J-S64031-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    FIRST FEDERAL SAVINGS & LOAN               :   IN THE SUPERIOR COURT OF
    ASSOCIATION OF GREENE COUNTY,              :        PENNSYLVANIA
    A CORPORATION                              :
                                               :
                                               :
                v.                             :
                                               :
                                               :
    JOHN M. ZEGLEN AND DIANE L.                :   No. 651 WDA 2019
    ZEGLEN, HIS WIFE AND UNITED                :
    STATES OF AMERICA                          :
                                               :
                                               :
    APPEAL OF: JOHN M. ZEGLEN AND              :
    DIANE L. ZEGLEN, HIS WIFE                  :

                   Appeal from the Order Entered April 4, 2019
     In the Court of Common Pleas of Fayette County Civil Division at No(s):
                               2613 of 2017, G.D.


BEFORE: BOWES, J., LAZARUS, J., and PELLEGRINI, J.*

MEMORANDUM BY PELLEGRINI, J.:                          FILED JANUARY 7, 2020

        The Appellants, John M. Zeglen and Diane L. Zeglen (the Zeglens),

appeal the order of the Fayette County Court of Common Pleas granting an

order of summary judgment in favor of the Appellee, First Federal Savings &

Loan Association of Greene County, a Corporation (FFSL).          The order is

affirmed.




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*   Retired Senior Judge assigned to the Superior Court.
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                                               I.

       This case arises from mortgage foreclosure proceedings. In April 2003,

the Zeglens executed a mortgage with FFSL for $285,000, secured by real

estate on which the Zeglens have since resided. Because they ceased making

those payments in April 2017, the Zeglens were in default on their monthly

mortgage payments.           On July 3, 2017, as required by Pennsylvania’s

Emergency Mortgage Assistance Program (Act 91 of 1983, or “HEMAP”), FFSL

sent both of the Zeglens an “Act 91 Notice.”           See FFSL’s Complaint,

12/13/2017, at Paragraph 7 (Exhibits B, C and D).1

       Receiving no timely payments to cure the default, on December 13,

2017, FFSL filed a foreclosure complaint. See id. The case docket reflects

that after two reinstatements, the Zeglens were served with the complaint on

March 23, 2018.

       The Zeglens filed two motions to stay the proceedings, both of which

were denied. They then filed preliminary objections on May 30, 2018, and



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1 HEMAP is a state program codified at 35 P.S. §§ 1680.401c-412c (Act 91).
“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.” Fish v. Penn. Hous. Fin. Agency, 931 A.2d 764, 767 (Pa.
Cmwlth. 2007). The notice requirements of HEMAP are provided at 35 P.S.
§§ 1680.402c, and 403c. Additionally, under Pennsylvania’s “Truth in Lending
Act,” a lender must detail in the notice the borrower’s financial obligations and
the applicable periods regarding default and the ability to cure. See 41 P.S.
§ 403.


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FFSL filed a response in opposition. On July 17, 2018, the Zeglens responded

to FFSL’s response. The trial court denied the Zeglens’ preliminary objections

with prejudice on July 24, 2018. The trial court then ordered the Zeglens to

file an answer to FFSL’s complaint within 20 days from that date.

      On August 13, 2018, the Zeglens filed their “Preliminary Objections

and/or Alternatively Answer and New Matter,” and the trial court granted

FFSL’s motion to strike them because Diane Zeglen had not signed the

document. The Zeglens filed a nearly identical pleading on September 12,

2018. On all three occasions that the Zeglens filed preliminary objections,

they raised an essentially identical claim that FFSL had failed to attach its

mortgage note to its complaint. FFSL filed a reply to the Zeglens’ new matter

and moved to strike their preliminary objections on September 28, 2018.

      The trial court held a hearing on the Zeglens’ preliminary objections,

answer and new matter on October 4, 2018. At that hearing, the Zeglens

never objected to a lack of a briefing schedule as to their preliminary

objections.

      The trial court issued an opinion and order on November 9, 2018,

overruling all of the Zeglens’ preliminary objections. The trial court noted in

the opinion that the Zeglens had repeatedly raised the same preliminary

objections even after their denial with prejudice. FFSL then filed a motion for

summary judgment. The Zeglens filed a response but did not argue that the

pleadings were still open due to a lack of a briefing schedule on preliminary


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objections. After holding a hearing, the trial court granted FFSL’s summary

judgment motion. The Zeglens timely appealed and both they and the trial

court complied with Pa.R.A.P. 1925.

