J-A09021-15


                               2015 PA Super 129

U.S. BANK, N.A., AS TRUSTEE             :   IN THE SUPERIOR COURT OF
SUCCESSOR IN INTEREST TO BANK           :        PENNSYLVANIA
OF AMERICA, N.A., AS TRUSTEE AND        :
SUCCESSOR BY MERGER TO LaSALLE          :
BANK, N.A., AS TRUSTEE FOR WAMU         :
MORTGAGE            PASSTHROUGH         :
CERTIFICATES    SERIES  2007-OA2        :
TRUST,                                  :
                                        :
                  Appellants            :
                                        :
           v.                           :
                                        :
CHRISTINE PAUTENIS,                     :
                                        :
                  Appellee              :   No. 2109 EDA 2014

                Appeal from the Judgment dated July 14, 2014,
                  Court of Common Pleas, Delaware County,
                      Civil Division at No. CV-12-006771

BEFORE: BOWES, DONOHUE and STABILE, JJ.

OPINION BY DONOHUE, J.:                                FILED MAY 29, 2015

     U.S. Bank, N.A. (“U.S. Bank”) appeals from the July 14, 2014

judgment entered by the Delaware County Court of Common Pleas finding in

favor of Christine Pautenis1 (“Home Owner”) in this mortgage foreclosure

action2 and dismissing its complaint with prejudice. On appeal, U.S. Bank


1
    Prior to trial, Christine Pautenis married and changed her name to
Christine Banas. Her maiden and married names are used interchangeably
throughout the notes of testimony.
2
   U.S. Bank filed its notice of appeal “from the [v]erdict entered in the
matter on the 3rd day of March, 2014 … and the [o]rder dated June 18,
2014, dismissing [U.S. Bank’s] [m]otion for [p]ost-[t]rial [r]elief[.]” Notice
of Appeal, 7/23/14. It is well-settled law, however, that “[a]n appeal to this
J-A09021-15


challenges the denial of its post-trial motions as untimely; the verdict in

favor of Home Owner based on allegedly erroneous evidentiary rulings by

the trial court; and the trial court’s dismissal of U.S. Bank’s complaint with

prejudice.3 Upon review, we reverse the trial court’s denial of U.S. Bank’s

post-trial motion as untimely; in all other respects, we affirm.

      As summarized by the trial court:

               The undisputed facts surrounding the origination
            of this law suit [sic] are that [Home Owner],
            borrowed the sum of $187,000.00 from Washington
            Mutual Bank, FA (“WaMu”) to finance the purchase of
            the subject property situated at 257 Windermere
            Avenue, Lansdowne, PA[,] pursuant to a deed
            recorded on May 22, 2007 in Book 4106, Page 940 in
            the Office of the Recorder of Deeds of Delaware
            County, PA. On January 25, 2007, [Home Owner]
            executed and delivered a promissory note and, to
            secure the obligation under the note, a purchase
            money mortgage to WaMu, the latter instrument
            having been subsequently recorded on May 22, 2007
            in the Office of the Recorder of Deeds of Delaware
            County, PA[,] in Book 4106, Page 945. The terms of
            remuneration of the [n]ote required [Home Owner]
            to make initial monthly payments of $788.40
            commencing on March 1, 2007, and continuing each
            month thereafter until the maturity date of February
            1, 2037. [Home Owner] admittedly stopped making


Court can only lie from judgments entered subsequent to the trial court’s
disposition of post-verdict motions, not from the order denying post-trial
motions.” Fanning v. Davne, 795 A.2d 388, 391 (Pa. Super. 2002)
(citation omitted). We therefore amended the caption accordingly.
3
    As discussed later in this Opinion, the trial court’s dismissal of the
complaint, after trial and a verdict, is a procedural anomaly. After the
case was tried to verdict, the claims asserted in the complaint were
adjudicated in the trial. Thus, we treat the trial court’s disposition solely as
a verdict in favor of Home Owner and refer to it as such.


                                     -2-
J-A09021-15


             her required mortgage payments on or about
             September 1, 2011, and following her subsequent
             failure to cure the default, [U.S. Bank] commenced
             this action in mortgage foreclosure on August 8,
             2012.[FN]1
             _____________________________________
             [FN]1
                   [Home Owner]’s [n]ote and [m]ortgage in favor
             of WaMu were assigned, on May 25, 2008, by the
             Federal Deposit Insurance [Corporation] [“FDIC”] to
             JPMorgan Chase Bank, N.A. [“Chase”], from whence
             it was reportedly assigned to [U.S. Bank].

Trial Court Opinion, 9/29/14, at 3 (footnote in the original).

        Home Owner filed preliminary objections to U.S. Bank’s complaint on

November 7, 2012. Following receipt of U.S. Bank’s response thereto, the

trial court denied the preliminary objections on February 21, 2013 and

ordered Home Owner to file an answer to the complaint within twenty days

of the order. Home Owner filed an answer and new matter on March 21,

2013.     U.S. Bank filed a reply to the new matter on April 8, 2013.      On

October 22, 2013, U.S. Bank filed a motion for summary judgment, which

the trial court denied on December 6, 2013.

        The one-day bench trial took place on February 25, 2014. At trial, the

trial court sustained Home Owner’s objection to the admission of U.S. Bank’s

trial exhibits P-2 through P-8.   These exhibits included the adjustable rate

note; the mortgage; the assignment of the mortgage from Chase to U.S.

Bank; the payment history report compiled by Select Portfolio Servicing




                                     -3-
J-A09021-15


(“SPS”);4 the default notice allegedly sent to Home Owner by Chase; a

calculation of the current payoff of the loan through February 25, 2014; and

the original version of the note. The trial court found that the documents

“totally lack trustworthiness,” and excluded the exhibits from evidence.

N.T., 2/25/14, at 212.

     The trial court issued its verdict on March 3, 2014, finding in favor of

Home Owner. The prothonotary sent notice of the verdict to the parties on

March 5, 2014. U.S. Bank filed a motion for post-trial relief on March 17,

2014, which the trial court dismissed as untimely on June 18, 2014.

Judgment was entered on July 14, 2014.       Thereafter, U.S. Bank filed its

notice of appeal, followed by a court-ordered concise statement of errors

complained of on appeal. U.S. Bank now raises the following issues for our

review, which we reordered for ease of disposition:

        1. Whether the [t]rial [c]ourt erred as a matter of law
           by striking and dismissing the [m]otion for [p]ost-
           [t]rial [r]elief as untimely and/or refusing to accept
           the [m]otion where it was filed on the tenth day
           following notice by the [p]rothonotary of the entry of
           the [v]erdict following a non-jury trial?

        2. Whether the [t]rial [c]ourt committed prejudicial
           error and abused its discretion in refusing to take
           judicial notice of [Chase]’s ownership of the [n]ote
           and [m]ortgage and of [Chase]’s authority to assign
           the [m]ortgage and [n]ote to U.S. Bank?




