J-S26017-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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 :
CORPORATION, D/B/A PHH :
MORTGAGE SERVICES :
:
Appellee : No. 3293 EDA 2018
Appeal from the Order Entered October 11, 2018
In the Court of Common Pleas of Philadelphia County
Civil Division at No(s): No. 180502540
BEFORE: PANELLA, P.J., GANTMAN, P.J.E., and PELLEGRINI*, J.
MEMORANDUM BY GANTMAN, P.J.E.: FILED SEPTEMBER 09, 2019
Appellant, Jebeh Kawah, appeals from the order entered in the
Philadelphia County Court of Common Pleas, which sustained the preliminary
objections of Appellee, PHH Mortgage Corporation, f/k/a Cendant Mortgage
Corporation, d/b/a PHH Mortgage Services (“Bank”), and dismissed
Appellant’s complaint. We affirm.
In its opinion, the trial court fully and correctly set forth the relevant
facts and procedural history of this case. Therefore, we have no need to
restate them.
Appellant raises the following issues for our review:
DID THE TRIAL COURT ERR AS A MATTER OF LAW IN
SUSTAINING [BANK’S] PRELIMINARY OBJECTIONS BASED
ON A MISAPPLICATION OF THE THEORY OF RES JUDICATA?
____________________________________
* Retired Senior Judge assigned to the Superior Court.
J-S26017-19
DID THE TRIAL COURT ERR AS A MATTER OF LAW IN
SUSTAINING [BANK’S] PRELIMINARY OBJECTIONS BASED
ON A MISAPPLICATION OF PA.R.C.P. 233.1(A), WHICH
STATES THAT UPON THE COMMENCEMENT OF ANY ACTION
FILED BY A PRO SE PLAINTIFF IN THE COURT OF COMMON
PLEAS, A DEFENDANT MAY FILE A MOTION TO DISMISS THE
ACTION ON THE BASIS THAT: (A) THE PRO SE PLAINTIFF
IS ALLEGING THE SAME OR RELATED CLAIMS WHICH THE
PRO SE PLAINTIFF RAISED IN A PRIOR ACTION AGAINST
THE SAME OR RELATED DEFENDANTS, AND (B) THESE
CLAIMS HAVE ALREADY BEEN RESOLVED PURSUANT TO A
WRITTEN SETTLEMENT AGREEMENT OR A COURT
PROCEEDING, BY THE TRIAL COURT ERRONEOUSLY
CONCLUDING THAT [THE] PLAINTIFF IS ALLEGING THE
SAME OR RELATED CLAIMS?
DID THE TRIAL COURT ERR BY FAILING TO ADDRESS
[APPELLANT’S] CLAIMS OF PROMISSORY ESTOPPEL[,]
CONSTRUCTIVE FRAUD, TORTIOUS INTERFERENCE WITH
PROSPECTIVE CONTRACTUAL RELATION SIMPLY BECAUSE
THEY WERE RELATED TO A PRIOR CASE BETWEEN THE
PARTIES?
(Appellant’s Brief at 4-5).
The scope and standard of review in examining a challenge to an order
sustaining preliminary objections in the nature of a demurrer are as follows:
Our review of a trial court’s sustaining of preliminary
objections in the nature of a demurrer is plenary. Such
preliminary objections should be sustained only if, assuming
the averments of the complaint to be true, the plaintiff has
failed to assert a legally cognizable cause of action. We will
reverse a trial court’s decision to sustain preliminary
objections only if the trial court has committed an error of
law or an abuse of discretion.
Kramer v. Dunn, 749 A.2d 984, 990 (Pa.Super. 2000) (internal citations
omitted).
All material facts set forth in the complaint as well as all
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J-S26017-19
inferences reasonably [deducible] therefrom are admitted
as true for [the purpose of this review.] The question
presented by the demurrer is whether, on the facts averred,
the law says with certainty that no recovery is possible.
Where a doubt exists as to whether a demurrer should be
sustained, this doubt should be resolved in favor of
overruling it.
