Generation Mortg. Co. v. Bung Thi Nguyen

138 A.3d 646

2016 PA Super 82

GENERATION MORTGAGE COMPANY, Appellee

v.Bung Thi NGUYEN, Appellant.

No. 1069 EDA 2015

Superior Court of Pennsylvania.

Argued Feb. 9, 2016.

Filed April 11, 2016.

Devon E. Sanders, Community Legal Services, Philadelphia, for appellant.

Richard J. Nalbandian, III, Mount Laurel, NJ, for appellee.

BEFORE: GANTMAN, P.J., MUNDY, J., and DUBOW, J.

OPINION BY MUNDY, J.:

Appellant, Bung Thi Nguyen, appeals from the order dated April 6, 2015, denying her motion for attorney's fees filed after Appellee, Generation Mortgage Company, discontinued its action for mortgage foreclosure. After careful review, we affirm.

The trial court provided the relevant procedural history of this case as follows.

This case commenced April 10, 2013, with the filing of a complaint in mortgage foreclosure on the premises of 6347 Kinsessing Avenue, Philadelphia, Pennsylvania 19142 by Appellee[ ]. The complaint averred that Appellant was in default on a mortgage[.]

On May 10, 2013, Appellant filed a praecipe to proceed in forma pauperis.

On May 17, 2013, Appellant filed an answer with new matter in response to the complaint, raising four (4) affirmative defenses: (1) lack of subject matter jurisdiction due to premature commencement of the mortgage foreclosure action under the terms of the contract; (2) lack of subject matter jurisdiction due to premature commencement of the mortgage foreclosure action under Pennsylvania's Usury Law (Act 6 of 1974), 41 P.S. §[§] 101 [–605] (“Act 6”); (3) lack of standing because Appellee is not a real party in interest; and (4) breach of contract.

On June 19, 2013, Appellee filed its reply to new matter, denying Appellant's averments and each of Appellant's affirmative defenses.

On August 21, 2013, Appellee filed a motion for summary judgment, arguing that the matter was ripe for disposition by way of summary judgment because neither Appellant's answer to the complaint, nor her new matter created a genuine issue of material fact. Specifically, Appellee argued that summary judgment was appropriate because Appellant admitted in her answer to the complaint that she is the real owner of the subject property and that she executed the mortgage, which was secured by the subject property, to Appellee, and she did not deny that she failed to maintain taxes and insurance on the property or that the mortgage was in default. Consequently, Appellee was permitted under the terms of the signed documents to accelerate all amounts due.

On September 23, 2013, Appellant filed an answer in opposition to the motion for summary judgment, denying Appellee's averments in its motion for summary judgment because there are genuine issues of material facts. Appellant raised three (3) main arguments in opposition to summary judgment. Appellant argued that the foreclosure action should be dismissed: (1) pursuant to the coordinate doctrine rule; (2) for lack of subject matter jurisdiction; and (3) because Appellee has not proven whether Appellant is in default under the loan documents.

On October 15, 2013, Appellee filed a reply in support of motion for summary judgment, arguing that Act 6 does not apply to this matter because the mortgage is a reverse mortgage, not a residential mortgage under Act 6. Appellee also argued that even if the pre-foreclosure notice it provided to Appellant was deficient, [the trial court] retains subject matter jurisdiction over the case.

On October 22, 2013, [the trial court] denied Appellee's motion for summary judgment.

On March 31, 2014, Appellee filed a second motion for summary judgment, arguing that the matter was ripe for disposition by way of summary judgment because neither Appellant's answer to the complaint, nor her new matter created a genuine issue of material fact. [Appellee asserted the same basis for summary judgment contained in its first motion for summary judgment, discussed above.]

On May 1, 2014, Appellant filed her answer in opposition to Appellee's second motion for summary judgment[.] [Appellant's arguments were identical to those contained in her answer to the first motion for summary judgment.]

...

On May 17, 2014, [the trial court] entered an order denying Appellee's second motion for summary judgment as premature.

On January 7, 2015, the parties completed a settlement conference.

On January 15, 2015, Appellee filed a praecipe to discontinue and end, directing the prothonotary to withdraw Appellee's complaint and mark same as discontinued and ended, without prejudice.

On January 20, 2015, the case was discontinued.

On February 18, 2015, Appellant timely filed the instant motion [for] counsel fees with [an] accompanying declaration from Appellant's counsel, arguing that as a result of the discontinuance, Appellant became the “prevailing party” in the matter under Pennsylvania law and, was therefore entitled to payment of reasonable attorneys' fees and costs by Appellee pursuant to § 503 of Act 6.