4
   SPS services Home Owner’s mortgage on U.S. Bank’s behalf pursuant to a
limited power of attorney.


                                    -4-
J-A09021-15


         3. Whether the [t]rial [c]ourt’s refusal to admit into
            evidence the copies or original of the [n]ote is
            prejudicial error and [an] abuse of discretion despite
            [Home Owner]’s admission that she signed at least
            one of the copies?

         4. Whether the [t]rial [c]ourt’s refusal to admit into
            evidence the [d]efault [n]otice sent to [Home
            Owner] is prejudicial error and [an] abuse of
            discretion[?]

         5. Whether the [t]rial [c]ourt committed prejudicial
            error and abused its discretion by excluding evidence
            of [Home Owner]’s indebtedness and failing to deem
            admitted [Home Owner]’s indebtedness as pleaded
            and proven by [U.S.] Bank?

         6. Whether the [t]rial [c]ourt erred as a matter of law
            by dismissing the case “with prejudice[]”[?]

U.S. Bank’s Brief at 7-8.

1. Timeliness of Post-Trial Motion

      As its first issue on appeal, U.S. Bank asserts that the trial court

erroneously found that its post-trial motion was untimely. Id. at 13-14. In

its written opinion pursuant to Pa.R.A.P. 1925(a), the trial court stands by its

decision to dismiss the post-trial motion as untimely, but states that “the

issue of the late filing … is [now] moot,” as this Court declined to quash the

appeal and the trial court constructed a written opinion addressing the

issues raised on appeal.5 Trial Court Opinion, 9/29/14, at 2. The trial court



5
   On August 20, 2014, this Court issued an order requiring U.S. Bank to
show cause why the appeal should not be dismissed for failure to preserve
any issues for appellate review based upon the allegedly untimely filing of its
post-trial motion. See Order, 8/20/14. U.S. Bank responded on September


                                     -5-
J-A09021-15


contends that the proper course of action is for this Court to remand the

case for the trial court to decide the issues raised in the motion, as “there

can be no direct appeal from a [v]erdict[.]” Id. The trial court nonetheless

addressed all of the issues raised on appeal, which were also included in

U.S. Bank’s post-trial motion.

      Our review of the record reveals that U.S. Bank timely filed its post-

trial motion.   Rule 227.1(c) of the Pennsylvania Rules of Civil Procedure

requires the filing of post-trial motions within ten days of the filing of the

decision in a nonjury trial.     Pa.R.C.P. 227.1(c)(2).    As the trial court

recognizes, this ten-day period does not commence until the prothonotary

sends notice of the decision to the parties.       See Trial Court Opinion,

9/29/14, at 2; Carr v. Downing, 565 A.2d 181, 181 (Pa. Super. 1989)

(“the time period for purposes of Rule 227.1 did not commence until notice

of the adjudication was sent to the parties”); see also Brednick v. Marino,

644 A.2d 199, 200 (Pa. Super. 1994) (same).          The trial court asserts,

however, that because U.S. Bank did not file its post-trial motion until twelve

days after the prothonotary sent notice to the parties of the verdict, the

motion was untimely and properly dismissed. Trial Court Opinion, 9/29/14,

at 2. This is incorrect, as the tenth day following the provision of notice of

the trial court’s verdict – March 15, 2014 – fell on a Saturday. The law is


2, 2014, resulting in our discharge of the rule and ordering the appeal to
proceed, subject to this panel’s review of the timeliness of the post-trial
motion. See Order, 9/18/14.


                                     -6-
J-A09021-15


clear: “Whenever the last day of any such period shall fall on Saturday or

Sunday, or on any day made a legal holiday by the laws of this

Commonwealth or of the United States, such day shall be omitted from the

computation.” Pa.R.C.P. 106(b). Therefore, U.S. Bank’s post-trial motion,

which was filed the following Monday, was timely.

      We further disagree with the trial court that remand is necessary in

this case. In its written opinion, the trial court states that it believes U.S.

Bank’s “post-trial contentions are utterly lacking in merit,” and only

recommends remand in “an abundance of judicial caution” to provide U.S.

Bank with “a final and appealable order.” Trial Court Opinion, 9/29/14, at

23 (citing Diamond Reo Truck Co. v. Mid-Pac. Indus., Inc., 806 A.2d

423 (Pa. Super. 2002)). This Court has made clear, however, that it is the

failure to timely file post-trial motions that results in waiver of issues raised

on appeal, not the trial court’s failure to consider the merits thereof. D.L.

Forrey & Associates, Inc. v. Fuel City Truck Stop, Inc., 71 A.3d 915,

919 (Pa. Super. 2013).

      Here, U.S. Bank timely filed post-trial motions.        Although the trial

court initially failed to consider the contentions raised therein, the trial court

ultimately did so in its opinion authored for purposes of appeal. This is the

functional equivalent of a case involving the dismissal of post-trial motions

by operation of law, and in such cases, the trial court does not address the

contentions raised in the post-trial motion, if at all, until it authors its



                                      -7-
J-A09021-15


1925(a) opinion.     See Pa.R.C.P. 227.4(1)(b) (authorizing the entry of

judgment, upon praecipe of a party, if the trial court does not enter an order

disposing of timely filed post-trial motions within 120 days of the filing of the

motion). Furthermore, this is not an appeal from a verdict as the trial court

suggests, but an appeal following the entry of judgment.        See Trial Court

Opinion, 9/29/14, at 2; supra, n.2.

      “[T]he twofold purpose of post-trial motions: (1) to afford the trial

court in the first instance, the opportunity to correct asserted trial errors[]

and (2) to clearly and narrowly frame issues for appellate review,”

Diamond Reo Truck Co., 806 A.2d at 430, have been met in this case.

There is no purpose in remanding the case for the trial court to again

address the issues raised in the motion. We therefore proceed to our review

of the issues raised on appeal.

2. Judicial Notice

      U.S. Bank’s second issue on appeal alleges error based on the trial

court’s failure to take judicial notice of Chase’s acquisition of Home Owner’s

mortgage pursuant to the FDIC’s takeover of WaMu and subsequent transfer

of “substantially all” of WaMu’s assets and liabilities to Chase. U.S. Bank’s

Brief at 17-20. We review challenges to the trial court’s evidentiary rulings

according to the following standard:

            When we review a trial court ruling on admission of
            evidence, we must acknowledge that decisions on
            admissibility are within the sound discretion of the



                                       -8-
J-A09021-15


            trial court and will not be overturned absent an
            abuse of discretion or misapplication of law. In
            addition, for a ruling on evidence to constitute
            reversible error, it must have been harmful or
            prejudicial to the complaining party.

            An abuse of discretion is not merely an error of
            judgment, but if in reaching a conclusion the law is
            overridden or misapplied, or the judgment exercised
            is manifestly unreasonable, or the result of partiality,
            prejudice, bias or ill-will, as shown by the evidence
            or the record, discretion is abused.

