J-A22040-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
WELLS FARGO BANK NATIONAL : IN THE SUPERIOR COURT OF
ASSOCIATION AS TRUSTEE FOR : PENNSYLVANIA
ABFC 2006-OPT1 TRUST, ASSET :
BACKED FUNDING CORPORATION :
ASSET - BACKED CERTIFICATES, :
SERIES 2006-OPT1 C/O OCWEN :
LOAN SERVICING, LLC :
:
Appellees :
:
v. :
:
DENNIS K. DIXON AND HEATHER E. :
MERRITT :
:
Appellants : No. 83 MDA 2021
Appeal from the Order Entered November 18, 2020
In the Court of Common Pleas of Berks County
Civil Division at No(s): 15-14763
MEMORANDUM PER CURIAM: FILED MARCH 21, 2022
Appellants, Dennis K. Dixon and Heather E. Merritt (husband and wife),
appeal pro se from the order entered in the Berks County Court of Common
Pleas, which denied their “petition to open/strike” the summary judgment
entered in favor of Appellee, Wells Fargo Bank National Association as Trustee
for ABFC 2006-OPT1 Trust, Asset Backed Funding Corporation Asset-Backed
Certificates, Series 2006-OPT1 c/o Ocwen Loan Servicing, LLC (“Wells Fargo”)
in this mortgage foreclosure action. We quash the appeal as untimely.
This Court has previously set forth some of the relevant facts and
procedural history of this appeal as follows:
On May 26, 2006, [Appellant Dixon] executed a promissory
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note for a loan of $252,000. The note was secured by a
mortgage on a property at 639 Old Airport Road in Amity,
Pennsylvania, executed the same day by both [Appellants].
The lender and mortgagee was Option One Mortgage
Corporation (“Option One”). There are two assignments of
the mortgages, both representing a transfer from Option
One under a later name, Sand Canyon Corporation, Appellee
Wells Fargo, National Association as Trustee for ABFC 2006-
OPT1 Trust, Asset Backed Funding Corporation Asset-
Backed Certificates, Series 2006 OPT1: once on October 31,
2013, and again on January 22, 2014. The original
mortgage and both assignments were recorded with the
Berks County Recorder of Deeds. In the assignments, both
assignor and assignee are listed with addresses as “c/o
Ocwen Servicing, LLC.” The officers signing both
assignments were Ocwen employees.
Appellant Dixon (the sole obligor on the note) failed to make
payment due on April 1, 2013, and it appears that no
payments have been made since that time. As a result,
Wells Fargo filed a complaint in mortgage foreclosure on July
6, 2015. After the trial court granted leave to effect service
by posting, Appellants filed preliminary objections which the
trial court overruled and dismissed. Appellants then filed a
responsive pleading entitled “Combined Amended Answer to
Wells Fargo’s Complaint and Combined New Matter (As
affirmative Defenses) Filed as a Matter of Course Under
Pa.R.C.P. 1028(c)(1).”
On November 11, 2015, Appellants filed a 112-page
document with the Record[er] of Deeds for Berks County
titled “Notice of Counterfeit Assignment of Mortgage
Instrument No. 2014006671 Recorded 03/24/2014,
Evidenced by Forged Signature, False Representations, and
Notary Fraud, Submitted for Recording by Terra Abstract
and Stern & Eisenberg, PC (with Proof Attached)”
(“Counterfeit Notice”).
The trial court set a hearing for May 9, 2016, ordering
Appellee to produce the original “wet ink” note and
mortgage. At the hearing, Appellant Merritt did not appear,
and Appellant Dixon, after inspecting the documents, did
not deny his signature appeared on them. The trial court
accordingly entered an order on May 12, 2016, finding that
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Wells Fargo possesses the original note (“Note”) and
mortgage. The trial court also struck Appellants’ “Combined
Amended New Matter (As Affirmative Defenses),” as well as
all allegations within Appellants’ “Combined Amended
Answers” that relate to Appellants’ position that Wells Fargo
lacks standing because of problems with the assignments.
Wells Fargo Bank National Association as Trustee for ABFC 2006-OPT1
Trust v. Dixon, No. 1143 MDA 2017, at 2 (Pa.Super. Sept. 18, 2018)
(unpublished memorandum) (quoting Trial Court Opinion, 9/18/17, at 1-3),
appeal denied, 654 Pa. 545, 216 A.3d 1019 (2019).
On April 12, 2017, Wells Fargo moved for summary judgment. Wells
Fargo attached to its motion an affidavit from Sean Flannery, Contract
Management Coordinator from Ocwen Loan Servicing, LLC. Mr. Flannery
stated in the affidavit that Appellants’ mortgage was assigned, and that
Appellants had failed to make payments since April 2013. Following a hearing,
the trial court granted summary judgment in favor of Wells Fargo on June 19,
2017. The trial court entered an in rem judgment in favor of Wells Fargo for
$318,274.16 (as of June 3, 2016), plus interest. The trial court also struck
Appellants’ “Counterfeit Notice” from the record and declared it void. This
Court affirmed the judgment in Wells Fargo’s favor on September 18, 2018,
and our Supreme Court denied allowance of appeal on July 22, 2019. See id.
