J-A12032-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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 D/B/A PHH
MORTGAGE SERVICES, FEDERAL
NATIONAL MORTGAGE ASSOCIATION,
D/B/A/ FANNIE MAE,

                           Appellees                 No. 2096 EDA 2015


                    Appeal from the Order Entered June 5, 2015
               In the Court of Common Pleas of Philadelphia County
             Civil Division at No(s): November Term 2013, No. 01923


BEFORE: BENDER, P.J.E., PANELLA, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.:                        FILED JULY 08, 2016

      Appellant Jebeh Kawah appeals pro se from the June 5, 2015, Order

which sustained the preliminary objections of PHH Mortgage Corporation

(“PHH”) and the Federal National Mortgage Association (d/b/a “Fannie Mae”)

(collectively “Appellees”), and dismissed Appellant’s amended complaint with

prejudice.    We affirm.

      The relevant facts and procedural history have been aptly set forth by

the trial court as follows:

           On January 3, 2005, Appellant executed a Mortgage upon
      the premises of 12135 Academy Road #26, Philadelphia, PA,
      19154-2942. The Mortgage was recorded at the Office of the
      Recorder of Deeds of Philadelphia County[.]



*Former Justice specially assigned to the Superior Court.
J-A12032-16


           On June 1, 2008, Appellant defaulted on her Mortgage; by
     the terms of the Mortgage, upon default of payment the entire
     debt was immediately collectible. See [Appellees’] Preliminary
     Objections, ¶¶ 2-3.

           On May 19, 2009, PHH filed its Complaint in Mortgage
     Foreclosure.

           On April 16, 2010, default judgment was entered against
     Appellant for her failure to file an Answer to the Complaint in
     Mortgage Foreclosure.

            The instant case commenced [on] November 18, 2013,
     when Appellant filed her complaint pro se and accompanying
     petition to proceed in forma pauperis, alleging discrimination
     under federal laws, violations of the Home Affordable
     Modification Program (“HAMP”) guidelines, violations of the
     Pennsylvania Unfair Trade Practices and Consumer Protection
     Law, and negligence in the processing and/or reviewing of her
     loan modification application.    In her complaint, [Appellant]
     sought a Temporary Restraining Order and Preliminary
     Injunctive Relief preventing her ejectment from 12135 Academy
     Road, the rescinding of the foreclosure, and unspecified
     monetary damages.

           On December 13, 2013, Appellant filed a preliminary
     injunction seeking the same relief as that in her Complaint,
     which was denied on December 26, 2013, as moot.

           On December        26, 2013, a judgment of non pros was
     entered for failure to   pay the appropriate filing fee; however, the
     same day, the case       was placed back into active status due to
     being non prossed in     error.

           On February 12, 2014, [Appellees] filed preliminary
     objections to [Appellant’s] Complaint, on the grounds that the
     Complaint was frivolous litigation pursuant to Pa.R.C.P. 233.1(a)
     as the arguments were the same as those raised in her
     preliminary injunction and would have been more properly
     brought as an Answer and New Matter in the underlying
     foreclosure action; and that the Complaint did not conform to
     Pa.R.C.P. 1028(a)(3), requiring specificity in pleading, as the
     Complaint was “replete with conclusory allegations” and failed to
     present facts to support her accusations. See [Appellees’]
     Preliminary Objections, ¶¶ 19-22.

                                      -2-
J-A12032-16


          [Appellant] did not respond to [Appellees’] Preliminary
     Objections.

           On March 12, 2014, [the trial court] entered an order
     sustaining [Appellees’] Preliminary Objections and dismissing
     [Appellant’s] Complaint [without prejudice].

           On March 17, 2014, Appellant filed a timely Motion for
     Reconsideration, alleging that Appellees had continued to send
     her “contradictory and confusing communication” regarding her
     mortgage status despite having admitted to processing errors,
     and arguing that a manifest injustice had occurred because she
     was a pro se party and had been treated unfairly.          See
     [Appellant’s] Motion for Reconsideration, ¶¶ 2-3, 6.

           On April 8, 2014, [Appellees] filed a timely response to
     [Appellant’s] motion, denying [Appellant’s] averments and
     noting that [Appellant] failed to file a responsive pleading to
     contradict the averments of [Appellees’] Preliminary Objections.
     See    [Appellees’]  Answer     to   [Appellant’s]  Motion   for
     Reconsideration, ¶¶ 1-6.

           On April 14, 2014, prior to th[e] [trial court’s] ruling on the
     Motion for Reconsideration, Appellant filed a Notice of Appeal to
     the Superior Court.

           On April 22, 2014, [the trial court] formally denied
     Appellant’s Motion for Reconsideration.

           On April 28, 2014, [the trial court] filed its Order pursuant
     to Pa.R.A.P. 1925(b), directing Appellant to file a Concise
     Statement of Matters Complained of on Appeal within twenty-
     one (21) days.

           On April 29, 2014, Appellant filed her Statement of Errors
     Complained of on Appeal, arguing that [the trial court] erred in
     “dismissing [Appellant’s] Complaint due to no response.” See
     Appellant’s Concise Statement of Errors Complained of on
     Appeal, ¶¶ 1-3.