Phillips v. Lock, 86 A.3d 906, 920 (Pa. Super. 2014) (citation omitted).

      Rule 201 of the Pennsylvania Rules of Evidence governs judicial notice,

and states, in relevant part, as follows:

            (b) Kinds of Facts That May Be Judicially
            Noticed. The court may judicially notice a fact that
            is not subject to reasonable dispute because it:

            (1) is generally known within the trial court's
            territorial jurisdiction; or

            (2) can be accurately and readily determined from
            sources whose accuracy cannot reasonably be
            questioned.

            (c) Taking Notice. The court:

            (1) may take judicial notice on its own; or

            (2) must take judicial notice if a party requests it
            and the court is supplied with the necessary
            information.

Pa.R.E. 201(b)-(c) (emphasis added).

      The record reflects that without presenting supporting evidence of any

kind, counsel for U.S. Bank stated, “It’s public record that [WaMu] was



                                      -9-
J-A09021-15


seized and shut down by the FDIC[, a]nd all of those assets were taken from

[WaMu] and taken over by [Chase]. … We would ask that since these are

public records and generally common knowledge that the [c]ourt take

judicial notice of the same.”        N.T., 2/25/14, at 52-53.   The trial court

responded by stating that the information was not within its common

knowledge and refused to take judicial notice of the transfer of WaMu’s

assets and liabilities to Chase, in particular, the transfer of Home Owner’s

mortgage loan from WaMu to Chase. Id. at 53.

       In its brief on appeal, U.S. Bank includes web addresses6 that detail

the FDIC’s takeover of WaMu and transfer of “all mortgage servicing rights




6
    Specifically, U.S. Bank cites:

     https://www.fdic.gov/news/news/press/2008/pr08085.html;
     http://www.wsj.com/news/articles/SB122238415586576687; and
     https://www.fdic.gov/about/freedom/Washington_Mutual_P_and_A.pdf.

Although the Commonwealth Court has, on several occasions, taken judicial
notice of information appearing on a website, see, e.g., Hill v. Dep't of
Corr., 64 A.3d 1159, 1165 (Pa. Commw. Ct. 2013) (taking judicial notice of
the Department of Corrections’ “policies and handbooks” appearing on its
website), we are not bound by these decisions. Wells Fargo Bank N.A. v.
Spivak, 104 A.3d 7, 16 (Pa. Super. 2014) (stating that the Superior Court is
not bound by decisions of the Commonwealth Court). Neither this Court nor
our Supreme Court has taken judicial notice of information appearing on a
website. See, e.g., Commonwealth v. Brown, 839 A.2d 433, 435-37 (Pa.
Super. 2003) (finding no abuse of discretion in the trial court’s refusal to
take judicial notice of the distance between two locations as stated on the
website www.mapquest.com, as the information was not inherently reliable).
As this information was not presented before the trial court, however, we
need not resolve the question of whether the information on the cited
websites are subject to judicial notice.


                                       - 10 -
J-A09021-15


and obligations” to Chase.7 See U.S. Bank’s Brief at 19-20. Our review of

the record reveals that none of this information was presented at trial.

Indeed, apart from the bare assertion of counsel that the transfer was

“public record,” U.S. Bank failed to supply the trial court with any

information for it to conclude that the fact requested was subject to judicial

notice.   See N.T., 2/25/14, at 51-54.         As such, we discern no abuse of

discretion in the trial court’s refusal to take judicial notice as requested.

      Moreover, even if the trial court abused its discretion by failing to take

judicial notice, U.S. Bank would not be entitled to relief.        As U.S. Bank

acknowledges, this issue relates to its standing to bring this action in

foreclosure. U.S. Bank’s Brief at 17-18; U.S. Bank’s Reply Brief at 3. The

trial court, however, did not decide this case based upon U.S. Bank’s lack of

standing. See Trial Court Opinion, 9/29/14, at 21 (stating that U.S. Bank

had standing and “proof of the chain of custody of the mortgage assignment

was unnecessary”).8     Rather, the trial court entered a verdict in favor of


7
   U.S. Bank also cites to In re Stewart, 473 B.R. 612 (Bankr. W.D. Pa.
2012), aff’d, 2013 WL 4041963 (W.D. Pa. Aug. 8, 2013) (unpublished
memorandum), for the proposition that “other courts in Pennsylvania have
taken judicial notice of the documents relating to the FDIC receivership of
WaMu and the subsequent purchase of WaMu’s assets by [Chase].” U.S.
Bank’s Brief at 20 (emphasis added). That case bears no relation to the
case at bar, as in In re Stewart, not only did Chase present documents in
support of its request that the bankruptcy court take judicial notice of
Chase’s purchase of WaMu, but the debtor consented to the request for
judicial notice. See In re Stewart, 473 B.R. at 618 nn. 2-3.
8
  Although U.S. Bank’s lack of standing was not the basis of the trial court’s
decision, we note that it is not clear that U.S. Bank proved that it had


                                      - 11 -
J-A09021-15


Home Owner based upon its finding that U.S. Bank failed to satisfy its

burden of proving the amount owed by Home Owner on the mortgage loan.

Id. The law is clear: “[I]n order for a ruling on the admissibility of evidence

to constitute reversible error, it must have been harmful or prejudicial to the

complaining party.”    Knowles v. Levan, 15 A.3d 504, 507 (Pa. Super.

2011) (citation omitted); see also Peled v. Meridian Bank, 710 A.2d 620,

626 (Pa. Super. 1998) (“To constitute reversible error, a ruling on evidence

must be shown not only to have been erroneous but harmful to the party

complaining. An evidentiary ruling which did not affect the verdict will not

provide a basis for disturbing the [fact-finder]’s judgment.”). As U.S. Bank

suffered no prejudice as a result of the trial court’s refusal to take judicial




standing to bring this mortgage foreclosure action. As stated infra, the trial
court excluded the mortgage from evidence. In addition, there were several
copies of the note produced at trial. Home Owner testified that only one
bore her signature, and that version of the note was not indorsed either to
U.S. Bank or in blank. N.T., 2/25/14, at 149-50. Pursuant to our holding in
JP Morgan Chase Bank, N.A. v. Murray, 63 A.3d 1258 (Pa. Super. 2013),
if the purported mortgagee establishes that it holds the original note,
indorsed to it or in blank, it is entitled to enforce the note even in the face of
questions regarding the chain of possession. Id. at 1267. If the purported
mortgagee is unable to establish that it is the holder of the note or that the
note is indorsed to it or in blank, the purported mortgagee may be required
to provide proof of the chain of possession to be entitled to proceed in the
foreclosure action. Id. at 1267-68. Home Owner does not challenge on
appeal the trial court’s finding that U.S. Bank proved that it had standing to
bring the foreclosure action, and our Supreme Court has made clear that we
may not question a party’s standing sua sponte.                 See Rendell v.
Pennsylvania State Ethics Comm’n, 983 A.2d 708, 717 (Pa. 2009) (“the
matter of standing is not available to be raised by a court sua sponte”)
(italics omitted). Therefore, we do not delve further into this issue.


