J-A02021-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

U.S. BANK NATIONAL ASSOCIATION

S/B/M TO U.S. BANK NATIONAL

ASSOCIATION ND

v.

JUDITH L. MCALLISTER AND DEAN F.

MCALLISTER

APPEAL OF: DEAN F. MCALLISTER

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IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 1064 WDA 2019

Appeal from the Order Entered June 17, 2019

In the Court of Common Pleas of Fayette County Civil Division at No(s):

1076 of 2018 GI

BEFORE: SHOGAN, J., OLSON, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY OLSON, J.: FILED JUNE 11, 2020

Appellant, Dean F. McAllister, appeals from the order entered on June

17, 2019, granting a motion for summary judgment filed by U.S. Bank

National Association, s/b/m to U.S. Bank National Association ND (generally,

“the Bank”) in a mortgage foreclosure action. We affirm.

We briefly summarize the facts and procedural history of this case as

follows. On August 2, 2012, Appellant and Judith L. McAllister executed an

$805,000.00 mortgage and promissory note to acquire a residential property

in Fayette County, located on Alpine Heights Road in Champion, Pennsylvania. On May 23, 2018, the Bank filed a complaint in mortgage foreclosure against

Appellant and Judith L. McAllister, alleging that the parties defaulted under

the mortgage and note by failing to make payments on May 1, 2017 and
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subsequently thereafter.1 On August 1, 2018, Appellant filed an answer and

new matter to the complaint. Relevant to this appeal, Appellant claimed that

the Bank “failed to attach any account ledger, account transaction journal or

other source document” to its complaint “to enable [Appellant] to determine

the veracity of the amounts claimed to be due.” Appellant’s Answer and New

Matter, 8/1/2018, at 3 ¶6. Thus, Appellant denied owing a total balance of

$760,744.64 and demanded “strict proof thereof[.]” Id. The Bank replied to

new matter on August 15, 2018.

Subsequently, on September 19, 2018, the Bank filed a motion for

summary judgment. Appellant filed a brief in response to the motion for

summary judgment on January 24, 2019. Relevant to the current appeal,

Appellant claimed that his mortgage and note originated with "U.S. Bank

National Association ND" and, therefore, "U.S. Bank National Association," as

the named plaintiff in the action, lacked standing to file the complaint because

it had not established that it was the successor holder of the mortgage and

note at issue. Appellant further challenged the Bank’s reliance on an affidavit

attached to the motion for summary judgment submitted by Carla R. Wedding,

a representative from the Bank, “to demonstrate that [U.S. Bank National

____________________________________________

1 On June 8, 2018, Judith L. McAllister filed an answer to the complaint.

Therein, she admitted that she signed the mortgage and note in 2012, but

denied personal liability, claiming the residential property was an asset

transferred to Appellant in their divorce settlement. Judith L. McAllister did

not respond to the Bank’s motion for summary judgment and she is not a

party to the current appeal.
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Association] is the holder of the [subject] mortgage, without any documentary

evidence to support that claim.” Appellant’s Brief in Response to Summary

Judgment, 1/24/2019, at 4. Appellant also claimed that the Bank relied upon

the affidavit to resolve the amount due under the mortgage. Id. at 5.

Appellant claimed that “the affidavit [was] deficient under [Borough of

Nanty-Glo v. Am. Sur. Co. of New York, 163 A. 523 (Pa. 1932)] because

[the Bank was] attempting to use testimonial evidence to resolve a material

issue of fact.” Id. at 4. Appellant also argued that the Bank violated 12 C.F.R.

§ 1024.1, et seq, (“Regulation X”) “by filing this mortgage foreclosure

without ever conducting any reasonable evaluation of [Appellant’s] good-faith

attempts at loss mitigation.” Id. at 6. On March 8, 2019, prior to argument

on the motion for summary judgment, the Bank requested leave from the trial

court to supplement its motion for summary judgment by including additional

documentation. The Bank submitted “Exhibit A-2” showing its institutional

history since 1997, including acquisition of “U.S. Bank National Association

ND” by “U.S. Bank National Association” on May 14, 2013. See Praecipe,

3/8/2019, Exhibit A-2.