       In their brief, the Zeglens contend that the trial court abused its

discretion in granting summary judgment in favor of FFSL because the

pleadings were not closed when the trial court denied their preliminary

objections. Id. Next, the Zeglens argue that the trial court erred in granting

summary judgment because Diane Zeglen never received adequate Act 91

Notice of the foreclosure. Id.

       FFSL contends that summary judgment was not premature because the

Zeglens’ preliminary objections were properly denied and the pleadings had

closed.   FFSL asserts further that the trial court ruled correctly that there

existed no genuine issue of material fact as to the Zeglens’ receipt of Act 91

Notice of the foreclosure proceedings.

                                               II.

                                               A.

       We find that the order of summary judgment must be affirmed because

the trial court did not commit an error of law or abuse its discretion. 2 Both

issues that the Zeglens raise are procedural and neither has merit.

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2On review of an order granting summary judgment, the following standard
applies:




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       First, the Zeglens contend that under Fayette County Rule of Civil

Procedure 1028(c), the trial court’s failure to set a briefing schedule and

hearing after they filed their preliminary objections precluded the trial court

from ruling on FFSL’s motion for summary judgment. This local rule provides

that when preliminary objections are filed, the trial court must set a briefing

schedule and, “if deemed necessary by the court,” hold “an argument date for

disposition[.]” F.C.R. 1028(c).

       The trial court did not err in this respect because it could decide the

summary judgment motion whether or not “a briefing schedule” and hearing

had been set for preliminary objections.         Pa.R.C.P 1035.2 provides, in

pertinent part, that “after the relevant pleadings are closed . . . any party may

move for summary judgment[.]” The pleadings have closed upon the filing of

the relevant pleadings in a civil action, which are limited to “a complaint and



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       Summary judgment properly is granted when “the pleadings,
       depositions, answers to interrogatories and admissions on file,
       together with affidavits, if any, show that there is no genuine issue
       of any material fact and that the moving party is entitled to a
       judgment as a matter of law.” Pa.R.C.P. 1035(b). The scope of
       our review of an order granting or denying a motion for summary
       judgment pursuant to Rule 1035 is well established. In reviewing
       an order granting summary judgment, an appellate court must
       examine the record in the light most favorable to the non-moving
       party. We will reverse only if there has been an error of law or a
       clear abuse of discretion.

Acceptance Ins. Co. v. Seybert, 757 A.2d 380, 381 (Pa. Super. 2000) (case
citations omitted).


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an answer thereto; a reply if the answer contains new matter, a counterclaim

or a cross-claim; a counter-reply if the reply to a counterclaim or cross-claim

contains new matter; and a preliminary objection to the counterclaim or cross-

claim and a response thereto.” Pa.R.C.P. 1017(a) (numbering omitted). In

this case, because all the defined pleadings had been filed by the time FFSL

moved for summary judgment, the pleadings were closed and the entry of

summary judgment was appropriate.

       Regardless, the trial court complied with F.C.R. 1028(c). On May 30,

2018, the Zeglens filed preliminary objections to FFSL’s complaint. As the

docket shows, those earlier preliminary objections were briefed and argued

by both parties to the action, and the trial court denied them with prejudice

on July 24, 2018.      The Zeglens again filed preliminary objections on

September 12, 2018, and the trial court permitted the Zeglens to argue them

at a hearing on October 4, 2018. Accordingly, the record refutes the factual

basis of the Zeglens’ claim that the trial court deprived them of the ability to

brief and argue their preliminary objections.

                                      B.

       The Zeglens next contend that the trial court could not rule on FFSL’s

summary judgment motion because FFSL did not provide Act 91 Notice to

Diane Zeglen as HEMAP requires. See 35 P.S. § 1680.403c(b)(1); 41 P.S. §

403.




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       HEMAP states generally that foreclosure is precluded until a proper

“uniform notice” (Act 91 Notice) is given to the borrower.     Id. 35 P.S. §

1680.402c(a).3      An Act 91 Notice must be sent by certified mail to the

mortgagee’s “last known address.” Id. at § 1608.403c(a). A party requiring

notice under HEMAP “shall be deemed to receive notice on the third business

day following the date of the mailing of the notice as documented by a

certificate of mailing obtained from the United States Postal Service.” Id. at

§ 1608.403c(e).

       Once this notice is sent to the borrower, a lender may proceed with

foreclosure if the borrower is unable to qualify for emergency mortgage

assistance payments. Id. at § 1680.402c(b) (Foreclosure permitted upon “a

determination has been made by the agency on a mortgagor's application for

emergency mortgage assistance payments or the applicable time periods . . .

have expired without the mortgagor applying for assistance in a timely

fashion, whichever is earlier.”).

