J-A17042-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

BAYVIEW LOAN SERVICING LLC                      IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

RODGER LINDSAY

                            Appellant               No. 2364 EDA 2015


                   Appeal from the Order Entered July 9, 2015
              In the Court of Common Pleas of Philadelphia County
                       Civil Division at No(s): 130501170


BEFORE: GANTMAN, P.J., LAZARUS, J., and PLATT, J.*

MEMORANDUM BY GANTMAN, P.J.:                            FILED JULY 27, 2016

       Appellant, Rodger Lindsay, appeals from the order entered in the

Philadelphia County Court of Common Pleas that dismissed his application

for an award of statutory attorney’s fees and costs under the Loan Interest

and Protection Law (“Act 6”).1 We affirm.

       The relevant facts of this appeal are as follows.    On February 17,

2006, Appellant and his wife, Kelley Lindsay obtained a mortgage loan for

$75,000.00 through Equity One, Inc. d/b/a Popular Financial Services

(“Equity One”). Appellant and his wife then purchased, on the same day, a

two-unit property located at 2115 East Chelten Avenue, Philadelphia, PA
____________________________________________


1
 41 P.S. § 503. The LIPL is alternatively referred to as the usury law or Act
6.


_____________________________

*Retired Senior Judge assigned to the Superior Court.
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19138 (“property”).   The lower portion of the property was a storefront

commercial unit; above that was a residential apartment unit.       The loan

application indicated that the property was intended as an investment and

was not the primary or secondary residence of Appellant and/or his wife.

Likewise, Appellant and his wife signed an affidavit of occupancy on February

17, 2006, stating they would not use the property as a primary or secondary

residence. That same day, Appellant and his wife executed and delivered a

note for $75,000.00 to Equity One.     The note dealt with the loan for the

subject property and further secured the mortgage obligations.     Appellant

and his wife agreed to various riders to the note, which altered the mortgage

document by removing certain clauses. One of the modifications included a

rent rider stipulating the property was not the couple’s primary place of

residence. The rent rider expressly required any change of occupancy to be

in writing and authorized by Equity One before any change ensued. On April

29, 2011, Mortgage Electronic Registration Systems, Inc. (“MERS”), as a

nominee for Equity One, assigned the mortgage rights to Appellee, Bayview

Loan Servicing, LLC (“Bayview”).

     Sometime after Appellant and his wife purchased the property,

Appellant began to use it as his primary residence.      No evidence in the

record indicates that Appellant submitted the occupancy modification in

writing to Bayview or that Bayview allowed the change. Appellant failed to

make the monthly mortgage payment for December 1, 2012, and Bayview


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received no payments in the ensuing months.

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

history of the case:

          On May 14, 2013, [Bayview] filed a Complaint in mortgage
          foreclosure related to the [property].              Bayview
          subsequently filed an Amended Complaint on April 21,
          2014. On May 12, 2014, [Appellant] filed an Answer with
          New Matter, to which Bayview filed a Reply. On February
          2, 2015, Bayview filed a Motion for Summary Judgment,
          which [Appellant] opposed, and [the trial court] scheduled
          a hearing for April 22, 2015. At the conclusion of the
          hearing on April 22, 2015, [the trial court] denied
          Bayview’s Motion for Summary Judgment and on April 29,
          2015, Bayview filed a Praecipe to Settle, Discontinue, and
          End the matter.[2] On May 29, 2015, [Appellant] filed a
          Motion for an Award of Statutory Attorney’s Fees and
          Costs, to which Bayview filed a response on June 22, 2015.
          On July 9, 2015, [the trial court] docketed an Order
          denying [Appellant’s] motion.         On July 23, 2015,
          [Appellant] filed a Notice of Appeal to the Superior Court
          and on August 4, 2015, was served an Order directing him
          to file a concise statement of [errors] complained of on
          appeal pursuant to Pa.R.A.P. 1925(b). On August 17,
          2015, [Appellant] filed a timely [Rule 1925(b) statement].

(Trial Court Opinion, filed December 9, 2015, at 1-2).

