Brown, J. v. Bank of America (memorandum)
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J-A16031-14 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 JUDY D. BROWN, 2017 W. WASHINGTON STREET NEW CASTLE, PA 16101, Appellant v. BANK OF AMERICA (COUNTRYWIDE HOME LOANS) 100 N. TRYON STREET CHARLOTTE, NC 28255-0001, Appellee : : : : : : : : : : : : : : IN THE SUPERIOR COURT OF PENNSYLVANIA No. 1858 WDA 2013 Appeal from the Order entered on November 20, 2013 in the Court of Common Pleas of Lawrence County, Civil Division, No. 10652-2013 BEFORE: DONOHUE, OTT and MUSMANNO, JJ. MEMORANDUM BY MUSMANNO, J.: FILED JUNE 20, 2014 pro se, from the Order with Brown filed a pro se Quash, and affirm the Order on appeal. prejudice. J-A16031-14 In July 2000, Brown entered into a mortgage agreement with the -in-interest (Countrywide Home Loans, Inc.) as the mortgagee, on her property located in New Castle, Pennsylvania. defaulted on the mortgage in May 2007. Brown A few months later, the Bank, which then owned the mortgage note, filed a Mortgage Foreclosure was served on Brown by personal service. Brown did not respond to the Mortgage Foreclosure Complaint in any fashion or retain counsel. In October 2007, upon praecipe by the Bank, the prothontary entered a default judgment against Brown. Over five years after the entry of the default judgment, in July 2013, Brown filed a pro se Complaint against the Bank in the instant case (docket No. 10652- Mortgage Foreclosure Complaint in the separate action at No. 11365, as follows: In by [the Bank], relative to a mortgage loan contract with [Brown] as mortgagor[,] which ultimately resulted in foreclosure alleges that [the Bank] engaged in fraud, misrepresentation and property to qualify for a [Federal Housing Administration without the signer of the document being present before the notary; retaining the Phelan, Hallinan and Schmeig law firm to pursue foreclosure using fraudulent loan documents[,] and providing an address in Plano, Texas[,] that is actually a -2- J-A16031-14 processing center; and further alleging breach of contract[,] contending that [the Bank] placed a mortgage upon her property even though the property was not titled as real estate[1] and did not qualify for FHA financing and otherwise in failing to follow FHA regulations when foreclosing upon the real estate. foreclosure action based upon the same mortgage [that] is the subject of the proceedings in the instant action. In that proceeding[, Brown] failed to respond to the C]omplaint[,] with the result that a default judgment was entered against her. Approximately five years after the entry of the default judgment[, Brown] engaged in filing a series of [M]otions and [P]etitions seeking to contest, and ultimately, to open or set aside that judgment, which were unsuccessful. [Separately] from the proceedings filed at the foreclosure action itself, [Brown] filed a [C]omplaint against [the Bank] in the claims related to her mortgage[,] which action was dismissed by the [magistrate] court judge. Trial Court Opinion, 11/20/13, at 2-3 (footnote added). the Bank filed Preliminary Objections, including a demurrer, arguing that the res judicata because it constituted an attempt to re-litigate the completed foreclosure proceedings in a new and separate proceeding. The Bank additionally argued that if Brown wished to challenge the foreclosure action, she was required to petition the trial court to open the default judgment entered 1 Brown avers on appeal that her residence that was situated on the a mortgage interest in the mobile home. See Brief for Appellant at 5, 6. -3- J-A16031-14 against her at No. 11365 because the instant case involves the same parties and the same underlying issues. Following a procedural history that is not relevant to our disposition of this appeal, the trial court entered an Order on November 20, 2013, Complaint with prejudice. Brown timely filed a pro se Notice of Appeal. Brown presents the following issue for our review: Whether the [trial c]ourt addressed all issues under the 14th Amend[ment to the United States Constitution,] and rights under Res Judicata [sic], [and the Pennsylvania] Rules of Civil Procedure and Pennsylvania Law conforming to the following: Right of due process of 14th Amendment and Res Judicata[, and] 42 Pa.[C.S.A. ยง] 5526 revival of a judgment of a lien on real estate after 5 years[?] Brief for Appellant at 4 (unnumbered; bold omitted). As an initial matter, we are mindful that a preliminary objection in the nature of a demurrer is properly granted where the contested pleading is legally insufficient. Preliminary objections in the nature of a demurrer require the court to resolve the issues solely on the basis of the pleadings; no testimony or other evidence outside of the complaint may be considered to dispose of the legal issues presented by the demurrer. All material facts set forth in the pleading and all inferences reasonably deducible therefrom must be admitted as true. In determining whether the trial court properly sustained preliminary objections, the appellate court must examine the averments in the complaint, together with the documents and exhibits attached thereto, in order to evaluate the sufficiency of the facts averred. The impetus of our inquiry is to determine the legal sufficiency of the complaint and whether the pleading would permit recovery if ultimately proven. This Court will only where there has been an error of law or abuse of discretion. -4- J-A16031-14 When sustaining claim or a dismissal of suit, preliminary objections will be sustained only where the case is free and clear of doubt. Kirschner v. K&L Gates LLP, 46 A.3d 737, 747 (Pa. Super. 2012) (citations, quotation marks, brackets, and paragraph breaks omitted). In her Argument section,2 Brown argues that the trial court erred by because the court (1) incorrectly ruled that the doctrine of res judicata barred her action; (2) improperly addressed the affirmative defense of res judicata through Preliminary Objections; and (3) deprived her of due process. See Brief for Appellant at 13-21. In its Opinion, th forth its analysis, and determined that the doctrine of res judicata barred See Trial Court Opinion, 11/20/13, at 3-12. We affirm -reasoned analysis, which is amply supported by the law and the record. See id. Because we discern no abuse of discretion or error of law by the trial Complaint, we affirm the Order on appeal. Addit 2 sts of her citation to, and summaries of, case law decisions that, Brown asserts, support her claims. See Brief for Appellant at 13-20. However, Brown advances scant substantive analysis regarding the application of the cited case law to the instant case. -5- J-A16031-14 Quash denied. Order affirmed. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 6/20/2014 -6-
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