On October 7, 2019, Appellants filed a “petition to strike” the summary
judgment entered in favor of Wells Fargo. Wells Fargo filed a response on
October 25, 2019. On November 21, 2019, Appellants filed a supplement to
their petition to strike. The court denied Appellants’ petition to strike on
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November 26, 2019.
Appellants filed another “petition to open/strike judgment” on November
6, 2020. Wells Fargo responded on November 17, 2020. On November 18,
2020, the trial court denied Appellants’ petition. Appellants subsequently filed
a notice of appeal, which was docketed on January 8, 2021. On February 5,
2021, the trial court ordered Appellants to file a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b), which Appellants filed
on February 25, 2021. On April 19, 2021, this Court issued a rule to show
cause why the appeal should not be quashed as untimely. Following
Appellants’ response, this Court discharged the rule and referred the issue to
the merits panel.
Appellants raise the following issues for our review:
Did the [trial] court err by failing to apply the Carpenter v.
Longan, 83 U.S. 271 (1872) precedent to Appellee’s
mortgage foreclosure, which established the common law
rule that it is the note that must be assigned in order for
Appellee to show it held enforceable interests in such note
relative to Appellants, and to prove it had standing to
foreclose against the mortgage?
Since there are no note assignments to [Appellee], is the
judgment against Appellant “void” under the Longan
precedent?
Did the [trial] court deprive Appellants of their real property
absent due process and equal protection of applicable laws
under the U.S. Constitution, by failing to strike the record-
proven “void” judgment entered October 15, 2020 upon
Appellants’ November 6, 2020 “petition to strike ‘void’
judgment,” since the record does not support nor justify
judgment?
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(Appellants’ Brief at 4).
As a preliminary matter, we must address the timeliness of Appellants’
notice of appeal. The Rules of Appellate Procedure require that the notice of
appeal “shall be filed within 30 days after the entry of the order from which
the appeal is taken.” Pa.R.A.P. 903(a). In general, appellate courts do not
have the authority to enlarge the time for filing a notice of appeal. Pa.R.A.P.
105(b). This Court has explained:
The rule provides of no exceptions. In fact, the rule
emphasizes that the filing of a timely notice of appeal is the
sine qua non of a proper appeal from a final order by stating
that “[f]ailure of an appellant to take any step other than
the timely filing of a notice of appeal does not affect the
validity of the appeal. ...” This clearly implies that the only
failure that does affect the validity of the appeal is the
failure to file a timely notice of appeal. It is this failure that
we have no jurisdiction to excuse.
Cubano v. Sheehan, 146 A.3d 791, 794 (Pa.Super. 2016) (emphasis in
original) (internal citation omitted).
“Even when a party has filed an untimely notice of appeal, however,
appellate courts may grant a party equitable relief in the form of an appeal
nunc pro tunc in certain extraordinary circumstances,” including non-negligent
circumstances related to the appellant or his counsel. Criss v. Wise, 566 Pa.
437, 442, 781 A.2d 1156, 1159 (2001). To file an appeal nunc pro tunc on
these grounds, the appellant must show: (1) the appeal was filed late as a
result of non-negligent circumstances related to the appellant or his counsel,
(2) the notice of appeal was filed shortly after the expiration date, and (3) the
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appellee was not prejudiced by the delay. Vietri ex rel. Vietri v. Delaware
Valley High School, 63 A.3d 1281, 1284 (Pa.Super. 2013).
“The exception for allowance of appeal nunc pro tunc in non-negligent
circumstances is meant to apply only in unique and compelling cases in which
the appellant has clearly established that [he] attempted to file an appeal, but
unforeseeable and unavoidable events precluded [him] from actually doing
so.” Criss, supra at 443, 781 A.2d at 1160. “[D]elays in the U.S. mail are
both foreseeable and avoidable[; thus, the] failure to anticipate a potential
delay in the mail [is] not such a non-negligent circumstance for which an
appeal nunc pro tunc may be granted.” Id. at 444, 781 A.2d at 1160.
“[R]egardless of the season, an appellant has a duty to suspect delays when
mailing a notice of appeal.” Id. at 444 n.3, 781 A.2d at 1160 n.3 (reversing
Superior Court’s decision to remand for additional findings of fact related to
timeliness of notice of appeal where Ms. Wise’s counsel deposited notice of
appeal in mailbox on December 22nd and appeal was due at Prothonotary’s
office, approximately 30 miles away, on December 28th; failure to anticipate
potential holiday delay in mailing did not constitute non-negligent
circumstance to warrant grant of nunc pro tunc relief).
Instantly, the trial court denied Appellants’ petition at issue on
November 18, 2020. Therefore, Appellants had 30 days—until Friday,
December 18, 2020—to file a timely notice of appeal. See Pa.R.A.P. 903(a).
