J-A08018-16

* Retired Senior Judge assigned to the Superior Court

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

U.S. BANK NATIONAL ASSOCIATION, AS 

TRUSTEE FOR PORF-2013-S3-REMIC 

TRUST,

IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

JOSE PEREZ,

Appellant No. 1262 EDA 2015

Appeal from the Judgment Entered June 16, 2015

In the Court of Common Pleas of Delaware County

Civil Division at No(s): 13-1920

BEFORE: BOWES, OLSON AND STRASSBURGER,* JJ.

MEMORANDUM BY OLSON, J.: FILED JUNE 08, 2016

Appellant, Jose Perez, appeals pro se from the judgment entered on 

June 16, 2015. We affirm. 

As our disposition is based upon the procedural posture of this case, 

we focus on the relevant procedural history of this case. On March 4, 2013, 

U.S. Bank1instituted the instant mortgage foreclosure proceeding. On 

August 21, 2013, Appellant filed preliminary objections.2 In those 

preliminary objections, he argued that the trial court lacked subject matter 

 

1

For simplicity, we refer to U.S. Bank National Association and all of its 

predecessors-in-interest, both individually and collectively, as U.S. Bank. 

2 Appellant titled the filing a motion to dismiss.
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jurisdiction. On October 25, 2013, the trial court overruled Appellant’s 

preliminary objections. 

Trial commenced in January 2015. On March 10, 2015, the trial court 

entered findings of fact and conclusions of law and found in favor of U.S. 

Bank. On March 20, 2015, Appellant filed a post-trial motion. On March 25, 

2015, the trial court denied the post-trial motion. On April 24, 2015, 

Appellant filed a notice of appeal.3 The trial court ordered Appellant to file a 

concise statement of errors complained of on appeal (“concise statement”). 

See Pa.R.A.P. 1925(b). Thereafter, Appellant filed a concise statement and 

the trial court issued a Rule 1925(a) opinion. 

Appellant presents ten issues for our review:

1. Did [U.S. Bank] ever demand the full unpaid principle due 

immediately from Appellant in writing pursuant to the mortgage 

contract? 

2. Is an Act 91 Notice an action to be taken before a mortgagee 

can exercise its acceleration rights? 

3. Did [U.S. Bank] present a forged signature [f]ixed [r]ate 

[n]ote to the [t]rial [c]ourt? 

4. Did [U.S. Bank] take affirmative action to let it be known to 

Appellant that [U.S. Bank] exercised its acceleration rights? 

5. Is [U.S. Bank’s] foreclosure proceeding premature? 

6. Did [U.S. Bank] send Appellant a [n]otice of [a]cceleration 

and [o]pportunity to [c]ure pursuant to the mortgage contract? 

 

3 The notice of appeal was premature as judgment had not been entered 

against Appellant. Therefore, this Court remanded the case to the trial court 

which entered judgment against Appellant on June 16, 2015. Appellant’s 

notice of appeal is considered filed as of that date. See Pa.R.A.P. 905(a)(5).
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7. Did [U.S. Bank] perform all conditions precedent to 

commencing its foreclosure action? 

8. Did [U.S. Bank] exercise its acceleration rights prior to filing 

for foreclosure?

9. Has [U.S. Bank] pleaded all material facts to have a perfected 

or completed [a] cause of action? 

10. Did [U.S. Bank] aver that all conditions precedent to filing its 

foreclosure complaint were performed? 

Appellant’s Brief at 1-2.4

“Prior to addressing the substance of [Appellant’s arguments] we must 

determine whether [he] properly preserved [the issues]. An appellant’s 

failure to include an issue in [his] Rule 1925(b) [concise] statement waives 

that issue for purposes of appellate review.” Madrid v. Alpine Mountain 

Corp., 24 A.3d 380, 382 (Pa. Super. 2011) (citation omitted); see Pa.R.A.P. 