The trial court held argument on March 8, 2019. On June 17, 2019, by

opinion and order, the trial court granted the Bank’s motion for summary

judgment. The trial court’s order also entered judgment in favor of the Bank

for $773,392.22, plus interest. On July 17, 2019, Appellant filed a motion to

reconsider, contemporaneously with a notice of appeal. On July 18, 2019, the

trial court denied reconsideration, stating it lacked jurisdiction in view of the
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filing of the notice of appeal. In a separate order entered on July 18, 2019,

the trial court directed Appellant to file a concise statement of errors

complained of on appeal pursuant to Pa.R.A.P. 1925(b). Appellant filed a Rule

1925(b) statement.2 On August 27, 2019, the trial court entered an order

relying upon its prior decision entered on June 17, 2019, as its rationale for

granting summary judgment. On October 2, 2019, the trial court granted

Appellant supersedas and a stay of the motion for summary judgment pending

appeal.

On appeal, Appellant presents the following issues3for our review:

1. Whether, in the course of disposing of the [] [m]otion for

[s]ummary [j]udgment, the trial court erred by finding that

U.S. Bank[ National Association (“U.S. Bank N.A.”)] had

standing to commence its action in mortgage foreclosure[?]

2. Whether, in the course of disposing of the [] [m]otion for

[s]ummary [j]udgment, the trial court erred by finding that the

record supports the contention of [U.S. Bank N.A.] that it holds

the mortgage rights of its purported predecessor[?]

3. Whether, in the course of disposing of the [] [m]otion for

[s]ummary [j]udgment, the trial court erred by permitting

[U.S. Bank N.A.] to resolve disputed issues of material fact by

means of an affidavit to award summary judgment[?]

____________________________________________

2 As will be discussed at length below, the date of filing is in dispute.

3 While Appellant presents five issues in his statement of questions presented

section of his appellate brief, issues three and four are identical. See

Appellant’s Brief at 2-3. Moreover, Appellant’s argument section frames the

issues differently and in another order. For clarity and ease of discussion, we

have reordered Appellant’s claims as presented and address inter-related

issues when applicable.
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4. Whether, in the course of disposing of the [] [m]otion for

[s]ummary [j]udgment, the trial court erred by finding that

[U.S. Bank N.A.] had met all conditions precedent to filing a

complaint in mortgage foreclosure despite its failure to meet

its duties in the loan modification/loss mitigation process[?]

Appellant’s Brief at 2-3.

Before we address the merits of Appellant’s claims, the Bank argues that

we should quash this appeal because Appellant filed an untimely Rule 1925(b)

statement and, therefore, waived all of his issues on appeal. Bank’s Brief at

11.

We have previously stated:

In Commonwealth v. Lord, 719 A.2d 306 (Pa. 1998), our

Supreme Court held that “from this date forward, in order to

preserve their claims for appellate review, [a]ppellants must

comply whenever the trial court orders them to file a Statement

of Matters Complained of on Appeal pursuant to Rule 1925. Any

issues not raised in a 1925(b) statement will be deemed waived.”

Lord, 719 A.2d at 309; see also Commonwealth v. Castillo, 888 A.2d 775, 780 (Pa. 2005) (stating any issues not raised in a

Rule 1925(b) statement are deemed waived). This Court has held

that “[o]ur Supreme Court intended the holding in Lord to operate

as a bright-line rule, such that ‘failure to comply with the minimal

requirements of Pa.R.A.P. 1925(b) will result in automatic

waiver of the issues raised.’” Greater Erie Indus. Dev. Corp.

v. Presque Isle Downs, Inc., 88 A.3d 222, 224 (Pa. Super.