           On July 1, 2014, the Property was sold at [a] Sheriff’s sale
     [to Fannie Mae]. See Appellees’ Preliminary Objections, ¶ 18.

          On July 25, 2014, [the trial court] issued its opinion
     pursuant to Pa.R.A.P. 1925(a).


                                     -3-
J-A12032-16


         On February 27, 2015, Appellees filed a Rule to file a
     Complaint.

            On April 1, 2015, Appellant filed an Amended Complaint,
     raising several counts. Her Complaint averred that Appellees
     discriminated against Appellant in regard to loan modification of
     the mortgage on the Property in violation of various federal
     laws; violations of HAMP; “wrongful foreclosure;” breach of
     contract; breach of the covenant of good faith and fair dealing;
     violations of Pennsylvania’s Unfair Trade Practices and Consumer
     Protection Law; and “willful, negligent, and continued
     misrepresentations.”

           On April 15, 2015, the Superior Court of Pennsylvania
     quashed Appellant’s April 14, 2014, appeal [on the basis it was
     taken from a non-appealable interlocutory order].

           On May 13, 2015, Appellees filed Preliminary Objections to
     Appellant’s [Amended] Complaint, averring that Appellant’s
     Amended Complaint should be dismissed pursuant to Pa.R.C.P.
     233.1 as frivolous litigation [based on the theory of res
     judicata];. . .pursuant to Pa.R.C.P. 1028(a)(3) as the Complaint
     lacked sufficient specificity; and. . .pursuant to Pa.R.C.P.
     1028(a)(4) [since the Complaint failed to state a cause of
     action].

           On June 5, 2015, [the trial court] sustained Appellees’
     Preliminary Objections and dismissed Appellant’s Amended
     Complaint with prejudice.

           On June 7, 2015, [despite the dismissal of her Amended
     Complaint with prejudice,] Appellant filed a Second Amended
     Complaint, averring that she did not receive electronic notice of
     the Preliminary Objections in accordance with Pa.R.C.P. 205.4.

            On June 10, 2015, Appellees filed a Motion to Strike
     Appellant’s [Second] Amended Complaint, averring that
     Appellant’s [Second] Amended Complaint was untimely, filed not
     only after the response was due, but after she received notice of
     [the trial court’s] June 5, 2015, Order granting Appellees’
     Preliminary Objections, [ ] that service of the objections had
     been completed[,] and that Appellant had not raised sufficient
     facts to rebut the presumption of proper service.




                                   -4-
J-A12032-16


           On June 12, 2015, [before the trial court ruled on
     Appellees’ Motion to Strike], Appellant filed a Motion for
     Reconsideration [of the June 5, 2015, Order]. [The Motion] did
     not raise any additional facts or law that would require granting
     said Motion, [and it was summarily denied]. Appellant argued
     that as Appellees “filed multiple Praecipes to Discontinue and
     End Matter. . .any subsequent foreclosure action should have
     been initiated with appropriate notice to [Appellant].” However,
     an examination of the docket in Appellees’ Mortgage Foreclosure
     case against Appellant reflects that a Judgment by Default was
     entered April 16, 2010; that a sheriff’s sale was held in 2010 but
     set aside by Appellees on April 18, 2011; that the Property was
     resold on July 1, 2014; and that a Satisfaction of Judgment and
     Praecipe to Discontinue were then filed on April 23, 2015.
     Despite Appellant’s averments, none of this activity amounts to
     the creation of a “subsequent foreclosure notice.”

           On June 25, 2014, Appellant filed a timely Notice of Appeal
     to the Superior Court.

           On June 29, 2015, [the trial court] issued its Order
     pursuant to Pa.R.A.P. 1925(b), directing Appellant to file her
     Concise Statement of Matters Complained of on Appeal within
     twenty-one (21) days.

            On July 15, 2015, Appellant filed her Concise Statement of
     Matters Complained of on Appeal, averring that [the trial court]
     erred: in sustaining Appellees’ Preliminary Objections and
     misapplied the theory of res judicata because the case is based
     upon a “different transaction—namely the TPP (Trial Period Plan)
     agreement;” in concluding that Appellant failed to state a
     sufficient cause of action; and in dismissing Appellant’s Motion
     for Reconsideration “without regard to the Notice deficiency of all
     of    [Appellees’]  subsequent    foreclosure   actions    against
     [Appellant].”

           [On July 24, 2015, the trial court filed a responsive
     Pa.R.A.P. 1925(a) Opinion.]

Trial Court Pa.R.A.P. 1925(a) Opinion, filed 7/24/15, at 1-5 (footnotes and

bold omitted).




                                    -5-
J-A12032-16


      In its Opinion, the trial court explained it dismissed Appellant’s

amended complaint with prejudice based on the application of the doctrine

of res judicata. Moreover, the trial court indicated that, even if Appellant’s

claims were not barred by res judicata, her amended complaint failed to

state a cause of action for which relief could be granted such that dismissal

was proper. Finally, the trial court found meritless Appellant’s claim that the

court abused its discretion in failing to grant Appellant’s June 12, 2015,

motion for reconsideration.

