J-A15002-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37
CITIZENS BANK, N.A. F/K/A RBS : IN THE SUPERIOR COURT OF
CITIZENS, N.A. : PENNSYLVANIA
:
:
v. :
:
:
JEFFREY R. SMITH AND TRACEY L. :
SMITH : No. 1346 WDA 2022
:
Appellants :
Appeal from the Order Entered October 21, 2022
In the Court of Common Pleas of Allegheny County
Civil Division at No. MG-19-000380
BEFORE: MURRAY, J., McLAUGHLIN, J., and PELLEGRINI.*
MEMORANDUM BY MURRAY, J.: FILED: JULY 14, 2023
Husband and wife, Jeffrey R. Smith and Tracey L. Smith (Appellants),
appeal from the order denying their petition to set aside sheriff’s sale. For the
reasons discussed below, we affirm.
The trial court recounted the procedural history of this case as follows:
… Citizens Bank, N.A. f/k/a RBS Citizens, N.A. (the “Bank”)
filed the Complaint in Mortgage Foreclosure on March 29, 2019.
According to the Complaint, the subject mortgage on the Property
was dated November 17, 20[11,] and was recorded on November
23, 2011. The original principal amount was $102,400.00 payable
in monthly installments with an interest rate of 4.250%.
[Appellants] executed a modification of the note and mortgage on
January 18, 2017, which modified the principal balance of the loan
to $78,186.74 and changed the interest rate.
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* Retired Senior Judge assigned to the Superior Court.
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Alleging default of the loan, the Bank caused [Appellants] to
be served with the Complaint on or about on November 7, 2019.
A default judgment was subsequently entered against
[Appellants] on December 16, 2019[,] in the amount of
$87,139.14. On January 29, 2020, the Bank filed an Affidavit
Pursuant to Rule 3129.1 and a Praecipe for Writ of Execution. A
sheriff[’]s sale was originally scheduled for April 6, 2020, but
[several] postponements primarily due to the COVID-19 pandemic
followed.
Trial Court Opinion, 1/12/23, at 2 (record citations omitted).
The trial court further explained Appellants’ efforts to prevent the
sheriff’s sale:
On or about March 25, 2021, [Appellants] submitted a
completed loss mitigation package to the Bank. (See, Answer [¶
¶] 11, 56 and [the Bank’s] Exhibits B and C). By letter dated April
20, 2021, the Bank provided the reasons [Appellants] were not
approved for either of two programs, the Payment Deferral
[P]rogram and the Flex Modification Program[,] based on their
completed application. (See, [Bank] Exhibit B). [Appellants]
appealed their denial, and by letter dated June 10, 2021, the Bank
denied their appeal. (See, [Bank] Exhibit C).
[Appellants’] position largely overlooks the initial March 25,
2021 application. Instead, [Appellants] focus on their efforts to
submit a second application. By email dated July 1, 2021[,] Mrs.
Smith inquired of Sarah Kennedy, Esq. (“Kennedy”) and Maryann
Leventhal (“Leventhal”), of the outside legal counsel firm for the
Bank, whether the Property would be sold on July 6, 2021[,] and
indicated that she “gave [sic] another loan modification to do.”
(See, [Appellants’] Exhibit 2). Kennedy replied by email that the
sale had been postponed to September 7, 2021. (See, [Bank]
Exhibit D).
Beginning on August 3, 2021, [Appellants] started
communicating with Matthew Camara (“Camara”), Senior
Customer Advocate at Citizen’s Bank, who promised to assist
[Appellants] in connection with the mortgage modification. (See,
Petition ¶¶ 14-15; Answer ¶¶ 14-15; [Appellants’] Exhibits).
[Appellants] alleged that, following a period of delay in receiving
the correct paperwork from the Bank, they received a loss
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mitigation form on August 13, 2021[,] and sent a complete packet
on August 23, 2021 to the Loss Mitigation Department located in
Glen Allen, VA via regular U.S. Mail. (See, Petition [¶¶]17-19).
The Bank specifically denies that [Appellants] submitted a loss
mitigation package in August of 2021. (See, Answer ¶ 18). Both
parties agree that the Bank had no record of an August 2021
application. (See, Petition [¶] 23; Answer [¶¶] 18, 23).