2014) (en banc) (emphasis in original) (quoting Commonwealth

v. Schofield, 888 A.2d 771, 774 (Pa. 2005).

“[I]n determining whether an appellant has waived issues on

appeal based on non-compliance with Pa.R.A.P. 1925, it is the trial

court's order that triggers an appellant's obligation ... therefore,

we look first to the language of that order.” In re Estate of

Boyle, 77 A.3d 674, 676 (Pa. Super. 2013).

U.S. Bank, N.A. for Certificateholders of LXS 2007-7N Tr. Fund v. Hua, 193 A.3d 994, 996–997 (Pa. Super. 2018).
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Upon review of the certified record, we note the following. On July 18,

2019, the trial court filed an order directing Appellant to file a Rule 1925(b)

statement. The order specifies that Appellant “shall file [his Rule 1925(b)

statement] of record in the trial court and serve the judge within 21 days.”

Rule 1925(b) Order, 7/18/2019. The order further states that “[i]ssues not

included in the statement, timely filed and served shall be deemed waived.”

Id. (emphasis added). Accordingly, Appellant had 21 days from July 18,

2019, or until August 8, 2019, to file a timely Rule 1925(b) statement. Upon

review of the certified record, the docket contains two different time-stamped

copies of Appellant’s Rule 1925(b) statement. One copy is marked received

on August 9, 2019; the other copy is time-stamped as filed on August 12,

2019. Facially, both copies were received after they were due on August 8,

2019.

In his reply brief to this Court, Appellant’s counsel claims he mailed the

Rule 1925(b) statement to the trial court prothonotary, the trial court judge,

and the Bank, one day before the August 8, 2019 deadline and faxed the Rule

1925(b) statement on August 8, 2019. To his appellate reply brief, Appellant

attached a service transmittal letter dated August 7, 2019 and a facsimile

transmittal receipt dated August 8, 2019 to support his contention that he

filed his Rule 1925(b) statement in a timely manner. Regarding timing and service, Pennsylvania Rule of Appellate Procedure

1925(b)(1) provides:
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The appellant shall file of record the Statement and concurrently

shall serve the judge. Filing of record shall be as provided in

Pa.R.A.P. 121(a) and, if mail is used, shall be complete on mailing

if the appellant obtains a United States Postal Service Form 3817,

Certificate of Mailing, or other similar United States Postal Service

form from which the date of deposit can be verified in compliance

with the requirements set forth in Pa.R.A.P. 1112(c). Service on

the judge shall be at the location specified in the order, and shall

be either in person, by mail, or by any other means specified in

the order. Service on the parties shall be concurrent with filing

and shall be by any means of service specified under Pa.R.A.P.

121(c).

Pa.R.A.P. 1925(b)(1).

Additionally, Pennsylvania Rule of Appellate Procedure 121, as

referenced in Rule 1925(b), provides in pertinent part:

(a) Filing. Papers required or permitted to be filed in an appellate

court shall be filed with the prothonotary. Filing may be

accomplished by mail addressed to the prothonotary, but except

as otherwise provided by these rules, filing shall not be timely

unless the papers are received by the prothonotary within the time

fixed for filing. If an application under these rules requests relief

which may be granted by a single judge, a judge in extraordinary

circumstances may permit the application and any related papers

to be filed with that judge. In that event the judge shall note

thereon the date of filing and shall thereafter transmit such papers

to the clerk. * * *

(c) Manner of service. Service may be:

(1) by personal service, which includes delivery of the copy

to a clerk or other responsible person at the office of the

person served, but does not include inter-office mail;

(2) by first class, express, or priority United States Postal

Service mail;

(3) by commercial carrier with delivery intended to be at

least as expeditious as first class mail if the carrier can verify

the date of delivery to it;
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(4) by facsimile or e-mail with the agreement of the party

being served as stated in the certificate of service.