Wawa, Inc., v. Alexander J. Litwornia & Associates, 817 A.2d 543, 544
(Pa.Super. 2003) (quoting Price v. Brown, 545 Pa. 216, 221, 680 A.2d 1149,
1151 (1996)). To the extent the questions presented involve an interpretation
of the rules of civil procedure, our standard of review is de novo. Gray v.
PennyMac Corp., 202 A.3d 712, 715 (Pa.Super. 2019).
After a thorough review of the record, the briefs of the parties, the
applicable law, and the well-reasoned opinion of the Honorable Arnold L. New,
we conclude Appellant’s issues merit no relief. The trial court opinion
comprehensively discusses and properly disposes of the questions presented.
(See Trial Court Opinion, filed January 8, 2019, at 4-6) (finding: Appellant’s
current complaint asserts Bank wrongfully foreclosed upon and sold
mortgaged property, despite existence of mortgage modification; previously,
Appellant unsuccessfully raised same or similar argument in her defense to
Fannie Mae’s ejectment action; additionally, alleged existence of mortgage
modification was central to Appellant’s 2013 suit against Bank, in which Bank
prevailed; state and federal courts have previously addressed alleged
violations of federal law, which Appellant raises in current complaint; simply
put, courts have rejected Appellant’s claims on at least three prior occasions;
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to extent Appellant argues Rule 233.1 does not apply, because Bank allegedly
admitted it had mailed loan modification application to Appellant in December
2013, that argument also fails, where receipt, or even submission, of
application is not enforceable contract). The record supports the trial court’s
rationale. Accordingly, we affirm.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/9/19
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)
)
.)
Circulated 08/19/2019 01:59 PM
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NEW, J.
OPINION
January g 2019
For the reasons set forth below, the Court respectfully requests the Superior Court affirm
its October 11, 2018 Order sustaining Defendant's Preliminary Objections and dismissing
Plaintiffs Complaint.
FACTUAL AND PROCEDURAL HISTORY
The instant case arises from Defendant PHH Mortgage Corporation's successful
mortgage foreclosure action against Plaintiff Jebeh Kawah. On January 3, 2005, Plaintiff
executed a Mortgage upon the premises of 12135 Academy Road# 26, Philadelphia, PA.
Plaintiff defaulted on her mortgage on June l , 2008. On May 19, 2009, Defendant filed an
action sounding in mortgage foreclosure; Defendants obtained a default judgment on April 16,
2010 because Plaintiff failed to file an answer to the foreclosure complaint. Following extensive
motion practice, the Property was sold at Sheriff Sale on July 1, 2014 to a third party, Federal
National Mortgage Association ("Fannie Mae"). Plaintiff did not file an appeal in the
foreclosure action.
On September 18, 2014, Fannie Mae filed an ejectment action against Plaintiff. Plaintiff
mounted a vigorous defense to the ejectment action, arguing, in part, that Defendant failed to
complete the mortgage modification process; the trial court ruled in favor of Fannie Mae. The
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Superior Court affirmed the trial court's decision in the ejectment action. See Federal National
Mortgage Assocation v. Kawah, 2016 WL 5266596 (Pa. Super. Ct. July 22, 2016) (unpublished).
In August 2016, Plaintiff was ejected from the property.
In addition to defending the foreclosure action and ejectment action, Plaintiff
affirmatively filed suit against Defendant in the Philadelphia Court of Common Pleas. Plaintiffs
action, filed in November 2013, alleged discrimination under federal laws, violations of the
Home Affordable Modification program ("HAMP") guidelines, violations of Pennsylvania's
Unfair Trade Practices and Consumer Protection Law, and negligence in the processing and/or
reviewing of her loan modification application. Plaintiff sought relief in the form of a
Temporary Restraining Order and Preliminary Injunctive Relief preventing her ejectment from
the property, as well as a rescission of the foreclosure and unspecified monetary damages. An
Amended Complaint, filed in April 2015, alleged discrimination in regard to loan modification in
violation of various federal law, violations of HAMP, "wrongful foreclosure," breach of contract,
breach of the covenant of good faith and fair dealing, violation of the Unfair Trade Practices an
Consumer Protection Law, and "willful, negligent, and continued misrepresentation." The trial
court sustained Defendant's preliminary objections, and the Superior Court, after performing a
comprehensive analysis of Plaintiffs claims, affirmed. See Kawah v. PHH Mortgage
Corporation, 2016 WL 4975046 (Pa. Super. Ct. July 8, 2016) (unpublished).
