J-S26017-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 JEBEH KAWAH                                :   IN THE SUPERIOR COURT OF
                                            :        PENNSYLVANIA
                     Appellant              :
                                            :
                v.                          :
                                            :
 PHH MORTGAGE CORPORATION,                  :
 F/K/A CENDANT MORTGAGE                     :
 CORPORATION, D/B/A PHH                     :
 MORTGAGE SERVICES                          :
                                            :
                     Appellee               :         No. 3293 EDA 2018

              Appeal from the Order Entered October 11, 2018
            In the Court of Common Pleas of Philadelphia County
                   Civil Division at No(s): No. 180502540


BEFORE:    PANELLA, P.J., GANTMAN, P.J.E., and PELLEGRINI*, J.

MEMORANDUM BY GANTMAN, P.J.E.:                   FILED SEPTEMBER 09, 2019

     Appellant, Jebeh Kawah, appeals from the order entered in the

Philadelphia County Court of Common Pleas, which sustained the preliminary

objections of Appellee, PHH Mortgage Corporation, f/k/a Cendant Mortgage

Corporation,    d/b/a   PHH     Mortgage   Services   (“Bank”),   and   dismissed

Appellant’s complaint. We affirm.

     In its opinion, the trial court fully and correctly set forth the relevant

facts and procedural history of this case.      Therefore, we have no need to

restate them.

     Appellant raises the following issues for our review:

          DID THE TRIAL COURT ERR AS A MATTER OF LAW IN
          SUSTAINING [BANK’S] PRELIMINARY OBJECTIONS BASED
          ON A MISAPPLICATION OF THE THEORY OF RES JUDICATA?
____________________________________
* Retired Senior Judge assigned to the Superior Court.
J-S26017-19



         DID THE TRIAL COURT ERR AS A MATTER OF LAW IN
         SUSTAINING [BANK’S] PRELIMINARY OBJECTIONS BASED
         ON A MISAPPLICATION OF PA.R.C.P. 233.1(A), WHICH
         STATES THAT UPON THE COMMENCEMENT OF ANY ACTION
         FILED BY A PRO SE PLAINTIFF IN THE COURT OF COMMON
         PLEAS, A DEFENDANT MAY FILE A MOTION TO DISMISS THE
         ACTION ON THE BASIS THAT: (A) THE PRO SE PLAINTIFF
         IS ALLEGING THE SAME OR RELATED CLAIMS WHICH THE
         PRO SE PLAINTIFF RAISED IN A PRIOR ACTION AGAINST
         THE SAME OR RELATED DEFENDANTS, AND (B) THESE
         CLAIMS HAVE ALREADY BEEN RESOLVED PURSUANT TO A
         WRITTEN SETTLEMENT AGREEMENT OR A COURT
         PROCEEDING, BY THE TRIAL COURT ERRONEOUSLY
         CONCLUDING THAT [THE] PLAINTIFF IS ALLEGING THE
         SAME OR RELATED CLAIMS?

         DID THE TRIAL COURT ERR BY FAILING TO ADDRESS
         [APPELLANT’S] CLAIMS OF PROMISSORY ESTOPPEL[,]
         CONSTRUCTIVE FRAUD, TORTIOUS INTERFERENCE WITH
         PROSPECTIVE CONTRACTUAL RELATION SIMPLY BECAUSE
         THEY WERE RELATED TO A PRIOR CASE BETWEEN THE
         PARTIES?

(Appellant’s Brief at 4-5).

      The scope and standard of review in examining a challenge to an order

sustaining preliminary objections in the nature of a demurrer are as follows:

         Our review of a trial court’s sustaining of preliminary
         objections in the nature of a demurrer is plenary. Such
         preliminary objections should be sustained only if, assuming
         the averments of the complaint to be true, the plaintiff has
         failed to assert a legally cognizable cause of action. We will
         reverse a trial court’s decision to sustain preliminary
         objections only if the trial court has committed an error of
         law or an abuse of discretion.

Kramer v. Dunn, 749 A.2d 984, 990 (Pa.Super. 2000) (internal citations

omitted).