      Our standard of review of a trial court ruling sustaining preliminary

objections is as follows:

            [We must] determine whether the trial court committed an
      error of law. When considering the appropriateness of a ruling on
      preliminary objections, the appellate court must apply the same
      standard as the trial court.

             Preliminary objections in the nature of a demurrer test the
      legal sufficiency of the complaint. When considering preliminary
      objections, all material facts set forth in the challenged pleadings
      are admitted as true, as well as all inferences reasonably
      deducible therefrom.      Preliminary objections which seek the
      dismissal of a cause of action should be sustained only in cases
      in which it is clear and free from doubt that the pleader will be
      unable to prove facts legally sufficient to establish the right to
      relief. If any doubt exists as to whether a demurrer should be
      sustained, it should be resolved in favor of overruling the
      preliminary objections.

Majorsky v. Douglas, 58 A.3d 1250, 1268-69 (Pa.Super. 2012) (quotation

omitted).

      On appeal, Appellant has presented this Court with a largely

incomprehensible, undeveloped argument. For instance, as it pertains to the


                                     -6-
J-A12032-16


trial court dismissing her amended complaint on the basis of res judicata,

Appellant’s entire argument with regard thereto is found in the “Summary of

Argument” portion of her appellate brief, wherein she states:

        Appellees maintain [Appellant’s] claims are barred by res
        judicata, but the facts of the case indicate otherwise: the bases
        of [Appellant’s] claims could not have been brought up during
        any prior adjudications since they were undisclosed during the
        prior processes. In essence, PHH’s actions in breaching its
        contract with [Appellant] are so fraught with previously
        undisclosed misrepresentation as to constitute constructive fraud
        based on their concealment of material fact and [Appellant’s]
        justifiable reliance on PHH’s misrepresentations.

Appellant’s Brief, Summary of Argument.1

        Appellant’s conclusory, undeveloped paragraph lacking citation to

authority is insufficient to permit meaningful review of whether the trial

court erred in dismissing Appellant’s amended complaint on the basis of res

judicata. Accordingly, although we are not insensitive to the fact Appellant

is proceeding pro se, we decline to address this issue further. See Wilkins

v. Marsico, 903 A.2d 1281, 1284 (Pa.Super. 2006) (holding that, although

this Court is willing to liberally construe materials filed by a pro se litigant,

pro     se   status    confers    no    special   benefit   upon   the   appellant);

Commonwealth v. Miller, 721 A.2d 1121, 1124 (Pa.Super. 1998) (“When

issues are not properly raised and developed in briefs,. . .a court will not

consider the merits thereof.”) (citations omitted).

____________________________________________


1
    Appellant has not paginated her brief.



                                           -7-
J-A12032-16


         With regard to whether the trial court properly sustained the

preliminary objections and dismissed Appellant’s amended complaint on the

basis it failed to state a cause of action, to the extent Appellant’s brief

presents a cogent argument, we affirm on the basis of the well-reasoned

opinion authored by the Honorable Nina Wright Padilla.                  See Trial Court

Pa.R.A.P. 1925(a) Opinion, filed 7/24/15. Specifically, (1) as to Appellant’s

claim Appellees violated HAMP, the trial court concluded Appellant’s claim

failed    as    a    matter   of    law   since   “Appellant’s    raising   of    Appellees’

noncompliance with HAMP is futile when Appellant has no right to enforce

compliance[,]” Id. at 9 (quoting HSBC Bank, NA v. Donaghy, 101 A.3d

129, 137 (Pa.Super. 2014));2 (2) as to Appellant’s claim she was subjected

to a “wrongful foreclosure,” the trial court concluded Appellant’s claim failed

since     she       was   “barred    from      re-litigating   claims   related     to   the

foreclosure...[and] waived her right to appeal the foreclosure[,]” Id.; (3) as

to Appellant’s claim of breach of contract that the HAMP trial modification

plan offered to Appellant constituted a contract and Appellees breached the
____________________________________________


2
 As this Court indicated in Donaghy:
     [I]t is well-settled that borrowers do not have a private federal
     right of action under HAMP, a federal program created pursuant
     to the Emergency Economic Stabilization Act. The primary
     reason upon which courts have relied to deny borrowers a right
     of action is that borrowers are not intended third party
     beneficiaries of HAMP contracts between the federal government
     and lenders.
Donaghy, 101 A.3d at 136 (citations omitted).




                                            -8-
J-A12032-16


contract by declining to modify her loan, the trial court concluded this was

an attempt to assert a private cause of action under HAMP and “Appellant

cannot bring a private cause of action for alleged violations of HAMP[,]” Id.;