Ori November 18, 2015, Plaintiff filed an action in the United States Federal Court for the
Eastern District of Pennsylvania seeking injunctive relief in the form of a stay of eviction
proceedings and monetary damages for alleged violations of the Real Estate Settlement and
Procedures Act ("RESP A") and Regulation X. The Eastern District dismissed Plaintiffs case,
finding it lacked jurisdiction. See Kawah v. PHH Mortgage Corp., 2016 WL 7163086 (E.D.P.A.
2
February 2, 2016) (unpublished). In dicta, the Eastern District opined that if it had jurisdiction,
Plaintiffs claims would fail because 1) in order to recover under RESPA, a plaintiff must submit
a complete loss mortgage application package and Plaintiff admits "a 3rd complete loan
modification was not submitted to [Defendant]" and 2) the conduct Plaintiff complains of
occurred prior to Regulation X becoming effective on January 10, 2014 and Regulation X does
not apply retroactively. Id. at *3.
On May 23, 2018, Plaintiff commenced the instant action by Writ of Summons.
Plaintiffs Complaint,. filed July 19, 2018, contains a single count sounding in fraud. Plaintiff
concisely summarized her claim by stating:
From the onset of Kaw ah' s formal complaint against PHH and
Fannie Mae in November 2010, triggered by the ejectment action
of Fannie Mae against Kawah around the same time, PHH in effect
"stood by and watched" as though no agreement had been reached
between PHH and Kawah that was designed to prevent foreclosure,
except when PHH was forced to admit to such agreements during
Kawah's appeals to CFPB. Contrary to PHH's stance in the
actions, PHH and Kawah had entered a TPP agreement, and PHH
had rescinded a sheriffs sale twice and on a third occasion, made
promises to Kawah in writing to work out a solution. Yet PHH
refused to honor any such agreements with Kawah and concealed
the fact that PHH had promised a work out with Kawah until after
Kawah had been ejected from the Property.
Complaint at p. 6, Part II (pages unnumbered in original). Plaintiff alleges that in the previous
matters discussed above, Defendant fraudulently stated no agreements or modifications to
Plaintiffs mortgage existed, yet in September 2016, Defendant admitted it mailed a loan
modification application to Plaintiff on December 30, 2013. Id. at Part II, ,r 2(1.1). According to
Plaintiff, this admission established "the material fact that indeed Kawah and PHH were in effect
in an agreement of sorts that should have prevented Fannie Mae from pursuing ejectment actions
against Kawah and only effectively admitted to having had such an agreement after the final
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judgment of the Pennsylvania Superior Court in 2016 when it erroneously ruled against Kawah
due to this fraudulent concealment by PHH." Id. at Part II, ,r 4.2.
Defendant filed Preliminary Objections arguing 1) Plaintiffs Complaint should be
dismissed as frivolous under Pa.R.C.P. 233.l(a) and 2) Plaintiffs Complaint is barred by the
doctrine of res judicata. Plaintiff opposed Defendant's Preliminary Objections. By Order dated
October 11, 2018, this Court sustained Defendant's Preliminary Objections and dismissed
Plaintiffs Complaint. Plaintiff filed a timely appeal.
In her Rule 1925(b) Concise Statement of Matters Complained of on Appeal, Plaintiff
alleges three errors: 1) res judicata does not apply because the identity of thing sued upon in this
case is different than in her previous cases, 2) Plaintiffs Complaint should not have been
dismissed under Rule 233.l(a) because the activities of Defendant, namely its admission, did not
exist at the time the prior lawsuits were decided, and 3) this court ignored Plaintiffs request for
equitable relief.
