J-A30023-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
WELLS FARGO BANK, N.A., IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
RONALD JEREMIAH SCHINDLER,
Appellant No. 3728 EDA 2015
Appeal from the Order Entered November 18, 2015
In the Court of Common Pleas of Montgomery County
Civil Division at No(s): 13-31308
BEFORE: BOWES, OLSON and STABILE, JJ.
MEMORANDUM BY OLSON, J.: FILED MARCH 22, 2017
Appellant, Ronald Jeremiah Schindler, appeals from the order entered
on November 18, 2015, following the trial court’s order entering summary
judgment in favor of Appellee, Wells Fargo Bank, N.A. (Wells Fargo) in a
foreclosure action on a reverse mortgage. Upon careful consideration, we
affirm.
We briefly summarize the facts and procedural history of this case as
follows. On July 18, 2011, Appellant executed a reverse mortgage with
Wells Fargo on his residence located in Elkins Park, Pennsylvania. Appellant
resided at the property until May 2013, when the residence sustained
subterranean structural damage. Appellant moved and notified Wells Fargo
that he had vacated the property.
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On October 18, 2013, Wells Fargo filed a complaint in mortgage
foreclosure against Appellant. In its complaint, Wells Fargo averred that
“[t]he mortgage [was] in default as a result of the mortgaged premises
ceasing to be the principal residence of [Appellant] and the mortgaged
premises [was] not the principal residence of at least one other borrower[.]”
Complaint, 10/18/2013, at 5, ¶7. Wells Fargo claimed the total amount due
on the reverse mortgage, through October 13, 2013, was $141,018.31. Id.
at 6, ¶8.
On November 20, 2013, Appellant filed preliminary objections and a
supporting memorandum of law in opposition to Wells Fargo’s complaint.
Wells Fargo responded on December 10, 2013, appending copies of the
mortgage, promissory note, and sheriff’s affidavit of service of the
complaint. On February 19, 2014, Appellant filed another memorandum of
law in support of his preliminary objections. The trial court entered an order
overruling Appellant’s preliminary objections on March 3, 2014. On March
21, 2014, Appellant filed an answer to the complaint with new matter. On
April 29, 2014, Wells Fargo filed a reply to new matter.
Wells Fargo moved for summary judgment on September 2, 2014.
After several stipulations for time extensions, Appellant filed his answer to
Wells Fargo’s motion for summary judgment on July 30, 2015.1 On August
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1
In its opinion pursuant to Pa.R.A.P. 1925(a), the trial court states that it
was unaware that Appellant filed a response to Wells Fargo’s motion for
(Footnote Continued Next Page)
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26, 2015, Wells Fargo filed a supplemental brief in support of its motion for
summary judgment. On August 28, 2015, Wells Fargo praeciped the trial
court to attach supplemental exhibits in support of its motion for summary
judgment. In an order filed on November 18, 2015, the trial court granted
Wells Fargo’s motion for summary judgment and entered an in rem
judgment in Wells Fargo’s favor in the amount of $156,999.66 plus interest
and costs from August 18, 2014. This timely appeal resulted.2
On appeal, Appellant raises the following issues for our review:
I. Whether or not the trial court erred by granting [Wells
Fargo’s] motion for summary judgment when [] Wells
Fargo [] failed to satisfy the prerequisite conditions
prior to filing the mortgage foreclosure action?
II. Whether or not the trial court erred by granting [Wells
Fargo’s] motion for summary judgment when [] Wells
Fargo [] failed to obtain approval from the Secretary
of Housing and Urban Development (“HUD”)[?]
III. Whether or not the trial court erred by granting [Wells
Fargo’s] motion for summary judgment when [] Wells
Fargo [] failed to provide [] Appellant thirty (30)
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(Footnote Continued)
summary judgment. See Trial Court Opinion, 3/29/2016, at 4 n.2. The trial
court determined, however, that Appellant “suffered no prejudice” because
“subsequent review of the [a]nswer show[ed] that [Appellant] fail[ed] to
present a question of fact.” Id.
2
Appellant filed a notice of appeal on December 14, 2015. On January 7,
2016, the trial court issued an order directing Appellant to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
Appellant complied timely on January 26, 2016. On March 29, 2016, the
trial court issued an opinion pursuant to Pa.R.A.P. 1925(a).
