J-S84034-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

THE BANK OF NEW YORK MELLON F/K/A                 IN THE SUPERIOR COURT OF
THE BANK OF NEW                                         PENNSYLVANIA
YORK, AS
TRUSTEE FOR THE CERTIFICATE
HOLDERS OF CWALT, INC.,
ALTERNATIVE
LOAN TRUST 2007-HY6 MORTGAGE
PASS-THROUGH CERTIFICATES
SERIES 2007-HY6


                      v.

RICHARD H. BROOKS, JR.,

                             Appellant                No. 1362 EDA 2016


                   Appeal from the Order Entered April 1, 2016
       in the Court of Common Pleas of Northampton County Civil Division
                          at No(s): C-48-CV-2012-2395

BEFORE: OLSON, SOLANO, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.: FILED APRIL 24, 2017

        Appellant, Richard H. Brooks, Jr., appeals from the order of the

Northampton County Court of Common Pleas granting summary judgment in

favor of Appellee, The Bank of New York Mellon, in this mortgage foreclosure

action.    Appellant argues that he submitted a complete loss mitigation

application, that Appellee’s servicer failed to respond properly, and that

Appellee violated 12 C.F.R. § 1024.41(g) by moving for summary judgment.

We remand for a determination under Pa.R.A.P. 1925(c)(1) as to whether

*
    Former Justice specially assigned to the Superior Court.
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Appellant timely filed his Pa.R.A.P. 1925(b) statement of errors complained

of on appeal (“Rule 1925 statement”).

          On April 1, 2016, the trial court entered summary judgment in favor of

Appellee. On April 28, 2016, Appellant timely appealed to this Court. On

Tuesday, May 3, 2016, the trial court ordered Appellant to file a Rule 1925

statement “no later than twenty-one (21) days from the date of this

[o]rder.” Order, 5/3/16. The order stated that “failure to comply with such

direction may be considered by the appellate court as a waiver of all

objections to the order, ruling, or other matter complained or, pursuant to

Pa.R.A.P. 1925(b).” Id. The docket states that the prothonotary docketed

and served the order on all parties on May 3, 2016.

          On Wednesday, May 25, 2016, one day after expiration of the twenty-

one day response period, the prothonotary time-stamped and docketed

Appellant’s Rule 1925 statement.1        The record contains no indication that

Appellant sought, or that the trial court granted, an extension of time for

filing.

          Notably, the certificate of service attached to the Rule 1925 statement

indicates that counsel for Appellant mailed this document on May 23, 2016—

within the response period—from Bethlehem, Pennsylvania.


1
  Succinctly stated, the Rule 1925 statement asserts that Appellee is barred
from seeking judgment in its foreclosure action because it failed to follow the
loss mitigation requirements in Regulation X of the Real Estate Settlement
Procedures Act, 12 C.F.R. § 1024.41(g).



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      Although Appellee does not challenge the timeliness of Appellant’s Rule

1925 statement, we must inquire sua sponte whether Appellant has

complied with Rule 1925.      See Greater Erie Industrial Development

Corp. v. Presque Isle Downs, Inc., 88 A.3d 222, 223 n.3 (Pa. Super.

2014) (en banc) (citations omitted).    Barring extraordinary circumstances,

the untimely filing of a Rule 1925 statement in a civil case constitutes waiver

of all issues on appeal. Id.; Pa.R.A.P. 1925(b)(3)(iv).

      Rule 1925(b) provides in relevant part:

         (b) Direction to file statement of errors complained
         of on appeal; instructions to the appellant and the
         trial court.—If the judge entering the order giving rise to
         the notice of appeal (“judge”) desires clarification of the
         errors complained of on appeal, the judge may enter an
         order directing the appellant to file of record in the trial
         court and serve on the judge a concise statement of the
         errors complained of on appeal (“Statement”).

         (1) Filing and service.—Appellant shall file of record the
         Statement and concurrently shall serve the judge. Filing of
         record and service on the judge shall be in person or by
         mail as provided in Pa.R.A.P. 121(a) and shall be complete
         on mailing if appellant obtains a United States Postal
         Service Form 3817, Certificate of Mailing, or other similar
         United States Postal Service form from which the date of
         deposit can be verified in compliance with the
         requirements set forth in Pa.R.A.P. 1112(c). Service on
         parties shall be concurrent with filing and shall be by any
         means of service specified under Pa.R.A.P. 121(c).

         (2) Time for filing and service.—The judge shall allow the
         appellant at least 21 days from the date of the order’s
         entry on the docket for the filing and service of the
         Statement. Upon application of the appellant and for good
         cause shown, the judge may enlarge the time period
         initially specified or permit an amended or supplemental
         statement to be filed. In extraordinary circumstances, the


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         judge may allow for the filing of a Statement or amended
         or supplemental Statement nunc pro tunc.