         All material facts set forth in the complaint as well as all

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J-S26017-19


         inferences reasonably [deducible] therefrom are admitted
         as true for [the purpose of this review.] The question
         presented by the demurrer is whether, on the facts averred,
         the law says with certainty that no recovery is possible.
         Where a doubt exists as to whether a demurrer should be
         sustained, this doubt should be resolved in favor of
         overruling it.

Wawa, Inc., v. Alexander J. Litwornia & Associates, 817 A.2d 543, 544

(Pa.Super. 2003) (quoting Price v. Brown, 545 Pa. 216, 221, 680 A.2d 1149,

1151 (1996)). To the extent the questions presented involve an interpretation

of the rules of civil procedure, our standard of review is de novo. Gray v.

PennyMac Corp., 202 A.3d 712, 715 (Pa.Super. 2019).

      After a thorough review of the record, the briefs of the parties, the

applicable law, and the well-reasoned opinion of the Honorable Arnold L. New,

we conclude Appellant’s issues merit no relief.       The trial court opinion

comprehensively discusses and properly disposes of the questions presented.

(See Trial Court Opinion, filed January 8, 2019, at 4-6) (finding: Appellant’s

current complaint asserts Bank wrongfully foreclosed upon and sold

mortgaged property, despite existence of mortgage modification; previously,

Appellant unsuccessfully raised same or similar argument in her defense to

Fannie Mae’s ejectment action; additionally, alleged existence of mortgage

modification was central to Appellant’s 2013 suit against Bank, in which Bank

prevailed; state and federal courts have previously addressed alleged

violations of federal law, which Appellant raises in current complaint; simply

put, courts have rejected Appellant’s claims on at least three prior occasions;


                                     -3-
J-S26017-19


to extent Appellant argues Rule 233.1 does not apply, because Bank allegedly

admitted it had mailed loan modification application to Appellant in December

2013, that argument also fails, where receipt, or even submission, of

application is not enforceable contract). The record supports the trial court’s

rationale. Accordingly, we affirm.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/9/19




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                                                          Kawah Vs Phh Mortgage Corporation-OPFLO           :\���:··:   \.f)



      PHH MORTGAGE CORPORATION
      D/B/A PHH MORTGAGE SERVICES                         11111111 IIH 111111111111
                                                               18050254000048
                                                                                                        �
     NEW, J.
                                              OPINION
                                                                                         January    g   2019

            For the reasons set forth below, the Court respectfully requests the Superior Court affirm

     its October 11, 2018 Order sustaining Defendant's Preliminary Objections and dismissing

     Plaintiffs Complaint.

     FACTUAL AND PROCEDURAL HISTORY

            The instant case arises from Defendant PHH Mortgage Corporation's successful

     mortgage foreclosure action against Plaintiff Jebeh Kawah. On January 3, 2005, Plaintiff

     executed a Mortgage upon the premises of 12135 Academy Road# 26, Philadelphia, PA.

     Plaintiff defaulted on her mortgage on June l , 2008. On May 19, 2009, Defendant filed an

     action sounding in mortgage foreclosure; Defendants obtained a default judgment on April 16,

     2010 because Plaintiff failed to file an answer to the foreclosure complaint. Following extensive

     motion practice, the Property was sold at Sheriff Sale on July 1, 2014 to a third party, Federal

     National Mortgage Association ("Fannie Mae"). Plaintiff did not file an appeal in the

     foreclosure action.

            On September 18, 2014, Fannie Mae filed an ejectment action against Plaintiff. Plaintiff

     mounted a vigorous defense to the ejectment action, arguing, in part, that Defendant failed to

     complete the mortgage modification process; the trial court ruled in favor of Fannie Mae. The

                                                      1
Superior Court affirmed the trial court's decision in the ejectment action. See Federal National

Mortgage Assocation v. Kawah, 2016 WL 5266596 (Pa. Super. Ct. July 22, 2016) (unpublished).

In August 2016, Plaintiff was ejected from the property.