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notice of the transfer of Home Owner’s mortgage and note to Chase, this

issue does not warrant relief.

3. Exclusion of Promissory Note

      Next, U.S. Bank asserts that the trial court erred by refusing to admit

into evidence copies of the note submitted at trial.9 U.S. Bank’s Brief at 31-

34. Once again, U.S. Bank’s only claim of prejudice relates to its ability to

establish that it had standing to bring this action in mortgage foreclosure.

Id. at 33-34; U.S. Bank’s Reply Brief at 12. Assuming solely for the sake of

analysis that the trial court’s ruling was erroneous, since the trial court did

not rule against U.S. Bank based on its lack of standing, no relief is due.

See Trial Court Opinion, 9/29/14, at 21; Knowles, 15 A.3d at 507; Peled,

710 A.2d at 626.




9
   The trial court was presented with multiple versions of the mortgage and
the note, with varying signatures, initials, witnesses, and handwriting. See
Complaint 8/8/12, at Exhibits A, C; Trial Exhibit P-3; Trial Exhibit D-5.
Home Owner testified that she signed only one version of the note, and
identified her signature on the note that did not bear an indorsement. N.T.,
2/25/14, at 149-50. U.S. Bank presented Trial Exhibit P-8, which was
reported to be the original note with an “ink signature,” id. at 127, but never
elicited testimony as to whether the “ink signature” was that of Home Owner
or that this document contained an indorsement in U.S. Bank’s name or in
blank. Trial Exhibit P-8 was not included in the certified record on appeal.
Neither U.S. Bank’s corporate representative witness nor its counsel could
explain why there were different versions of the note. Id. at 128-29, 212.
As stated above, the trial court found that the documents “totally lack
trustworthiness,” and sustained Home Owner’s objection to their admission.
Id. at 212. The trial court did, however, admit into evidence an unindorsed
copy of the note, included in Home Owner’s Trial Exhibit D-5.


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4. Exclusion of Default Notice

      In its fourth issue, U.S. Bank claims that the trial court abused its

discretion by refusing to admit into evidence the notice of default and

mortgage acceleration it allegedly sent to Home Owner.10 U.S. Bank’s Brief

at 34-35.     U.S. Bank includes no explanation of how, if at all, it was

prejudiced by the trial court’s exclusion of this document.   “This Court will

not act as counsel and will not develop arguments on behalf of an

appellant.”   Krauss v. Trane U.S. Inc., 104 A.3d 556, 584 (Pa. Super.

2014) (quoting Irwin Union Nat. Bank and Trust Co. v. Famous, 4 A.3d

1099, 1103 (Pa. Super. 2010)). As U.S. Bank failed to establish that this

allegedly erroneous evidentiary ruling prejudiced it, we will not disturb the

trial court’s decision on this basis. See Knowles, 15 A.3d at 507; Peled,

710 A.2d at 626.

5. Exclusion of Evidence of Amount of Debt

      U.S. Bank correctly states that proof of the amount of indebtedness is

an “essential element of a claim in mortgage foreclosure.” U.S. Bank’s Brief

at 21; see Pa.R.C.P. 1147(a)(5)-(6) (requiring that a complaint in mortgage

foreclosure include, inter alia, “(5) an itemized statement of the amount

due[] and (6) a demand for judgment in the amount due.”).           “The sole

purpose of the judgment obtained through an action of mortgage foreclosure


10
    The record reflects that the notice, sent by Chase, was sent to the
mortgaged property, and Home Owner testified that she never resided at
that address. See Trial Exhibit P-6; N.T., 2/25/14, at 145.


                                   - 14 -
J-A09021-15


is to effect a judicial sale of the mortgaged property,” as the judgment is de

terris (against the land), not in personam. Meco Realty Co. v. Burns, 200

A.2d 869, 871 (Pa. 1964).      The precise amount due on a mortgage is

therefore “essential,” as “[a] sheriff could not possibly distribute the

proceeds of a foreclosure sale among the various parties in interest without

knowing the exact extent of the claim of the foreclosing mortgagee.”        4

Goodrich Amram 2d § 1147(6):1 (Amram commentary).11



11
    We note, however, that U.S. Bank’s reliance upon Cunningham v.
McWilliams, 714 A.2d 1054, 1056-57 (Pa. Super. 1998), for the proposition
that the mortgagee must prove the amount owed by the mortgagor on the
loan is improper, as that case states precisely the opposite:

            In an action for mortgage foreclosure, the entry of
            summary judgment is proper if the mortgagors
            admit that the mortgage is in default, that they have
            failed to pay interest on the obligation, and that the
            recorded mortgage is in the specified amount.
            Landau v. Western Pennsylvania National Bank,
            [] 282 A.2d 335, 340 ([Pa.] 1971). This is so even
            if the mortgagors have not admitted the total
            amount of the indebtedness in their pleadings.
            Id. See generally 22 Standard Pennsylvania
            Practice 2d § [121:72] (discussing motions for
            summary judgment in a foreclosure action).

Cunningham, 714 A.2d at 1057 (emphasis added).                  The facts of
Cunningham are readily distinguishable from the case at bar.              The
mortgage in that case was a fixed rate mortgage and the mortgagors
admitted that they defaulted on the mortgage, failed to pay interest from a
specified date, and that the recorded mortgage was in the amount stated by
the mortgagee in its complaint. Id. Thus, despite the mortgagors’ denial in
their answer of the amount of indebtedness claimed by the mortgagee, that
figure was a simple calculation, readily ascertainable and indisputable based
upon the terms of the mortgage. See id. As such, summary judgment was
proper. The mortgage in the case at bar, on the other hand, was an


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     U.S. Bank alleges error by the trial court based upon its failure to

“deem admitted” the amount owed by Home Owner on the mortgage loan

and the court’s exclusion of the evidence it presented to establish the

amount of Home Owner’s indebtedness. U.S. Bank’s Brief at 21-31. As to

its claim that the amount of indebtedness should have been “deemed

admitted” by Home Owner, U.S. Bank asserts that this result is required

because of Home Owner’s failure to specifically deny the averment

concerning the amount of the indebtedness contained in U.S. Bank’s

complaint.   Id. at 21-23.   U.S. Bank relies upon the holding of this Court

that a borrower’s general denial in an answer to a complaint in a mortgage

foreclosure action is considered an admission, as the borrower and the


adjustable rate mortgage, which did not permit a simple calculation of the
amount due (as evidenced by the testimony provided by U.S. Bank’s
witness, discussed infra). Therefore, despite Home Owner’s admission that
the mortgage was in default, she failed to make any payments on the
obligation (which would include interest), and the mortgage was recorded in
the amount of $187,000, see N.T., 2/25/14, at 151, 152; Trial Exhibit D-5,
this did not permit the entry of judgment in U.S. Bank’s favor in the absence
of proof of the amount owed by Home Owner on the mortgage loan.

