J-S84034-16

                              2017 PA Super 280

THE BANK OF NEW YORK MELLON F/K/A               IN THE SUPERIOR COURT OF
THE BANK OF NEW YORK, AS TRUSTEE                      PENNSYLVANIA
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.

CONCURRING OPINION BY OLSON, J.:                   FILED AUGUST 28, 2017

      I concur with the learned Majority’s decision to vacate the trial court’s

order granting Appellee’s motion for summary judgment. I write separately

to address some of the genuine issues of material fact that I believe

preclude summary judgment at this stage.

      As the Majority notes, the issue at hand is whether Appellee’s servicer,

Select Portfolio Servicing, Inc. (“SPS”), failed to respond properly to

Appellant’s loss mitigation application in violation of 12 C.F.R. § 1024.41(g)

(“Regulation X”).   Majority Opinion at 1.    The Majority identifies certain

communications between SPS and John R.K. Solt, Esquire, Appellant’s

counsel, regarding Appellant’s loss mitigation application and documentation

that was needed to complete the application process.         Id. at 2-3.   Based


* Former Justice specially assigned to the Superior Court.
J-S84034-16



upon these communications, the Majority concludes that a genuine issue of

material fact exists as to whether Appellee violated Regulation X, thus

precluding foreclosure on Appellant’s property. Id. at 8. Although I agree

that the communications between SPS and Attorney Solt referenced by the

Majority raise issues of fact regarding the status of Appellant’s loss

mitigation application, I believe that there are other documents of record

that must be addressed so as to provide a clear picture of the factual dispute

at hand. Thus, I write separately to address those documents.1

       A chronology of events, based upon the record, is helpful. Sometime

in the spring of 2015, Appellant made a request for a short payoff. 2 On May

6, 2015, SPS sent a letter to Appellant at his home address advising him

that a review of his request could not be completed as all of the requested
____________________________________________


1
  Appellee’s brief discusses in detail some of those documents, including
three notices (dated May 6, 2015, July 7, 2015 and July 21, 2015) sent by
SPS to Appellant advising him that additional documentation was required to
complete his loss mitigation application. Appellee’s Brief at 3-4. Appellee
also references the letter sent by SPS to Appellant dated August 26, 2015 in
which SPS notified Appellant that the application was not approved. Id. at
4-5. Appellee argues that these documents support its motion for summary
judgment. I find that, to the contrary, these documents, when viewed in the
context of the entire record, raise genuine issues of material fact. Thus, I
believe that it is important to discuss these documents.
2
  It is not clear from the record when Appellant filed his request for a short
payoff, however, it had to be before May 1, 2015. In a letter dated May 13,
2015 from Attorney Solt to SPS, a reference is made to a May 1 telephone
call between Attorney Solt and Colt Nay of SPS during which Mr. Nay
requested additional documents from Appellant in support for his request for
a short payoff. Defendant’s Brief and Affidavit in Opposition to Motion for
Summary Judgment, Exhibit A.



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J-S84034-16



documentation had not been received.             The letter asked that such

documents be provided by May 21, 2015. Reply Brief in Support of Plaintiff’s

Motion for Summary Judgment, Exhibit 3.          On May 13, 2015, eight days

before the deadline for submitting the documents, Attorney Solt sent a letter

via email to SPS identifying the documents that were being transmitted as

per SPS’ request.3 Defendant’s Brief and Affidavit in Opposition to Motion for

Summary Judgment, Exhibit A. On May 15, 2015, two days after Attorney

Solt provided documents to SPS, Appellant received a letter from SPS at his

home address noting that SPS

       is currently reviewing your request for options to resolve the
       delinquency on this account. We apologize that this has taken
       more time than originally anticipated. We remain committed to
       assisting you during your current financial hardship.

       We value you as a customer and appreciate your patience. We
       expect to provide a response to you within the next fifteen (15)
       business days.




