J-S40032-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

REVERSE MORTGAGE FUNDING, LLC

v.

RUSSELL RUSSO 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 919 EDA 2020

Appeal from the Order Entered February 19, 2020

In the Court of Common Pleas of Northampton County Civil Division at 

No(s): No. C-48-CV-2019-01903

BEFORE: SHOGAN, J., KING, J., and COLINS, J.*

MEMORANDUM BY COLINS, J.: FILED OCTOBER 05, 2020

This matter is an appeal filed by Russell Russo, pro se, from an order of 

the Court of Common Pleas of Northampton County (trial court) granting 

judgment on the pleadings in favor of plaintiff Reverse Mortgage Funding, LLC

(Plaintiff) in a mortgage foreclosure action. For the reasons set forth below, 

we affirm.

On March 5, 2019, Plaintiff filed a complaint against Appellant seeking 

to foreclose a mortgage on a property owned by Appellant located at 2420 7th 

Street, Bethlehem, Pennsylvania (the Property). In its complaint, which 

contained a notice to defend, Plaintiff averred that Appellant executed a home 

equity conversion note and a mortgage on the Property on October 7, 2014

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* Retired Senior Judge assigned to the Superior Court.
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and that on January 3, 2019, Plaintiff, by assignment, acquired that mortgage 

and the right to enforce the note. Complaint ¶¶3-7. Plaintiff averred that 

Appellant defaulted on the mortgage by failing to timely pay real estate taxes 

and insurance on the Property as required by the mortgage, that the mortgage

is in default and has been in default since September 20, 2018, and that 

$160,972.65 is due on the mortgage. Id. ¶¶8-9. 

The only answer that Appellant filed to Plaintiff’s complaint was a 

document filed on March 26, 2019, which he also captioned as a “Show of 

Cause Proof of Claim Demand.” In this answer, Appellant did not deny any of 

Plaintiff’s averments, respond to any of the paragraphs of Plaintiff’s complaint, 

or plead any defenses relating to the mortgage. Rather, this answer, which 

did not contain a notice to plead, consisted largely of quotes from the 

Congressional Record, and references to the issuance of Federal Reserve notes

and the bank emergency of 1933, with no reference to the mortgage at issue 

or whether any default occurred. Answer. On June 24, 2019, Plaintiff filed a 

motion for judgment on the pleadings based on the fact that the averments 

of the complaint were admitted. Appellant, in his response to this motion, did 

not dispute any of the averments of the complaint and asserted only 

arguments that Plaintiff was bound by an alleged agreement proposed in 

Appellant’s answer because Plaintiff did not respond to Appellant’s answer. 

Defendant’s Response to Quash Plaintiff’s Motion for Judgment. 
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On February 19, 2020, the trial court granted Plaintiff’s motion for 

judgment on the pleadings. In this order, the trial court stated that it granted 

the motion on the grounds that the averments of Plaintiff’s complaint were 

sufficient, if proven, to entitle it to a judgment of mortgage foreclosure, that 

Appellant’s answer and response to the motion did not deny those averments, 

and that the averments of the complaint were therefore admitted. Trial Court 

Order, 2/19/20, at 1.

Appellant timely appealed this judgment on March 16, 2020. On April 

21, 2020, the trial court issued an order pursuant to Pa.R.A.P. 1925(b) 

requiring Appellant to file and serve on the trial judge a concise statement of 

the errors complained of on appeal. The docket shows that the order was 

mailed to Appellant on April 22, 2020. Docket Entries at 3. On May 13, 2020, 

Appellant timely filed a concise statement of the errors complained of on 

appeal in this Court, but did not file the statement in the trial court and did 

not served it on the trial judge. On May 21, 2020, the trial court filed a

statement pursuant to Pa.R.A.P. 1925(a) in which it noted that Appellant had 

filed statement of errors in this Court, but held that all claims of error were 

waived because Appellant had failed to file the statement in the trial court and 

failed to serve the trial court judge. Trial Court Rule 1925(a) Statement, 

5/21/20. 

Before we consider Appellant’s arguments, we must determine whether 

his filing of his concise statement of errors in this Court and his failure to serve 
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it on the trial judge waived all issues in this appeal.1 We conclude that 

Appellant is not barred by waiver. 