The Landau case, upon which the Cunningham Court relied, was an
anomalous case and is likewise distinguishable from the case at bar. In
Landau, the bank voluntarily subordinated its interest in the property to the
mortgagor’s lessee. Landau, 282 A.2d at 337. The bank, as the mortgagee
in possession, was collecting rent, expending money for capital
improvements, and paying taxes. Id. at 339. Therefore, it was unknown at
the time of the foreclosure proceeding what amount was owed to the bank;
an accounting was required prior to a sheriff’s sale. See id. at 339, 340.
Furthermore, a judicial sale of the property was not immediately
contemplated, rendering it unnecessary to determine at the time of the
foreclosure proceeding the exact amount due to the bank. See id. at 340;
see also Meco Realty Co., 200 A.2d at 871.


                                    - 16 -
J-A09021-15


mortgage company are the only entities that would have sufficient

information upon which to base a specific denial of the averments. Id. at 22

(citing First Wisconsin Trust Co. v. Strausser, 653 A.2d 688, 692 (Pa.

Super. 1995)). The trial court found that Home Owner did not and could not

admit to the amount of indebtedness alleged in U.S. Bank’s complaint. Trial

Court Opinion, 9/29/14, at 21.

     The record reflects that in its complaint, U.S. Bank included the

following averment:

           9. The following amounts are due as of May 7, 2012:

     Principal Balance Due                            $189,312.78
     Interest Currently Due and Owing at a variable   rate
     From August 1, 2011 through May 7, 2012          $5,759.09
     Late Charges                                     $298.92
     Escrow Advances                                  $3,144.17
     Property Inspection                              $144.00
            TOTAL                                     $198,658.96

Complaint, 8/8/12, ¶ 9. Home Owner’s answer states, in relevant part:

           By way of further answer, [Home Owner] den[ies]
           any allegation which calls for amounts of money
           claimed by [U.S. Bank], for which after reasonable
           investigation, answering [Home Owner] [is] without
           knowledge or information to form a believe as to the
           truth or falsity of [U.S. Bank]’s allegation regarding
           the alleged amounts due referred to in [U.S. Bank]’s
           [c]omplaint and the allegation is therefore denied.

Defendant’s Answer and New Matter to Plaintiff’s Complaint, 3/21/13, ¶ 9.

     U.S. Bank is correct that in First Wisconsin Trust Co. this Court held

that “in mortgage foreclosure actions, general denials by mortgagors that




                                   - 17 -
J-A09021-15


they are without information sufficient to form a belief as to the truth of

averments as to the principal and interest owing must be considered an

admission of those facts.”     First Wisconsin Trust Co., 653 A.2d at 692.

This holding was derived from two sources: (1) our prior decision in New

York Guardian Mortgage Corp. v. Dietzel, 524 A.2d 951, 952 (Pa. Super.

1987), wherein this Court stated, “Unquestionably, apart from [the

mortgagee], [the mortgagors] are the only parties who would have sufficient

knowledge on which to base a specific denial,” and (2) Rule 1029 of the

Pennsylvania Rules of Civil Procedure, which states, in relevant part:

            (b) 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, except as provided by
            subdivision (c) of this rule, shall have the effect of an
            admission.

            (c) A statement by a party that after reasonable
            investigation the party is without knowledge or
            information sufficient to form a belief as to the truth
            of an averment shall have the effect of a denial.

            Note: Reliance on subdivision (c) does not excuse a
            failure to admit or deny a factual allegation when it
            is clear that the pleader must know whether a
            particular allegation is true or false. See Cercone v.
            Cercone, 254 Pa.Super. 381, 386 A.2d 1 (1978)
            [(en banc)].

Pa.R.C.P. 1029(b)-(c), Note.

      Both First Wisconsin Trust Co. and New York Guardian Mortgage

Corp. involved appeals from summary judgment decisions.            As such, the




                                     - 18 -
J-A09021-15


borrowers presented no evidence to support a finding that they were unable

to   ascertain   the   amount   owed    on      their   loans.   See   Alderwoods

(Pennsylvania), Inc. v. Duquesne Light Co., 106 A.3d 27, 34 n.5 (Pa.

2014) (“A court of original jurisdiction may grant summary judgment only

when the moving party demonstrates that there are no genuine issues of

material fact and that it is entitled to judgment as a matter of law.”).       In

contrast, in the case at bar, Home Owner presented evidence at trial 12 that

she was unable to determine the amount due to U.S. Bank on the loan.

Attorney Perry Liss testified that Home Owner retained him in 2011 or 2012

to send a qualified written request13 (“QWR”) to Chase to obtain information




12
    U.S. Bank does not claim as error on appeal the trial court’s denial of its
motion for summary judgment, which was based in part on Home Owner’s
failure to specifically deny the allegations regarding the amount due on the
mortgage.     Arguably, absent any additional evidence in the summary
judgment record, Home Owner’s answer to this averment would have
constituted an admission at the summary judgment phase.
13
    Section 2605 of the Real Estate Settlement Procedures Act defines a
qualified written request as follows:

            For purposes of this subsection, a qualified written
            request shall be a written correspondence, other
            than notice on a payment coupon or other payment
            medium supplied by the servicer, that—

            (i) includes, or otherwise enables the servicer to
            identify, the name and account of the borrower; and

            (ii) includes a statement of the reasons for the belief
            of the borrower, to the extent applicable, that the
            account is in error or provides sufficient detail to the


                                       - 19 -
J-A09021-15


about her mortgage. N.T., 2/25/14, at 172-73. Attorney Liss sent the QWR

on February 16, 2012, “disputing the validity of the current debt [Chase]

claim[s] that [Home Owner] owes,” and requesting “an accounting of [Home

Owner]’s mortgage loan from its inception until the present date.”       Trial

Exhibit D-3. Chase responded by sending, inter alia, what was purportedly a

detailed transaction history regarding Home Owner’s loan from March 1,

2007 through March 29, 2012.        The document, however, only included

transactions dating back to November 6, 2008, at which time the document

indicates that the principal balance of the loan had inexplicably increased

from $187,000 (the original amount of the mortgage loan, as stipulated by

the parties)14 to $195,961.66. See Trial Exhibit D-5; N.T., 2/25/14, at 151.

Furthermore, the payment history report presented by U.S. Bank at trial

only included transactions on the loan beginning on February 1, 2008, at

which time the principal balance was reportedly $193,103.71, again with no

explanation for the increase from the original loan amount of $187,000.



            servicer regarding other information sought by the
            borrower.