____________________________________________


3
   In granting summary judgment, the trial court found that Appellant
asserted “in conclusory fashion” that he submitted all of the materials
requested by SPS to complete his application and that Appellant failed to
“plead in detail the nature of the material that he contends he submitted to
[SPS].” Trial Court Opinion, 6/3/16, at 3. This is inaccurate. Attorney
Solt’s letter to SPS that was emailed on May 13, 2015 lists all of the
documents that were being transmitted. Defendant’s Brief and Affidavit in
Opposition to Motion for Summary Judgment, Exhibit A. Moreover, Attorney
Solt sent another letter to SPS on August 12, 2015 (which will be discussed
in greater detail infra) that lists the additional documents that were being
provided as per SPS’ request. Id. at Exhibit D.



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J-S84034-16


Reply Brief in Support of Plaintiff’s Motion for Summary Judgment, Exhibit 6.

Three days later, on May 18, 2015, SPS sent another letter to Appellant at

his home address indicating that SPS “received correspondence from

[Appellant]   or   [Appellant’s]   authorized   agent”   and   noted   that   the

correspondence was forwarded on to “the appropriate department for

handling.” Id. On June 1, 2015, SPS sent a letter to Appellant at his home

address again indicating that SPS received information from Appellant or his

authorized agent regarding Appellant’s request for assistance and stating

that the information will be included in SPS’ review of the account.          The

letter goes on to state, “Please know that you are entitled to a copy of the

property valuation report we may order in connection with any applicable

account modification review. We will send the valuation report to you upon

the completion of the valuation.” Id.

      On June 24, 2015, Attorney Solt sent an email to SPS referencing his

email and letter of May 13, 2015 that transmitted the documentation needed

to review Appellant’s request for a short payoff. Attorney Solt stated that he

had not received a response and he inquired as to the status of the matter.

Defendant’s Brief and Affidavit in Opposition to Motion for Summary

Judgment, Exhibit B. Five days later, on June 29, 2015, SPS sent a letter to

Appellant which was identical to the letter sent on June 1, 2015. Reply Brief

in Support of Plaintiff’s Motion for Summary Judgment, Exhibit 6. One week

later, SPS sent a letter to Appellant on July 6, 2015 stating that review of


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J-S84034-16


the short payoff request could not be completed as SPS did not receive all of

the necessary documentation.            The letter indicated that the documents

needed to be received by SPS by July 21, 2015. Reply Brief in Support of

Plaintiff’s Motion for Summary Judgment, Exhibit 4. Attorney Solt then sent

an email to SPS on July 15, 2015 referencing his earlier emails and

correspondence of May 13, 2015 and June 24, 2015, again asking for a

response and status update. Defendant’s Brief and Affidavit in Opposition to

Motion for Summary Judgment, Exhibit C. One week later, SPS sent a letter

to Appellant on July 21, 2015 stating that information was missing and that

the documents must be received by August 5, 2015. Reply Brief in Support

of Plaintiff’s Motion for Summary Judgment, Exhibit 5.

       On August 12, 2015, Attorney Solt sent an email to Larry Gonzales of

SPS which references a telephone conversation that Attorney Solt and Mr.

Gonzales had on August 4, 2015, one day before the August 5, 2015 due

date referenced in SPS’ letter of July 21, 2015.          Defendant’s Brief and

Affidavit in Opposition to Motion for Summary Judgment, Exhibit D.

According to the August 12 email, Attorney Solt forwarded additional

documents in support of Appellant’s request for a short payoff as per Mr.

Gonzales’ request made during the August 4th telephone conversation.4 Id.

____________________________________________


4
  In its July 21, 2015 letter, SPS indicates that various documents are still
missing, including federal tax returns, bank statements, profit/loss
statements, and a buyer pre-qualification letter indicating the source of
(Footnote Continued Next Page)


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J-S84034-16


The email also notes that, during the conversation, Mr. Gonzales stated that

he had ordered an appraisal of Appellant’s property, however, as of August

12, no appraiser had contacted Attorney Solt to make arrangements.         Id.