(4) as to Appellant’s claim Appellees violated Pennsylvania’s Unfair Trade

Practices and Consumer Protection Law (“UTPCPL”), 73 P.S. § 201-1 et seq.,

the trial court noted Appellant presented “conclusory statements of law,

[and] she does not identify how Appellee[s] violated any practices of the

UTPCPL[,]”3 Id. at 10; (5) as to Appellant’s claim of willful, negligent, and

continued misrepresentations by Appellees, the trial court concluded

Appellant’s claim failed as a matter of law since Appellant did not proffer

facts indicating that Appellees owed a duty of care to her, Id.4,   5



____________________________________________


3
 For a discussion of the elements of a claim under the UTPCPL, see Kern v.
Lehigh Valley Hospital, Inc., 108 A.3d 1281 (Pa.Super. 2015).
4
  Moreover, as to any suggestion made by Appellant regarding intentional
misrepresentation, the trial court noted the claim failed as a matter of law
since “Appellant has not and cannot prove that any alleged misstatements
were made falsely with knowledge of the falsity or recklessness as to
whether it is true or false.” Trial Court Pa.R.A.P. 1925(a) Opinion, filed
7/24/15, at 11.
5
  In its Opinion, the trial court also discussed the reasons it sustained
Appellees’ preliminary objections regarding Appellant’s claims that Appellees
discriminated against her in regard to the loan modification of the mortgage
in violation of the Equal Credit Opportunity Act, 15 U.S.C. § 1691 et seq.,
the Fair Housing Act, 42 U.S.C. § 3605, and Appellant’s equal rights under
42 U.S.C. § 1981. See Trial Court Pa.R.A.P. 1925(a) Opinion, filed 7/24/15,
at 7-8. Appellant has presented no argument concerning the trial court’s
sustaining of Appellees’ preliminary objections as to these claims.




                                           -9-
J-A12032-16


       Finally, as to Appellant’s claim the trial court erred in denying her

motion for reconsideration, the trial court noted “[the motion] did not raise

any additional facts or law that would require granting said [m]otion, [and it

was summarily denied].” Id. at 4. We find no abuse of discretion in this

regard.    See Cohen v. Furin, 946 A.2d 125 (Pa.Super. 2008) (noting

review of motion for reconsideration is subject to an abuse of discretion

standard).6

       For all of the foregoing reasons, we affirm. We direct the parties to

attach a copy of the trial court opinion in the event of further proceedings.

       Affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/8/2016




____________________________________________


6
 Appellant presents in her brief various allegations related to her ejectment.
However, an appeal related to the ejectment action has been listed in this
Court at a separate docket number, 2704 EDA 2015, and a panel of this
Court shall address issues related thereto in a separate decision.



                                          - 10 -
                                                                                                             Circulated
                                                                                           Received 07/31/2015 Superior 06/14/2016 10:25
                                                                                                                        Court Eastern    AM
                                                                                                                                      District


                                                                                               Filed 07/31/2015 Superior Court Eastern District
                                                                                                                              2096 EDA 2015
                                          IN THE COURT OF COMMON PLEAS
                                     FIRST JUDICIAL DISTRICT OF PENNSYLVANIA
                                         Kawah Vs Phh Mortgage Corporation Etal-OPFLD



                JEBEH KAWAH                                                             SUPERIORCOURTNo.                    .,.,
                         v.              II Ill I II IIII II I I II Ill
                                                  13110192300071
                                                                                        2096 EDA 2015

                                                                                        Civil Division
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                 PHH MORTGAGE CORPORATIONET AL                                          November Term 2013, No. ~23                                             '
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                                                                                                                                           ···:)
                                                                                                                       ,:-1
                                                                     OPINION
                                                                                                                       c.
                                                                                                                       --·J ~ ~
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                                                                                                                                                    l.:.
                                                                                                                      ~:....,

                 Jebeh Kawah appeals from this Court's Order of March 12, 2014, granting Def~~~nt~i·

         Preliminary Objections and dismissing her Complaint.

                                          FACTUAL AND PROCEDURAL HISTORY

                 On January 3, 2005, Appellant executed a Mortgage upon the premises of 12135 Academy

         Road #26, Philadelphia PA, 19154-2942. The Mortgage was recorded at the Office of the Recorder of

         Deeds of Philadelphia County as Document ID 51197420.

                 On June 1, 2008, Appellant defaulted on her Mortgage; by the terms of the Mortgage, upon

         default of payment the entire debt was immediately collectible. See Defendant's Preliminary Objections,

         ~~ 2- 3.

                 On May 19, 2009, PHH Mortgage Corporation filed its Complaint in Mortgage Foreclosure.1

                 On April 16, 2010, default judgment was entered against Appellant for her failure to file an

         Answer to the Complaint in Mortgage Foreclosure.

                 The instant case commenced November 18, 2013, when Appellant filed her complaint prose

         and accompanying petition to proceed in forma pauperis,2 alleging discrimination under federal laws,

         violations of Home Affordable Modification Program f'HAMP'') guidelines, violations of the Pennsylvania

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



         1 PHH Mortgage Corporation v. Kawah, Civil Action No. 2467, May Term, 2009 (Philadelphia Court of Common
         Pleas). Following the sale of the Property, Appellee filed a Satisfaction of Judgment and a Praecipe to Discontinue
         the case.
         2 This petition was denied on December 6, 2013, for failure to file a complete and/or legible petition and affidavit.


COPIES SENT PURSUANT TO Pa.R.C.P. 236(b)              07/27/2015
reviewing of her loan modification application. In her complaint she sought a Temporary Restraining

Order and Preliminary Injunctive   Relief preventing her ejectment from 12135 Academy Road, the

rescinding of the foreclosure, and unspecified monetary damages.

        On December 13, 2013, Appellant filed a preliminary injunction seeking the same relief as that

in her Complaint, whlch was denied on December 26, 2013, as moot.