The parties also agree that [Appellants] mailed a loss
mitigation package on October 25, 2021. (See, Petition [¶] 30;
Answer [¶] 30; [Appellants’] Exhibit 5). The evidence of record
supports a finding that the October 2021 package was received by
the Bank on October 29, 2021, and the parties agree receipt was
38 days before the scheduled sheriff[’]s sale, which had then been
postponed to December 6, 2021. (See, Petition [¶] 32 and
Answer [¶¶] 31-32).
The parties dispute that the October 29, 2021 loss
mitigation application was a complete package. Each of
[Appellants] attached one of their most recent paystubs to this
application. (See, cross-listed [Appellants’] Exhibit 9 and [Bank]
Exhibit F). While the Bank disputes that Mrs. Smith submitted her
most recent paystub because she would have had a bi-weekly stub
dated October 22nd, it is not unreasonable that she would not
have had that in hand when [Appellants] mailed the package on
October 25th. (See, Answer [¶] 34). Mrs. Smith verified that
she did not have the stub in her possession as of the date of
mailing the package. (See, [Appellants’]/[Bank] Exhibit G
(Answer to Interrogatory No. 7)). Mrs. Smith’s failure to provide
an October 22 paystub was not fatal on its own as to whether the
loss mitigation package was complete when mailed on October 25,
2021. However, the Bank also notified [Appellants] that Mr.
Smith’s [paystub] did not provide sufficient information in the
form of pay periods and frequency. The Bank requested that
[Appellants] send paystubs from the last 30 days for Mr. Smith
and all paystubs after October 2, 2021, for Mrs. Smith. (See,
[Appellants’] Exhibit 8a).
By automated email dated November 1, 2021[,] with the
subject “Missing Items”, the Bank notified [Appellants] that there
were deficiencies with the application that could be corrected
through the on-line portal. (See, [Appellants’] Exhibit 6). Mrs.
Smith forwarded this email to Camara on November 2, 2021,
expressing frustration. Also on November 2, 2021, the Bank
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issued a letter RE: Notice of Incomplete Application for Home
Assistance Program, which was not post-marked until November
11, 2022. (See, [Appellants’] Exhibits 8a and 8b). This letter
expressly states, “Time is of the Essence: Failure to submit a
completed loss mitigation application more than 37 days before a
scheduled foreclosure sale date may result in your request for loss
mitigation not being reviewed.” [Appellants] uploaded the
required documents on or about November 16, 2021, which was
only 20 days before the scheduled sale. (See, [Bank’s] Exhibit G,
Answer to Interrogatory No. 5.)
Trial Court Opinion, 1/12/23, at 5-7 (footnote omitted).
The Bank sold the property at sheriff’s sale on December 6, 2021. On
March 8, 2022, Appellants filed a petition to set aside the sheriff’s sale.
Following discovery and oral argument, the trial court entered the order
denying Appellants’ petition. This timely appeal followed.1
Appellants present the following questions for review:
1. Did the [trial] court abuse its discretion when it
concluded, without factual support, that Appellants had not
submitted a second complete loss mitigation application more
than 37 days in advance of a scheduled foreclosure sale?
2. Did the [trial] court abuse its discretion when it concluded
that [the Bank] was not legally obliged to consider Appellants’
October 29, 2021 loss mitigation application, even though [the
Bank] instructed Appellants repeatedly over the course of months
to submit a second loss mitigation application and provided
material support in aid of the application?
3. Did the [trial] court abuse its discretion when it concluded
that there was no equitable basis for granting Appellants’ Petition
to Set Aside Sheriff’s Sale?
Appellants’ Brief at 2-3.
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1 Appellants and the trial court have complied with Pa.R.A.P. 1925.
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Pennsylvania Rule of Civil Procedure 31322 provides:
Setting Aside Sale
Upon petition of any party in interest before delivery of … the
sheriff’s deed to real property, the court may, upon proper cause
shown, set aside the sale and order a resale or enter any other
order which may be just and proper under the circumstances.
Pa.R.C.P. 3132.