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days[’] notice prior to filing suit as required by the
Secretary of [HUD?]
IV. Whether or not the trial court erred by granting [Wells
Fargo’s] motion for summary judgment when [] Wells
Fargo [] failed to provide [] Appellant thirty (30)
days[’] notice prior to commencing any foreclosure to
either correct the matter which resulted in the
security instrument coming due and payable; or pay
the balance in full; or sell the property for the lesser
of the balance or 95% of the appraised value and
apply the net proceeds of the sale toward the
balance; or provide the lender a deed in lieu of
foreclosure[?]
V. Whether or not the trial court erred by granting [Wells
Fargo’s] motion for summary judgment when [] Wells
Fargo [] failed to accept a deed in lieu of foreclosure
in accordance with the provisions of the reverse
mortgage and HUD regulations[?]
VI. Whether or not the trial court erred by granting [Wells
Fargo’s] motion for summary judgment when [] Wells
Fargo [] failed to allow [] Appellant to sell the
property for the lesser of the balance or 95% of the
appraised value[?]
Appellant’s Brief at 4-5 (complete capitalization omitted).
Initially we note that in its Rule 1925(a) opinion, the trial court
adopted Wells Fargo’s motion for summary judgment and supporting brief.
See Trial Court Opinion, 3/29/2016, at 3. As a general rule, a trial court
cannot rely on a party's brief in lieu of a Rule 1925(a) opinion to explain the
bases for its rulings. This approach is inconsistent with the proper role and
function of our trial courts in setting forth the bases of their rulings. See
Commonwealth v. Fulton, 876 A.2d 342 (Pa. 2002) (reiterating need for
articulation of independent judicial analysis, “in support of dispositive orders
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so as to better focus appeals and better facilitate the appellate function”);
Commonwealth v. Williams, 732 A.2d 1167 (Pa. 1999) (stating same).
In many cases where the trial court has adopted a party's brief wholesale,
the appellate court has remanded for a trial court opinion. Nevertheless, we
do not need to remand for an independent Rule 1925(a) opinion in this case,
because we do not believe that the trial court's actions have impaired our
ability to conduct effective appellate review. Here, in addition to adopting
Wells Fargo’s position, and in accordance with Pa.R.A.P. 1925(a)(1), the trial
court’s opinion makes reference to the place in the record where the trial
court’s rationale may be found. Therefore, we decline to remand this case to
the trial court. Rather, we admonish the trial court for adopting Wells
Fargo’s motion for summary judgment and supporting memorandum in its
Rule 1925(a) opinion. See In re Approval of Special Counsel, 866 A.2d
1157, 1163 (Pa. Cmwlth. 2004) (“we do not believe that the trial court's
actions have impaired our ability to conduct an effective appellate review of
this case. Therefore, we decline to remand this case to the trial court.
Rather, […] we only admonish the trial court for copying the City Solicitor's
brief and using it for the 1925(a) opinion.”).
We now turn to the merits of Appellant’s claims. As those issues all
center on the contention that the trial court erred by determining Wells
Fargo was entitled to summary judgment, we will examine Appellant’s claims
in a single discussion. Appellant avers that Wells Fargo failed to satisfy the
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requisite conditions precedent under the terms of the reverse mortgage prior
to filing the mortgage foreclosure action. More specifically, Appellant alleges
Wells Fargo was required, but failed, to:
1. obtain[] approval from the Secretary of HUD to make
this loan due and payable;
2. [] provide [] Appellant [] thirty (30) days notice[3] prior
to commencing any foreclosure to either correct the
matter which resulted in the [s]ecurity instrument
coming due and payable; or pay the balance in full; or
sell the property for the lesser of the balance or 95% of
the appraised value and apply the net proceeds of the
sale toward the balance; or provide [Wells Fargo] with a
deed in lieu of foreclosure; and
3. [] accept a deed in lieu of foreclosure in accordance with
the [r]everse [m]ortgage and HUD regulations.
