Opinion
J-A13015-17 No. 470 EDA 2016
08-25-2017
JP MORGAN CHASE BANK N.A. (SUBSTITUTED PLAINTIFF, GREAT AJAX OPERATING PARTNERSHIP, LP) Appellee v. KENNETH J. TAGGART Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment Entered February 22, 2016
In the Court of Common Pleas of Philadelphia County
Civil Division at No(s): 03473 July Term 2013 BEFORE: LAZARUS, J., OTT, J., and FITZGERALD, J. MEMORANDUM BY LAZARUS, J.:
Former Justice specially assigned to the Superior Court.
Kenneth J. Taggart appeals from a judgment entered in favor of Great Ajax Operating Partnership, LP ("Great Ajax") in this mortgage foreclosure case. After careful review, we affirm.
Taggart has filed a "Motion to Take Judicial Notice," which we grant. We note that Wells Fargo Bank , N.A. v. Spivak , 104 A.3d 7 (Pa. Super. 2014), is distinguishable, and it is on this reasoning that we have disposed of that Act 6 notice issue. See infra , at 6-9. We also note that Taggart has filed a post-submission communication, see Pa.R.A.P. 2501, titled "Motion for `Fraud on the Court' or Review `Findings of Fact' for Abuse of D[i]scretion & Bias." We deny this motion. We caution counsel that we do not take lightly allegations of fraud against a public official, in particular unsupported allegations of "bias and fraud" by the trial court. Counsel misapprehends the concept of zealous advocacy. See Pa.R.Prof.Conduct, Preamble and Scope; see also Pa.R.Prof.Conduct 3.1 ("A lawyer shall not . . . . assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous[.]").
On July 20, 2005, Taggart executed a promissory note ("Note") and Mortgage on the property at 7242 Saul Street, Philadelphia, PA 19149, in consideration of his borrowing $120,000 from Chase Bank, USA, N.A. ("Chase"). Both the Note and Mortgage were recorded in the office of the Philadelphia County Recorder of Deeds. On February 29, 2012, Chase assigned the Mortgage and Note to "JP Morgan Chase Bank, N.A." ("Morgan"). The assignment was recorded on March 8, 2012 in the office of the Philadelphia County Recorder of Deeds.
We note that the first complaint filed by Chase on September 10, 2010 was dismissed without prejudice by Judge Fox on February 3, 2011. Chase filed a new complaint in foreclosure on July 26, 2013. See discussion, infra at pp. 6-9.
On September 19, 2013, the rights and interest in the Mortgage were again assigned to "Ventures Trust 2013-I-H-R by MCM Capital Partners, LLC." The assignment was also recorded on February 19, 2014 in the office of the Philadelphia County Recorder of Deeds.
On January 16, 2015, the rights and interest in the Mortgage were again assigned to "OHA Newbury Ventures, L.P." On the same day, the rights and interest in the Mortgage were again assigned to Great Ajax. Both assignments were also recorded on February 23, 2015, in the office of the Philadelphia County Recorder of Deeds.
Taggart defaulted under the Mortgage and Note by failing to make payments due March 1, 2009, and each month thereafter. Chase issued a combined Act 6/Act 91 Notice (Notice) to Taggart, dated April 22, 2010. Morgan filed its complaint in mortgage foreclosure against Taggart on July 26, 2013. On October 29, 2013, Taggart filed an answer to the complaint.
The Honorable Kenneth J. Powell Jr. held a bench trial in this matter on May 27 and 28, 2015. Judge Powell, after receiving post-trial briefs, rendered a verdict for Great Ajax on November 25, 2015. Judge Powell denied Taggart's post-verdict motions on January 6, 2016, and Taggart filed a notice of appeal that same day. Taggart filed a timely concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b) on January 26, 2016.
Taggart filed a subsequent notice of appeal on February 4, 2016.
Taggart raises the following issues on appeal:
1. Whether the trial court erred in finding that the Act 6/91 notice was not defective for failure to comply with statutory laws and contractual obligations.
2. Whether trial court erred in finding that the original Plaintiff, J.P. Morgan Chase Bank N.A., had possession of the original note at the time the foreclosure was filed, or subsequent Plaintiffs when they were substituted as Plaintiff.
3. Whether the trial court erred in finding that, OHA Newbury, Ventures, L.P., did not need to be substituted as Plaintiff when it alleged ownership since the foreclosure was filed.
4. Whether the trial court erred in finding that, Great Ajax Operating Partnership, L.P. was a "Party Entitled to Enforced the Note", a "Holder of the Note", or a "Holder in Due Course", pursuant to The Pennsylvania Uniform Commercial Code Article #3.