This Court has explained the purpose of a sheriff’s sale in mortgage
foreclosure
is to realize out of the land, the debt, interest, and costs which
are due, or have accrued to, the judgment creditor. A petition to
set aside a sheriff’s sale is grounded in equitable principles and is
addressed to the sound discretion of the hearing court. The
burden of proving circumstances warranting the exercise of the
court’s equitable powers rests on the petitioner[.] … When
reviewing a trial court’s ruling on a petition to set aside a sheriff’s
sale, we recognize that the court’s ruling is a discretionary one,
and it will not be reversed on appeal unless there is a clear abuse
of that discretion.
An abuse of discretion is not merely an error of judgment.
Furthermore, it is insufficient to persuade the appellate court that
it might have reached a different conclusion if, in the first place,
charged with the duty imposed on the trial court.
An abuse of discretion exists when the trial court has
rendered a judgment that is manifestly unreasonable, arbitrary,
or capricious, has failed to apply the law, or was motivated by
partiality, prejudice, bias, or ill will. Where the record adequately
supports the trial court’s reasons and factual basis, the court did
not abuse its discretion.
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2 Pennsylvania Rule of Civil Procedure 3181(a)(8) makes Rule 3132 applicable
to mortgage foreclosure actions.
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Wells Fargo Bank, N.A. v. Ferreri, 199 A.3d 892, 895-96 (Pa. Super. 2018)
(internal citations omitted). Sheriff’s sales have been set aside where the
petitioner challenges the validity of the sale proceedings; there is a deficiency
pertaining to the notice of the sale; or misconduct occurs in the bidding
process. See Blue Ball Nat’l Bank v. Balmer, 810 A.2d 164, 166 (Pa.
Super. 2002).
The instant appeal concerns Appellants’ loss mitigation applications
submitted pursuant to the Real Estate Settlement Procedures Act of 1974
(RESPA), 12 U.S.C. §§ 2601-2617. The implementing regulations for RESPA
state:
§ 1024.41 Loss mitigation procedures.
….
(g) Prohibition on foreclosure sale. If a borrower submits a
complete loss mitigation application after a servicer has made
the first notice or filing required by applicable law for any judicial
or non-judicial foreclosure process but more than 37 days
before a foreclosure sale, a servicer shall not move for
foreclosure judgment or order of sale, or conduct a foreclosure
sale, unless:
(1) The servicer has sent the borrower a notice
pursuant to paragraph (c)(1)(ii) of this section that
the borrower is not eligible for any loss mitigation
option and the appeal process in paragraph (h) of this
section is not applicable, the borrower has not
requested an appeal within the applicable time period
for requesting an appeal, or the borrower’s appeal has
been denied;
(2) The borrower rejects all loss mitigation options
offered by the servicer; or
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(3) The borrower fails to perform under an agreement
on a loss mitigation option.
12 C.F.R. § 1024.41(g) (emphases added).
Duplicative applications are treated differently:
(i) Duplicative requests. A servicer must comply with the
requirements of this section for a borrower’s loss mitigation
application, unless the servicer has previously complied with
the requirements of this section for a complete loss
mitigation application submitted by the borrower and the
borrower has been delinquent at all times since submitting
the prior complete application.
12 C.F.R. § 1024.41(i) (emphasis added).
In their first issue, Appellants argue the trial court erred in finding
Appellants had not submitted a complete loss mitigation application more than
37 days in advance of the sheriff’s sale. Appellants’ Brief at 7. Appellants
“dispute whether or not Appellants’ October 29, 2021 loss mitigation
application was, in fact, complete.” Id. Appellants maintain the Bank solely
alleged that the application did not contain Mrs. Smith’s most recent paystub.3
Id. Appellants assert they were not required to supply the most recent
paystubs because they supplied their two most recent bank statements. Id.
at 8-9. Appellants acknowledge Mrs. Smith submitted a paystub that was not
her most recent paystub, explaining that it was the most current paystub in
her possession when Appellants submitted the application. Id. at n.1.
____________________________________________
3This statement is incorrect. In its Notice of Incomplete Application, the Bank
also sought copies of Jeffrey Smith’s paystubs for the past 30 days. Notice of
Incomplete Application, 11/2/21, at 1 (unnumbered).
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We first consider whether Appellants have preserved this issue.
An appellant’s concise statement must identify the errors with
sufficient specificity for the trial court to identify and
address the issues the appellant wishes to raise on appeal.
