J-A30021-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
WELLS FARGO BANK, N.A., SUCCESSOR                IN THE SUPERIOR COURT OF
BY MERGER TO WACHOVIA MORTGAGE                         PENNSYLVANIA
CORPORATION,

                           Appellee

                     v.

GARY M. BARBERA AND LINDA
BARBERA,

                           Appellants                 No. 3623 EDA 2015


           Appeal from the Judgment Entered October 21, 2015
           In the Court of Common Pleas of Montgomery County
                    Civil Division at No(s): 2009-44350


BEFORE: BOWES, OLSON and STABILE, JJ.

MEMORANDUM BY OLSON, J.:                          FILED JANUARY 31, 2017

      Gary M. Barbera and Linda Barbera (collectively “Appellants”) appeal

from the judgment entered on October 21, 2015. We affirm.

      The factual background and procedural history of this case are as

follows.   On June 30, 2006, Appellants executed a mortgage (“the first

mortgage”)    in   favor   of   Wachovia   Mortgage   Corporation   (“Wachovia

Mortgage”). That same day, Appellants executed a promissory note in which

they agreed to pay $13,150.46 per month to repay the loan secured by the

first mortgage.     In addition to the first mortgage issued by Wachovia

Mortgage, Appellants secured a second mortgage with Wachovia Bank, N.A.
J-A30021-16


In conjunction with the second mortgage, Appellants also executed a

promissory note.

      On October 18, 2009, Wells Fargo Home Mortgage, the servicer for the

first mortgage, sent separate notices pursuant to 35 P.S. § 1680.401c et

seq. (“Act 91”)1 to Gary M. Barbera and Linda Barbera. On December 23,

2009, Wachovia Mortgage instituted the instant mortgage foreclosure

proceeding. Thereafter, Wachovia Mortgage filed an amended complaint.

      On March 29, 2010, Appellants filed preliminary objections which the

trial court overruled on July 19, 2010. On November 23, 2011, Appellants

filed a joint Chapter 7 bankruptcy petition. That filing acted as an automatic

stay with respect to the instant mortgage foreclosure action. See 11 U.S.C.

§ 362(a). On January 23, 2012, the United States Bankruptcy Court for the

Eastern District of Pennsylvania lifted the automatic stay as to this

proceeding.   In re Barbera, 11bk18993 (Bankr. E.D. Pa. Jan. 23, 2012).

On March 15, 2012, Wells Fargo Bank, N.A. (“Wells Fargo”) was substituted

as the successor in interest to Wachovia Mortgage.

      On April 3, 2015, the trial court presided over a bench trial. On July

20, 2015, the trial court entered findings of fact and conclusions of law.

1
  “The purpose of an Act 91 notice is to instruct the mortgagor of different
means he may use to resolve his arrearages in order to avoid foreclosure on
his property and also gives him a timetable in which such means must be
accomplished.” Wells Fargo Bank N.A. v. Spivak, 104 A.3d 7, 15 (Pa.
Super. 2014) (citation omitted). The requirements for an Act 91 notice are
set forth in detail at 12 Pa. Code § 31.203.



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Contemporaneously therewith, the trial court entered its decision in favor of

Wells Fargo and against Appellants. On July 31, 2015, Appellants filed an

untimely post-trial motion. On October 20, 2015, the trial court denied the

post-trial motion.2 On October 21, 2015, the trial court entered an in rem

judgment in favor of Wells Fargo and against Appellants in the amount of

$3,097,308.60. This timely appeal followed.3

      Appellants present one issue for our review:

      Did the trial court err by failing to dismiss the complaint when
      [Appellants] were never served with a proper and effective [Act
      91 notice]?

Appellants’ Brief at 4.