The next day, a letter was sent from SPS to Appellant which was identical to

the letter it sent on May 15, 2015 – again indicating that it was reviewing

Appellant’s request for options, apologizing for the delay and indicating that

SPS expected to provide a response within 15 business days. Reply Brief in

Support of Plaintiff’s Motion for Summary Judgment, Exhibit 6.

      Nothing further transpired between the parties until SPS sent its letter

of August 26, 2015 to Appellant indicating that SPS was “unable to approve

[Appellant’s] request for assistance involving a Short Payoff . . . because the

required documentation needed to proceed was not received.” Id. at Exhibit

2.   One week later, Attorney Solt sent an email to SPS referencing SPS’

letter of August 26, 2015 and indicating that all requested additional
                       _______________________
(Footnote Continued)

funds available for the purchase price of the property. Reply Brief in
Support of Plaintiff’s Motion for Summary Judgment, Exhibit 5.         In the
August 12, 2015 email to Mr. Gonzales, Attorney Solt states that he is
transmitting copies of Appellant’s 2014 federal tax return, a profit and loss
statement from Appellant’s business, Appellant’s most recent bank
statement, and a letter from the individual providing the funds for the short
payoff. Defendant’s Brief and Affidavit in Opposition to Motion for Summary
Judgment, Exhibit D. A simple reading of these two documents reflects that
the documents that SPS claimed were still missing were, in fact, provided by
counsel for Appellant. Hence, these two documents, in and of themselves,
create a genuine issue of material fact as to whether Appellant submitted a
complete loss mitigation application as required by Regulation X and whether
SPS acted improperly in denying Appellant’s application based upon the
alleged failure to supply requested documentation.



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J-S84034-16


documentation was forwarded to SPS on August 12, 2015.          Reply Brief in

Support of Plaintiff’s Motion for Summary Judgment, Exhibit F.      The email

also stated that Attorney Solt was unaware of any further documentation

needed. It concluded with “Please advise immediately.” Id.

       In both its motion for summary judgment and in its brief filed with this

Court, Appellee argues that the various letters asking Appellant for

additional documentation and providing due dates for said documents clearly

establish that Appellee acted in accordance with Regulation X and in good

faith in attempting to address Appellant’s loss mitigation application. Thus,

Appellee concludes that there is no genuine issue of material fact that would

prevent summary judgment in its favor. I disagree. I set forth the detailed

chronology of events as established by the documents of record to show

that, to the contrary, there are numerous issues of fact regarding the good

faith efforts performed by Appellee and its agent, SPS, in dealing with

Appellant. First, it appears from the documents that Attorney Solt, acting on

behalf of Appellant, was in telephone contact with representatives of SPS,

including Mr. Gonzales, and that he attempted to provide the documentation

requested.5     Instead of sending correspondence to Attorney Solt who was

____________________________________________


5
   Clearly, genuine issues of material fact         exist as to what SPS
representatives said to Attorney Solt during        those conversations and
whether those conversations lulled Attorney Solt    and Appellant into a false
sense of security that SPS had the documents        needed and was actively
working on the matter.



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J-S84034-16


clearly acting as counsel for Appellant, SPS sent numerous form letters to

Appellant at his home address. A number of these letters referenced that

SPS had received information regarding Appellant’s request, was reviewing

that information, apologized for the delay in resolving the matter, and

indicated that decisions would be made within 15 days. The documents also

indicate that Attorney Solt was forwarding documentation to SPS as per SPS’

requests. Moreover, every time Attorney Solt sent an email to SPS inquiring

as to the status of Appellant’s application, no one from SPS responded to

Attorney Solt. Instead, more form letters were sent to Appellant. Viewed in

a light most favorable to Appellant as the non-moving party, these

documents raise genuine issues of material fact that preclude the entry of

summary judgment.

      Appellee also argues and the trial court concluded that, after

Appellant’s application was denied, Appellant failed to comply with the error

resolution procedures set forth in 12 C.F.R. § 1024.35 to assert a violation of

Regulation X. Trial Court Opinion, 6/3/16, at 5; Appellee’s Brief at 10-11.

