Wells Fargo Bank, N.A. v. Okrah

35 Pa. D. & C.5th 287, 2014 Pa. Dist. & Cnty. Dec. LEXIS 304
CourtPennsylvania Court of Common Pleas, Lackawanna County
DecidedJanuary 8, 2014
DocketNo. 12 CV 3398
StatusPublished

This text of 35 Pa. D. & C.5th 287 (Wells Fargo Bank, N.A. v. Okrah) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Lackawanna County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Wells Fargo Bank, N.A. v. Okrah, 35 Pa. D. & C.5th 287, 2014 Pa. Dist. & Cnty. Dec. LEXIS 304 (Pa. Super. Ct. 2014).

Opinion

NEALON, J,

The lender in this mortgage foreclosure action has presented a motion seeking to remove this matter from the Court of Common Pleas of Lackawanna County Residential Mortgage Foreclosure Diversion Program on the ground that the mortgaged property does not serve as the borrower’s “primaiy residence,” as required for eligibility for the diversion program. The parties’ submissions reflect that the borrower resides at his Lackawanna County home for [289]*289more than three-quarters of the year, and only resides at his Bronx, New York, apartment for eighty-one days per year as an accommodation in connection with his part-time employment as a security officer for New York Yankees’ home games at Yankee Stadium. Prior to his retirement in 2007, the borrower was employed as a municipal worker by the City of New York, and the fact that his municipal pension, credit union and tax statements indicate a Bronx apartment address does not alter the conclusion that his Lackawanna County property constitutes his “primary residence.” Accordingly, the lender’s motion seeking to remove this matter from the diversion program will be denied.

I. FACTUAL BACKGROUND

On January 11, 2007, defendant, Edward Okrah (“Okrah”), purchased a residential property located at 213 Lake Scranton Road, Scranton, from Annette Levy for the sum of $190,800.00. (Lackawanna County Recorder of Deeds Instrument Number 200701331). In connection with that purchase, Okrah executed a note with HCI Mortgage, Lake Ariel, Pennsylvania, borrowing the sum of $189,287.00, and contemporaneously delivered a mortgage in that same amount to Mortgage Electronic Registration Systems, Inc. (“MERS”), Flint, Michigan, as nominee for HCI Mortgage. (Lackawanna County Recorder of Deeds Instrument Number 200701332). At the time that Okrah purchased the Lake Scranton Road property, he was employed as a municipal worker with the City of New York, but retired from that employment on September 28, 2007. (Docket entry no. 41 at p. 68 of 70; docket entry no. 42 at p. 2).

On June 25, 2008, Okrah executed a note with Access [290]*290National Mortgage, Reston, Virginia, in the principal sum of $192,126.00, and as security for payment of that debt, provided a mortgage in that amount to MERS, Ocala, Florida, as nominee for Access National Mortgage, on Okrah’s property at 213 Lake Scranton Road. (Docket entry no. 1 at ¶¶ 3-4; docket entry no. 9 at ¶¶ 3-4). Okrah’s mortgage with MERS dated June 25, 2008, indicates that the subject loan is insured by the Federal Housing Administration (“FHA”), and states that Okrah’s Note with Access National Mortgage obligates him to make monthly mortgage payments from July 1, 2008, to July 1, 2038. (Docket entry no. 1, exhibit A at pp. 1-10). On August 12, 2008, MERS filed a “mortgage satisfaction piece” confirming that Okrah’s earlier mortgage in conjunction with his HCI mortgage loan was fully paid and discharged on July 25, 2008. (Lackawanna County Recorder of Deeds Instrument Number 200820232).

To supplement his pension income, Okrah accepted part-time employment as a security officer for the New York Yankees’ home games at Yankee Stadium in Bronx, New York. (Docket entry no. 43 at ¶ 3). The New York Yankees annually host eighty-one home games at Yankee Stadium during the regular season, and on those days that Okrah works as a security officer for those home games, he stays at an apartment that he rents in Bronx, New York. (Id. at ¶¶ 3-4). During the remainder of the year, Okrah resides at his 213 Lake Scranton Road property, which is the only real estate that he owns. (Id. at ¶¶ 2, 5).