Service by mail is complete on mailing. Pa.R.A.P. 121(a) and (c).

Taken all together, we conclude that Appellant’s Rule 1925(b) statement

was untimely. Initially, we reject Appellant’s assertion that he sent the trial

court prothonotary a facsimile on the deadline date, because there is no

evidence that the Bank agreed to this type of service as required by Pa.R.A.P.

121(c)(4). Because the trial court’s Rule 1925(b) order does not specify

another means of service, Appellant was required to file his Rule 1925(b)

statement by mail or in person under Pa.R.A.P. 1925(b)(1). There is no

dispute that Appellant did not file his Rule 1925(b) in person. Moreover, while

Rule 121(c) provides that “[s]ervice by mail is complete on mailing[,]” Rule

1925(b)(1) requires verification of the date the filing was deposited with the

postal service. Here, Appellant does not provide postal confirmation of the

date he mailed the Rule 1925(b) statement and his attorney’s letter of

certification sent with his Rule 1925(b) statement is not a proper substitute.

Based upon our examination of the certified record in this case and the

bright-line rule adopted in Lord, we conclude that while quashal is not

warranted as the Bank suggests, Appellant’s untimely Rule 1925(b) statement

compels waiver of all issues presented on appeal.

Assuming arguendo Appellant had not waived all of the issues presented

on appeal, we conclude that Appellant’s claims otherwise lack merit for the
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reasons that follow. Because Appellant’s first three contentions, as set forth

above, are inter-related, we will first examine them together. Appellant

asserts that the trial court erred by not determining whether the Bank had

standing to initiate foreclosure proceedings. More specifically, Appellant

contends the Bank confusingly pled in its complaint that it was both the

original mortgagee and the successor to the mortgage by merger. Appellant’s

Brief at 8. As such, Appellant argues, “[U.S. Bank N.A.] and the [original

m]ortgagee are not the same entity, and the mere fact that [U.S. Bank N.A.]

shares a similar name with the [m]ortgagee does not mean that it shares its

identity.” Id. Accordingly, Appellant maintains, “[t]he Bank failed to plead

any assignment or right of succession[.]” Id. at 10. Next, Appellant claims

“the Bank could have incorporated an assignment of the mortgage by

reference, [but] it did not do that.” Id. at 14. Finally, in his third inter-related

claim, Appellant argues that the trial court erred by relying on an affidavit

from Carla R. Wedding, described as “an officer” of the Bank, to resolve the

issue of standing, as well as the amount due under the mortgage, in violation

of the rule announced in Nanty-Glo. Id. at 14-20. Appellant contends that

the trial court erroneously relied upon the affidavit despite Appellant’s specific

denial of the Bank’s allegations of delinquency and payment default under the

note and mortgage. Id. at 17.

We adhere to the following standards:

We review an order granting summary judgment for an abuse of

discretion. Our scope of review is plenary, and we view the record
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in the light most favorable to the nonmoving party. A party

bearing the burden of proof at trial is entitled to summary

judgment whenever there is no genuine issue of any material fact

as to a necessary element of the cause of action or defense which

could be established by additional discovery or expert report. In

response to a summary judgment motion, the nonmoving party

cannot rest upon the pleadings, but rather must set forth specific

facts demonstrating a genuine issue of material fact.

The holder of a mortgage has the right, upon default, to bring a

foreclosure action. The holder of a mortgage is entitled to

summary judgment if the mortgagor admits that the mortgage is

in default, the mortgagor has failed to pay on the obligation, and

the recorded mortgage is in the specified amount.

Bank of America, N.A. v. Gibson, 102 A.3d 462, 464–465 (Pa. Super. 2014)

(internal citations, quotations, and brackets omitted).