Appellee argues that the August 26, 2015 letter sent to Appellant advising

him that his application was not approved made it clear that “[Appellant]

had the right to challenge the decision as error, but he could only do so by

sending written correspondence to the specific address listed.”     Appellee’s

Brief at 10. Appellee argues that Appellant failed to follow these instructions

and, instead, had his attorney send an email on September 2, 2015. Id. at


                                     -8-
J-S84034-16


11.   Again, in determining whether Appellant adequately raised an objection

to the denial of his application, I believe that the entire course of conduct

between the parties from May, 2015 until September, 2015 has to be

examined.   The record establishes that Attorney Solt, as Appellant’s legal

counsel, had various telephone conversations and email communications

with SPS representatives. Instead of communicating with Attorney Solt, SPS

sent form letters to Appellant’s address and ignored Attorney Solt’s requests

for information at each turn.

      Genuine issues of material fact exist as to whether Attorney Solt’s

September 2, 2015 email was sufficient to raise an objection to the denial of

Appellant’s application and whether SPS was relieved of any duties to

respond to Attorney Solt’s September 2, 2015 email.

      Moreover, I am not persuaded by Appellee’s argument that Appellant’s

failure to send his written objection to the address designated in the August

26, 2015 letter compels the legal conclusion that Appellant improperly

challenged SPS’ determination and, therefore, SPS (and Appellee) were

relieved of any responsibility. Section 1024.35 of Regulation X governs the

error resolution procedures that must be followed if a borrower objects to a

servicer’s determination regarding the borrower’s loss mitigation application.

This section provides in relevant part:

      A servicer shall comply with the requirements of this section for
      any written notice from the borrower that asserts an error and
      that includes the name of the borrower, information that enables


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J-S84034-16


      the servicer to identify the borrower’s mortgage loan account,
      and the error the borrower believes has occurred.

12 C.F.R. § 1024.35(a) (emphasis added). This section goes on to provide

that, except for a few exceptions not applicable in this case, “a servicer

must respond to a notice of error” by either correcting the error identified

by the borrower, or conducting a reasonable investigation and providing the

borrower with written notification that includes, among other requirements,

a statement that no error occurred and the reason for that determination.

12 C.F.R. § 1024.35(e)(1)(i)(A) and (B) (emphasis added).         A servicer is

relieved of the obligation to respond to a notice of error in only three

instances, i.e., 1) the notice of error is duplicative of a previous notice; 2)

the notice of error is overbroad; or, 3) the notice of error is untimely. 12

C.F.R. § 1024.35(g)(1)(i)-(iii).

      Appellee is correct that section 1024.35(c) of Regulation X provides

that a servicer may establish an address that a borrower must use to submit

a notice of error and that SPS provided notice to Appellant in the August 26,

2015 letter that notices of error were required to be sent to a specific

address.   However, nothing in section 1024.35 provides that a servicer is

relieved of its responsibility of responding to a notice of error if a borrower

sends the notice to an address other than the designated address. Instead,

Regulation X expressly provides that a servicer is relieved of its obligation of

responding to a notice of error only if the notice is duplicative, overbroad or




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J-S84034-16


untimely. 12 C.F.R. § (g)(1)(i)-(iii). None of these exceptions are applicable

in this case.6

       When considering the entire record as a whole, it is clear that

summary judgment is not warranted and I concur with the learned Majority

that the order granting summary judgment must be vacated.




____________________________________________


6
  Appellee cites to Roth v. Citimortgage, Inc., 756 F.3d 178 (2d Cir. 2014)
and Berneike v. Citimortgage, Inc., 708 F.3d 1141 (10th Cir. 2013) as
support for its position that Appellant’s failure to send the notice of error to
the address designated in SPS’ August 26, 2015 letter relieves it of
responsibility to respond to said notice.           Roth and Berneike are
distinguishable from this case as those cases dealt with the requirements for
triggering a servicer’s obligation to respond to a qualified written request
(QWR) under the Real Estate Settlement Procedures Act of 1974 (RESPA),
12 U.S.C.A. §§ 2601-2617. The obligations under RESPA are not applicable
to the case sub judice.



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