This Court explained … that Pa.R.A.P. 1925 is a crucial component
of the appellate process because it allows the trial court to identify
and focus on those issues the parties plan to raise on appeal. We
further determined that a [c]oncise [s]tatement which is too
vague to allow the court to identify the issues raised on appeal is
the functional equivalent to no Concise Statement at all. Even if
the trial court correctly guesses the issues Appellant[] raise[s] on
appeal and writes an opinion pursuant to that supposition the
issues are still waived. …
Our law makes clear that Pa.R.A.P. 1925(b) is not satisfied by
simply filing any statement. Rather, the statement must … permit
the trial court to understand the specific issues being raised on
appeal.
Satiro v. Maninno, 237 A.3d 1145, 1150-51 (Pa. Super. 2020) (internal
quotation marks and citations omitted, emphasis added).
Appellants’ Rule 1925(b) statement reads:
Did the [trial] court err when it concluded [Appellants] had not
submitted a second complete loss mitigation application to [the
Bank] prior to December 6, 2021, when [Appellants’] certified mail
receipt tracking history shows that the application arrived on
October 29, 2021, and a copy of their original application includes
all the information required by [the Bank’s] application form?
Concise Statement of Errors, 12/2/22, at 1. Appellants failed to indicate they
were challenging the court’s finding that their application was incomplete due
to Mrs. Smith’s failure to include her most recent paystub, where Appellants
submitted their two most recent bank statements. Appellants also failed to
raise this claim in their petition to set aside sheriff’s sale and brief in support
of the petition. Rather, they claimed the application was complete because
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Mrs. Smith provided the most recent paystub in her possession. Petition to
Set Aside Sheriff’s Sale, 3/8/22, at 5-7; Brief in Support, 3/8/22, at 2-3.
Although Appellants raised the issue in a supplemental brief filed more than
four months later, they failed to raise it in their concise statement.
Supplemental Brief in Support, 7/18/22, at 2-4.
Because Appellants did not properly identify the issue in their concise
statement, the trial court did not address it in its opinion. See Trial Court
Opinion, 1/12/23, at 9-10. Accordingly, we are constrained to find Appellants
waived the issue. Satiro, 237 A.3d 1150-51; see also Provident Nat. Bank,
N.A. v. Song, 832 A.2d 1077, 1080-81 (Pa. Super. 2003) (affirming trial
court’s finding of waiver where trial court was unable to discern many issues
because Appellants filed a vague 1925(b) statement and failed to raise issues
in their petition to set aside sheriff’s sale).
In the absence of waiver, we would agree with the trial court, which
found:
While [Appellants’] focus on the circumstances surrounding the
second application, the fact that a first application was completed
and fully vetted cannot be overlooked. At the time of delivery of
the loss mitigation application on October 29, 2021, the Bank had
previously completed review of a complete loss mitigation
application package earlier in the year. This application was
denied, appealed by [Appellants] to the Bank, and finally denied.
This met the Bank’s statutory requirement to review one loss
mitigation package received more than 37 days before a
foreclosure sale under 12 C.F.R. § 1024.41(g). Pursuant to 12
C.F.R. § 1024.41(i), a servicer is not required to meet the
requirements of section 1024.41 if the request is duplicative, the
servicer already complied with those requirements previously, and
the borrower has remained delinquent since the first request.
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Based on this language, [the trial c]ourt concluded that the
Bank complied with its regulatory obligations in finalizing review
of the first application and that the Bank was not required to
review the second package.
Trial Court Opinion, 1/12/23, at 9. Accordingly, we would conclude that the
trial court did not clearly abuse its discretion. Wells Fargo Bank, 199 A.3d
at 895-96. Appellants’ first issue does not merit relief.
In their second issue, Appellants contend the Bank “waived any right it
may have had to refuse to evaluate Appellants’ October 29, 2021, loss
mitigation application by actively soliciting and encouraging its submission.”
Appellants’ Brief at 9; see id. at 9-12. Appellants argue the Bank “initiated
phone contact” with them, “actively” solicited the duplicative application, and
“acted in direct opposition to its right to refuse” to consider a duplicative
application. Id. at 11. Thus, Appellants claim the Bank “relinquished its right
to refuse to evaluate” Appellants’ duplicative application. Id.