In response to this Court’s rule to show cause, Appellants explained the
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untimely filing of their notice of appeal, in pertinent part, as follows:
The trial court’s Order was dated 11-18-20[.] That gave me
until 12-18-20 to file our Notice of Appeal. I spoke with the
Berks County Prothonotary’s office to confirm whether I
could file the Notice in person. They said no due to COVID.
It would have to be mailed. So mail it we did on 12-15-20
via U.S. Certified Mail just in case the mail was not on time
due to COVID, at least we would have preserved the mailing
date. That provided 3-days for the Notice to reach the Berks
County Prothonotary’s Office. (Copies of the green card
front and back, with the certified mail receipt are attached).
The mail historically takes 1 to 2-days and at most 3-days
to move the 18 miles from Douglassville to Reading. But
even if it took 3-days, that still would have put our Notice
of Appeal in at the 30-day timeline for an appeal on 12-18-
20.
But for some reason, the U.S. Postal Service took “19-days”
to deliver our Notice of Appeal to Reading on 01-07-21.
(See the USPS tracking for green card article number
confirming delivery on 01-07-21.) The Berks Prothonotary
time stamped it on 01-08-21 at 10:54 a.m. But didn’t scan
it into the system until 01-11-21 for some reason. (See
cover page of the Notice of Appeal and filing fee receipt
attached.) You will have to ask them why there was a delay
in scanning, and of course no one from the Post Office will
have any explanation for the tardy 19-day delivery to
Reading.
Lastly, the USPS tracking receipt attached, states that our
mailing was “Delivered to Agent for Final Delivery.” We
didn’t ask for any “agent” to be involved in the delivery! I
checked the “Addressee” box on the green card for delivery
instructions. (See attached copy of green card in top right
corner.)
So, since we did in fact do everything within the allotted 30-
day window for filing a Notice of Appeal, and paid both the
Berks Prothonotary and your office for our filing, the U.S.
Postal Service saw to it that it would be a 19-day delay in
delivering it, and involved an “agent” for final delivery no
less, that we did not request on the green card.
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This information should show more than enough “good
cause” for not quashing the appeal, as we acted within the
rules for filing an appeal. But due to outside factors beyond
our control, we should not be punished for those factors
causing an unexplained delay in getting our Notice to
Reading for filing on 12-18-20.
(Response to Rule to Show Cause, filed 4/28/21, at 1-2) (emphasis in
original).
Our review of the relevant tracking information confirms that Appellants’
notice of appeal was mailed on December 15, 2020, via First-Class Mail (with
a Certified Mail Receipt), at 1:17 PM from Douglassville, PA. The notice of
appeal arrived in Reading, PA for “final delivery” on January 7, 2021, at 11:33
AM.
Notwithstanding Appellants’ contention that “historically” the mail takes
anywhere from one to three days to travel from Douglassville to Reading,
according to the United States Postal Service website, “[a]s a result of the
ongoing COVID-19 emergency, certain packages may take longer than usual
to arrive.”1 The COVID-19 alert regarding mailing delays was effective April
17, 2020, so it was in effect at the time Appellants mailed their notice of
____________________________________________
1 (See USPS.COM at https://www.usps.com/ship/first-class-
mail.htm?_gl=1*1xywxow*_ga*MTk4NzY3Njg5OS4xNjQ2NzEyNDE3*_ga_3
NXP3C8S9V*MTY0NjcxMjQxNy4yLjEuMTY0NjcxNDU0My4w) (Last Visited
March 7, 2022).
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appeal.2 Just as the holidays can create mailing delays, Appellants should
have known that the ongoing COVID-19 pandemic might have caused mailing
delays beyond the “historical” one to three-day delivery window. See Criss,
supra. Additionally, the fact that Appellants were not permitted to enter the
courthouse to file their notice of appeal in person due to the COVID-19
pandemic does not change our result. Appellants do not indicate when they
spoke to the Berks County Prothonotary’s Office to inquire about whether they
could deliver the notice of appeal in person, but their response to the rule to
show cause suggests that they waited until the appeal period was only days
from expiring to gather this information. Under these circumstances, we
cannot say that non-negligent circumstances exist to excuse Appellants’
untimely filing. See id. Accordingly, we quash the appeal as untimely.
____________________________________________
2 We note that on March 16, 2020, the Pennsylvania Supreme Court declared
a general, statewide judicial emergency until April 14, 2020, on account of
COVID-19. In re General Statewide Judicial Emergency, ___ Pa. ___,
228 A.3d 1281 (2020). The Order authorized the president judges in the
individual judicial districts to suspend time calculations for the purposes of
time computation relevant to court cases as well as time deadlines. Id. The
Supreme Court extended the judicial emergency in several supplemental
orders, directing that the emergency shall cease on June 1, 2020. See In re
General Statewide Judicial Emergency, ___ Pa. ___, 234 A.3d 408
(2020). Thus, no judicial emergency order was in effect when Appellants filed
their notice of appeal.
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Appeal quashed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/21/2022
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