Meekins v. HSBC Bank (memorandum)
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J-A27011-12 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 IN THE SUPERIOR COURT OF PENNSYLVANIA EMMA L. MEEKINS AND JOANN E. MEEKINS, Appellants v. HSBC BANK NEVADA, NATIONAL ASSOCIATION, SHERMAN ACQUISTION LLC, SHERMAN ORIGINATOR LLC, Appellees No. 1835 EDA 2011 Appeal from the Judgment Entered June 2, 2011 In the Court of Common Pleas of Philadelphia County Civil Division at No(s): July Term, 2008 No. 001801 BEFORE: STEVENS, P.J., FORD ELLIOTT, P.J.E., and ALLEN, J. MEMORANDUM BY STEVENS, P.J. Filed: February 27, 2013 This is an appeal from the orders entered by the Court of Common Pleas of Philadelphia County opening default judgment against Defendants/Appellees, granting partial summary judgment in favor of Defendant/Appellees, and reaching a defense verdict after non-jury trial on Plaintiff/Appellant s consumer protection claim filed under the Unfair Trade Practices and Consumer Protection Law ( UTPCPL ), 73 Pa.C.S.§ 201-1 et seq, the Pennsylvania Home Improvement Finance Act ( HIFA ), 73 P.S. § 500-100 et seq., and the Pennsylvania Loan Interest and Protection Law ( LIPL ), 41 P.S. 101 et seq. Specifically, Appellants contend the lower court erred in opening default judgments against Appellees who each provided J-A27011-12 inadequate excuses for their delayed petitions to open, erred in granting partial summary judgment on the HIFA claim against HSBC Bank that failed to establish authority for interest rates charged, and erred at the conclusion of the non-jury trial by reaching a defense verdict on grounds that Appellants claim was barred by the statute of limitations. While we find no basis upon which to reverse either the order granting partial summary judgment in favor of Appellee HSBC Bank or the ultimate verdict that Appellants claim was time-barred, we must remand this matter for preparation of a Pa.R.A.P. 1925(a) opinion that provides the court s reasons for granting each Appellee s petition to open default judgment. The trial court has provided an apt recitation of fact and procedural history, as follows: On July 10, 2008, Plaintiffs filed this action to rescind a contract for the sale and installation of windows, formed twelve years earlier in May 1996. Defendant HSBC Bank financed the sale and later assigned Plaintiffs' account to co-defendant Sherman Acquisition LLC. On May 5, 2010, Defendants raised the statute of limitations as a defense. On November 22, 2010, this action was tried non-jury. At the beginning of trial Defendants declared that they would not attempt to collect on Plaintiff's account in the future and were foregoing all future payments otherwise due. They therefore forfeited all claims to any uncollected debts arising from this contract. On January 19, 2011, the court entered findings in favor of Defendants. Judgment was entered on the court's findings on June 1, 2011. It is from this judgment that plaintiffs now appeal.¹ ¹ According to Plaintiffs Pa.R.A.P 1925(b) Statement of Matters Complained of on Appeal, Plaintiffs also challenge Judge Gary -2- J-A27011-12 DiVito s orders opening default judgments as to Defendants and Judge Paul Panepinto s order granting summary judgment in favor of Defendant HSBC Bank Nevada, N.A. as to Plaintiff s HIFA claim and all claims regarding interes. Th[is] court [Judge Mark I. Bernstein] expresses no opinion as to the merits of these claims, which were never raised before this Court. In accordance with Pennsylvania Rule of Appellate Procedure 1925(a)(1), th[is] court has requested that Judge DiVito and Judge Panepinto provide opinions explaining the reasons for their rulings. Plaintiffs filed a two-count complaint. Count one sought to rescind the windows contract. Count two claims violation of the Pennsylvania Home Improvement Finance Act ("HIFA"), in that defendant allegedly overcharged interest and late fees and prematurely charged late fees. On September 15, 2010, Judge Paul Panepinto granted summary judgment in favor of defendants as to plaintiffs' HIFA claim and dismissed all claims regarding interest. [Specifically, proceedings leading up to that order include the following:] *** On May 5, 2010, defendant HSBC Bank had filed an Answer with New Matter, averring inter alia that the statute of limitations had expired, that the UTPCPL claim is preempted by federal law, and that the Home Improvement Finance Act is inapplicable in this