        On December 26, 2013, a judgment of non pros was entered for failure to pay the appropriate

filing fee; however, the same day, the case was placed back into active status due to being non

pressed in error.

        On February 12, 2014, Appellee PHH Mortgage Corporation filed preliminary objections to

Plaintiff's Complaint, on the grounds that the Complaint was frivolous litigation pursuant to Pa. R. C. P.

233.l(a) as the arguments were the same as those raised in her preliminary injunction and would have

been more properly brought as an Answer and New Matter in the underlying foreclosure action; and

that the Complaint did not conform to Pa.R.C.P. 1028(a)(3), requiring specificity in pleading, as the

Complaint was "replete with conclusory allegations" and failed to present facts to support her

accusations. See Defendant's Preliminary Objections, 11 19-22.

        Plaintiff did not respond to Defendant's Preliminary Objections.

        On March 12, 2014, this Court entered an order sustaining Defendant's Preliminary Objections

and dismissing Plaintiff's Complaint.

        On March 17, 2014, Appellant filed a timely Motion for Reconsideration, alleging that Appellee

had continued to send her "contradlctory and confusing communication" regarding her mortgage status

despite having admitted to processing errors, and arguing that a manifest justice had occurred because

she was a prose party and had been treated unfairly. See Plaintiff's Motion for Reconsideration,11 2-

3, 6.

        On April 8, 2014, Defendant filed a timely response to Plaintiff's motion, denying Plaintiff's

averments and noting that Plaintiff failed to file a responsive pleading to contradict the averments of



                                                     2
Defendant's Preliminary Objections.     See Defendant's Answer to Plaintiff's Motion for Reconsideration,

~~ 1-6.

          On April 14, 2014, prior to this Court's ruling on the Motion for Reconsideration, Appellant filed

a Notice of Appeal to the Superior Court.

          On April 22, 2014, this Court formally denied Appellant's Motion for Reconsideration.

          On April 28, 2014, this Court filed its Order pursuant to Pa. R.A.P. 1925(b), directing Appellant

to file a ConciseStatement of Matters Complained of on Appeal within twenty-one (21) days.

          On April 29, 2014, Appellant filed her Statement of Errors Complained of on Appeal, arguing

that this Court erred in "dismissing Plaintiff's Complaint due to no response." See Appellant's Concise

Statement of Errors Complained of on Appeal,~~ 1-3.

          On July 1, 2014, the Property was sold at Sheriff's Sale. See Appellee's Preliminary Objections,

~ 18.

          On July 25, 2014, this Court issued its opinion pursuant to Pa.R.A.P. 1925(a).

          On February 27, 2015, Appellee filed a Rule to file a Complaint.

          On April 1, 2015, Appellant filed an Amended Complaint, raising several counts. Her Complaint

averred that Appellee discriminated against Appellant in regard to loan modification of the mortgage on

the Property in violation of various federal laws;3 violations of HAMP;"wrongful foreclosure"; breach of

contract; breach of the covenant of good faith and fair dealing; violations of Pennsylvania's Unfair

Trade Practicesand Consumer Protection Law; and "willful, negligent, and continued

misrepresentations."

          On April 15, 2015, the Superior Court of Pennsylvaniaquashed Appellant's appeal.

          On May 13, 2015, Appellee filed Preliminary Objections to Appellant's Complaint, averring that

Appellant's Amended Complaint should be dismissed pursuant to Pa.R.C.P.233.1 as frivolous litigation;




3   Namely, the Equal CreditOpportunityAct, 15   u.s.c. § 1691 et seq.; the Fair Housing Act, 42 u.s.c. § 3605 et
seq.; and 42 u.s.c. § 1981.
                                                          3
raising preliminary objections pursuant to Pa.R.C.P. 1028(a)(3) as the Complaint lacked sufficient

specificity; and raising preliminary objections pursuant to Pa.R.C.P. 1028(a)(4) by demurrer.

          On June 5, 2015, this Court sustained Appellee's Preliminary Objections and dismissed

Appellant's Amended Complaint with Prejudice.

          On June 7, 2015, Appellant filed a Second Amended Complaint, averring that she did not

receive electronic notice of the Preliminary Objections in accordance with Pa.R.C.P. 205.4.

          On June 10, 2015, Appellee filed a Motion to Strike Appellant's Amended Complaint, averring

that Appellant's Amended Complaint was untimely, filed not only after the response was due, but after

she received notice of this Court's June 5, 2015 Order granting Appellee's Preliminary Objections, and

that service of the objections had been completed and that Appellant had not raised sufficient facts to

rebut the presumption of proper service.

          On June 12, 2015, Appellant filed a Motion for Reconsideration, which did not raise any

additional facts or law that would require granting said Motion.4 Appellant argued that as Appellees

"filed multiple Praecipesto Discontinue and End Matter ... any subsequent foreclosure action should

have been initiated with appropriate notice to Plaintiff." However, an examination of the docket in

Appellee's Mortgage Foreclosure case against Appellant reflects that a Judgment by Default was

entered April 16, 2010; that a sheriff's sale was held in 2010 but set aside by Appellee on April 18,

2011; that the Property was resold on July 1, 2014; and that a Satisfaction of Judgment and Praecipe

to Discontinue were then filed on April 23, 2015. Despite Appellant's averments, none of this activity

amounts to the creation of a "subsequent foreclosure action."