       Appellant raises the following issue on appeal:

          DID THE [TRIAL] COURT [ERR] AS A MATTER OF LAW IN
          DETERMINING THAT [APPELLANT] WAS NOT THE
          “PREVAILING PARTY” AND THEREFORE NOT ENTITLED TO
          ATTORNEY[‘S] FEES UNDER [SECTION] 503(A) OF THE
          LIPL [LOAN INTEREST AND PROTECTION LAW] AND AS
          REQUIRED BY GARDNER V. CLARK, WHERE PLAINTIFF
          DISCONTINUED     ITS   ACTION,   THUS   GRANTING
____________________________________________


2
  In other words, Bayview voluntarily discontinued the foreclosure action
without prejudice.



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            [APPELLANT] “SUBSTANTIALLY THE RELIEF SOUGHT?”

(Appellant’s Brief at 3).

       Appellant argues he is entitled to an award of attorney’s fees, because

Bayview failed to adhere to its mandated pre-foreclosure obligations.

Appellant insists the mortgage at issue was residential and not commercial.

Appellant avers he should have received notice of Bayview’s intention to

foreclose prior to the filing of the foreclosure action.            Appellant maintains

that   Bayview      acknowledged    it   had     failed    to   provide   the   necessary

notification. Appellant asserts the court further justified Appellant’s claim for

attorney’s fees when it denied Bayview’s motion for summary judgment

because there was a question of material fact regarding Appellant’s right to

pre-foreclosure notice under Act 6.

       Appellant submits the court failed to consider the relevant case law

defining him a       “prevailing party” for purposes of Section 503 attorney’s

fees, where he essentially obtained the relief he requested when Bayview

withdrew its foreclosure action.               Appellant claims the frequent and

longstanding use of the concept of “prevailing party” has become an

essential    part   of   interpreting    the    statutes    governing     pre-foreclosure

proceedings.        Appellant also contends that the possibility of a future

foreclosure action does not deny him status as a “prevailing party” in this

foreclosure case, because there is no difference between a court’s dismissal

of a foreclosure action and a plaintiff’s voluntary discontinuance of a


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foreclosure action; either scenario concludes the action in favor of the

defendant. Appellant submits the court should have awarded him attorney’s

fees under section 503 when Bayview withdrew its foreclosure action,

regardless of Bayview’s ability to file another foreclosure action against

Appellant, because Appellant substantially obtained the relief he was after

and became the “prevailing party” in the present foreclosure action.

      Appellant claims the court ignored the legal precedent awarding

attorney’s fees in cases involving judgments of confessions. Appellant urges

there is no logical difference between Appellant’s case and those cases

involving confessed judgments, and the court provided no clarification on the

supposed distinction. Appellant concludes he is eligible for attorney’s fees as

the prevailing party under Section 503 of Act 6, and the trial court erred

when it denied his request. We disagree.

      Initially we observe:

            Trial courts have great latitude and discretion in
            awarding attorney fees when authorized by contract
            or statute. Generally, [t]he denial of a request for
            attorney’s fees is a matter within the sound
            discretion of the trial court, which will be reversed on
            appeal only for a clear abuse of that discretion.

         Further, to the extent that we must interpret a statute to
         resolve Appellant’s issues, our standard of review is de
         novo and our scope of review is plenary. We construe the
         meaning of a statute according to the Statutory
         Construction Act, 1 Pa.C.S.A. §§ 1501–1991.

            Under the Statutory Construction Act, the object of
            all statutory construction is to ascertain and
            effectuate the General Assembly’s intention. When

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            the words of a statute are clear and free from all
            ambiguity, the letter of the statute is not to be
            disregarded under the pretext of pursuing its spirit.