case. Defendant HSBC bank then filed a motion for summary judgment, based on the aforementioned arguments. On September 15, 2010, Judge Panepinto granted that motion for summary judgment with respect to plaintiffs' HIFA claim and any claims regarding defendant HSBC Bank's imposition of interest charges. The motion was denied in all other respects. *** Therefore, the only claim at trial was plaintiff's recission claim. On May, 1996, Plaintiff Emma Meekins received a sales call from Brian Brown, an American Remodeling, Inc. ("AMRE") salesman. As a result of the sales call, Emma Meekins signed a document in which she offered to pay AMRE $3,116.00 for the sale and installation of three replacement windows. . . . According to the document, the sale was "[s]ubject to the approval of the Credit -3- J-A27011-12 Sales Department." On the second page, the document specifically provided: "Purchaser(s) understands that this document does not constitute a valid and binding Contract for any purpose until and unless it is signed and accepted by [AMRE]." The document also stated that "the Purchaser(s) may cancel this transaction at any time prior to midnight of the third business day after the date of this transaction. See accompanying notice of cancellation form for an explanation of this right." The contract contained an attachment which purported to explain Emma Meekins' right to cancel the sales agreement ("Cancellation Notice") not later than May 24, 1996. Six days later, after the purported right to cancel had expired, AMRE required additional financing applications for their "Credit Sales Department" to approve the sale and installation of the windows. On May 27,1996, AMRE required Emma Meekins to sign an Express Credit Application for AMRE credit to be furnished by defendant HSBC Bank. Apparently, AMRE would not extend credit to Emma Meekins alone. The next day, on May 18, 1996, AMRE required that Emma Meekins' daughter, Joann Meekins, also sign the credit application. According to that application, repayment would be in the amount of $57 per month. The credit application did not contain any Cancellation Notice as required by Section 201-7 of the Pennsylvania Unfair Trade Practices and Consumer Protection Law ("UTPCPL"). No independent notice was provided on May 28, 1996 and no notice was ever given to Joann Meekins. On May 28, 1996, Emma Meekins received, for the first time, a receipt for the windows. That receipt had a sales date of "May 28, 1996." The sale receipt had no Cancellation Notice as required by the UTPCPL. Emma Meekins had the windows properly installed and paid ninety-six monthly installments of $57.00, a total of $5,472. Emma Meekins stopped making payments in May 2004. By letter dated January 27, 2005, Defendant HSBC Bank told Emma Meekins that it had assigned her account to co-defendant Sherman Acquisition LLC. Defendants demanded payment on the account each month through February 2005. By letter dated February 28, 2005, -4- J-A27011-12 Sherman Acquisition LLC attempted to collect $3,835.41 it claimed was still owed. On July 14, 2006, Emma Meekins' attorney mailed Sherman Acquisition LLC a notice rescinding the windows contract. Plaintiffs claim that the failure to attach Cancellation Notices to the credit agreement and sales slip violated Section 201-7 of the UTPCPL. In reaching its verdict, the [Commerce Court] court agreed. However, because the underlying action was not commenced within the applicable six-year statute of limitations, a verdict was nevertheless entered in favor of defendants. This appeal followed. Trial Court Opinion dated 8/31/11, pp. 1-4. Appellants raise the following issues for our consideration: I. DID JUDGE DIVITO ERR IN OPENING DEFAULT JUDGMENT ENTERED AGAINST SHERMAN? II. DID JUDGE DIVITO ERR IN OPENING DEFAULT JUDGMENT AGAINST HSBC? III. DID JUDGE PANEPINTO ERR IN GRANTING PARTIAL SUMMARY JUDGMENT TO HSBC? IV. DID COMMERCE COURT ERR LIMITING TIME TO CANCEL CONSUMER FINANCING, AND FINDING PLAINTIFFS CANCELLATION WAS BARRED BY A STATUTE OF LIMITATIONS? Brief of Appellants at 14. Taking the issues out of order, we begin by considering the third issue challenging the lower court s partial grant of summary judgment in favor of Defendants/Appellees. Our standard of review on an appeal from the grant of a motion for summary judgment is well-settled. A reviewing court may disturb the order of the trial court only where it is established that the court committed an error of