Appellant’s Brief at 12.4
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3
Appellant claims that U.S. Postal Service records show that notice “was
delivered to someone other than [] Appellant” and did not comply with HUD
requirements. Appellant’s Brief at 14-15. However, Appellant provided his
new residential address to Wells Fargo on his non-occupancy notification
form. See Wells Fargo Motion for Summary Judgment, 10/2/2014, Exhibit
H. Postal documents show that the notice was sent to that address and
service was accepted. See Wells Fargo Motion for Summary Judgment,
10/2/2014, Exhibit D. While Appellant now claims he did not receive notice,
as explained below, soon after the notice was delivered Appellant presented
Wells Fargo with a deed in lieu of foreclosure, one of the options available to
Appellant under the notice. Because Appellant took action in conformity with
the notice, we may imply that Appellant received it.
4
Appellant also cursorily argues that “although [he] filed a timely response
to [Wells Fargo’s] motion for summary judgment, the trial court failed to
consider [] Appellant’s] response when deciding the [] motion for summary
judgment.” Appellant’s Brief at 7. However, Appellant did not set forth this
claim in his statement of questions presented in his appellate brief and does
(Footnote Continued Next Page)
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Our standard of review of an order granting summary judgment is
clear:
[we must] determine whether the trial court abused its
discretion or committed an error of law. Our scope of
review is plenary. In reviewing a trial court's grant of
summary judgment, we apply the same standard as the
trial court, reviewing all the evidence of record to determine
whether there exists a genuine issue of material fact. We
view the record in the light most favorable to the
non-moving party, and all doubts as to the existence of a
genuine issue of material fact must be resolved against the
moving party. Only where there is no genuine issue as to
any material fact and it is clear that the moving party is
entitled to a judgment as a matter of law will summary
judgment be entered. All doubts as to the existence of a
genuine issue of a material fact must be resolved against
the moving party. Upon appellate review, we are not bound
by the trial court's conclusions of law, but may reach our
own conclusions.
Wright v. Misty Mountain Farm, LLC, 125 A.3d 814, 818 (Pa. Super.
2015) (internal citations omitted).
Moreover, we note:
Reverse mortgages have been described as a financial
planning device for [those] who are [] house rich, but cash
poor. A reverse mortgage can address this dilemma by
providing a means for converting home equity into cash. In
a reverse mortgage, as in a conventional mortgage, the
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(Footnote Continued)
not present any legal argument on this issue. See Pa.R.A.P. 2119(a)
(mandating that an appellant develop an argument with citation to and
analysis of relevant legal authority). Accordingly, because Appellant has
failed to meaningfully develop this claim for our review, we deem it waived.
See Umbelina v. Adams, 34 A.3d 151, 161 (Pa. Super. 2011) (stating that
“[w]here an appellate brief fails to provide any discussion of a claim with
citation to relevant authority or fails to develop the issue in any other
meaningful fashion capable of review, that claim is waived.”).
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mortgagee or lender advances money to the borrower or
mortgagor. However, in a reverse mortgage the borrower
is often times not obligated to repay any portion of the loan
or the interest on the loan amount until the property is sold,
the loan matures or the borrower dies or experiences an
extended absence from the premises. The interest on the
borrowed sums is added to the principal loan amount and
the lender acquires a lien against the house in the amount
of the initial principal and accumulated interest.
In re Estate of Moore, 871 A.2d 196, 201 n.3 (Pa. Super. 2005) (internal
quotations and citations omitted).
A reverse mortgage is a contract. Since contract interpretation is a
question of law, “our review of the trial court's decision is de novo and our
scope is plenary.” Bair v. Manor Care of Elizabethtown, PA, LLC, 108
A.3d 94, 96 (Pa. Super. 2015). We previously determined:
The fundamental rule in interpreting the meaning of a
contract is to ascertain and give effect to the intent of the
contracting parties. The intent of the parties to a written
agreement is to be regarded as being embodied in the
writing itself. The whole instrument must be taken together
in arriving at contractual intent. Courts do not assume that
a contract's language was chosen carelessly, nor do they
assume that the parties were ignorant of the meaning of the
language they employed. When a writing is clear and
unequivocal, its meaning must be determined by its
contents alone.
Only where a contract's language is ambiguous may
extrinsic or parol evidence be considered to determine the
intent of the parties. A contract contains an ambiguity if it is
reasonably susceptible of different constructions and
capable of being understood in more than one sense. This
question, however, is not resolved in a vacuum. Instead,
contractual terms are ambiguous if they are subject to more
than one reasonable interpretation when applied to a
particular set of facts. In the absence of an ambiguity, the
plain meaning of the agreement will be enforced. The
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meaning of an unambiguous written instrument presents a
question of law for resolution by the court.