          On June 25, 2014, Appellant filed a timely Notice of Appeal to the Superior Court.

          On June 29, 2015, this Court issued its Order pursuant to Pa.R.A.P. 1925(b), directing Appellant

to file her Concise Statement of Matters Complained of on Appeal within twenty-one (21) days.




4   Appellantincorrectlycited variousFederal Rules of Civil Procedure and federalcases in supportof her motion.
                                                         4
        On July 15, 2015, Appellant filed her Concise Statement of Matters Complained of on Appeal,

averring that this Court erred: in sustaining Appellee's Preliminary Objections and misapplied the theory

of res Judicata because the case is based upon a "different transaction - namely the TPP [Trial Period

Plan] agreement''; in concluding that Appellant failed to state a sufficient cause of action; and in

dismissing Appellant's Motion for Reconsideration "without regard to the Notice deficiency of all of the

Defendants' subsequent foreclosure actions against [Appellant]."

                                                DISCUSSION

        Appellant complains that this Court erred in dismissing her Complaint because: the Court erred

in sustaining the Preliminary Objections "based on a misapplication of the theory of res judicata"; erred

in finding that Appellant had failed to state a sufficient cause of action; and erred in dismissing

Appellant's Motion for Reconsideration "without regard to the Notice deficiency."

   I.      PRELIMINARY OBJECTIONS

        When ruling on preliminary objections, the court "accepts as true all well-pied material facts set

forth in the complaint along with all reasonably deducible inferences from those facts." Turner v.

Medical Center, Beaver, PA,   Inc., 454 Pa.   Super. 645, 686 A.2d 830 (1996), appeal denied, 548 Pa.

673, 698 A.2d 596 (1997). Such an inquiry assessesthe legal sufficiency of the Complaint and the

court must "be able to say with certainty that upon the facts averred, the law will not permit recovery."

Schuylkill Navy v. Langbord, 1999 PA Super 75, 728 A.2d 964, 968 (Pa. Super. Ct. 1999). A preliminary

objective will be sustained only if they are free and clear of doubt. Id The Court must also consider the

sufficiency of the cause of action alleged in a complaint before granting a party's preliminary

objections. Smith v. McDougall, 365 Pa. Super. 157, 529 A.2d 20 (1987).

        The court should consider the sufficiency of the cause of action alleged in the Complaint before

granting a party's preliminary objections. Schuylkill Navy, 728 A.2d at 968. The failure of the trial court

to consider "the sufficiency of the Complaint before sustaining preliminary objections and dismissing

the case without leave to amend is an abuse of discretion." Id Thus, an order sustaining preliminary

objections based solely on failure of a party to file timely a responsive brief or memorandum of law

                                                       5
without also considering whether the Complaint sufficiently pied a cause of action is an abuse of

discretion. Id. A trial court may properly rule on preliminary objections relying only on the pleadings

submitted by the parties where no factual issues are raised which necessitate the reception of

evidence. Wimble v. Parx Casino & Greenwood Gaming & Entm't, Inc., 2012 PA Super 62, 40 A.3d 174,

179 (Pa. Super. Ct. 2012).

       A demurrer is an assertion that a Complaint does not set forth a cause of action upon which

relief can be granted, and tests the sufficiency of the challenged pleadings. Composition Roofers Local

30/308 v. Katz, 398 Pa. Super. 564, 581 A.2d 607, 609 (1990). Fact-based defenses, even those which

might ultimately inure to the defendant's benefit, are thus irrelevant on demurrer. Orner v. Mallick, 515

Pa. 132, 135, 527 A.2d 521, 523 (1987). The question posed by the demurrer is whether on the facts

averred, the law says with certainty that no recovery is possible; the Court must determine whether the

Complaint adequately states a claim for relief under any theory of law. Mistick, Inc. v. Nw. Nat. Cas.

Co., 2002 Pa. Super. 267, 806 A.2d 39, 42 (2002). The court accepts as true all material averments in

the Complaint and sustains the demurrer only where the law will not permit recovery. Id.

        Preliminary objections seeking the dismissal of a cause of action should be sustained only in

cases in which it is clear and free from doubt that the pleader will be unable to prove facts legally

sufficient to establish the right to relief; if any doubt exists as to whether a demurrer should be

sustained, it should be resolved in favor of overruling said objections. Feingold v. Hendrzak, 2011 PA

Super 34, 15 A.3d 937, 941 (2011).