2
   Appellants’ post-trial motion was due on or before July 30, 2016. See
Pa.R.C.P. 227.1(c)(2). Nonetheless, Wells Fargo did not object to the
untimely filing of Appellants’ post-trial motion. See generally Wells Fargo’s
Brief in Opposition to Appellants’ Post-Trial Motion, 8/9/15. As the post-trial
motion was filed while the trial court still had jurisdiction over the matter,
Wells Fargo did not object to the timeliness of the motion, and the trial court
decided the motion on the merits, we must ignore the untimeliness of the
post-trial motion. See Watkins v. Watkins, 775 A.2d 841, 845 n.1 (Pa.
Super. 2001) (citation omitted) (“Whenever a party files post-trial motions
at a time when the court has jurisdiction over the matter but outside the
ten-day requirement of [Pennsylvania Rule of Civil Procedure] 227.1, the
trial court’s decision to consider the motions should not be subject to review
unless the opposing party objects.”).

3
  On November 17, 2015, the trial court ordered Appellants to file a concise
statement of errors complained of on appeal (“concise statement”). See
Pa.R.A.P. 1925(b). On December 3, 2015, Appellants filed their concise
statement. On January 11, 2016, the trial court issued its Rule 1925(a)
opinion. Appellants included their lone issue raised on appeal in their
concise statement.



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     Appellants’ lone issue raises a mixed question of fact and law. “[W]e

review the [trial] court’s legal conclusions de novo and the scope of our

review is plenary.” In re Estate of Rood, 121 A.3d 1104, 1106 (Pa. Super.

2015).   We will not disturb the trial court’s factual findings if they are

supported by the record. See Lomas v. Kravitz, 130 A.3d 107, 128 (Pa.

Super. 2015) (en banc), appeal granted on other grounds, 147 A.3d 517

(Pa. 2016).

     Appellants argue that the Act 91 notices were defective in the

following manner: (1) they were sent by Wells Fargo Home Mortgage, the

mortgage servicer, instead of Wachovia Mortgage, the lender; (2) they did

not include the assignment of the mortgage; and (3) they did not list

Wachovia Mortgage as the original lender.       Appellants’ argument that a

mortgage servicer cannot send an Act 91 notice is without merit. 4        The

relevant provisions of Act 91 state that a person other than the lender, e.g.,




4
  Appellants also argue that, in addition to Act 91, the terms of their
mortgage documents required Wachovia Mortgage to send the Act 91
notices. This argument too is without merit. The general rule is that “[a]
notification given by an agent is effective as notification given by the
principal if the agent has actual or apparent authority to give the
notification[.]” Restatement (Third) of Agency § 5.02(2). In this case, Wells
Fargo Home Mortgage had actual or apparent authority to send the Act 91
notices. The mortgage documents did not state that only Wachovia Mortgage
could send the Act 91 notices. Thus, the general rule applies in this case
and Wachovia Mortgage’s agent (Wells Fargo Home Mortgage) could send
the Act 91 notices on Wachovia Mortgage’s behalf.



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the mortgage servicer, can send the Act 91 notice.         Specifically, those

provisions provide that:

      The mortgagee or other person sending the notice to the
      mortgagor shall simultaneously send a copy of each notice
      issued to the agency by regular mail, facsimile, electronic mail or
      another means of electronic transfer in accordance with agency
      guidelines. In lieu of sending a copy of each notice, the
      mortgagee or other person charged with sending the
      notice may provide the agency, within thirty (30) days of the
      end of each calendar quarter, a report listing the notices sent
      during the prior calendar quarter arranged by property address
      including zip code.

35 P.S. § 1680.403c(b)(1) (emphasis added).          Thus, although in other

portions of section 1680.403c the term “mortgagee”              is used when

referencing who must send an Act 91 notice, it is obvious that the term

“mortgagee” in this section encompasses “[an]other person sending the

notice[.]”   35 P.S. § 1680.403c(b)(1).    Therefore, we conclude that the

servicer (Wells Fargo Home Mortgage) was permitted to send the Act 91

notices to Appellants. See CitiMortgage, Inc. v. Smiler, 32 Pa.D.&C.5th

561, 566-567 (C.C.P. Chester 2013); GMAC Mortg. v. Smith, 2012 Phila.

Ct. Com. Pl. LEXIS 278, *13-15 (Aug. 24, 2012).

      Appellants’ argument that the Act 91 notices were defective because of

the failure to include the mortgage assignment is also without merit. The

assignment in this case was executed after the mortgage foreclosure

complaint was filed. Thus, there was no assignment to be included with the

Act 91 notices.   Furthermore, neither Act 91 nor the relevant regulations

require that an assignment be included with an Act 91 notice.