12 U.S.C.A. § 2605(e)(1)(B) (bold in the original).
14
    As stated supra, the trial court admitted into evidence Trial Exhibit D-5,
which contained an unindorsed version of the note and a copy of the
mortgage. This provided information regarding the original amount of the
mortgage loan and that it was subject to an adjustable rate of interest. See
Trial Exhibit D-5. At trial, Home Owner stipulated that the indorsed and
unindorsed versions of the note presented before the trial court contained
identical terms. N.T., 2/25/14, at 151.


                                    - 20 -
J-A09021-15


N.T., 2/25/14, at 141-42; see also Trial Exhibit P-5.15          Home Owner,

however, testified that she “made every payment in full” on this adjustable

rate mortgage until she defaulted on the loan, N.T., 2/25/14, at 152, which

would have resulted in a decrease, not an increase, in the amount of

principal owed.   The trial court found Home Owner’s testimony credible.

See Trial Court Opinion, 9/29/14, at 18, 21.

       The record supports the trial court’s finding that Home Owner did not

have sufficient knowledge upon which to base a specific denial as to the

amount owed on the loan.       Therefore, pursuant to Rule 1029(b) and (c),

Home Owner’s statement in her answer that she was unable to determine

the truth or falsity of the amount of indebtedness claimed by U.S. Bank in its

complaint does not have the effect of an admission. See Pa.R.C.P. 1029(b)-

(c).

       We now turn to U.S. Bank’s argument that the trial court abused its

discretion by excluding the evidence it presented of the amount owed on the

loan by Home Owner.        First, relying on the obligation of consumers to

challenge debt amounts as set forth in the Debt Collection Practices Act, 15

U.S.C. § 1692g(a)(3), U.S. Bank asserts that Home Owner failed to dispute

the amount of the debt within thirty days of SPS taking over servicing

responsibilities of the loan. According to U.S. Bank, this is “circumstantial


15
   The trial court refused to admit this exhibit for the purpose of establishing
the amount of indebtedness. It was, however, relevant to its decision not to
impute an admission upon Home Owner as to the amount due on the loan.


                                     - 21 -
J-A09021-15


evidence that [Home Owner] does not, in fact, have any basis for disputing

the amount of the debt claimed by [U.S.] Bank.” U.S. Bank’s Brief at 24.

U.S. Bank states that “this conclusion is inescapable” because Home Owner

did not dispute the amount of the debt claimed in the complaint and did not

testify that the amount owed was incorrect. Id. at 24-25. Our review of the

record reveals that U.S. Bank never presented this argument before the trial

court and has therefore waived it for purposes of appeal.        See Pa.R.A.P.

302(a) (“Issues not raised in the lower court are waived and cannot be

raised for the first time on appeal.”); Butler v. Charles Powers Estate ex

rel. Warren, 65 A.3d 885, 896 (Pa. 2013).

      Even if not waived, the argument is meritless. Section 1692g of the

Debt Collection Practices Act provides, in relevant part, as follows:

            (a) Notice of debt; contents

            Within five days after the initial communication with
            a consumer in connection with the collection of any
            debt, a debt collector shall, unless the following
            information is contained in the initial communication
            or the consumer has paid the debt, send the
            consumer a written notice containing—

            (1) the amount of the debt;

            (2) the name of the creditor to whom the debt is
            owed;

            (3) a statement that unless the consumer, within
            thirty days after receipt of the notice, disputes the
            validity of the debt, or any portion thereof, the debt
            will be assumed to be valid by the debt collector;




                                     - 22 -
J-A09021-15


          (4) a statement that if the consumer notifies the
          debt collector in writing within the thirty-day period
          that the debt, or any portion thereof, is disputed, the
          debt collector will obtain verification of the debt or a
          copy of a judgment against the consumer and a copy
          of such verification or judgment will be mailed to the
          consumer by the debt collector; and

          (5) a statement that, upon the consumer's written
          request within the thirty-day period, the debt
          collector will provide the consumer with the name
          and address of the original creditor, if different from
          the current creditor.

          (b) Disputed debts

          If the consumer notifies the debt collector in writing
          within the thirty-day period described in subsection
          (a) of this section that the debt, or any portion
          thereof, is disputed, or that the consumer requests
          the name and address of the original creditor, the
          debt collector shall cease collection of the debt, or
          any disputed portion thereof, until the debt collector
          obtains verification of the debt or a copy of a
          judgment, or the name and address of the original
          creditor, and a copy of such verification or judgment,
          or name and address of the original creditor, is
          mailed to the consumer by the debt collector.
          Collection activities and communications that do not
          otherwise violate this subchapter may continue
          during the 30-day period referred to in subsection
          (a) of this section unless the consumer has notified
          the debt collector in writing that the debt, or any
          portion of the debt, is disputed or that the consumer
          requests the name and address of the original
          creditor. Any collection activities and communication
          during the 30-day period may not overshadow or be
          inconsistent with the disclosure of the consumer's
          right to dispute the debt or request the name and
          address of the original creditor.

          (c) Admission of liability




                                   - 23 -
J-A09021-15


           The failure of a consumer to dispute the validity of a
           debt under this section may not be construed by any
           court as an admission of liability by the consumer.

15 U.S.C.A. § 1692g (bold in the original).       There is no indication in the

record that upon acquiring Home Owner’s mortgage and note, either U.S.

Bank or SPS sent Home Owner a written notice to validate the amount owed

as required by section 1692g(a). Therefore, Home Owner would have had

no reason to send a letter contesting the amount owed pursuant to sections

1692g(a)(3) and (b). Furthermore, as discussed below, U.S. Bank failed to

present admissible evidence of the amount of Home Owner’s indebtedness.

As such, Home Owner had nothing to dispute in her testimony at trial.

     At trial, U.S. Bank attempted to establish the amount of the

indebtedness based upon the testimony of KaJay Williams (“Williams”), a

mediation specialist with SPS, who explained the manner by which SPS

transferred loan information from Chase into its computer system. Relying

upon Commonwealth Fin. Sys. v. Smith, 15 A.3d 492 (Pa. Super. 2011)

(“CFS”), the trial court excluded the evidence. Trial Court Opinion, 9/29/14,

at 15, 19-21. U.S. Bank contends that this was error, as CFS is inapposite

to the case at bar. U.S. Bank’s Brief at 25-31.

