J-A08018-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

U.S. BANK NATIONAL ASSOCIATION, AS                     IN THE SUPERIOR COURT OF
TRUSTEE FOR PORF-2013-S3-REMIC                               PENNSYLVANIA
TRUST,

                            Appellee

                       v.

JOSE PEREZ,

                            Appellant                     No. 1262 EDA 2015


                Appeal from the Judgment Entered June 16, 2015
                In the Court of Common Pleas of Delaware County
                         Civil Division at No(s): 13-1920

BEFORE: BOWES, OLSON AND STRASSBURGER,* JJ.

MEMORANDUM BY OLSON, J.:                                    FILED JUNE 08, 2016

        Appellant, Jose Perez, appeals pro se from the judgment entered on

June 16, 2015. We affirm.

        As our disposition is based upon the procedural posture of this case,

we focus on the relevant procedural history of this case. On March 4, 2013,

U.S. Bank1 instituted the instant mortgage foreclosure proceeding.            On

August 21, 2013, Appellant filed preliminary objections.2              In those

preliminary objections, he argued that the trial court lacked subject matter




1
  For simplicity, we refer to U.S. Bank National Association and all of its
predecessors-in-interest, both individually and collectively, as U.S. Bank.
2
    Appellant titled the filing a motion to dismiss.



* Retired Senior Judge assigned to the Superior Court
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jurisdiction.   On October 25, 2013, the trial court overruled Appellant’s

preliminary objections.

      Trial commenced in January 2015. On March 10, 2015, the trial court

entered findings of fact and conclusions of law and found in favor of U.S.

Bank. On March 20, 2015, Appellant filed a post-trial motion. On March 25,

2015, the trial court denied the post-trial motion.       On April 24, 2015,

Appellant filed a notice of appeal.3 The trial court ordered Appellant to file a

concise statement of errors complained of on appeal (“concise statement”).

See Pa.R.A.P. 1925(b). Thereafter, Appellant filed a concise statement and

the trial court issued a Rule 1925(a) opinion.

      Appellant presents ten issues for our review:

      1. Did [U.S. Bank] ever demand the full unpaid principle due
      immediately from Appellant in writing pursuant to the mortgage
      contract?

      2. Is an Act 91 Notice an action to be taken before a mortgagee
      can exercise its acceleration rights?

      3. Did [U.S. Bank] present a forged signature [f]ixed [r]ate
      [n]ote to the [t]rial [c]ourt?

      4. Did [U.S. Bank] take affirmative action to let it be known to
      Appellant that [U.S. Bank] exercised its acceleration rights?

      5. Is [U.S. Bank’s] foreclosure proceeding premature?

      6. Did [U.S. Bank] send Appellant a [n]otice of [a]cceleration
      and [o]pportunity to [c]ure pursuant to the mortgage contract?

3
  The notice of appeal was premature as judgment had not been entered
against Appellant. Therefore, this Court remanded the case to the trial court
which entered judgment against Appellant on June 16, 2015. Appellant’s
notice of appeal is considered filed as of that date. See Pa.R.A.P. 905(a)(5).


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        7. Did [U.S. Bank] perform all          conditions   precedent   to
        commencing its foreclosure action?

        8. Did [U.S. Bank] exercise its acceleration rights prior to filing
        for foreclosure?

        9. Has [U.S. Bank] pleaded all material facts to have a perfected
        or completed [a] cause of action?

        10. Did [U.S. Bank] aver that all conditions precedent to filing its
        foreclosure complaint were performed?

Appellant’s Brief at 1-2.4

        “Prior to addressing the substance of [Appellant’s arguments] we must

determine whether [he] properly preserved [the issues].            An appellant’s

failure to include an issue in [his] Rule 1925(b) [concise] statement waives

that issue for purposes of appellate review.” Madrid v. Alpine Mountain

Corp., 24 A.3d 380, 382 (Pa. Super. 2011) (citation omitted); see Pa.R.A.P.