5. Whether the trial court erred in finding that, the note at trial was not destroyed when evidence at trial and testimony indicated a missing, "an allonge", endorsing the note to Ventures Trust-2013-I-H-R., or destroyed as the note was permanently affixed together by stable or other means, was in separate pieces, and held together only by a paper.
6. Whether the trial court erred in finding that, the signature page #3 of the note was not clearly forged, and was not the original signature of Defendant.
7. Whether the trial court erred by: not including Defendants, August 10, 2015, response to Plaintiff's Brief, filed July 17, 2015, when the court entered a verdict in favor of Defendant.
8. Whether the trial court erred in finding that: "The Note" presented at trial was the original note.
9. Whether the trial court erred in finding that, the assignment of mortgage, dated February 19, 2014, from: J.P Morgan Change Bank to Ventures Trust 2013-I-H-R, was valid.
10. Whether the trial court erred in finding that, the assignment of mortgage, dated February 23, 2015, from: Ventures Trust 2013-I-H-R to OHA Newbury Ventures, L.P., was valid.
11. Whether the trial court erred in finding that, the assignment of mortgage, dated February 23, 2015, from: OHA Newbury Ventures, L.P. to Great Ajax Operating Partnership, L.P, was valid.
12. Whether the trial court erred in finding that, the mortgage did not follow the note invalidating the mortgage and note as they are inseparable.Appellant's Brief, at 2-8.
13. Whether the trial court erred in finding that, there was a witness [at trial] with personal knowledge of the case to support a, payment history, loan, history, and balance, on the loan.
14. Whether the trial court erred in finding to cite that the case was not prosecuted by The Real party of Interest at all times during the course of the litigation.
15. Whether the trial court erred in failing to cite improper substitution, on February 23, 2015, of Great Ajax Operating Partnership, L.P. pursuant to: Rule 2351 & Rule 2352.
16. Whether the trial court erred in not citing Defendants defenses pursuant to: Pennsylvania Uniform Commercial Code, 3309 (a) & (b) & §305(a),(b), & (c).
17. Whether the trial court erred in denying, the Defendant's Motion to Re-Open Discovery, filed March 16, 2015.
18. Whether the trial court erred in denying, "Motion to Take Judicial Notice", filed October 28, 2015.
As an initial matter, we observe Taggart's brief on appeal to contain many substantial defects, hampering appellate review of his claims. Despite the assistance of counsel, much of Taggart's brief is incoherent, and although the overall structure conforms to the Rules of Appellate Procedure, the body of each section does not. For example, Taggart's statement of the case contains significant instances of argument, in contravention of Pa.R.A.P. 2117(b). "When a party's brief fails to conform to the Rules of Appellate Procedure and the defects are substantial, this Court may, in its discretion, quash or dismiss the appeal pursuant to" Pa.R.A.P. 2101. Giant Food Stores , LLC v. THF Silver Spring Development , L.P., 959 A.2d 438, 443 (Pa. Super. 2008). Although we do not quash Taggart's appeal on procedural grounds, we find all of the issues he raises are meritless. --------
Our standard of review of a judgment arising from a non-jury trial is whether the trial court abused its discretion. Bensinger v. Univ. of Pittsburgh Med. Ctr., 98 A.3d 672, 682 (Pa. Super. 2014). "An abuse of discretion may not be found merely because an appellate court might have reached a different conclusion, but requires a manifest unreasonableness, or partiality, prejudice, bias, or ill-will, or such lack of support so as to be clearly erroneous." Parr v. Ford Motor Co., 109 A.3d 682, 690-91 (Pa. Super. 2014). We must consider the evidence in a light most favorable to the verdict winner. Allegheny Cty. Hous. Auth. v. Johnson , 908 A.2d 336, 340 (Pa. Super. 2006). We may not make factual determinations merely in the face of conflicting evidence. Nicholas v. Hofmann , 158 A.3d 675, 689 (Pa. Super. 2017) (quoting Lanard & Axilbund , Inc. v. Muscara , 575 A.2d 615, 619 (Pa. Super. 1990)). "Where the issue concerns a question of law, our scope of review is plenary." Bank of N.Y. Mellon v. Bach , 159 A.3d 16, 19 (Pa. Super. 2017).
Only one of Taggart's 18 issues possibly has merit. That issue challenges the validity of the Notice sent to Taggart prior to Morgan initiating the foreclosure action. See Appellant's Brief, 8/1/2016, at 17-20. Judge Powell interprets this issue as "alleging Great Ajax violated the Act 6 and Act 91 notice requirements by failing to send a second notice after it was substituted as Plaintiff." Trial Court Opinion, 2/26/2016, at 6. Judge Powell's interpretation of the claim is incorrect.