The rule, established in Nanty-Glo, governing the use of oral testimony

to support a motion for summary judgment provides:

However clear and indisputable may be the proof when it depends

on oral testimony, it is nevertheless the province of the

[fact-finder] to decide, under instructions from the court, as to the

law applicable to the facts, and subject to the salutary power of

the court to award a new trial if they should deem the verdict

contrary to the weight of the evidence.... The credibility of these

witnesses, without whose testimony plaintiff could not have

recovered, was for the [fact-finder], and plaintiff's motion for

binding instructions should not have been granted.

Nanty–Glo, 163 A. at 524 (internal citations omitted).

Initially, it must be determined whether the plaintiff has alleged

facts sufficient to establish a prima facie case. If so, the second

step is to determine whether there is any discrepancy as to any

facts material to the case. Finally, it must be determined whether,

in granting summary judgment, the trial court has usurped

improperly the role of the [fact-finder] by resolving any material

issues of fact.

It is only when the third stage is reached that Nanty–Glo comes

into play.
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Dudley v. USX Corp., 606 A.2d 916, 920 (Pa. Super. 1992),

appeal denied, 616 A.2d 985 (Pa. 1992).

The function of the summary judgment proceedings is to avoid a

useless trial but is not, and cannot, be used to provide for trial by

affidavits or trial by depositions. That trial by testimonial affidavit

is prohibited cannot be emphasized too strongly. In considering a

motion for summary judgment, the lower court must examine the

whole record, including the pleadings, any depositions, any

answers to interrogatories, admissions of record, if any, and any

affidavits filed by the parties. From this thorough examination the

lower court will determine the question of whether there is a

genuine issue as to any material fact. On this critical question, the

party who brought the motion has the burden of proving that no

genuine issue of fact exists. All doubts as to the existence of a

genuine issue of a material fact are to be resolved against the

granting of summary judgment.

In determining the existence or non-existence of a genuine issue

of a material fact, courts are bound to adhere to the rule of

[Nanty–Glo] which holds that a court may not summarily enter

a judgment where the evidence depends upon oral testimony.

However clear and indisputable may be the proof when it

depends on oral testimony, it is nevertheless the province

of the [fact-finder] to decide, under instructions from the

court, as to the law applicable to the facts, and subject to

the salutary power of the court to award a new trial if [it]

should deem the verdict contrary to the weight of the

evidence.

Penn Center House, Inc. v. Hoffman, 553 A.2d 900, 902–903

(Pa. 1989). The Nanty–Glo rule means “the party moving for

summary judgment may not rely solely upon its own testimonial

affidavits or depositions, or those of its witnesses, to establish the

non-existence of genuine issues of material fact.” Dudley, supra

at 918. “Testimonial affidavits of the moving party or his

witnesses, not documentary, even if uncontradicted, will not

afford sufficient basis for the entry of summary judgment, since

the credibility of the testimony is still a matter for the [factfinder].”

Penn Center House, 553 A.2d at 903.

If, however, the moving party supports its motion for summary

judgment with admissions by the opposing party, Nanty–Glo

does not bar entry of summary judgment.
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DeArmitt v. New York Life Ins. Co., 73 A.3d 578, 594–595 (Pa. Super.

2013).We have further stated, Nanty–Glo prohibits entry of summary judgment based on the

moving party's oral testimony. An exception to this rule exists,

however, where the moving party supports the motion by using

admissions of the opposing party. Admissions include facts

admitted in pleadings. * * * General denials constitute admissions where [] specific denials are

required. Furthermore, in mortgage foreclosure actions, general

denials by mortgagors that they are without information sufficient

to form a belief as to the truth of averments as to the principal

and interest owing on the mortgage must be considered an

admission of those facts. [Finally, even if an] affidavit constitutes

hearsay, [when] the referenced loan history documents are

records of regularly conducted activity, or business records, [such

evidence] would be admissible at trial with proper foundation.

Gibson, 102 A.3d at 466–467 (internal citations and quotations omitted).