On March 10, 2015, Appellee filed its answer in opposition of motion for counsel fees, arguing that a discontinuance does not terminate the civil action with an adjudication on the merits, which, in turn, cannot result in a “prevailing party” who would be entitled to recovery of attorney fees under the applicable statutes.

On April 6, 2015, [the trial court] denied Appellant's motion for counsel fees.

Trial Court Opinion, 7/6/15, 1–4 (some capitalization and citations omitted). On April 8, 2015, Appellant filed a timely notice of appeal.¹

On appeal, Appellant raises the following issues for our review.

I. Did the [trial] court commit an error of law in determining that it had no jurisdiction to act on [Appellant's] timely fee motion, as required by Miller Electric Co. v. DeWeese [, 589 Pa. 167, 907 A.2d 1051 (2006), amended by, 591 Pa. 396, 918 A.2d 114 (2007) (mem.) ], because [Appellee] discontinued the action prior to the fee motion being filed?

II. Did the [trial] court abuse its discretion in failing to determine whether a violation of § 403 of [Act 6] occurred when no [Act 6] notice [of intention to foreclose] was sent prior to foreclosure on a “residential mortgage” as defined by § 101 of [Act 6]?

III. Did the [trial] court abuse its discretion in failing to award mandatory counsel fees because it determined that [A]ppellant was not the “prevailing party” under § 503 of [Act 6] despite this Court's interpretation of § 503 in Gardner v. Clark [, 349 Pa.Super. 297, 503 A.2d 8 (1986) ]?

Appellant's Brief at 2.

We review a trial court's decision regarding attorney's fees as follows.

Trial courts have great latitude and discretion in awarding attorney fees when authorized by contract or statute. Generally, [t]he denial of a request for attorney's fees is a matter within the sound discretion of the trial court, which will be reversed on appeal only for a clear abuse of that discretion.

Cummins v. Atlas R.R. Const. Co., 814 A.2d 742, 746 (Pa.Super.2002) (citations and internal quotation marks omitted).

Further, to the extent that we must interpret a statute to resolve Appellant's issues, our standard of review is de novo and our scope of review is plenary. Gilbert v. Synagro Cent., LLC, ––– Pa. ––––, 131 A.3d 1, 10 (2015) (citation omitted). We construe the meaning of a statute according to the Statutory Construction Act, 1 Pa.C.S.A. §§ 1501 –1991.

Under the Statutory Construction Act, the object of all statutory construction is to ascertain and effectuate the General Assembly's intention. When the words of a statute are clear and free from all ambiguity, the letter of the statute is not to be disregarded under the pretext of pursuing its spirit.

Strausser Enters., Inc. v. Segal & Morel, Inc., 89 A.3d 292, 297 (Pa.Super.2014) (citation omitted).

Appellant's first argument is that the trial court erred in concluding that it was without jurisdiction to act on Appellant's timely motion for attorney's fees. Appellant's Brief at 8. However, the trial court did not find that it lacked jurisdiction to address the attorney's fees issue. Instead, the trial court denied the motion on its merits “because the case had been discontinued and [ ] Appellant was not a ‘prevailing party.’ ” Trial Court Opinion, 7/6/15, at 8. Accordingly, Appellant's first argument mischaracterizes the trial court's reasoning and is therefore meritless.

Next, Appellant contends that the trial court erred because it did not determine whether Appellee violated Section 403 of Act 6² by purportedly failing to provide the requisite notice of its intention to foreclose. Appellant's Brief at 13. Appellant asserts “this refusal to consider the merits of [Appellant's] [Act 6] defense was a manifest error.” Id. However, Appellee discontinued the action before the trial court decided the merits of Appellant's Act 6 defense. Once the case was discontinued, it was no longer pending before the trial court. See Motley Crew, LLC v. Bonner Chevrolet Co., Inc., 93 A.3d 474, 476 (Pa.Super.2014) (explaining “[t]he general effect of a discontinuance is to terminate the action without an adjudication of the merits and to place the [parties] in the same position as if the action had never been instituted [ ]”), appeal denied, 628 Pa. 641, 104 A.3d 526 (2014). Consequently, the discontinuance rendered Appellant's Act 6 defense moot. Id. (noting that a discontinuance deprives the court of jurisdiction to reach the underlying merits of the case). Accordingly, the trial court did not err in not resolving the merits of Appellant's Act 6 defense, and Appellant's second issue on appeal does not warrant relief. Id.

In her third issue, Appellant claims that the trial court erred by denying her motion for attorney's fees. Our Supreme Court has explained “Pennsylvania law embodies the American rule, per which there can be no recovery of attorneys' fees from an adverse party in litigation, absent express statutory authorization, clear agreement by the parties, or some other established exception.” Doctor's Choice Physical Med. & Rehab. Ctr., P.C. v. Travelers...