Appellants do not provide factual support for their claim that the Bank
initiated contact, actively solicited the duplicative application, or “acted in
direct opposition to its right to refuse.” Appellants’ Brief at 11. We have
reviewed the portions of the record Appellants cite to support their claim. See
Appellants’ Brief at 11 (citing to Petition to Set Aside Sheriff’s Sale, 3/8/22, at
2-4; Email from Camara to Mrs. Smith, 8/3/21, at 1 (unnumbered); United
States Postal Service Receipt, 10/25/21, at 1 (unnumbered); and Answer to
Petition to Set Aside Sheriff’s Sale, 3/30/22, at 3 (unnumbered)). The record
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does not support Appellants’ account of the Bank’s actions. We remind
Appellants that it is not our role find evidence to support an undeveloped
claim. See Wolf v. Santiago, 230 A.3d 394, 401 (Pa. Super. 2020).
Moreover, Appellants provide no pertinent legal support for this issue.
While they rely on First Nat’l Bank of Milford v. Dept. of Banking, 286
A.2d 480, 482 (Pa. Cmwlth. 1972), the reliance is misplaced. We have
cautioned that this Court “is not bound by the decisions of the Commonwealth
Court.” IRS v. Blue Mtn. Ministry, Inc., 265 A.3d 824, 828 n.3 (Pa. Super.
2021) (citation omitted). Also, the case is not persuasive.
In First Nat’l Bank, a bank applied to the Department of Banking,
seeking to open a branch in Milford, Pennsylvania. First Nat’l Bank, 286
A.2d at 481. A bank already in Milford opposed the application. Id. The
Department of Banking disclosed to the opposing bank only information from
the application that it did not deem confidential. Id. During the pendency of
the parties’ appeal, the Pennsylvania Supreme Court, in an unrelated matter,
found the Department of Banking procedures violated banks’ rights to due
process. See id. (citing Conestoga Nat’l Bank of Lancaster v. Patterson,
275 A.2d 6 (Pa. 1971)). The Commonwealth Court held the opposing bank
was entitled to the benefit of the Conestoga decision and remanded the case
to the Department of Banking. Id.
The First Nat’l Bank decision is not applicable to this case involving
the setting aside a sheriff’s sale for alleged failure to comply with RESPA.
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“When an appellant cites no relevant authority to support an argument, this
Court is inclined to believe there is none.” Commonwealth v. Reyes-
Rodriguez, 111 A.3d 775, 781 (Pa. Super. 2015). See also Pa.R.A.P.
2119(a) and (b) (requiring an appellant to discuss and cite pertinent
authorities); Commonwealth v. Antidormi, 84 A.3d 736, 754 (Pa. Super.
2014) (finding waiver where appellant “cited no legal authorities nor
developed any meaningful analysis”). Appellants cite no factual or legal
support for their claim that the Bank waived its right to refuse to evaluate the
duplicative application. Appellants’ second issue does not merit relief.
In their third issue, Appellants assert the sheriff’s sale should be “set
aside on grounds of equitable estoppel.” Appellants’ Brief at 12. Appellants
claim the Bank promised to evaluate their duplicative application, and they
relied on the Bank’s representation, “spent time and energy” gathering
information to complete the application, and “refrained from taking other
steps that were legally available to them[.]” Id. at 13.
This Court has explained:
Equitable estoppel is a doctrine that prevents one from doing an
act differently than the manner in which another was induced by
word or deed to expect. A doctrine sounding in equity, equitable
estoppel recognizes that an informal promise implied by one’s
words, deeds or representations which leads another to rely
justifiably thereon to his own injury or detriment, may be enforced
in equity.
The two essential elements of equitable estoppel are
inducement and justifiable reliance on that inducement. The
inducement may be words or conduct and the acts that are
induced may be by commission or forbearance provided that a
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change in condition results causing disadvantage to the one
induced.
Equitable estoppel applies to prevent a party from assuming
a position or asserting a right to another’s disadvantage
inconsistent with a position previously taken[;] the person
inducing the belief in the existence of a certain state of facts is
estopped to deny that the state of facts does in truth exist, over
a different or contrary state of facts as existing at the same time,
or deny or repudiate his acts, conduct or statement.
It is well established that the burden rests on the party
asserting the estoppel to establish such estoppel by clear, precise
and unequivocal evidence.