Ramalingam v. Keller Williams Realty Group, Inc., 121 A.3d 1034,
1046 (Pa. Super. 2015) (citation and original emphasis omitted).
Here, the reverse mortgage contains a clause that states:
(b) Due and [p]ayable with Secretary [a]pproval. [Wells
Fargo] may require immediate payment in full of all sums
secured by this [reverse mortgage], upon approval of the
Secretary [of HUD], if:
(i) The [p]roperty ceases to be the [p]rincipal
residence of a [b]orrower for reasons other
than death and the [p]roperty is not the
[p]rincipal residence of at least one other
[b]orrower[.]
Wells Fargo Motion for Summary Judgment, 10/2/2014, Exhibit A, at 4,
¶ 9(b). Appellant admitted that he executed the mortgage and Wells Fargo
was the only mortgagee. Appellant’s Answer and New Matter to Wells
Fargo’s Complaint, 3/21/2014, at 1, ¶¶ 4 and 5. Appellant signed a form of
non-occupancy which he sent to Wells Fargo, indicating he would not return
to the property as it “appear[ed] to be uninhabitable[.]” Wells Fargo Motion
for Summary Judgment, 10/2/2014, Exhibit H. Appellant does not dispute
that he was the owner of the property, that he was the borrower who
obtained the mortgage at issue, and/or that he no longer resided at the
property starting in May 2013. See Appellant’s Brief at 8.
Turning to the sufficiency of the notice provided by Wells Fargo to
Appellant, the record reveals no genuine issues of material fact that preclude
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the entry of judgment in Wells Fargo’s favor. Regarding notice, the reverse
mortgage states:
(d) Notice to Secretary [of HUD] and [Appellant]. [Wells
Fargo] shall notify the Secretary and [Appellant] whenever
the loan becomes due and payable under Paragraph 9[(b)].
[Wells Fargo] shall not have the right to commence
foreclosure until [Appellant] has had thirty (30) days after
notice to either:
(i) [c]orrect the matter which resulted in the
[reverse mortgage] coming due and
payable;
(ii) pay the balance in full;
(iii) [s]ell the [p]roperty for the lesser of the
balance or 95% of the appraised value and
apply the net proceeds toward the balance;
or
(iv) [p]rovide [Wells Fargo] with a deed in lieu
of foreclosure.
Wells Fargo Motion for Summary Judgment, 10/2/2014, Exhibit A, at 4,
¶ 9(d). Upon review of the record, Wells Fargo provided the requisite notice
to Appellant by letter dated May 15, 2013, which specifically highlighted the
above-mentioned courses of action. Id. at Exhibit A. Wells Fargo did not
institute its foreclosure action until October 18, 2013, more than 30 days
after providing notice on May 15, 2013. Moreover, Deval, LLC (Deval) was
Wells Fargo’s loan servicing contractor through HUD. See id. at Exhibit M.
Deval gave Wells Fargo approval for the reverse mortgage to become due
and payable in a letter dated May 31, 2013. See id. at Exhibit H. There is
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no dispute that Appellant never corrected the damage that led him to end
his residency in the mortgage property or paid the mortgage balance in full.
With regard to selling the property for 95% of the appraised value of
the property, by his own admission, Appellant did not present “[Wells Fargo]
with an [a]greement of [s]ale in the amount of $9,500.00” until “May 20,
2015.” Appellant’s Answer to Wells Fargo’s Motion for Summary Judgment,
7/30/2015, at 2 n.1.; see also Appellant’s Brief at 19 (“On May 19, 2015, []
Appellant entered into an [a]greement of sale for said property.”). Notice of
foreclosure was given to Appellant on May 15, 2013. Pursuant to the plain
language of the reverse mortgage, Wells Fargo could not institute
foreclosure proceedings for 30 days after giving notice to allow Appellant to
cure deficiencies. Appellant did not present an agreement for sale until over
two years later. Upon review, Wells Fargo complied with the notice
requirements under the reverse mortgage.