         (3) Contents of order.—The judge’s order directing the
         filing and service of a Statement shall specify:

            (i) the number of days after the date of entry of the
            judge’s order within which the appellant must file and
            serve the Statement;

            (ii) that the Statement shall be filed of record;

            (iii) that the Statement shall be served on the judge
            pursuant to paragraph (b)(1);

            (iv) that any issue not properly included in the
            Statement timely filed and served pursuant to
            subdivision (b) shall be deemed waived.

Pa.R.A.P. 1925(b)(1)-(3).     Furthermore, Rule 1925(c)(1) provides: “An

appellate court may remand in either a civil or criminal case for a

determination as to whether a Statement had been . . . timely filed . . . .”

Pa.R.A.P. 1925(c)(1).

      Our decision in Presque Isle is instructive—although, as discussed

below, it is distinguishable in one critical respect. The trial court in Presque

Isle directed the appellant to file its Rule 1925 statement within twenty-one

days. Presque Isle, 88 A.3d at 226. On the twenty-first day, the appellant

mailed its Rule 1925 statement to the court.           Id.      The prothonotary

docketed the Rule 1925 statement three days after expiration of the twenty-

one day period.    Id.   The appellant did not seek, nor did the trial court

grant, an extension of time within which to file the Rule 1925 statement.

Id. The appellant also failed to present a certificate of mailing that verified


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the date it mailed the Rule 1925 statement to the court. Id. Consequently,

we held that the appellant waived all issues on appeal due to the

“unequivocal” untimeliness of the Rule 1925 statement. Id. at 227 n.7.

      We further reasoned:

         The proof of service attached to [the appellant]’s Rule
         1925(b) statement was dated February 3, 2012. See [the
         appellant]’s Rule 1925(b) Statement Proof of Service,
         2/6/2012, at 1 (unpaginated). Pa.R.C.P. 205.1 provides:
         “Any legal paper not requiring the signature of, or action
         by, a judge prior to filing may be delivered or mailed to the
         prothonotary . . . . A paper sent by mail shall not be
         deemed filed until received by the appropriate officer.”
         Pa.R.C.P. 205.1.       Additionally, Pa.R.A.P. 121 provides:
         “Filing may be accomplished by mail addressed to the
         prothonotary, but . . . filing shall not be timely unless the
         papers are received by the prothonotary within the time
         fixed for filing.” Pa.R.A.P. 121(a) . . . Even assuming,
         arguendo, that [the appellant] mailed a copy of its Rule
         1925(b) statement on February 3, 2012, it has failed to
         comply with Pennsylvania statute and case law by failing to
         file that statement until February 6, 2012. Regardless of
         the date listed on its proof of service, [the appellant] failed
         timely to file its Rule 1925(b) statement.

Id. at 226 n.5.    Finally, we noted that Rule 1925(c)(1) authorized us to

“remand [in a civil case] for a determination as to whether a [Rule 1925(b)]

Statement had been . . . timely filed . . . .” Id. at 227 n.7 (citing Pa.R.A.P.

1925(c)(1)).   We determined, however, that remand was unnecessary,

because the record “unequivocal[ly]” established that the Rule 1925

statement was mailed on the final day of the twenty-one day period and

thus did not reach the prothonotary until after the deadline. Id.




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      The present case is distinguishable from Presque Isle because the

record does not unequivocally establish that Appellant’s Rule 1925

statement is untimely. The certificate of service indicates that counsel for

Appellant mailed the Rule 1925 statement one day before the twenty-one

day deadline.    Thus, it is possible that the prothonotary received the Rule

1925 statement on the twenty-first day, within the deadline. See Presque

Isle, 88 A.3d at 226 n.5 (Rule 1925 statement is timely filed if prothonotary

receives it within time fixed for filing).

      Accordingly, we remand this case under Rule 1925(c)(1) and direct the

trial court, within the next forty-five days, to enter an order determining

whether Appellant timely filed his Rule 1925 statement.     If necessary, the

court shall order discovery,2 convene an evidentiary hearing,3 and/or enter

findings of fact and conclusions of law. We will then take all other necessary

steps to resolve this appeal.



2
   Cf. Griffin v. Central Sprinkler Corp., 823 A.2d 191 (Pa. Super. 2003)
(reversing entry of summary judgment in favor of defendant on basis of
statute of limitations, where deposition of deputy prothonotary established
genuine issue of material fact as to whether prothonotary received plaintiff’s
praecipe for writ of summons before expiration of statute).
3
  An evidentiary hearing will not be necessary if Appellant produces “a
United States Postal Service Form 3817, Certificate of Mailing, or other
similar United States Postal Service form from which the date of deposit can
be verified in compliance with the requirements set forth in Pa.R.A.P.
1112(c).”    Pa.R.A.P. 1925(b)(1).      Production of any such form that
establishes a timely date of deposit will make Appellant’s Rule 1925
statement timely as a matter of law.



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      Case remanded for proceedings consistent with this memorandum.

Jurisdiction retained.

      Judge Olson joins the Memorandum.

      Judge Solano Concurs in the Result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 4/24/2017




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