The law is clear that where the trial court has issued an order in 

accordance with Rule 1925(b) requiring the appellant to file and serve on the 

trial judge a statement of errors complained of on appeal and the record shows 

that it was sent by the court to all parties, the appellant’s failure to file and 

serve a statement of errors in compliance with that order waives all issues on 

appeal. Greater Erie Industrial Development Corp. v. Presque Isle 

Downs, Inc., 88 A.3d 222, 225-27 (Pa. Super. 2014) (en banc); In re Estate 

of Boyle, 77 A.3d 674, 679 (Pa. Super. 2013); Forest Highlands 

Community Association v. Hammer, 879 A.2d 223, 227-29 (Pa. Super.

2005). Waiver, however, occurs only where the trial court has complied with 

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1 Plaintiff does not argue that this Court should find Appellant’s issues waived 

under Rule 1925. We are, however, required to address this issue when it 

comes to our attention, even if the appellee has not raised it. 

Commonwealth v. Butler, 812 A.2d 631, 634 (Pa. 2002); Greater Erie 

Industrial Development Corp. v. Presque Isle Downs, Inc., 88 A.3d 222, 

224 (Pa. Super. 2014) (en banc). Plaintiff does argue that we should dismiss 

this appeal because Appellant did not file a reproduced record. We reject this 

argument. Plaintiff filed no application to dismiss the appeal for failure to file 

a reproduced record. This Court may dismiss an appeal for non-compliance 

with the Rules of Appellate Procedure concerning the filing of a reproduced 

record only where the appellee files an application to dismiss the appeal, not 

where the appellee merely raises the issue in its brief. Commonwealth v. 

Sohnleitner, 884 A.2d 307, 312-13 (Pa. Super. 2005); Commonwealth v. 

Stolee, 836 MDA 2019 at 1 n.2 (Pa. Super. filed July 15, 2020) (unpublished 

memorandum). Moreover, Plaintiff is not prejudiced by Appellant’s failure to 

file a reproduced record, as it is permitted by Pa.R.A.P. 2156 to file a 

supplemental reproduced record and has in fact done so. 
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notice requirements of Rule 1925(b). Greater Erie Industrial

Development Corp., 88 A.3d at 226; In re L.M., 923 A.2d 505, 509-10 (Pa.

Super. 2007). Rule 1925(b) 

requires that trial judges use specific language in a Rule 1925 

order, in order to adequately advise an appellant of his obligations 

under the rule. To essentially ignore a trial court’s failure to adhere 

to its obligations under Rule 1925, but sanction an appellant for 

his failure to follow the rule, is unjust and unreasonable, 

particularly where ... the trial court’s misleading order led to the 

very noncompliance [at issue].

Berg v. Nationwide Mutual Insurance Co., 6 A.3d 1002, 1008 n.12 (Pa.

2010) (plurality opinion). 

Here, the trial court’s order did not comply with Rule 1925’s notice 

requirements with respect to service on the trial court judge. Rule 1925 was 

amended effective October 1, 2019 to provide that a trial court’s order to file 

a statement of errors complained of on appeal 

shall specify:

* * *

(iii) that the Statement shall be served on the judge pursuant to 

paragraph (b)(1) and both the place the appellant can serve the 

Statement in person and the address to which the appellant can 

mail the Statement. In addition, the judge may provide an email, 

facsimile, or other alternative means for the appellant to serve the 

Statement on the judge .... 

Pa.R.A.P. 1925(b)(3). The trial court’s 1925(b) order, issued in April 2020, 

after this amendment was in effect, provided only:

[I]t is hereby ORDERED and DECREED that Appellant file of record and 

serve on the undersigned a concise statement of the errors complained 
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of on appeal, no later than twenty-one days from the date of this Order, 

pursuant to the Pennsylvania Rules of Appellate Procedure.

FURTHERMORE, a failure to comply with such direction may be 

considered by the appellate court as a waiver of all objections to the 

order, ruling, or other matter complained of, pursuant to 42 Pa.C.S. § 

1925(b)[sic].

 

Trial Court Order, 4/21/20 (emphasis in original). Because the trial court 

failed to comply with Rule 1925’s notice requirements with respect to where 

Appellant was to serve the trial judge, Appellant’s failure to serve the trial 

judge does not require this Court to find that all issues in this appeal are 

waived.

We also conclude that Appellant’s filing of his statement in the wrong 

court does not require waiver. As noted above, the trial court ordered 

Appellant to “file of record” his statement “pursuant to the Pennsylvania Rules 

of Appellate Procedure” and neither specified where Appellant was required to 

file nor advised him of the Rule of Appellate Procedure that instructed where 

the statement must be filed. While this language complied with the 

requirements for a Rule 1925(b) order, Appellant’s filing in this Court is a filing 

“of record” and documented that the statement was timely filed. A filing in 

the wrong court is to be transferred to the proper court, not disregarded. See

Pa.R.A.P. 751, 905(a)(4). Indeed, the trial court was aware that the 

statement had been filed. 