Moreover, while Appellant did provide a deed in lieu of foreclosure,
Wells Fargo responded that:
Per HUD guidelines, a[t] the time of conveyance to HUD a
property must be undamaged by fire, earthquake, flood,
hurricane, tornado, boiler explosions, or mortgagee neglect.
The appraisal performed on [June 7, 2013] has revealed
damage to the property. The appraiser has noted that the
inside and outside of the house has many cracks. The
damage is so extensive that ‘it appears that the house is
splitting in half.’ The environmental concerns, physical
deficiencies, and adverse conditions affect the livability,
soundness and/or structural integrity of the pro[pe]rty.
Thus, the property does not meet the HUD conveyance
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condition requirements for [d]eed in [l]ieu and the file will
be closed accordingly.
Wells Fargo’s Motion for Summary Judgment, 10/2/2014, Exhibit K (internal
parenthetical omitted).5
Finally, upon review, we agree with the trial court that Appellant’s
answer to the complaint did not contain specific denials. “Averments in a
pleading to which a responsive pleading is required are admitted when not
denied specifically or by necessary implication. A general denial or a demand
for proof [] shall have the effect of an admission.” Pa.R.C.P. 1029(b).
Appellant fails to explain how or why the trial court erred in determining that
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5
Appellant raised, for the first time, in his answer in opposition to Wells
Fargo’s motion for summary judgment that “[p]ursuant to 24 C.F.R.
§ 206.125(f) [Wells Fargo] was required to accept a deed in lieu of
foreclosure from [Appellant].” Answer to Motion for Summary Judgment,
7/30/2015, at 4, 7-8; attached affidavit at 2. This Court has previously
“conclude[d] that federal law does not mandate that a mortgagee comply
with [federal] regulations [] prior to foreclosing on an FHA–insured
mortgage.” Fleet Real Estate Funding Corp. v. Smith, 530 A.2d 919,
923 (Pa. Super. 1987). However, we held that “a mortgagor of an FHA-
insured mortgage may raise as an equitable defense to foreclosure, the
mortgagee's deviation from compliance with the forbearance provisions of
the HUD Handbook and regulations.” Id. Our Rules of Civil Procedure
provide that all affirmative defenses shall be pled in a responsive pleading
under new matter. Pa.R.Civ.P. 1030. “A party waives all defenses and
objections which are not presented either by preliminary objection, answer
or reply[.]” Pa.R.Civ.P. 1032 (enumerated exception inapplicable). Because
affirmative defenses must be presented in the pleadings, Appellant’s reliance
on housing regulations in his answer to Wells Fargo’s motion for summary
judgment failed to preserve the issue. See Joyce v. Mankham, 465 A.2d
696, 697 (Pa. Super. 1983) (“Because affirmative defenses must be part of
the pleadings, Pa.R.Civ.P. 1030, appellant's subsequent averment of
estoppel and fraud in her answer to appellee's request for summary
judgment failed to preserve the issue.”).
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his general denials qualified as admissions or that he did not present valid
defenses. As such, Appellant has waived any challenge to the entry of
summary judgment based on his answer and new matter filed in response to
Wells Fargo’s complaint. See Commonwealth v. Woodard, 129 A.3d 480,
509 (Pa. 2015) (an appellant waives an issue for failing to develop it in any
meaningful way and does not refer to anything in the record to support his
claim).
In sum, based upon our standard of review, we discern no abuse of
discretion or error of law in granting Wells Fargo’s motion for summary
judgment. There were no genuine issues as to any material facts and it is
clear that Wells Fargo was entitled to judgment as a matter of law.
Appellant executed a reverse mortgage with Wells Fargo on the subject
property. In May 2013, Appellant notified Wells Fargo that he had moved
from the property, and had no plans to return, because of structural damage
to the residence. Pursuant to the clear terms of the reverse mortgage, Wells
Fargo was permitted to institute a mortgage foreclosure action upon this
condition. Wells Fargo followed the proper approval notification
requirements, as set forth in the reverse mortgage, prior to instituting the
foreclosure action. Thus, Wells Fargo established a prima facie case to
institute foreclosure. Thereafter, Appellant did not demonstrate facts to
create a genuine issue for trial. Accordingly, the trial court properly
determined there were no genuine issues and entered summary judgment in
favor of Wells Fargo.
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Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/22/2017
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