Morgan v. Millstone Resources, Ltd., 267 A.3d 1235, 1248 (Pa. Super.
2021) (citation and ellipses omitted).
Here, the trial court rejected Appellants’ equitable estoppel claim after
finding Thayer v. Tax Claim Bureau of Bucks County, 701 A.2d 808 (Pa.
Cmwlth. 1997) “on point.”4 Trial Court Opinion, 1/12/23, at 12, see id. at
12-14. The trial court reasoned:
In Thayer, the appellant/taxpayer claimed that he relied on a
misrepresentation by an employee of the Tax Claim Bureau that
the property would not be sold, notwithstanding a court order
stating that the land would be sold at an auction on December 11,
1995. The Commonwealth Court found that the taxpayer did not
meet his burden of proof of establishing equitable estoppel.
Further, the taxpayer did not prevail because he could not
establish that he was unable to inform himself of the true facts,
that the sale would move forward. Id. at 810.
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4 While decisions of the Commonwealth Court are not binding, there are
instances when they may serve as persuasive authority. See Delaware
Valley Landscape Stone, Inc. v. RRQ, LLC, 284 A.3d 459, 461 n.3 (Pa.
Super. 2022).
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[Instantly, the trial c]ourt concluded [Appellants] had not
established an equitable basis for relief because the record did not
demonstrate that there was innocent reliance by [Appellants] on
the representations made by the Bank or its agents. The email
correspondence between the parties also demonstrate[s] that
[Appellants] were able to inform themselves of the true facts like
whether the sheriff[’]s sale would proceed forward. (See,
Thayer, 701 A.2d at 810 and [Appellants’] Exhibit 2).
The facts of the instant case fall even short of the facts
examined by the trial court in Thayer. In the instant case, at no
time did the Bank represent that the sale, which had already been
postponed for a period of twenty (20) months, would be further
postponed to accommodate a second review. The Bank provided
[Appellants] with an opportunity to submit a second package but
there was no promise that the application would be accepted or
approved. While [Appellants] were in communication with
Camara beginning in early August of 2021, they did not submit a
second loss mitigation package until the last minute. (See,
[Appellants’] Exhibit 3). Regardless of the timing of the
submission of the second application, there was no suggestion in
the record that the Bank would postpone the sale just because a
package was submitted and/or completed with supplementary
information before the December 2021 sale took place.
Unlike in Thayer, [Appellants] were not notified that the
court-ordered sale would be postponed. Even if they claimed to
be unaware of the Bank’s intention to proceed, like [the appellants
in] Thayer, [Appellants] had the ability to inform themselves of
this fact. The record demonstrates that Mrs. Smith checked with
counsel for the Bank about previously scheduled sales. (See,
[Appellants’] Exhibit 2). The Bank’s November 2, 2021 letter
provided the following warning, “Time is of the Essence: Failure
to submit a completed loss mitigation application more than 37
days before a scheduled foreclosure sale date may result in your
request for loss mitigation not being reviewed.”
The evidence was also insufficient to demonstrate
[Appellants’] reliance on any statement or action of the Bank. In
support of reliance, [Appellants] state that they spent time and
energy in gathering the information needed. However,
[Appellants] expended these resources without the guarantee or
promise that a different result on a second application would
occur. (See, Bank Exhibit H).3 They claim to also have refrained
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from taking other steps legally available to them such as filing for
bankruptcy. [Appellants’] conclusory statements in this regard
are insufficient to satisfy their “clear evidence” showing. Further,
through the application process, [Appellants] were still free to
take other actions to improve their legal position.
3 Notably, [Appellants] remained delinquent since the
time that the first request submitted in March of 2021
was completed. (See, [Bank] Exhibit H).
In sum, the record did not demonstrate that there were any
promises made beyond providing assistance in facilitating the
application submission process. There were no extraordinary
promises on which [Appellants] could rely. The record also lacked
sufficient evidence to sustain the reliance element of an equitable
claim.
Trial Court Opinion, 1/12/23, at 12-15 (footnote in original).
Upon review of the record and applicable law, we adopt the trial court’s
analysis as our own. As Appellants have not demonstrated a clear abuse of
discretion by the trial court, their third issue does not merit relief. Wells
Fargo Bank, 199 A.3d at 895-96.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/14/2023
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