       Appellant first argues that this Court misapplied the doctrine of res judicata, as the case was

"based on a different transaction - namely the TPP agreement" rather than the mortgage note "at

issue in the first foreclosure action." The Trial Period Plan5 ("TPP'') referred to was under the Federal

Home Affordable Modification Program CHAMP''). Following entering the Plan, Appellant was denied a




5Under HAMP, borrowers enter into a Trial Period Plan before receiving a permanent Home Affordable
Modification. During this period, borrowers must submit trial payments and all required forms and documents.
See http://www.makinghomeaffordable.gov/learn-more/trial-period/Pages/default.aspx
                                                       6
permanent loan modification.   Despite Appellant's arguments that this Court erroneously sustained the

preliminary objections based upon res Judicata, as her complaints were based upon a different

transaction (i.e. the TPP), all of Appellant's claims originated from issues with her mortgage

foreclosure. Despite Appellant's arguments that the TPP is a separate transaction from the mortgage

foreclosure, Appellant has not clted any Pennsylvaniastate law to support this proposition. Even so,

Appellant's claims fail as a matter of law, and consequently this Court did not err in striking her

Complaint with prejudice. Appellant raised the following causes of action in her Amended Complaint,

and this Court will address them in turn.

       a. ECOA, FHA, and Equal Rights Under the Law

       Appellant first claims that Appellee discriminated against her in regard to loan modification of

the mortgage on the Property in violation of the Equal Credit Opportunity Act f'ECOA''), 15

U.S.C. § 1691 et seq., prohibiting creditors from discriminating against applicants on the basis of race,

color, religion, national origin, sex, marital status, age, public assistance, or exercising rights under the

Consumer Credit Act. Appellant also alleges violations the Fair Housing Act, 42 U.S.C. § 3605, and her

equal rights under the law pursuant to 42 U.S.C. § 1981. She argues that because she is black, female,

and a recipient of public assistance, she was qualified for a loan modification under HAMP terms, she

suffered an adverse decision, and she was treated less favorably than a similarly-situated individual

outside her protected class. However, pursuant to 15 U.S.C.A. § 1691(c)(l), it is not a violation of the

section for a creditor to refuse to extend credit offered pursuant to any credit assistance program

expressly authorized by law for an economically disadvantaged class of persons, in this case, HAMP.

Appellant's allegations are conclusory, and cannot stand as a matter of law.

        In all of her amended pleadings, Appellant has not averred anything to show that she was

denied a permanent loan modification because she was black, female, or a recipient of public

assistance. Appellant received a mortgage, defaulted on the mortgage, did not challenge the default,

and now attempts to collaterally attack the mortgage foreclosure through the current action. Further,

Appellant's modification application was denied as her current housing payments were not greater than

                                                      7
31 % of her total monthly gross income of $2,691.00, which Appellant provided to Appellee. Appellant

argues that this was a "pretext for discrimination given Plaintiff's obvious total monthly gross income of

over $6,000." However, this further illustrates that she was not qualified for HAMP, as her monthly

income would be approximately    13% of her monthly total gross income. This is well below the 31%

threshold provided by the HAMP guidelines.

       Appellant also argues that Appellee violated the Fair Housing Act, specifically 42 U.S.C.     § 3605,

which states that "It shall be unlawful for any person or other entity whose business includes engaging

in residential real estate-related transactions to discriminate against any person in making available

such a transaction, or in the terms or conditions of such a transaction, because of race, color, religion,

sex, handicap, familial status, or national origin." The FHA can be violated by either intentional

discrimination or if a practice has a disparate impact on a protected class. Mt. Holly Gardens Citizens in

Action, Inc. v. Twp. of Mount Holly, 658 F.3d 375, 381 (3d Cir. 2011). Generally, to prevail on a

disparate treatment claim, a plaintiff must demonstrate that some discriminatory purpose was a

"motivating factor" behind the challenged action. Cmty. Servs., Inc. v. Wind Gap Mun. Auth., 421 F.3d

170, 177 (3d Cir. 2005). As noted above, Appellant has not plead any facts or averments to support

the notion that Appellee discriminated against her based upon her race or sex, only stated that as, she

is a member of protected classes who was denied modifications of her loans, Appellee's conduct was

discriminatory. Appellant has raised the same arguments in numerous pleadings, and all fail as a

matter of law.

        b. HAMP

       Appellant raises numerous arguments averring that Appellee violated HAMP in the handling of

the loan modification application. However, regardless of the accuracy of Appellant's averments, it is

"well-settled that borrowers do not have a private federal right of action under HAMP, a federal

program created pursuant to the Emergency Economic Stabilization Act." HSBCBank, NA v. Donaghy,

2014 PA Super 215, 101 A.3d 129, 136 (2014). The primary reason the courts rely upon is that



                                                     8
borrowers are not the intended third party beneficiaries of HAMP contracts between the federal

government and lenders.   Id

       Thus, "even if Appellee failed to comply with Section 3 of MHA handbook prior to proceeding

with its foreclosure action against Appellant, Appellant does not have a right to bring an action against

Appellee for such noncompliance." Donagh~ 101 A.3d at 136-137. Thus, "Appellant's raising of

Appellee's noncompliance with HAMP is futile when Appellant has no right to enforce compliance."

Donaghy, 101 A.3d at 137. Thus, this claim fails as a matter of law.

       c.   Wrongful Foreclosure

       Appellant raises a count of "wrongful foreclosure'' against Appellant, however, Appellant is

barred from re-litigating claims related to the foreclosure. Default Judgment was entered in the

foreclosure action on April 16, 2010. Appellant filed a Motion to Stay Proceedings in the Mortgage

ForeclosureSale on May 30, 2014, which was denied June 11, 2014. Following a Sheriff's Sale of the

Property, Appellee marked the case satisfied and discontinued on April 23, 2015. At no time during the

pendency of the foreclosure action did Appellant file a Petition to Open Judgment, a Motion to Set

Aside Sheriff's Sale, or any appeal from any Order in that case.