1925(b)(4)(vii) (“Issues not included in the [concise s]tatement and/or not

raised in accordance with the provisions of this paragraph (b)(4) are

waived.”).

        Appellant’s concise statement read as follows:

        [Appellant] complains that the trial court[’s] order denying
        [Appellant’s post-trial motion] was based upon bias and
        prejudice opinions that [do not] support the trial court[’s] order.
        The trial court [] denied [Appellant’s post-trial motion] without
        allowing [U.S. Bank] to respond to [Appellant’s] post-trial motion
        accordingly.   [Appellant] filed a [post-trial motion] within a
        timely manner and [U.S. Bank] had ten days to respond to the
        [m]otion.    [U.S. Bank’s] foreclosure action was commenced
        prematurely due to the fact that [U.S. Bank] failed to fulfill all

4
    We have re-numbered the issues for ease of disposition.


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      conditions precedent to filing a foreclosure action, which in this
      action, is also fulfilling all provisions within the mortgage
      contract [so that U.S. Bank may be] granted relief through such
      contract. [U.S. Bank] failed to exercise its acceleration rights by
      accelerating the mortgage debt pursuant to the mortgage
      contract. [U.S. Bank] failed to send [Appellant] a [n]otice of
      [a]cceleration and [o]pportunity to [c]ure pursuant to [the
      m]ortgage contract prior to commencing its foreclosure action
      against [Appellant. U.S. Bank] also failed to state a claim upon
      which relief can be granted.

Concise Statement, 5/27/15, at 1. Appellant did not raise his first, second,

or third issue in his concise statement. As such, those issues are waived.5

      Appellant’s fourth, fifth, sixth, seventh, and eighth all relate to the

sufficiency of the evidence at trial. The certified record in this case is devoid

of a transcript of the trial in this matter and there is no transcript request

from Appellant in the certified record. As this Court has explained:

      With regard to missing transcripts, the Rules of Appellate
      Procedure require an appellant to order and pay for any
      transcript necessary to permit resolution of the issues raised on
      appeal. Pa.R.A.P.1911(a). . . . When the appellant [] fails to
      conform to the requirements of Rule 1911, any claims that
      cannot be resolved in the absence of the necessary transcript or
      transcripts must be deemed waived for the purpose of appellate
      review. . . . It is not proper for either the Pennsylvania Supreme
      Court or the Superior Court to order transcripts nor is it the
      responsibility of the appellate courts to obtain the necessary
      transcripts.

Commonwealth v. Preston, 904 A.2d 1, 7 (Pa. Super. 2006), appeal

denied, 916 A.2d 632 (Pa. 2007) (certain internal citations omitted).


5
  Even if we were to conclude that Appellant’s concise statement could be
broadly construed to include issues one through three, we would find that
these issues were waived for the same reason that Appellant’s issues four
through eight are waived, as discussed infra.


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      We cannot evaluate Appellant’s fourth through eighth claims without

the trial transcript. As Appellant failed to request transcription of the notes

of testimony, and the trial transcript is not contained within the certified

record, Appellant’s fourth through eighth issues are waived. See Pa.R.A.P.

1911(d); Preston, 904 A.2d at 7.

      In his ninth and tenth issues, Appellant argues that U.S. Bank was

required to plead that it had accelerated the mortgage and that U.S. Bank

failed to so plead. In essence, Appellant argues that the trial court erred by

overruling his preliminary objections. This argument is waived.

      “Issues not raised in the lower court are waived and cannot be raised

for the first time on appeal.”       Pa.R.A.P. 302(a).     In his preliminary

objections, Appellant only argued that the trial court lacked subject matter

jurisdiction over the case. He did not argue that U.S. Bank failed to state a

claim upon which relief could be granted.        Accordingly, he waived his

argument that the trial court should have sustained a preliminary objection

in the nature of a demurrer. As Appellant has waived all ten of his issues,

we affirm.

      Judgment affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 6/8/2016




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