Here, the trial court determined that Appellant generally denied the

alleged default and the total amount owed. Trial Court Opinion, 6/17/2019,

at 3. The trial court recognized that Appellant’s general denials constituted

admissions as to default and the principal and interest owed because, beside

the mortgagee bank, Appellant and Judith L. McAllister as the mortgagors “are

the only parties who would have sufficient knowledge on which to base a

specific denial.” Id. at 6, citing New York Guardian Mortgage Corp. v.

Dietzel, 524 A.2d 951, 952 (Pa. Super. 1987). Accordingly, the trial court

considered Appellant’s general denials concerning default and amounts due
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under the mortgage as admissions and “conclude[d] that [Appellant was]

indeed in default of [his] obligations under [the] mortgage.” Id. The trial

court determined that Appellant’s deemed admissions left no issues of

material fact to decide, that the affidavit at issue was documentary and not

testimonial, and the Bank provided additional evidence that traced its

institutional history to establish standing. For all of the foregoing reasons, we

discern no abuse of discretion in granting the Bank’s motion for summary

judgment and conclude there is no merit to Appellant’s first three issues.

Finally, Appellant contends:

The trial court erred once more by entering summary judgment in

favor of the Bank, despite its failure to meet a condition precedent

imposed under federal law. Under 12 C.F.R. §1024.1, et seq. (“Regulation X”), borrowers are accorded certain rights prior to

the commencement of any mortgage foreclosure action. Here, the

Bank violated Regulation X by filing its Complaint without

conducting any reasonable evaluation of [Appellant’s] numerous

good-faith attempts at loss mitigation. “Regulation X prohibits,

among other things, a loan servicer from foreclosing on a property

in certain circumstances if the borrower has submitted a

completed loan modification.” Appellant’s Brief at 20, citing Bank of New York Mellon v. Brooks, 169 A.3d

667, 670 (Pa. Super. 2017). In Brooks, we previously determined:

Effective January 10, 2014, pursuant to the federal Dodd–Frank

Act, the Consumer Financial Protection Bureau (“CFPB”) adopted

new regulations relating to mortgage servicing. See Pub. L. No.

111–203, 124 Stat. 1376 (sections 1461–1465) (July 21, 2010).

The new regulations, entitled “Mortgage Servicing Rules under the
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Real Estate Settlement Procedures Act (Regulation X),” are

codified at 12 C.F.R. §§ 1024.30 et seq. “Regulation X prohibits,

among other things, a loan servicer from foreclosing on a property

in certain circumstances if the borrower has submitted a

completed loan modification, or loss mitigation, application.”

Miller v. Bank of New York Mellon, 228 F.Supp.3d 1287, 1290

(M.D.Fla. 2017) (citation omitted).

Regulation X requires servicers to follow specified loss mitigation

procedures for a mortgage loan secured by a borrower's principal

residence. A “loss mitigation application” is “an oral or written

request for a loss mitigation option that is accompanied by any

information required by a servicer for a loss mitigation option.” 12

C.F.R. § 1024.31. A “loss mitigation option means an alternative

to foreclosure offered by the owner or assignee of a mortgage loan

that is made available through the servicer to the borrower.” Id.

If a borrower submits an application for a loss mitigation option

more than forty-five days prior to a foreclosure sale, the servicer

is generally required to acknowledge the receipt of the application

in writing within five days and notify the borrower whether the

application is complete and, if not, inform the borrower of the

additional documents and information needed to complete the

application. See id. at § 1024.41(b)(1), (b)(2)(i) and (ii). The

notice shall also state a reasonable date by which the borrower

should submit the documents and information. Id. at

§ 1024.41(b)(2)(ii). The servicer must exercise reasonable

diligence in obtaining documents and information to complete the

application. Id. at § 1024.41(b)(i).