       In addition to defending the foreclosure action and ejectment action, Plaintiff

affirmatively filed suit against Defendant in the Philadelphia Court of Common Pleas. Plaintiffs

action, filed in November 2013, alleged discrimination under federal laws, violations of the

Home Affordable Modification program ("HAMP") guidelines, violations of Pennsylvania's

Unfair Trade Practices and Consumer Protection Law, and negligence in the processing and/or

reviewing of her loan modification application. Plaintiff sought relief in the form of a

Temporary Restraining Order and Preliminary Injunctive Relief preventing her ejectment from

the property, as well as a rescission of the foreclosure and unspecified monetary damages. An

Amended Complaint, filed in April 2015, alleged discrimination in regard to loan modification in

violation of various federal law, violations of HAMP, "wrongful foreclosure," breach of contract,

breach of the covenant of good faith and fair dealing, violation of the Unfair Trade Practices an

Consumer Protection Law, and "willful, negligent, and continued misrepresentation." The trial

court sustained Defendant's preliminary objections, and the Superior Court, after performing a

comprehensive analysis of Plaintiffs claims, affirmed. See Kawah v. PHH Mortgage

Corporation, 2016 WL 4975046 (Pa. Super. Ct. July 8, 2016) (unpublished).

        Ori November 18, 2015, Plaintiff filed an action in the United States Federal Court for the

Eastern District of Pennsylvania seeking injunctive relief in the form of a stay of eviction

proceedings and monetary damages for alleged violations of the Real Estate Settlement and

Procedures Act ("RESP A") and Regulation X. The Eastern District dismissed Plaintiffs case,

finding it lacked jurisdiction. See Kawah v. PHH Mortgage Corp., 2016 WL 7163086 (E.D.P.A.



                                                  2
February 2, 2016) (unpublished). In dicta, the Eastern District opined that if it had jurisdiction,

Plaintiffs claims would fail because 1) in order to recover under RESPA, a plaintiff must submit

a complete loss mortgage application package and Plaintiff admits "a    3rd   complete loan

modification was not submitted to [Defendant]" and 2) the conduct Plaintiff complains of

occurred prior to Regulation X becoming effective on January 10, 2014 and Regulation X does

not apply retroactively. Id. at *3.

        On May 23, 2018, Plaintiff commenced the instant action by Writ of Summons.

Plaintiffs Complaint,. filed July 19, 2018, contains a single count sounding in fraud. Plaintiff

concisely summarized her claim by stating:

                From the onset of Kaw ah' s formal complaint against PHH and
                Fannie Mae in November 2010, triggered by the ejectment action
                of Fannie Mae against Kawah around the same time, PHH in effect
                "stood by and watched" as though no agreement had been reached
                between PHH and Kawah that was designed to prevent foreclosure,
                except when PHH was forced to admit to such agreements during
                Kawah's appeals to CFPB. Contrary to PHH's stance in the
                actions, PHH and Kawah had entered a TPP agreement, and PHH
                had rescinded a sheriffs sale twice and on a third occasion, made
                promises to Kawah in writing to work out a solution. Yet PHH
                refused to honor any such agreements with Kawah and concealed
                the fact that PHH had promised a work out with Kawah until after
                Kawah had been ejected from the Property.

Complaint at p. 6, Part II (pages unnumbered in original). Plaintiff alleges that in the previous

matters discussed above, Defendant fraudulently stated no agreements or modifications to

Plaintiffs mortgage existed, yet in September 2016, Defendant admitted it mailed a loan

modification application to Plaintiff on December 30, 2013. Id. at Part II, ,r 2(1.1). According to

Plaintiff, this admission established "the material fact that indeed Kawah and PHH were in effect

in an agreement of sorts that should have prevented Fannie Mae from pursuing ejectment actions

 against Kawah and only effectively admitted to having had such an agreement after the final



                                                  3
judgment of the Pennsylvania Superior Court in 2016 when it erroneously ruled against Kawah

due to this fraudulent concealment by PHH." Id. at Part II,   ,r 4.2.
        Defendant filed Preliminary Objections arguing 1) Plaintiffs Complaint should be

dismissed as frivolous under Pa.R.C.P. 233.l(a) and 2) Plaintiffs Complaint is barred by the

doctrine of res judicata. Plaintiff opposed Defendant's Preliminary Objections. By Order dated

October 11, 2018, this Court sustained Defendant's Preliminary Objections and dismissed

Plaintiffs Complaint. Plaintiff filed a timely appeal.