       The notice requirements of HEMAP are intended to educate borrowers

about their statutory rights to mortgage assistance. See generally id. at §

1680.403c(b)(1).       Accordingly, where a borrower has received an Act 91

Notice advising of rights under HEMAP and the borrower has already applied



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3HEMAP’s notice requirements are commonly referred to as “Act 91 Notice.”
See Wells Fargo Bank, N.A. v. Monroe, 966 A.2d 1140 (Pa. Super. 2009).


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for mortgage assistance but been denied, the lender “shall not be required to

send the [Act 91 N]otice” notwithstanding any other statutory provisions. Id.

at § 1680.403c(g)(2).

       Here, on appeal, the Zeglens’ simply assert that Diane Zeglen never

received the Act 91 Notice sent on July 3, 2017, by certified mail as evidenced

by the lack of her signature on the certificate of receipt. See Appellant’s Brief,

at 10-12. Only John Zeglen’s signature appears on the return receipt of a

copy sent individually to him at the Zeglen’s home address and the other

notice mailed to Diane Zeglen at the same address was returned to FFSL as

unclaimed. See FFSL’s Complaint, 12/13/2017, at Paragraph 7 (Exhibit D).

       The Zeglens’ allegation is not supportable because they admitted to

FFSL’s averment in its complaint that two Act 91 Notices were sent to them

by certified mail to their home address. Attached exhibits to FFSL’s complaint,

therefore, establish as a matter of undisputed fact when notice was sent to

Diane Zeglen (July 3, 2017), who sent it (FFSL), and when it was returned

back to FFSL (July 29, 2017). See FFSL Complaint, 12/13/2017, at Paragraph

7 (Exhibits B, C and D).4



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4These facts distinguish the present case from the chief authority cited by the
Zeglens in support of their claim of insufficient notice. JP Morgan Chase
Bank v. Warner, 57 Adams 146 (December 4, 2015). In that memorandum
decision of the Adams County Court of Common Pleas, the lender could not
establish that it provided adequate Act 91 Notice because it had no proof of
mailing. FFSL proved its mailing here.


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      Contrary to the Zeglen’s claim, HEMAP does not require actual receipt

in order to perfect notice. See generally 35 P.S. § 1680.403(c) (requiring

that notice be “sent,” not received).   When the Act 91 Notice was sent by

certified mail to Diane Zeglen’s home address, notwithstanding that she did

not sign for it, she was deemed to have received it three business days later.

Moreover, the Zeglens’ proposed requirement of actual receipt is incompatible

with the general wording of HEMAP’s notice provisions and specifically

subsection 1608.403c(e), which provides for constructive receipt of a certified

mailing sent to the borrower’s residence. See Second Federal Sav. and

Loan Ass’n v. Brennan, 598 A.2d 997, 1000 (Pa. Super. 1991) (“Actual

receipt is not an essential element to fulfill the notice requirement [regarding

lender’s intent to foreclose]”).

      Finally, even if FFSL’s notice to Diane Zeglen was somehow deficient

(which it was not), the Zeglens did not dispute FFSL’s averment that their

application for HEMAP relief had already been denied by the time the complaint

was filed. See FFSL’s Complaint, 12/13/2017, at Paragraph 9 (Exhibit E); see

also FFSL’s Supplemental Affidavit in Support of Summary Judgment (Exhibit

A). This relieved FFSL of any further obligation to provide advance notice of

its complaint. See 35 P.S. §§ 1680.403c(g)(2); see also Wells Fargo Bank,

N.A. ex rel. v. Monroe, 966 A.2d 1140, 1143 (Pa. Super. 2009) (“[E]ven if

[notice] was defective, [borrowers] were given and availed themselves of the

opportunity to pursue mortgage assistance through [HEMAP]”).


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       In light of FFSL’s undisputed factual averments, the Zeglens’ general

denial as to their receipt of notice is insufficient to raise a genuine question of

fact. See Pa.R.C.P. 1029(b) (general denial of an averment in a pleading has

effect of an admission). Thus, the trial court properly considered the merits

of FFSL’s motion for summary judgment,5 and the order granting that motion

must stand.

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/7/2020




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5 On appeal, the Zeglens have only challenged the order of summary judgment
on the procedural basis that the trial court ruled prematurely. It is, therefore,
unnecessary for this Court to evaluate the substantive merits of FFSL’s motion
for summary judgment.

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