If the trial court’s Rule 1925(a) statement were its only explanation of 

the reasons for its order, we would be required to remand this case for the 
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trial court to file a supplemental opinion. Here, however, the trial court fully 

explained the ground on which it granted judgment on the pleadings in its 

order. We therefore address the merits of Appellant’s appeal. 

Appellant argues that the trial court erred in entering judgment against 

him without a jury trial. We do not agree. 

Our review of the trial court’s grant of judgment on the pleadings is de 

novo and plenary. Grabowski v. Carelink Community Support Services, 

Inc., 230 A.3d 465, 470 (Pa. Super. 2020). Judgment on the pleadings is 

properly entered in favor of the plaintiff where the averments of the complaint, 

if proven, are sufficient to support judgment in its favor and the defendant’s

answer admits those averments and does not plead a legally valid defense to 

plaintiff’s cause of action. Swift v. Milner, 538 A.2d 28, 31 (Pa. Super. 

1988); U.S. Leasing Corp. v. Stephenson Equipment, Inc., 326 A.2d 472, 

473 (Pa. Super. 1974).

A mortgage holder is entitled to a judgment of mortgage foreclosure 

where the mortgagor admits the existence of the mortgage, that he has failed 

to make payment required by the mortgage and the mortgage is in default, 

and the amount due under the mortgage. Gerber v. Piergrossi, 142 A.3d 

854, 859 (Pa. Super. 2016); Bank of America, N.A. v. Gibson, 102 A.3d 

462, 465 (Pa. Super. 2014). Here, Appellant admitted all of these facts by his 

failure to deny any of the averments of the complaint.
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Plaintiff’s complaint averred that Appellant executed a note and a 

mortgage on the Property on October 7, 2014, that Plaintiff acquired the 

mortgage and the right to enforce the note, that Appellant failed to make 

payments of real estate taxes and insurance on the Property required by the 

mortgage, and that the mortgage has been in default since September 20, 

2018. Complaint ¶¶3-8. Plaintiff’s complaint also averred the amount due on 

the mortgage. Id. ¶9. Appellant’s answer did not deny any of these 

averments; indeed, it did not respond at all to these averments. All of these 

averments of Plaintiff’s complaint were therefore admitted. Pa.R.C.P. 

1029(b); Bayview Loan Servicing LLC v. Wicker, 163 A.3d 1039, 1044 

(Pa. Super. 2017), aff’d, 206 A.3d 474 (Pa. 2019); Bank of America, N.A., 

102 A.3d at 467.

Appellant also did not plead any defense that this mortgage was invalid 

or unenforceable or that Plaintiff was barred from seeking foreclosure. 

Although Appellant asserts in his brief that he might have defenses under the 

federal Truth in Lending Act (TILA), 15 U.S.C. §§ 1601-1667, and federal Fair 

Debt Collection Practices Act (FDCPA), 15 USC §§ 1692-1692p, he did not 

plead in his answer that the mortgage, the note, or Plaintiff’s or its assignors’ 

conduct violated either of these statutes or that either of these statutes

provided a defense to this mortgage foreclosure action. Rather, the lone

reference to these statutes in Appellant’s answer consists of a statement 

concerning a 2008 New York court opinion and an entity that has no apparent 
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connection to this mortgage, note or case. Answer at 3. Moreover, Appellant 

in his response to Plaintiff’s motion for judgment on the pleadings did not 

assert that the TILA or FDCPA barred or affected Plaintiff’s foreclosure claim 

and did not refer at all to either statute. Appellant, by failing to plead these 

statutes as affirmative defenses or argue them to the trial court, waived any 

claim that they constitute grounds for reversal of the judgment in Plaintiff’s 

favor. Pa.R.C.P. 1032(a); Pa.R.A.P. 302(a); Milby v. Pote, 189 A.3d 1065, 

1078-79 (Pa. Super. 2018).

Because Appellant did not deny the averments of the complaint, those 

averments were sufficient to support a judgment of mortgage foreclosure in 

Plaintiff’s favor, and Appellant asserted no defense in the trial court that could 

defeat Plaintiff’s claim, the trial court did not err in granting Plaintiff’s motion 

for judgment on the pleadings. Accordingly, we affirm the trial court’s order.

Order affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/5/20