitted).
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1
Appellant has not paginated her brief.
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With regard to whether the trial court properly sustained the
preliminary objections and dismissed Appellant’s amended complaint on the
basis it failed to state a cause of action, to the extent Appellant’s brief
presents a cogent argument, we affirm on the basis of the well-reasoned
opinion authored by the Honorable Nina Wright Padilla. See Trial Court
Pa.R.A.P. 1925(a) Opinion, filed 7/24/15. Specifically, (1) as to Appellant’s
claim Appellees violated HAMP, the trial court concluded Appellant’s claim
failed as a matter of law since “Appellant’s raising of Appellees’
noncompliance with HAMP is futile when Appellant has no right to enforce
compliance[,]” Id. at 9 (quoting HSBC Bank, NA v. Donaghy, 101 A.3d
129, 137 (Pa.Super. 2014));2 (2) as to Appellant’s claim she was subjected
to a “wrongful foreclosure,” the trial court concluded Appellant’s claim failed
since she was “barred from re-litigating claims related to the
foreclosure...[and] waived her right to appeal the foreclosure[,]” Id.; (3) as
to Appellant’s claim of breach of contract that the HAMP trial modification
plan offered to Appellant constituted a contract and Appellees breached the
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2
As this Court indicated in Donaghy:
[I]t is well-settled that borrowers do not have a private federal
right of action under HAMP, a federal program created pursuant
to the Emergency Economic Stabilization Act. The primary
reason upon which courts have relied to deny borrowers a right
of action is that borrowers are not intended third party
beneficiaries of HAMP contracts between the federal government
and lenders.
Donaghy, 101 A.3d at 136 (citations omitted).
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contract by declining to modify her loan, the trial court concluded this was
an attempt to assert a private cause of action under HAMP and “Appellant
cannot bring a private cause of action for alleged violations of HAMP[,]” Id.;
(4) as to Appellant’s claim Appellees violated Pennsylvania’s Unfair Trade
Practices and Consumer Protection Law (“UTPCPL”), 73 P.S. § 201-1 et seq.,
the trial court noted Appellant presented “conclusory statements of law,
[and] she does not identify how Appellee[s] violated any practices of the
UTPCPL[,]”3 Id. at 10; (5) as to Appellant’s claim of willful, negligent, and
continued misrepresentations by Appellees, the trial court concluded
Appellant’s claim failed as a matter of law since Appellant did not proffer
facts indicating that Appellees owed a duty of care to her, Id.4, 5
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3
For a discussion of the elements of a claim under the UTPCPL, see Kern v.
Lehigh Valley Hospital, Inc., 108 A.3d 1281 (Pa.Super. 2015).
4
Moreover, as to any suggestion made by Appellant regarding intentional
misrepresentation, the trial court noted the claim failed as a matter of law
since “Appellant has not and cannot prove that any alleged misstatements
were made falsely with knowledge of the falsity or recklessness as to
whether it is true or false.” Trial Court Pa.R.A.P. 1925(a) Opinion, filed
7/24/15, at 11.
5
In its Opinion, the trial court also discussed the reasons it sustained
Appellees’ preliminary objections regarding Appellant’s claims that Appellees
discriminated against her in regard to the loan modification of the mortgage
in violation of the Equal Credit Opportunity Act, 15 U.S.C. § 1691 et seq.,
the Fair Housing Act, 42 U.S.C. § 3605, and Appellant’s equal rights under
42 U.S.C. § 1981. See Trial Court Pa.R.A.P. 1925(a) Opinion, filed 7/24/15,
at 7-8. Appellant has presented no argument concerning the trial court’s
sustaining of Appellees’ preliminary objections as to these claims.
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Finally, as to Appellant’s claim the trial court erred in denying her
motion for reconsideration, the trial court noted “[the motion] did not raise
any additional facts or law that would require granting said [m]otion, [and it
was summarily denied].” Id. at 4. We find no abuse of discretion in this
regard. See Cohen v. Furin, 946 A.2d 125 (Pa.Super. 2008) (noting
review of motion for reconsideration is subject to an abuse of discretion
standard).6
For all of the foregoing reasons, we affirm. We direct the parties to
attach a copy of the trial court opinion in the event of further proceedings.
Affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/8/2016
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6
Appellant presents in her brief various allegations related to her ejectment.
However, an appeal related to the ejectment action has been listed in this
Court at a separate docket number, 2704 EDA 2015, and a panel of this
Court shall address issues related thereto in a separate decision.
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