       Pursuant to Pa.R.A.P.903, Appellant has thus waived her right to appeal the foreclosure as the

notice of appeal was not filed within thirty (30) days after the entry of any order in the foreclosure

action. Consequently, all claims under this cause of action fail as a matter of law.

       d. Breach of Contract

       Appellant raises a cause of action for breach of contract, arguing that as she had an executed

Trial Period Plan, Appellee's failure to provide Appellant with "either a loan modification agreement or

any communication stating otherwise, contravening HAMP Supplemental Directive ... which states that

if the lender approves a Trial Period Plan (TPP) and the borrower complies with all the terms of the TPP

and all of the borrower's representations remain true and correct, the lender must offer a permanent

loan modification." However, as discussed above, Appellant cannot bring a private cause of action for

alleged violations of HAMP and this claim fails as a matter of law.

                                                     9
       e.   Breach of the Covenant of Good Faith and Fair Dealing

       Appellant raises a count of "breach of the covenant of good faith and fair dealings," arguing

that Appellee "unfairly frustrated [Appellant's] right to receive the benefits of a contract, thereby

breaching the implied covenant of good faith and fair dealing" by "misrepresenting that [Appellant] had

missed a payment during the period following [Appellant's] successful conclusion of TPP payments in

2011... " However, as noted above, borrowers are not intended third party beneficiaries of HAMP

contracts between the federal government and lenders. Donaghy, 101 A.3d at 136. Consequently,

Appellant's claim fails as a matter of law.

       f. UDAPand UTPCPL

       Appellant raises one count of violations of Pennsylvania's Unfair Trade Practicesand Consumer

Protection Law, "specifically engaging in unfair and deceptive conduct which created a likelihood of

confusion and misunderstanding." Although Appellant makes conclusory statements of law, she does

not identify how Appellee violated any practices of the UTPCPL. She avers, again, that Appellee violated

HAMP and ECOA but does not specifically identify any practices which created the "confusion and

misunderstanding for Appellant" and ultimately led to the wrongful foreclosure of the property. As

noted above, Appellant has already waived her right to challenge the mortgage foreclosure.

Consequently, her claim fails as a matter of law.

        g. Willful, Negligent, and Continued Misrepresentations

        Appellant raises one count of "willful, negligent, and continued misrepresentations." However,

Appellant's claims of negligence fail as a matter of law. To establish a cause of action in negligence,

the plaintiff must demonstrate that the defendant owed a duty of care to the plaintiff, the defendant

breached that duty, the breach resulted in injury to the plaintiff, and the plaintiff suffered an actual loss

or damage. Martin v. Evans, 551 Pa. 496, 502, 711 A.2d 458, 461 (1998). Appellant has not shown

that Appellee had a duty of care owed to her.

        Similarly, any claim by Appellant for intentional misrepresentation also fails as a matter of law.

The elements of intentional misrepresentation are as follows: (1) A representation; (2) which is

                                                     10
material to the transaction at hand; (3) made falsely, with knowledge of its falsity or recklessness as to

whether it is true or false; (4) with the intent of misleading another into relying on it; (5) justifiable

reliance on the misrepresentation;     and, (6) the resulting injury was proximately caused by the reliance.

Bortz v. Noon, 556 Pa. 489, 499, 729 A.2d 555, 560 (1999) (citation and quotation omitted). "[F]raud

consists of anything calculated to deceive, whether by single act or combination, or by suppression of

truth, or suggestion of what is false, whether it be by direct falsehood or by innuendo, by speech or

silence, word of mouth or look or gesture." Moser v. DeSetta, 527 Pa. 157, 160, 589 A.2d 679, 682

(1991). Appellant has not and cannot prove that any alleged misstatements were made falsely with

knowledge of the falsity or recklessness as to whether it is true or false. Appellant's accusations are

that Appellee used "confusing language" indicating a process "so rife with procedural errors as could

only be deemed willful" but does not plead what these alleged errors are. Nor has she shown that

"confusing language" amounts to fraud or an intent to mislead.

           Appellant's claims fail as a matter of law.

    II.       SUFFICIENT CAUSE OF ACTION

           As noted above, Appellant did not state a cause of action for which relief could be granted, and

this Court did not err in dismissing her Amended Complaint with prejudice.

    III.       DENIAL OF MOTION FOR RECONSIDERATION

           Finally, Appellant argues that this Court erred in denying her Motion for Reconsideration.

Although the Court does have the broad discretion to modify or rescind an order, such power is, as

noted, discretionary. PNC Bank, N.A. v. Unknown Heirs, 2007 PA Super 212, ~ 19, 929 A.2d 219, 226

(2007); 42 Pa. C. S. § 5505.




                                                         11
                                     CONCLUSION

Accordingly, for all of the reasons stated above, this Court's decision should be affirmed.



                                                     BY THE COURT:


                                                             ,JfaJ~-
                                                                  . vt·
                                                     NINA "WliIGfil'ADILLA,        J.




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