J-A03025-16

2016 PA Super 82 

GENERATION MORTGAGE COMPANY IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

BUNG THI NGUYEN

Appellant No. 1069 EDA 2015

Appeal from the Order Dated April 6, 2015

In the Court of Common Pleas of Philadelphia County

Civil Division at No(s): APRIL TERM, 2013, NO. 1497

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

OPINION BY MUNDY, J.: FILED APRIL 11, 2016

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, 
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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.
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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.
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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[, 907 A.2d 

1051 (Pa. 2006), amended by, 918 A.2d 114 

(Pa. 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] 

____________________________________________

1 Appellant and the trial court have complied with Pennsylvania Rule of 

Appellate Procedure 1925.
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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[, 503 A.2d 8 (Pa. Super. 

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, 131 A.3d 1, 10 (Pa. 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.
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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 

____________________________________________

2 41 P.S. §§ 101-605 is commonly referred to as Act 6 because it was 

enacted as the “Act of January 30, 1974 (P.L. 13, No. 6).” It is alternatively 

referred to as the loan interest and protection law or the usury law. 

The preamble to Act 6 describes it as follows:

An Act regulating agreements for the loan or use of 

money; establishing a maximum lawful interest rate in the 

Commonwealth; providing for a legal rate of interest; 

detailing exceptions to the maximum lawful interest rate 

for residential mortgages and for any loans in the principal 

amount of more than fifty thousand dollars and federally 

insured or guaranteed loans and unsecured, 

uncollateralized loans in excess of thirty-five thousand 

dollars and business loans in excess of ten thousand 

dollars; providing protections to debtors to whom loans are 

made including the provision for disclosure of facts 

(Footnote Continued Next Page)
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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, 104 A.3d 526 (Pa. 

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 

(Footnote Continued) _______________________

relevant to the making of residential mortgages, providing 

for notice of intention to foreclose and establishment of a 

right to cure defaults on residential mortgage obligations, 

provision for the payment of attorney’s fees with regard to 

residential mortgage obligations and providing for certain 

interest rates by banks and bank and trust companies; 

clarifying the substantive law on the filing of an execution 

on a confessed judgment; prohibiting waiver of provisions 

of this act, specifying powers and duties of the secretary of 

banking, and establishing remedies and providing penalties 

for violations of this act.

Glover v. Udren Law Offices, P.C., 92 A.3d 24, 26 n.2 (Pa. Super. 2014), 

quoting Act of Jan. 30, 1974, P.L. 13, No. 6., appeal granted, 108 A.3d 28 

(Pa. 2015).
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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 Pers. Ins. Co., 128 A.3d 1183, 1189 (Pa. 2015) 

(citation omitted). Appellant cites Section 503 of Act 6 as a statutory basis 

for attorney’s fees and asserts she was the “prevailing party” due to the 

discontinuance. Appellant’s Brief at 23. Section 503 provides as follows.

§ 503. Reasonable attorney’s fees recoverable

(a) If a borrower or debtor, including but not limited 

to a residential mortgage debtor, prevails in an 

action arising under this act, he shall recover the 

aggregate amount of costs and expenses determined 

by the court to have been reasonably incurred on his 

behalf in connection with the prosecution of such 

action, together with a reasonable amount for 

attorney’s fee.

41 P.S. § 503(a) (emphasis added). Appellant contends that she is entitled 

to attorney’s fees because Appellee allegedly did not provide the notice 

mandated by Section 403 before commencing the foreclosure action, and 
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she prevailed when Appellee voluntarily discontinued the case.3 Appellant’s 

Brief at 23. Section 403 provides, in part, as follows.

§ 403. Notice of intention to foreclose

(a) Before any residential mortgage lender may 

accelerate the maturity of any residential mortgage 

obligation, commence any legal action including 

mortgage foreclosure to recover under such 

obligation, or take possession of any security of the 

residential mortgage debtor for such residential 

mortgage obligation, such person shall give the 

residential mortgage debtor notice of such intention 

at least thirty days in advance as provided in this 

section.

41 P.S. § 403(a). 

Here, Appellant is not entitled to attorney’s fees under the plain 

language of Section 503 because a mortgage foreclosure action does not 

arise under Act 6.4 Instead, Pennsylvania Rules of Civil Procedure 1141-

____________________________________________

3 The certified record includes two letters Appellee sent to Appellant, 

providing notice that she was in default and advising of its intention to 

foreclose. The first was a “property charge delinquency letter,” which stated 

the nature of the default, the right of Appellant to cure the default within 30 

days, and that failure to comply would result in Appellee declaring the loan 

due and payable and would entitle Appellee to foreclosure. See Complaint, 

4/10/13, at Exhibit E, Property Charge Delinquency Letter, 10/7/11, at 1. 