1925(b)(4)(vii) (“Issues not included in the [concise s]tatement and/or not 

raised in accordance with the provisions of this paragraph (b)(4) are 

waived.”).

Appellant’s concise statement read as follows:

[Appellant] complains that the trial court[’s] order denying 

[Appellant’s post-trial motion] was based upon bias and 

prejudice opinions that [do not] support the trial court[’s] order. 

The trial court [] denied [Appellant’s post-trial motion] without 

allowing [U.S. Bank] to respond to [Appellant’s] post-trial motion 

accordingly. [Appellant] filed a [post-trial motion] within a 

timely manner and [U.S. Bank] had ten days to respond to the 

[m]otion. [U.S. Bank’s] foreclosure action was commenced 

prematurely due to the fact that [U.S. Bank] failed to fulfill all 

 

4 We have re-numbered the issues for ease of disposition. 
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conditions precedent to filing a foreclosure action, which in this 

action, is also fulfilling all provisions within the mortgage 

contract [so that U.S. Bank may be] granted relief through such 

contract. [U.S. Bank] failed to exercise its acceleration rights by 

accelerating the mortgage debt pursuant to the mortgage 

contract. [U.S. Bank] failed to send [Appellant] a [n]otice of 

[a]cceleration and [o]pportunity to [c]ure pursuant to [the 

m]ortgage contract prior to commencing its foreclosure action 

against [Appellant. U.S. Bank] also failed to state a claim upon 

which relief can be granted.

Concise Statement, 5/27/15, at 1. Appellant did not raise his first, second, 

or third issue in his concise statement. As such, those issues are waived.5 

Appellant’s fourth, fifth, sixth, seventh, and eighth all relate to the 

sufficiency of the evidence at trial. The certified record in this case is devoid 

of a transcript of the trial in this matter and there is no transcript request 

from Appellant in the certified record. As this Court has explained: 

With regard to missing transcripts, the Rules of Appellate 

Procedure require an appellant to order and pay for any 

transcript necessary to permit resolution of the issues raised on 

appeal. Pa.R.A.P.1911(a). . . . When the appellant [] fails to 

conform to the requirements of Rule 1911, any claims that 

cannot be resolved in the absence of the necessary transcript or 

transcripts must be deemed waived for the purpose of appellate 

review. . . . It is not proper for either the Pennsylvania Supreme 

Court or the Superior Court to order transcripts nor is it the 

responsibility of the appellate courts to obtain the necessary 

transcripts. 

Commonwealth v. Preston, 904 A.2d 1, 7 (Pa. Super. 2006), appeal 

denied, 916 A.2d 632 (Pa. 2007) (certain internal citations omitted).

 

5 Even if we were to conclude that Appellant’s concise statement could be 

broadly construed to include issues one through three, we would find that 

these issues were waived for the same reason that Appellant’s issues four 

through eight are waived, as discussed infra.
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We cannot evaluate Appellant’s fourth through eighth claims without 

the trial transcript. As Appellant failed to request transcription of the notes 

of testimony, and the trial transcript is not contained within the certified 

record, Appellant’s fourth through eighth issues are waived. See Pa.R.A.P. 

1911(d); Preston, 904 A.2d at 7. 

In his ninth and tenth issues, Appellant argues that U.S. Bank was 

required to plead that it had accelerated the mortgage and that U.S. Bank 

failed to so plead. In essence, Appellant argues that the trial court erred by 

overruling his preliminary objections. This argument is waived.

“Issues not raised in the lower court are waived and cannot be raised 

for the first time on appeal.” Pa.R.A.P. 302(a). In his preliminary 

objections, Appellant only argued that the trial court lacked subject matter 

jurisdiction over the case. He did not argue that U.S. Bank failed to state a 

claim upon which relief could be granted. Accordingly, he waived his 

argument that the trial court should have sustained a preliminary objection 

in the nature of a demurrer. As Appellant has waived all ten of his issues, 

we affirm.

Judgment affirmed. 
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 6/8/2016