Generation Mortg. Co. v. Nguyen, ___ A.3d ___, 2016 PA Super 82 *3

(filed April 11, 2016) (internal citations omitted).    We further observe:

“Pennsylvania generally adheres to the American Rule, under which a litigant

cannot recover counsel fees from an adverse party unless there is express

statutory authorization, a clear agreement of the parties, or some other

established exception.”   Samuel-Bassett v. Kia Motors America, Inc.,

613 Pa. 371, 464, 34 A.3d 1, 57 (2011).       Pennsylvania courts can award

counsel fees to a party who “prevails” in an action but only “when authorized

by statute or rule of court, upon agreement of the parties, or pursuant to

some other recognized case law exception.”      Olympus Corp. v. Canady,

962 A.2d 671, 677 (Pa.Super. 2008).

      The statute commonly known as Act 6, at 41 P.S. §§ 101-605, allows

for the recovery of reasonable attorney’s fees as follows:

         § 503. Reasonable attorney’s fees recoverable

         (a) If a borrower or debtor, including but not limited to a
         residential mortgage debtor, prevails in an action arising
         under this act, he shall recover the aggregate amount of
         costs and expenses determined by the court to have been
         reasonably incurred on his behalf in connection with the
         prosecution of such action, together with a reasonable
         amount for attorney’s fee.

41 P.S. § 503(a) (emphasis added).      The statute does not give rise to a

mortgage foreclosure action “because a mortgage foreclosure action does


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not arise under Act 6. Instead, Pennsylvania Rules of Civil Procedure 1141–

1150 govern mortgage foreclosure actions.”            Generation Mortg. Co.,

supra at *4. Act 6 serves as “a prerequisite to commencing a residential

mortgage foreclosure action.” Id. “In the residential mortgage context, Act

6 is typically raised as a defense to mortgage foreclosure proceedings.” Id.

Section 403 of Act 6 is the provision that requires notice to the residential

homeowner “that the delinquent mortgage is subject to foreclosure at some

future date unless the owner takes some action.           It is not a foreclosure

action[.]” Id. “Remedies for a defective Act 6 notice include setting aside

the foreclosure or denying a creditor the ability to collect an impermissible

fee.”     Id.    Significantly, a voluntary discontinuance of a mortgage

foreclosure action does not entitle the mortgagor to recover attorney’s fees

under Section 503 “because a mortgage foreclosure action does not arise

under Act 6.” Id. at *5. Because a mortgage foreclosure action does not

arise under Act 6, the mortgagor cannot be a “prevailing party” for purposes

of recovering reasonable attorney’s fees under Section 503 of Act 6.         Id.

Significantly, no statutory provision allows for an award of attorney’s fees to

a mortgagor who successfully defends a foreclosure action; without a clause

in the mortgage or note allowing for the recovery of attorney’s fees, none

are available. Id.

        Instantly, the trial court reasoned as follows:

           This [c]ourt did not make any determination as to whether
           the instant mortgage foreclosure action was subject to the

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        requirements imposed by [Act 6], but merely denied
        [Appellant’s] motion based upon [his] failure to establish
        that he had “prevailed” in the action.

        On April 22, 2015, this [c]ourt heard and denied
        [Bayview’s] Motion for Summary Judgment, having found
        that various issues of material fact remained, including
        issues of notice as well as issues of eligibility for
        government programs related to mortgage repayment. On
        April 29, 2015, [Bayview] filed a Praecipe to Settle,
        Discontinue, and End the mortgage foreclosure action
        without prejudice.        This [c]ourt found that such
        proceedings did not confer a prevailing status upon
        [Appellant]. Although our Superior Court has consistently
        held that a party prevails if he…succeeds in obtaining
        substantially the relief sought, the existing precedent flows
        from circumstances involving confessed judgments and is
        not comparable to circumstances of the instant proceeding.
        As such, this [c]ourt properly found that [Appellant] had
        not satisfied the requirement of being the prevailing party
        in the action and properly denied the motion for statutory
        attorney’s fees and costs.

(Trial Court Opinion at 3) (some internal quotation marks omitted).      We

agree with the court’s decision to deny Appellant’s application for an award

of statutory attorney’s fees and costs under Act 6, based on Bayview’s

voluntary discontinuance of the foreclosure action.    This Court’s ruling in

Generation Mortg. Co. makes clear that a mortgage foreclosure action,

either residential or commercial, does not arise under Act 6. Thus, Appellant

cannot be a “prevailing party” under Section 503 of Act 6.         Therefore,

Appellant is ineligible to receive attorney’s fees pursuant to that statute.

Accordingly, we affirm.

     Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/27/2016




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