Kennedy Mortgage Co. v. Washington

12 Pa. D. & C.3d 476, 1979 Pa. Dist. & Cnty. Dec. LEXIS 122
CourtPennsylvania Court of Common Pleas, Philadelphia County
DecidedNovember 23, 1979
Docketno. 293
StatusPublished

This text of 12 Pa. D. & C.3d 476 (Kennedy Mortgage Co. v. Washington) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Philadelphia County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kennedy Mortgage Co. v. Washington, 12 Pa. D. & C.3d 476, 1979 Pa. Dist. & Cnty. Dec. LEXIS 122 (Pa. Super. Ct. 1979).

Opinion

KREMER, J.,

Defendants have filed preliminary objections to plaintiff’s complaint in foreclosure. They allege that Kennedy Mortgage Company (Kennedy) failed to give proper notice of intention to foreclose, as required by the Act of January 30, 1974, P.L. 13, as amended, 41 P.S. §401 et seq. Defendants contend that compliance with the provisions of the act is a jurisdictional prerequisite to bring this action.

John Washington and Carolyn Washington, his wife, executed and delivered a mortgage on premises 2103 Church Lane, Philadelphia, Pa., to Kennedy Mortgage Company on September 16, 1976. The mortgage was duly recorded.

[477]*477Plaintiff alleges that the mortgage is in default because monthly payments of principal and interest due December 1, 1978, January 1, 1979, and February 1, 1979, were not paid. Plaintiff demands judgment in the sum of $13,407.27, with interest and costs.

On February 14,1979, plaintiff sent by registered mail a “Notice of Intention to Foreclose and Accelerate Loan Balance” to defendants.

Defendants allege that the notice did not comply with the requirements set forth in sections 403 and 404 of the Act of 1974. We agree. Sections 403 and 404 provide 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.
“(b) Notice of intention to take action as specified in subsection (a) of this section shall be in writing, sent to the residential mortgage debtor by registered or certified mail at his last known address and, if different, at the residence which is the subject of the residential mortgage.
“(c) The written notice shall clearly and conspicuously state: (1) The particular obligation or real estate security interest; (2) The nature of the default claimed; (3) The right of the debtor to cure the default as provided in section 404 of this act and exactly what performance including what sum of money, if any, must be tendered to cure the default; [478]*478(4) The time within which the debtor must cure the default; (5) The method or methods by which the debtor’s ownership or possession of the real estate may be terminated; and (6) The right of the debtor, if any, to transfer the real estate to another person subject to the security interest or to refinance the obligation and of the transferee’s right, if any, to cure the default.
“(d) The notice of intention to foreclose provided in this section shall not be required where the residential mortgage debtor, has abandoned or voluntarily surrendered the property which is the subject of a residential mortgage.
“404 Right to cure a default
“ (a) Notwithstanding the provisions of any other law, after a notice of intention to foreclose has been given pursuant to section 403 of this act, at any time at least one hour prior to the commencement of bidding at a sheriff sale or other judicial sale on a residential mortgage obligation, the residential mortgage debtor or anyone in his behalf, not more than three times in any calendar year, may cure his default and prevent sale or other disposition of the real estate and avoid acceleration, if any, by tendering the amount or performance specified in subsection (b) of this section.
“(b) To cure a default under this section, a residential mortgage debtor shall: (1) Pay or tender in the form of cash, cashier’s check or certified check, all sums which would have been due at the time of payment or tender in the absence of default and the exercise of an acceleration clause, if any; (2) Perform any other obligation which he would have been bound to perform in the absence of default or the exercise of an acceleration clause, if any; [479]*479(3) Pay or tender any reasonable fees allowed under section 406 and the reasonable costs of proceeding to foreclosure as specified in writing by the residential mortgage lender actually incurred to the date of payment. (4) Pay any reasonable late penalty, if provided for in the security document.
“(c) Cure of a default pursuant to this section restores the residential mortgage debtor to the same position as if the default had not occurred.”

The purpose of the act is to provide protection for debtors. The title of the act is 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, uncol-lateralized 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 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, provisions 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 fifing of and execution on a confessed judgment; prohibiting waiver of provisions of this act, [480]*480specifying powers and duties of the Secretary of Banking, and establishing remedies and providing penalties for violations of this act.”

In accordance with article IV of the act entitled “Protective Provisions,” a mortgage lender who intends to accelerate the maturity of a residential mortgage obligation must provide at least 30 days notice to the debtor before foreclosure. The notice must contain certain specified disclosures which advise the debtor of his rights and obligations in relation to curing the default.

In Charles H. Salmon Building and Loan Asso. v. Mroz, 6 D. & C. 3d 59, 60 (1977), the court (per Bullock, J.) examined the status of debtor’s rights:

“We take judicial notice of the fact that in recent years a variety of both Federal and state laws have been enacted to minimize injustice to noncommercial consumers, especially those of limited means. These acts have recognized the fact that transactions between businesses and consumers were often conducted without the consumers’ understanding their legal rights or the legal consequences of their actions. By the time consumers hired lawyers, if they could afford to do so, and were advised of their rights, it was often too late. We believe that the Act of 1974, supra, was intended to address this situation with respect to foreclosures of residential mortgages of people of moderate means.”

The reference to a debtor’s plight in the Mroz case illustrates the need to strictly construe the requirements of the act so as to more fully protect the debtor.

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12 Pa. D. & C.3d 476, 1979 Pa. Dist. & Cnty. Dec. LEXIS 122, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kennedy-mortgage-co-v-washington-pactcomplphilad-1979.