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      We agree with Appellants, however, that the Act 91 notices sent by

Wells Fargo Home Mortgage were defective for failure to list Wachovia

Mortgage as the original lender.5      In 2009, the Act 91 notice that was

required by 12 Pa. Code § 31.203(a) included a section where the original

lender was to be listed. See 12 Pa. Code Part I, Subpt. D, Ch. 31, Appendix

A (2009). The Act 91 notices sent by Wells Fargo Home Mortgage did not

list Wachovia Mortgage as the original lender.

      Although the Act 91 notices received by Appellants were defective,

Pennsylvania law requires a showing of prejudice in order for Appellants to

be entitled to relief. Specifically,

      If there has been a failure to comply with the notice
      requirements of [Act 91], and such failure has been properly
      raised in a legal action, including an action in foreclosure . . . ,
      the court may dismiss the action without prejudice, order the
      service of a corrected notice during the action, impose a stay on
      any action or impose other appropriate remedies in the action to
      address the interests, if any, of the mortgagor who has been
      prejudiced thereby.

35 P.S. § 1681.5(1) (emphasis added); see Wells Fargo Bank, N.A. ex

rel. Certificate Holders of Asset Backed Pass-through Certificates

Series 2004-MCWI v. Monroe, 966 A.2d 1140, 1143–1144 (Pa. Super.



5
  For purposes of our analysis, we assume arguendo that Wachovia
Mortgage was required to send Appellants Act 91 notices.        We note,
however, that Wells Fargo argues that its predecessor was not required to
send Appellants Act 91 notices because the amount due under the mortgage
was greater than $60,000.00 at the time the mortgage complaint was filed.
See 35 P.S. § 1680.403c(f)(2).



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2009) (In order to be entitled to relief because of defective Act 91 notices,

the mortgagor must show actual prejudice).          In this case, the trial court

found that Appellants failed to show prejudice resulting from the defective

Act 91 notices. See Trial Court Opinion, 1/11/16, at 6-7. We conclude that

this factual finding is supported by the record.

       Appellants argue that they were prejudiced because they “were not

able to pursue their options under [Act 91], which is the very purpose of the

Act 91 [n]otices.”     Appellants’ Brief at 15.    Appellants fail to cite to any

portion of the record that supports this argument. Thus, it is waived. See

Pa.R.A.P. 2119(a). Moreover, even if it were preserved, our review of the

record reveals that Appellants’ claim of prejudice is wholly without merit.

       The Act 91 notices fully explained how Appellants could apply for

assistance under Act 91.        E.g. Act 91 Notices, 10/18/09, at 1 (certain

capitalization, bolding, and underlining omitted) (“To see if [Act 91] can

help, you must meet with a consumer credit counselling agency within 33

days of the date of this notice.”); id. at 2 (“Your mortgage is in default for

the reasons set forth later in this [n]otice (see following pages for specific

information about the nature of your default). You have the right to apply

for   financial   assistance   from   the   Homeowner’s   Emergency    Mortgage

Assistance Program. To do so, you must fill out, sign and file a completed

Homeowners’ Emergency Assistance Program Application with one of the

designated consumer credit counseling agencies listed at the end of this



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Notice.”); id. (certain capitalization, bolding, and underlining omitted)

(“[Y]ou must arrange and attend a ‘face-to-face’ meeting with one of the

consumer credit counseling agencies listed at the end of this [n]otice. This

meeting must occur within [33] days of the date of this notice.”). The fact

that the original lender was not listed on the Act 91 notices in no way

hindered Appellants from contacting a consumer credit counseling agency as

directed by the Act 91 notices.   Thus, Appellants’ only claim of prejudice,

that they were unable to pursue assistance under Act 91, is without merit.

Accordingly, we affirm the judgment entered in favor of Wells Fargo and

against Appellants.

       Application to Lodge a Form of the Act 91 Notice along with Related

Materials, Application to Lodge Recent and Relevant Federal Agency Findings

Against Appellee, and Application to File Supplemental Brief granted.

Judgment affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary


Date: 1/31/2017




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