The second was a November 30, 2012 letter providing notice that Appellee 

intended to foreclose because Appellant was still in default. See id. at 

Exhibit F, Notice of Default Intent to Foreclose, at 1. Appellee sent both 

letters before filing the foreclosure complaint on April 10, 2013.

4 To the extent that our reasoning differs from that of the trial court, we 

note that “[a]s an appellate court, we may uphold a decision of the trial 

court if there is any proper basis for the result reached; thus we are not 

constrained to affirm on the grounds relied upon by the trial court.” In re 

(Footnote Continued Next Page)
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1150 govern mortgage foreclosure actions. Act 6 notice is a prerequisite to 

commencing a residential mortgage foreclosure action. Wells Fargo Bank, 

N.A. v. Spivak, 104 A.3d 7, 12 (Pa. Super. 2014) (citation omitted). “In 

the residential mortgage context, Act 6 is typically raised as a defense to 

mortgage foreclosure proceedings.” Id. (citation omitted). “Section 403 

simply puts the residential homeowner on notice that the delinquent 

mortgage is subject to foreclosure at some future date unless the owner 

takes some action. It is not a foreclosure action[.]” CitiMortgage, Inc. v. 

Barbezat, 131 A.3d 65, 72 (Pa. Super. 2016). “Remedies for a defective 

Act 6 notice include setting aside the foreclosure or denying a creditor the 

ability to collect an impermissible fee.” Spivak, supra (citations omitted). 

Here, even accepting Appellant’s argument that she prevailed in the 

foreclosure action by virtue of the voluntary discontinuance, she is not 

entitled to recover attorney’s fees under Section 503 because a mortgage 

foreclosure action does not arise under Act 6.5 Instead, a lender must give 

Act 6 notice prior to filing a residential mortgage foreclosure complaint. 

Therefore, even if Appellant has the status of a prevailing party in the 

foreclosure action, that does not mean she succeeded on her Act 6 defense 

(Footnote Continued) _______________________

Estate of Strahsmeier, 54 A.3d 359, 364 n.17 (Pa. Super. 2012) (citation 

omitted), appeal denied, 69 A.3d 603 (Pa. 2013).

5 Section 504 provides for an individual action for “[a]ny person affected by 

a violation of the act[.]” 41 P.S. § 504.
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because an Act 6 notice is separate from the foreclosure action.6 See 

Spivak, supra; Barbezat, supra. Moreover, there is no statutory 

provision that authorizes the award of attorney’s fees to a residential 

mortgagor who successfully defends a mortgage foreclosure action, and 

there was not a clause in the mortgage or note allowing Appellant to pursue 

attorney’s fees. See Doctor’s Choice, supra. For these reasons, Appellant 

is not entitled to relief on this issue.

Based on the foregoing, we conclude Appellant’s issues do not warrant 

relief, and the trial court did not abuse its discretion in denying Appellant’s 

____________________________________________

6 Appellant relies on Gardner to support the argument that a discontinuance 

is the equivalent to prevailing on the merits. However, Gardner is 

distinguishable because that case involved an action to enforce a confessed 

judgment, which arose under Section 407(a) of Act 6. Gardner, supra at 9 

(affirming attorney’s fees award when mortgagee discontinued its action to 

enforce a confessed judgment against mortgagor’s residence brought under 

Section 407(a) of Act 6). As we have explained above, the cause of action 

for mortgage foreclosure does not arise under Act 6.

Additionally, the remaining cases Appellant cites are distinguishable 

because they involve debtors who prevailed on the merits of their defenses 

to prevent lenders from executing on confessed judgments. See Beckett v. 

Laux, 577 A.2d 1341, 1347-1348 (Pa. Super. 1990) (concluding that debtor 

prevailed in stay of execution action because lender did not comply with

Section 407(a) of Act 6 before executing on confessed judgment); First 

Nat’l Bank of Allentown v. Koneski, 573 A.2d 591, 595 (Pa. Super. 1990) 

(declaring that debtors who succeeded on their petition to open judgment 

and prevented lender from executing on a confessed judgment were entitled 

to attorney’s fees as prevailing party); Drum v. Leta, 512 A.2d 36, 36 (Pa. 

Super. 1986) (holding debtor who succeeded in striking a confession of 

judgment is entitled to attorney’s fees under Section 407(b)). 
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motion for attorney’s fees. See Cummins, supra. Accordingly, we affirm 

the trial court’s April 6, 2015 order.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/11/2016