     CFS involved an action to collect a credit card debt brought by CFS,

which had purchased the debt from NCOP Capital, Inc., which had itself

purchased the debt from Citibank, the original holder of the debt. CFS, 15




                                    - 24 -
J-A09021-15


A.3d at 493-94.    CFS, through its corporate representative, attempted to

enter into evidence the following:

            (a) two monthly billing statements: the first issued
            on February 25, 2002, reflecting receipt of a
            payment posted on February 7, 2002, asserting a
            payment due of $44.00 and a balance of $2,257.01
            as of March 20, 2002; the second issued on March
            26, 2002, reflecting a late fee of $35.00 on a past
            due payment (Complaint Exhibit A; Trial Exhibit P–
            2);

            (b) an unsigned, standard form copy of a 1996
            “Citibank Card Agreement,” issued seven years after
            Ms. Smith's Citibank account was opened, bearing no
            direct relationship to Ms. Smith's account, and
            reflecting 1996/1997 interest rates (Complaint
            Exhibit B; Trial Exhibit P–1);

            (c) a “Bill of Sale, Assignment and Assumption
            Agreement” dated July 14, 2004, between Citibank
            and NCOP Capital, Inc. (“NCOP”), wherein Citibank
            sold to NCOP, its successors and assigns, “the
            Accounts described in Section 1.2 of the Agreement,”
            including Ms. Smith’s account (Trial Exhibit P–3);

            (d) a “Bill of Sale, Assignment and Assumption
            Agreement” dated July 19, 2004 between NCOP and
            CFS, wherein NCOP sold to CFS, its successors and
            assigns “the Accounts described in Section 1.2 of the
            Agreement,” including Ms. Smith's account (Trial
            Exhibit P–4).

            (d) a notarized affidavit of Michael Chiodo, an
            employee of NCOP, dated September 24, 2004,
            which referenced Ms. Smith's account and her Social
            Security Number in the heading and provided as
            follows:

               Michael Chiodo, being sworn, deposes and says
               that the affiant making this affidavit is an
               employee of NCO Portfolio Management, Inc.;



                                     - 25 -
J-A09021-15


               it’s [sic] Subsidiaries and Affiliates, (the
               “Company”), which is located at 507 Prudential
               Road, Horsham, PA 19044. The affiant is
               authorized to make the statements and
               representations    herein.   The     Company's
               business records show that as of July 19,
               2004, there was due and payable from Account
               # [xxx–8465] the amount of $2,780.04. The
               Company’s business records show that this
               account was opened on 11/1/89. The affiant
               states that to the best of affiant's knowledge,
               information and belief there are no uncredited
               payments against said debt.

Id.   CFS’ corporate representative testified that he did not know how

Citibank or NCOP created or maintained their records; whether the entries in

the documents were made at or near the time of the events; if someone

with knowledge transmitted the information contained in the records; or if

the credit card agreement presented applied to Smith’s account. Id. at 494.

The trial court sustained Smith’s objection to these documents, concluding

that they did not satisfy the business records exception to the hearsay rule

under Rule 803(6) or the Uniform Business Records as Evidence Act, 42

Pa.C.S.A. § 6108(b). CFS, 15 A.3d at 495.

      Following the entry of judgment in Smith’s favor, CFS appealed to this

Court and we affirmed, finding no abuse of discretion by the trial court in

excluding the proffered exhibits. The Uniform Business Records as Evidence

Act   and   Rule   of   Evidence   803(6)     required   CFS   to   establish   the

“circumstantial trustworthiness” of the documents and have a qualified

witness testify in support of the documents, and the record supported the



                                     - 26 -
J-A09021-15


trial court’s conclusion that CFS failed to comply with either requirement.

Id. at 499-500.

     We find no error in the trial court’s exclusion of the loan history

documents in the case at bar based upon the holding in CFS.        As stated

above, at trial, U.S. Bank presented loan history documents created by

Chase through Williams’ testimony. He testified that SPS does not originate

new loans, but keeps track of payments on existing loans for other

companies.      Williams stated that SPS employs “a very rigorous loan

validation process” when entering loan information into its system to ensure

the accuracy of the data obtained from the prior holder of the debt. N.T.,

2/25/14, at 25-26. It involves reviewing “the account information, contact

history notes, payment history notes[,] … the address, borrower’s name,

social security number, … [and other] information in reference to that loan.”

Id. at 25.      According to Williams, members of SPS’ data conversion

department “look for irregularities,” including any dispute made by the

debtor indicating that the information is inaccurate, and by running an

amortization schedule of the loan to ensure the numbers “match up” with

the prior servicer’s numbers.    Id. at 41-42.     Upon completion of the

validation process, SPS adopts the prior loan servicer’s records as its own.

Id. at 43-44.

     The document presented to the trial court to detail Home Owner’s

payment history on the loan was created by Chase, and U.S. Bank sought to



                                   - 27 -
J-A09021-15


admit this exhibit into evidence as its own record. N.T., 2/25/14, at 58-59;

see Trial Exhibit P-5 at 3. Williams testified to having no knowledge as to

how Chase created or maintained its records. N.T., 2/25/14, at 25. U.S.

Bank insists that its validation process somehow differentiates the evidence

presented in this case from that in CFS.          Our review of CFS, however,

reveals that it too provided evidence that it “cross-confirm[ed] [] the

information contained in the electronic data provided to CFS on purchase of

the account and the information contained in the account statements it

sought to admit into evidence at trial.”        CFS, 15 A.3d at 498.    In CFS,

double-checking the records of the prior debt holder was deemed insufficient

to overcome the rule against the admission of hearsay.

      Moreover, regardless of this similarity with CFS, the record in this case

fully supports a finding that U.S. Bank’s documentary evidence of Home

Owner’s indebtedness was untrustworthy and incomplete, and thus properly

excluded as hearsay. “Hearsay” is an out of court statement offered in court

for the truth of the matter asserted. Pa.R.E. 801(c). A writing constitutes a

“statement” as defined by Rule 801(a).          See Pa.R.E. 801(a).   Subject to

certain exceptions, hearsay is inadmissible at trial. Pa.R.E. 802. One such

exception is contained in Rule 803(6), which permits the admission of a

recorded act, event or condition if:

            (A) the record was made at or near the time by--or
            from information transmitted by--someone with
            knowledge;



                                       - 28 -
J-A09021-15



            (B) the record was kept in the course of a regularly
            conducted activity of a “business”, which term
            includes    business,    institution,   association,
            profession, occupation, and calling of every kind,
            whether or not conducted for profit;

            (C) making the record was a regular practice of that
            activity;

            (D) all these conditions are shown by the testimony
            of the custodian or another qualified witness, or by a
            certification that complies with Rule 902(11) or (12)
            or with a statute permitting certification; and

            (E) neither the source of information nor other
            circumstances      indicate    a     lack    of
            trustworthiness.

Pa.R.E. 803(6) (emphasis added).         Furthermore, the Uniform Business

Records as Evidence Act states:

            A record of an act, condition or event shall, insofar
            as relevant, be competent evidence if the custodian
            or other qualified witness testifies to its identity and
            the mode of its preparation, and if it was made in
            the regular course of business at or near the time of
            the act, condition or event, and if, in the opinion of
            the tribunal, the sources of information, method and
            time of preparation were such as to justify its
            admission.

42 Pa.C.S.A. § 6108(b). “As long as the authenticating witness can provide

sufficient information relating to the preparation and maintenance of the

records to justify a presumption of trustworthiness for the business records

of a company, a sufficient basis is provided to offset the hearsay character of




                                     - 29 -
J-A09021-15


the evidence.”   Boyle v. Steiman, 631 A.2d 1025, 1032-33 (Pa. Super.