ANALYSIS
Rule 233.1 provides:
(a) Upon the commencement of any action filed by a prose
plaintiff in the court of common pleas, a defendant may file a
motion to dismiss the action on the basis that
(1) the prose plaintiff is alleging the same or related claims
which the pro se plaintiff raised in a prior action against the
same or related defendants, and
(2) these claims have already been resolved pursuant to a
written settlement agreement or a court proceeding.
Pa.R.C.P. 233.1. The purpose of Rule 233.1 is to limit "the ability of prose plaintiffs to prolong
litigation through the filing of serial complaints after the claims they allege have been resolved."
Gray v. Buonopane, 53 A.3d 829, 834 (Pa. Super. Ct. 2012); see also Gray v. Pennymac Corp.,
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2019 WL 123311, *3-*4 (Pa. Super. Ct. January 7, 2019). Unlike res judicata or collateral
estoppel, which require technical identity of parties or claims, Rule 233.1 "merely requires that
the parties and the claims raised in the current action be 'related' to those in the prior action and
those prior claims have been 'resolved.'" Id. at 836.
In the case sub Judice, Plaintiffs claims revolve around her assertion that Defendant
acted unscrupulously when it wrongfully foreclosed and sold her property despite the existence
of a mortgage modification. See generally Complaint. Plaintiff raised the same and similar
arguments in her defense to Fannie Mae's ejectment action, and both the trial court and the
Superior Court rejected these arguments. See Federal National Mortgage Assocation v. Kawah,
2016 WL 5266596 (Pa. Super. Ct. July 22, 2016) (unpublished). The alleged existence of a
mortgage modification was also central to Plaintiffs 2013 suit against Defendant. The trial court
rejected Plaintiffs assertion in that case, and the Superior Court affirmed. See Kawah v. PHH
Mortgage Corporation, 2016 WL 4975046 (Pa. Super. Ct. July 8, 2016) (unpublished). Any
alleged violations of federal law raised in Plaintiffs Complaint in this matter were previously
addressed not only by state courts, see Id. at *8-* 10, but also by the Eastern District of
Pennsylvania. Kawah v. PHH Mortgage Corp., 2016 WL 7163086 (E.D.P.A. February 2, 2016)
(unpublished). The applicability of Regulation X to Plaintiffs claim has also previously been
decided by the federal court. Id. Quite simply, the claims raised by Plaintiff in this case have
been considered, and rejected, by the courts on at least three prior occasions.
Plaintiffs attempt to avoid the application of Rule 233.1 by pointing to Defendant's
September 2016 "admission" that it mailed a loan modification application to Plaintiff on
December 30, 2013 is not relevant. According to Plaintiff, Defendant's mailing of a loan
modification application shows, contrary to Defendant's argument in the prior cases, the
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existence of a loan modification agreement. See Complaint at Part II, ,r 4.2. However, the Courts
of this Commonwealth have long held the receipt, or even the submission, of an application is
not an enf9rceable contract because there has not been a meeting of the minds as to the essential
terms of the deal. See� Upsal Street Realty Co. v. Rubin, 192 A. 481, 484 (Pa. 1937) (finding
a lease agreement did not exist despite the tenant's submission of an application, stating "Care
should always be taken not to construe as an agreement letters which the parties intended only as
a preliminary negotiation") (citations and quotations omitted).
Since this Court concluded Plaintiff claims in this case are related to the claims
previously resolved by the Philadelphia Court of Common Pleas, the Pennsylvania Superior
Court, and the Eastern District of Pennsylvania, this Court properly dismissed Plaintiffs case
pursuant to Rule 233.1.
WHEREFORE, this Court respectfully requests the Superior Court affirm its October
11, 2018 Order sustaining Defendant's Preliminary Objections and dismissing Plaintiffs
Complaint.
ARr,JOLD L. NEW, J. -
,,
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Kawah, J. v. PHH Mortgage Corp.
Combined Opinion