Numerous times throughout the protracted course of this litigation, Taggart contended, although haphazardly and incoherently, that the Notice failed to conform to the requirements of Act 6 and Act 91 because it was sent prior to an earlier foreclosure action initiated by Chase in the Philadelphia County Court of Common Pleas docketed September 2, 2010 under Case No. 10-08-04848. See Defendant's Preliminary Objections to the Complaint, 4/21/2013, at 2-4; and see Defendant's Preliminary Objections to the Praecipe for Substitution, 3/16/2015, at 2-6; and see Defendant's Motion to Take Judicial Notice, 3/16/2015. The Honorable Judge Idee C. Fox dismissed, on February 3, 2011, the original complaint filed by Chase on September 10, 2010, after Chase failed to answer Taggart's preliminary objections. See Defendant's Preliminary Objections to the Complaint, 4/21/2013, at Exhibit C. Chase then filed another complaint in foreclosure on July 26, 2013.
At its heart, Taggart's argument is that because Chase's original action failed, Morgan had to send a new notice at least 30 days prior to the filing of the instant action. See Wells Fargo Bank N.A. v. Spivak , 104 A.3d 7, 10 (Pa. 2014). The case upon which Taggart relies is distinguishable from the facts here for the plain and simple reason that Chase's earlier action was not voluntarily discontinued, and was refiled by the same entity five months later, before the note was assigned.
The Loan Interest and Protection Law, 41 P.S. §§ 101 et seq. (Act 6), and the Homeowner's Emergency Mortgage Assistance Act of 1983, 35 P.S. §§ 1680.401c et seq. (Act 91), protect residential mortgage borrowers by requiring residential mortgage lenders to detail ways in which they may bring their mortgages up to date and forestall foreclosure. Section 403 of Act 6 states that "[b]efore any residential mortgage lender may accelerate the maturity of any residential mortgage obligation [or] commence any legal action including mortgage foreclosure to recover under such obligation" the lender must give the borrower notice of the lender's intent at least 30 days in advance. 41 P.S. § 403(a) (emphasis added). Such notice should include, inter alia, "exactly what performance including what sum of money, if any, must be tendered to cure the default" and the time within which the borrower must cure the default. 41 P.S. § 403(c).
Statutory notice is mandatory, and the failure to provide notice can lead to a foreclosure being set aside. See Spivak , 104 A.3d at 9-10 (citing General Elec. Credit Corp. v. Slawek , 409 A.2d 420, 422-23 (Pa. Super. 1979) and In re Sharp , 24 B.R. 817, 821 (Bankr.E.D.Pa. 1982)). "The purpose of Act 6 . . . is to help residential homeowners reacquire property that has been lost, or to prevent the imminent loss of money or property, because of the impermissible actions of residential mortgage lenders." Spivak , 104 A.3d at 10 (quoting Benner v. Bank of Am., N.A., 917 F.Supp.2d 338, 357 (E.D.Pa. 2013).
In Spivak , this Court reversed summary judgment in a mortgage foreclosure action when the mortgagee voluntarily discontinued an earlier action and failed to send a new notice prior to launching the second action. Spivak , 104 A.3d at 7. "When a residential mortgagee delivers an Act 6 notice, commences a foreclosure action against a mortgagor ("first action"), discontinues that foreclosure action, and re-files another foreclosure action against a mortgagor for the same premises ("second action"), the lack of a new notice prior to the second action is fatal to the second action." Id. Spivak is distinguishable from the instant case, however, because the mortgagee did not voluntarily discontinue the first action; it failed to file a timely answer to preliminary objections. See Defendant's Preliminary Objections to the Complaint, 4/21/2013, at Exhibit C. Morgan was under no requirement to send a new notice to Taggart. The trial court did not err.
Next, Taggart raises 17 separate issues that the trial court erred as a matter of law or abused its discretion in allowing substitution of plaintiffs, in finding various assignments of the Note as valid, in denying several motions and in making assorted other findings. We have reviewed the certified record and the trial court's comprehensive opinion discussing these issues. Trial Court Opinion, 2/26/2016, at 5-13. Because the trial court's opinion thoroughly and accurately addresses these remaining issues, we rely on it for disposition of these claims. Because the trial court did not abuse its discretion or err as a matter of law, no relief is due. The parties are directed to attach a copy of the trial court's opinion in the event of further proceedings.
Judgment affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 8/25/2017
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