1993) (internal citations omitted), appeal denied, 649 A.2d 666 (Pa. 1994).

     As stated above, Williams had no knowledge of how Chase kept its

records and whether those records themselves would have been admissible

under Rule 803(6). Williams therefore could not authenticate the documents

created by Chase or establish their trustworthiness, and instead attempted

to authenticate them as SPS’ records created through the aforementioned

validation process. Despite the “very rigorous loan validation process” CFS

allegedly performed, the payment records provided by U.S. Bank at trial

dated back only to February 1, 2008, more than a year after the origination

of the loan. N.T., 2/25/14, at 141-42; Trial Exhibit P-5. Williams provided

no testimony as to knowledge of any payment activity that occurred

between January 25, 2007 and February 1, 2008.

     Furthermore, as of February 1, 2008, the document U.S. Bank

presented indicated that the principal loan amount was $193,103.71 – over

$6000 more than it was at the inception of the loan. Id. When asked to

explain the growth in principal, Williams had no answer.    He testified that

Home Owner had several options for paying the loan, including “a negative

amortized payment, … an interest only payment, … a [thirty]-year mortgage

payment, and … a [fifteen]-year accelerated payment.”      N.T., 2/25/14, at

80-81. Williams stated that Home Owner “could have selected any” of the

options, but that he did not know which she utilized for paying the loan in



                                   - 30 -
J-A09021-15


question. Id. at 81. Home Owner, on the other hand, testified that she had

been making payments in full on the loan prior to her default, which would

have resulted in a decrease in the amount of the loan’s principal.   Id. at

152.

       Additionally, although Williams indicated that a customer dispute

would have triggered an investigation into the accuracy of the payments

made, he admitted that he did not review the QWR sent to Chase by

Attorney Liss on Home Owner’s behalf challenging the correctness of the

stated amount owed on the loan. N.T., 2/25/14, at 105-06. According to

Williams’ testimony, SPS never engaged in any additional investigation into

the accuracy of the amount purportedly due on the loan apart from

reviewing the payment history information it received from Chase, which, as

stated above, was incomplete. See Trial Exhibit P-5; see also Trial Exhibit

D-5.

       The trial court found that U.S. Bank “failed to present complete,

accurate and trustworthy records evincing the actual amount due and owing

from [Home Owner] on this loan obligation[.]” Trial Court Opinion, 9/29/14,

at 18. The record supports that finding. As such, we discern no abuse of

discretion in the trial court’s exclusion of the loan history documents U.S.

Bank presented as proof of the amount owed by Home Owner on the loan.




                                   - 31 -
J-A09021-15


6. Dismissal of Complaint “With Prejudice”

      As its final issue on appeal, U.S. Bank asserts that the trial court erred

by dismissing its complaint “with prejudice.” U.S. Bank’s Brief at 36. U.S.

Bank states that the verdict in this case can apply only to the specific

defaults alleged, and does not preclude a future action in foreclosure should

Home Owner continue to fail to make payments on the mortgage loan, and

the dismissal therefore should have been without prejudice.16        Id. (citing

Mortgage Electronic Registration Systems v. Dimou, 2013 Pa. Dist. &

Cnty. Dec. LEXIS 79 (Pa. C.P. 2013), aff’d without opinion, 911 EDA 2013

(Pa. Super. April 28, 2014) (unpublished memorandum), appeal denied, 105

A.3d 737 (Pa. 2014)). The trial court does not address this question in its

1925(a) opinion.

      At the outset, we observe that the trial court’s inclusion of language

dismissing U.S. Bank’s complaint in the verdict entered following a full trial

on the complaint is at odds with the purpose of the complaint and the

definition of a verdict.   “The purpose of the pleadings is to place the

defendants on notice of the claims upon which they will have to defend.”

Carlson v. Cmty. Ambulance Servs., Inc., 824 A.2d 1228, 1232 (Pa.


16
    Continuing in its belief that the trial court dismissed the case based upon
a finding that U.S. Bank lacked standing to bring the foreclosure action, U.S.
Bank also argues that the dismissal should have been without prejudice to
permit “the real party in interest to pursue the action for default.” U.S.
Bank’s Brief at 36. As we have already stated, the trial court did not find
that U.S. Bank lacked standing in this matter. Trial Court Opinion, 9/29/14,
at 21. Thus, this argument is without merit.


                                    - 32 -
J-A09021-15


Super. 2003); see also Pa.R.C.P. 1019(a) (stating that a pleading shall

contain “[t]he material facts on which a cause of action or defense is based

… stated in a concise and summary form”).       A verdict in favor of a party

following trial constitutes a decision on the matters raised in the complaint

submitted to the factfinder. See Fritz v. Wright, 907 A.2d 1083, 1091 (Pa.

2006); Smith v. Shields, 45 A. 417 (Pa. 1900).

      The complaint framed the issues for trial, and the matters raised

therein have been adjudicated and decided by the trial court. The vitality of

the complaint ceased once the verdict was entered. We suppose that it is an

accurate statement that following trial and verdict, any complaint is

dismissed with prejudice since a party cannot relitigate the issues raised in a

complaint that has gone to verdict, and every verdict brings claims raised in

a complaint to an end.     Thus, in this regard, we conclude that the trial

court’s dismissal of U.S. Bank’s complaint in its order announcing the verdict

was surplusage.

      In reality, U.S. Bank is asking this Court to answer the question of

whether it or its successor in interest may file another foreclosure action

against Home Owner on the same mortgage and note for future defaults by

Home Owner.        We do not (indeed, we cannot) decide the future

repercussions of this decision, as it would violate the prohibition against the

issuance of an advisory opinion. See Sedat, Inc. v. Fisher, 617 A.2d 1, 4

(Pa. Super. 1992) (“An advisory opinion is one which is unnecessary to



                                    - 33 -
J-A09021-15


decide the issue before the court, and … the courts of this Commonwealth

are precluded from issuing such advisory opinions.”). Moreover, even if we

could decide this question, the issue is insufficiently briefed, as U.S. Bank

relies solely upon an unpublished decision of a trial court, which this Court

affirmed in an unpublished memorandum without a separate opinion. See

Reinoso v. Heritage Warminster SPE LLC, 108 A.3d 80, n.4 (Pa. Super.

2015) (en banc) (“In accordance with § 65.37 of the Superior Court’s

Internal Operating Procedures, an unpublished memorandum decision of this

Court is not to be relied upon or cited by a court or a party in any

proceeding, except under limited circumstances that do not exist here.”).

Conclusion

     In summary, we find error in the trial court’s conclusion that U.S.

Bank’s post-trial motion was untimely, but need not remand the case for

decision on the motion.   In all other respects, we affirm the trial court’s

verdict in favor of Home Owner.

     Judgment affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 5/29/2015




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