(J-67-2018) in The Supreme Court of Pennsylvania Eastern District Saylor, C.J., Baer, Todd, Donohue, Dougherty, Wecht, Mundy, JJ
(J-67-2018) in The Supreme Court of Pennsylvania Eastern District Saylor, C.J., Baer, Todd, Donohue, Dougherty, Wecht, Mundy, JJ
OPINION
Kenneth J. Taggart (“Taggart”) appeals from the order of the Superior Court, which
affirmed the trial court’s verdict in mortgage foreclosure in favor of Great Ajax Operating
Partnership (“Great Ajax”). We conclude that Great Ajax or its predecessors failed to
required by the Loan Interest and Protection Law, 41 P.S. §§ 101-605 (“Act 6”). In
reaching this conclusion, we hold that the purposes of Act 6 are served by requiring each
lender may not recycle a stale pre-foreclosure notice that it issued in connection with a
prior complaint in mortgage foreclosure. Because Great Ajax failed to provide a separate
pre-foreclosure notice before initiating the second action, we reverse the Superior Court.
On July 20, 2005, Taggart borrowed $120,000 from Chase Bank USA “(Chase
Bank”). The loan was secured by an adjustable rate note (“Note”) and a mortgage
Taggart pledged the Property as collateral. Taggart later defaulted on the Note by failing
Assistance Act of 1983, 35 P.S. §§ 1680.401c-1680.412c (“Act 91”). Act 6 relates to the
The Homeowner’s Emergency Assistance Act, Act 91, was enacted [in]
1983 in response to the spiraling numbers of mortgage foreclosures due to
the severe economic recession experienced in this Commonwealth. The
purpose of the Act was to establish an emergency mortgage assistance
program to prevent the widespread mortgage foreclosures on residential
properties which had resulted from default caused by circumstances
beyond the owners’ control.
Bennett v. Seave, 554 A.2d 886, 889 (Pa. 1989). Like Act 6, Act 91 requires notice prior
to the initiation of an action in mortgage foreclosure:
(a) Before any mortgagee may accelerate the maturity of any mortgage
obligation covered under this article, commence any legal action including
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statutes require a residential mortgage holder to provide notice to the borrower of the
holder’s intent to foreclose. To satisfy this obligation for loans that are covered by both
Act 6 and Act 91, lenders issue a combined notice to borrowers to comply with both
statutes. Indeed, where both acts apply, the Pennsylvania Housing Finance Agency has
created a notice intended to comply with both statutes, which “shall be in lieu of any other
Here, the parties agree that Act 91 does not apply, because the Property is not
Taggart’s principal residence. See 35 P.S. § 1680.401c(a) (providing that Act 91 does
not apply if “[t]he property securing the mortgage is not the principal residence of the
mortgagor”). Nor do the parties dispute that Act 6 applies.2 In relevant part, Section 403
(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.
35 P.S. § 1680.402c(a).
2 Although it is not clear why Chase Bank issued a combined notice to Taggart, we
will confine our analysis to Act 6 and delve into Act 91 only when necessary to provide
context or to confront the parties’ arguments.
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(1) The particular obligation or real estate security interest;
(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;
(4) The time within which the debtor must cure the default;
(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.
41 P.S. § 403.
The April 22, 2010 Notice, entitled “Act 91 Notice Take Action to Save Your Home
from Foreclosure,” explained that Taggart had defaulted on his loan and that Chase Bank
intended to foreclose; it also specified the nature of the default. See Complaint, Ex. B.
The Notice informed Taggart that the mortgage was in default because Taggart had failed
to make payments from March 1, 2009, through April 21, 2010, and that the way to cure
the default was to “bring it up to date.” Id. The Notice identified the sum of the monthly
payments that were past due, the accrued late charges and fees, and the amount Taggart
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Id.
The Notice instructed Taggart to cure the default within thirty days by paying the
total amount due to Chase Bank. To effectuate payment, Chase Bank provided two of its
addresses, one for regular mail and one for overnight mail. The Notice explained that the
instructed Taggart how to contact Chase Bank by phone, fax, mail, or email. Id.
Taggart failed to cure the default. On September 2, 2010, Chase Bank filed a
$133,695.24 in damages. The complaint averred that the lender had provided the
requisite Act 6 notice, and it attached the April 22, 2010 Notice.