If a borrower submits all the missing documents and information

as stated in the notice, or if no additional information is requested,

the application shall be considered facially complete for purposes

of subsections 1024.41(d), (e), (f)(2), (g) and (h). See id. at

§ 1024.41(c)(2)(iv). If the servicer later discovers additional

information or corrections are required to complete the

application, the servicer must promptly request the missing

information or corrected documents and treat the application as

complete until the borrower has a reasonable opportunity to

complete the application. Id.

For a complete loss mitigation application received more than

thirty-seven days before a foreclosure sale, the servicer is

required to evaluate the borrower, within thirty days of receiving

the complete application, for all loss mitigation options for which
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the borrower may be eligible in accordance with the investor's

eligibility rules. Id. at § 1024.41(c)(1)(i). The servicer must

provide the borrower with a written decision, including an

explanation of the reasons for denying the borrower for

any loan modification option offered by an owner or

assignee of a mortgage loan. Id. at § 1024.41(c)(1)(ii).[4] * * * Brooks, 169 A.3d at 670-671 (Pa. Super. 2017) (footnote omitted; emphasis

added).

In this case, in his response to the Bank’s motion for summary

judgment, Appellant stated, as follows:

The [Bank’s] unexplainable refusal to participate in a meaningful

loss mitigation dialogue has not been the result of any failure on

the part of [Appellant] to diligently submit completed requests for

mortgage assistance ("RMA") or to supply any documents or

information. In fact, [Appellant] submitted full RMA forms with all

accompanying documentation on December 31, 2016 and July 31,

2017. On December 28, 2017, after the [Bank] had refused to

provide any form of loss mitigation, mortgage modification or

other relief, [Appellant] appealed the [Bank’s] determination.

The result of that appeal process was not simpl[y] disappointing,

it was nothing short of irrational. In its Loss Mitigation Review

____________________________________________

4 More specifically, Section 1024.41(c)(1)(ii) requires the Bank to:

Provide the borrower with a notice in writing stating the servicer's

determination of which loss mitigation options, if any, it will offer

to the borrower on behalf of the owner or assignee of the

mortgage. The servicer shall include in this notice the amount of

time the borrower has to accept or reject an offer of a loss

mitigation program as provided for in paragraph (e) of this

section, if applicable, and a notification, if applicable, that the

borrower has the right to appeal the denial of any loan

modification option as well as the amount of time the borrower

has to file such an appeal and any requirements for making an

appeal, as provided for in paragraph (h) of this section.

12 C.F.R. § 1024.41(c)(1)(ii) (emphasis added).
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Determination, the [Bank] determined that [Appellant’s] income

had been insufficient to support a modified payment amount – so,

instead, the [Bank] offered no modification but suggested that

[Appellant] remit “trial payments” based on the unmodified and

far greater alleged loan balance.

Appellant’s Brief in Response to Summary Judgment, 1/24/2019, at 6-7

(citation and emphasis omitted). Here, Appellant admits that he filed the necessary loss mitigation

paperwork with the Bank on December 31, 2016 and July 31, 2017. He does

not allege that the Bank required additional information and, in fact, concedes

that the applications were complete. Moreover, Appellant acknowledges that

the Bank notified him that he was ineligible for mortgage modification or

reduced payments based upon his annual income. Appellant claims,

nevertheless, the Bank “refused to provide any form of loss mitigation,

mortgage modification or other relief[.]” Id. at 7. However, pursuant to 12

C.F.R. § 1024.41(c)(1)(ii), the Bank was only required to provide Appellant “with a written decision, including an explanation of the reasons for denying

the borrower for any loan modification option” and about “loss mitigation

options, if any” available to Appellant. Upon review of the record, the Bank

complied with those requirements. Therefore, the fact that the Bank did not

offer Appellant any mitigation loss relief is wholly irrelevant herein, but we

would otherwise find the Bank’s denial of loss mitigation options was legally

permissible under Section 1024.41(c)(1)(ii). Accordingly, we conclude that
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the Bank followed the proper procedure for loss mitigation under Regulation

X. Appellant’s final claim lacks merit.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 6/11/2020