law -5- J-A27011-12 or abused its discretion. As with all questions of law, our review is plenary. In evaluating the trial court's decision to enter summary judgment, we focus on the legal standard articulated in the summary judgment rule. Pa.R.C.P. 1035.2. The rule states that where there is no genuine issue of material fact and the moving party is entitled to relief as a matter of law, summary judgment may be entered. Where the non-moving party bears the burden of proof on an issue, he may not merely rely on his pleadings or answers in order to survive summary judgment. Failure of a non-moving party to adduce sufficient evidence on an issue essential to his case and on which he bears the burden of proof establishes the entitlement of the moving party to judgment as a matter of law. Lastly, we will review the record in the light most favorable to the non-moving party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party. Longwell v. Giordano, 57 A.3d 163, 166 (Pa. Super. 2012). Here, Appellants contend that the court erred in granting partial summary judgment to HSBC on grounds that: (1) HIFA provides no private right of action; and (2) the National Bank Act permitted HSBC, a national bank, to charge interest on any loan at a rate allowed by the state in which it is located, in this case, Nevada. After careful review of the record, party briefs, applicable authority, and the cogent opinion authored by the Honorable Paul Panepinto and filed on August 31, 2011, we find no merit to Appellant s claim. To this end, we adopt the rationale and holding of Judge Panepinto s opinion, finding ample evidence that HSBC was a national bank located in Nevada and, accordingly, within its rights to apply to the present commercial loan an interest rate lawful in the State of Nevada. So, too, do we agree with and adopt the decision for the reasons set forth in his opinion -6- J-A27011-12 that Appellants may not invoke HIFA as an actionable claim because the statute provides not a private right of action but, instead, that its provisions shall be enforced by the Attorney General or by a district attorney. 73 P.S. § 500-102. We likewise rely on the opinion of trial judge, The Honorable Mark I. Bernstein, for our disposition of Appellants fourth and final claim charging error with the trial court s decision that their UTPCPL claim ran afoul of that statute s six-year limitations period. Our review of the record discloses that Appellants claim became actionable on May 28, 1996, the date on which the window contract was perfected but without the proper cancellation notice as required by law. Because Appellant waited twelve years before filing the present action seeking rescission of the contract for want of a proper cancellation notice, the six-year statute of limitations barred their claim. We find no error in the trial court s decision to this effect and, accordingly, incorporate that opinion in our decision. Nevertheless, we decline further review and, consequently, ultimate disposition of this matter, as the lack of a Pa.R.A.P. 1925(a) opinion on the issue regarding the lower court s decision to open two default judgments impairs our ability to review the issue. Specifically, while we acknowledge Appellees respective contentions that they were denied proper service of Appellants Complaints for Appellants failure to deliver them to a proper address, we equally acknowledge Appellants response that Appellees -7- J-A27011-12 provided confusing and/or conflicting communications with Appellants. contact information in their Moreover, there appears nowhere in the record an explanation as to why either Appellee s seemingly considerable delay in filing a petition to open default judgment was deemed excusable. We therefore remand this matter to the lower court with the request that The Honorable Gary DiVito author a Pa.R.A.P. 1925(a) opinion responding to Appellants claims that the court erred in granting the Appellees respective petitions to open default judgment. The lower court shall have 45 days from the filing date of this memorandum and order in which to transmit its opinion to this Court. Case remanded to the Honorable Gary DiVito for preparation and transmittal of a responsive Pa.R.A.P. 1925(a) opinion consistent with this memorandum. Certified record shall accompany the 1925(a) opinion when it is filed with the Superior Court. Panel jurisdiction is retained. -8-
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