        In her Rule 1925(b) Concise Statement of Matters Complained of on Appeal, Plaintiff

alleges three errors: 1) res judicata does not apply because the identity of thing sued upon in this

case is different than in her previous cases, 2) Plaintiffs Complaint should not have been

dismissed under Rule 233.l(a) because the activities of Defendant, namely its admission, did not

exist at the time the prior lawsuits were decided, and 3) this court ignored Plaintiffs request for

equitable relief.

ANALYSIS

        Rule 233.1 provides:

                (a) Upon the commencement of any action filed by a prose
                    plaintiff in the court of common pleas, a defendant may file a
                    motion to dismiss the action on the basis that

                    (1) the prose plaintiff is alleging the same or related claims
                       which the pro se plaintiff raised in a prior action against the
                       same or related defendants, and

                    (2) these claims have already been resolved pursuant to a
                        written settlement agreement or a court proceeding.

Pa.R.C.P. 233.1. The purpose of Rule 233.1 is to limit "the ability of prose plaintiffs to prolong

litigation through the filing of serial complaints after the claims they allege have been resolved."

Gray v. Buonopane, 53 A.3d 829, 834 (Pa. Super. Ct. 2012); see also Gray v. Pennymac Corp.,


                                                  4
2019 WL 123311, *3-*4 (Pa. Super. Ct. January 7, 2019). Unlike res judicata or collateral

estoppel, which require technical identity of parties or claims, Rule 233.1 "merely requires that

the parties and the claims raised in the current action be 'related' to those in the prior action and

those prior claims have been 'resolved.'" Id. at 836.

       In the case sub Judice, Plaintiffs claims revolve around her assertion that Defendant

acted unscrupulously when it wrongfully foreclosed and sold her property despite the existence

of a mortgage modification. See generally Complaint. Plaintiff raised the same and similar

arguments in her defense to Fannie Mae's ejectment action, and both the trial court and the

Superior Court rejected these arguments. See Federal National Mortgage Assocation v. Kawah,

2016 WL 5266596 (Pa. Super. Ct. July 22, 2016) (unpublished). The alleged existence of a

mortgage modification was also central to Plaintiffs 2013 suit against Defendant. The trial court

rejected Plaintiffs assertion in that case, and the Superior Court affirmed. See Kawah v. PHH

Mortgage Corporation, 2016 WL 4975046 (Pa. Super. Ct. July 8, 2016) (unpublished). Any

alleged violations of federal law raised in Plaintiffs Complaint in this matter were previously

addressed not only by state courts, see Id. at *8-* 10, but also by the Eastern District of

Pennsylvania. Kawah v. PHH Mortgage Corp., 2016 WL 7163086 (E.D.P.A. February 2, 2016)

(unpublished). The applicability of Regulation X to Plaintiffs claim has also previously been

decided by the federal court. Id. Quite simply, the claims raised by Plaintiff in this case have

been considered, and rejected, by the courts on at least three prior occasions.

        Plaintiffs attempt to avoid the application of Rule 233.1 by pointing to Defendant's

September 2016 "admission" that it mailed a loan modification application to Plaintiff on

December 30, 2013 is not relevant. According to Plaintiff, Defendant's mailing of a loan

modification application shows, contrary to Defendant's argument in the prior cases, the



                                                   5
existence of a loan modification agreement. See Complaint at Part II, ,r 4.2. However, the Courts

of this Commonwealth have long held the receipt, or even the submission, of an application is

not an enf9rceable contract because there has not been a meeting of the minds as to the essential

terms of the deal. See� Upsal Street Realty Co. v. Rubin, 192 A. 481, 484 (Pa. 1937) (finding

a lease agreement did not exist despite the tenant's submission of an application, stating "Care

should always be taken not to construe as an agreement letters which the parties intended only as

a preliminary negotiation") (citations and quotations omitted).

       Since this Court concluded Plaintiff claims in this case are related to the claims

previously resolved by the Philadelphia Court of Common Pleas, the Pennsylvania Superior

Court, and the Eastern District of Pennsylvania, this Court properly dismissed Plaintiffs case

pursuant to Rule 233.1.

       WHEREFORE, this Court respectfully requests the Superior Court affirm its October

11, 2018 Order sustaining Defendant's Preliminary Objections and dismissing Plaintiffs

Complaint.




                                                     ARr,JOLD L. NEW, J. -
                                                       ,,




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