Plaintiff, Wells Fargo Bank, N.A., (“Wells Fargo”), contends that Okrah’s 2008 mortgage was later assigned by MERS to Wells Fargo pursuant to an assignment of mortgage that was recorded in the Office of the Recorder of Deeds for Lackawanna County on March 8, 2012. [291]*291(Docket entry no, 1 at ¶ 5). Alleging a failure by Okrah to make his monthly mortgage payment in December 2011, and based upon the acceleration of debt provisions contained in the mortgage agreement, Wells Fargo commenced this mortgage foreclosure action against Okrah on June 4, 2012, seeking to recover the aggregate sum of $192,806.66, representing the entire principal balance of $184,391.72, accrued interest of $6,649.48, escrow advances of $1,402.05, late charges of $348.41, and inspection fees of $15.00. (Id. at ¶¶ 6, 9). In its complaint, Wells Fargo specifically averred that Okrah resides at 213 Lake Scranton Road, Scranton, and Okrah admitted that residency averment in his responsive pleading. (Docket entry no. 1 at ¶ 2; docket entry no. 9 at ¶ 2).

In 2009, the Court of Common Pleas of Lackawanna County implemented its Residential Mortgage Foreclosure eiversion program (“the diversion program”). See Pennsylvania Bulletin, Vol. 39, No. 24, p. 2929 (June 13, 2009). In all residential mortgage foreclosure actions, the lender must furnish the borrower(s) with written notice of the existence of the diversion program and the steps to be taken by the borrowers) to participate in a court-supervised conciliation conference with the lender in an attempt to settle the mortgage foreclosure litigation. See Lacka. Co. R.C.P. Nos. 205.2(b), 1034(b)-(d), 1035.2(b)-(d), 1143(a), 3129.1(c). If the borrower opts into the diversion program by submitting a written request for a conciliation conference to the Lackawanna County Court Administrator, and preparing the financial worksheet prescribed by the local rules, the court administrator is required to issue a case management order scheduling the matter for the next available conciliation conference [292]*292list.1 See Lacka. Co. R.C.P. Nos. 1034(c)-(d), 1035.2(c)-(d), 1143(b)-(c), 1143.1(b)-(c), 3129.1(c), Forms 9, 10, 14. The mortgage foreclosure proceedings are stayed for a minimum period of sixty days or until the matter is removed from the diversion program, whichever is later. See Lacka. Co. R.C.P. Nos. 1034(b), 1035.2(b), 1143(d), 3129.1(e).

The local rules governing the diversion program clearly state that the diversion program applies only to mortgage foreclosure actions involving “a residential property which serves as the primary residence” of the borrower(s). See Lacka. Co. R.C.P. Nos. 1143(a), 3129.1(c). The written notices which must be provided to the borrower(s) by the lender likewise state that “[i]f you own and live in the residential property which is the subject of this foreclosure action, you may be able to participate in a court-supervised conciliation conference in an effort to resolve this matter with your lender.” Lacka. Co. R.C.P. Nos. 205.2(b), 1034(b), 1035.2(b), 1143(a), 3129.1(c), Forms 8, 11, 12. Similarly, the “request for conciliation conference” form that borrowers must submit to the court administrator contains an express certification by the borrower that [s]he “lives in the subject property which is [293]*293[borrower’s] primary residence.” Id., Form 9 at ¶ 2.

On October 1, 2012, Okrah submitted a completed financial worksheet and filed a request for a conciliation conference, and on that same date, the court administrator issued a case management order scheduling this matter for a conciliation conference on November 30, 2012. (Docket entry nos. 10-11).

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Bluebook (online)
35 Pa. D. & C.5th 287, 2014 Pa. Dist. & Cnty. Dec. LEXIS 304, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wells-fargo-bank-na-v-okrah-pactcompllackaw-2014.