Taggart filed preliminary objections to the 2010 Action. Chase Bank failed to file
a timely response. On February 3, 2011, the trial court sustained Taggart’s preliminary
objections and dismissed the complaint. On March 8, 2012, Chase Bank assigned the
rights and interest in the mortgage to JP Morgan Chase Bank (“JP Morgan”). Neither
Chase Bank nor JP Morgan took further action on the docketed complaint. On May 1,
2013, the docket was closed administratively due to inactivity exceeding twenty-four
months.
against Taggart, under a new docket number, claiming that $164,887.53 was due on the
Mortgage as of April 9, 2013 (the “2013 Action”). JP Morgan did not send a new Act 6
notice. Instead, the complaint averred that Taggart had received the requisite Act 6
notice, and appended the April 22, 2010 Notice as an exhibit to substantiate this assertion.
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During the pendency of this litigation, the rights and interest in the Mortgage were
assigned three more times, the last of which was to Great Ajax on February 23, 2015.
Also on that date, the trial court permitted Great Ajax to be substituted as plaintiff. On
May 27 and 28, 2015, the trial court held a bench trial. On November 25, 2015, the trial
court rendered a verdict in favor of Great Ajax. Judgment was entered on December 7,
2015, and, on January 6, 2016, the trial court denied post-trial motions.
Throughout the litigation, Taggart argued that he was not provided the requisite
challenged JP Morgan’s and Great Ajax’s reliance upon the Notice because that Notice
was sent in anticipation of the 2010 Action, which had been dismissed. Following entry
of judgment, Taggart filed a notice of appeal, asserting, inter alia, that the Notice was
invalid and insufficient to support the initiation of the 2013 Action. In its responsive
opinion, the trial court rejected this claim, apparently upon the mistaken belief that the
2013 Action was a continuation of the 2010 Action and upon its misperception of Taggart’s
argument, which the trial court believed to be that Great Ajax was required to send a new
The Superior Court affirmed the entry of judgment in mortgage foreclosure against
Taggart. JP Morgan Chase Bank, N.A. (Substituted Plaintiff, Great Ajax Operating P’ship,
LP) v. Taggart, 470 EDA 2016, 2017 WL 3669502 (Pa. Super. Aug. 25, 2017). Before
the Superior Court, Taggart argued that, because the 2010 Action was dismissed, JP
Morgan was required to send a new Act 6 notice at least thirty days prior to filing the 2013
Action. The Superior Court disagreed, and held that nothing required JP Morgan to send
a new Act 6 notice prior to commencing the 2013 Action. The court acknowledged its
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decision in Wells Fargo Bank, N.A. v. Spivak, 104 A.3d 7 (Pa. Super. 2014), which held
that a lender who voluntarily withdraws an action in mortgage foreclosure must issue a
new Act 6 notice before filing a new action in mortgage foreclosure. However, according
to the court, Spivak did not control, because the lender in this case did not voluntarily
This Court granted Taggart’s petition for allowance of appeal in order to resolve
Foreclose pursuant to 41 P.S. § 403(a) (Act 6 Notice) prior to filing a second complaint in
mortgage foreclosure.” JP Morgan Chase Bank, N.A. (Substituted Plaintiff, Great Ajax
Operating P’ship, LP) v. Taggart, 180 A.3d 367 (Pa. 2018) (per curiam). Because this
issue raises a question of law, our standard of review is de novo, and our scope of review
is plenary. Roethlein v. Portnoff Law Assoc., 81 A.3d 816, 820 (Pa. 2013).
The question of a lender’s obligation to send a new Act 6 notice prior to filing a
second complaint, in a circumstance where the first complaint was dismissed, is a matter
of statutory construction. Pursuant to the Statutory Construction Act, the object of all
the General Assembly. 1 Pa.C.S. § 1921(a). “When the words of a statute are clear and
free from all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing
its spirit.” Id. § 1921(b). When the words of a statute are not explicit, the Court must
endeavor to ascertain the General Assembly’s intent by considering matters other than
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the statutory language. Id. § 1921(c).3 The Court also must read the sections of a statute
together and construe them so as to give effect to all of the statute’s provisions. Id. §
1921(a). Finally, statutes “in pari materia shall be construed together, if possible, as one
statute.” Id. § 1932(a). “Statutes or parts of statutes are in pari materia when they relate
Taggart argues that the plain language of Act 6, Section 403(c), requires the lender
to provide the borrower with the requisite notice prior to initiating “any” action in mortgage
foreclosure, without restriction. Because the 2013 action was a new and discrete action
in mortgage foreclosure, Taggart would have us hold that the lender was required to issue
a new Act 6 notice rather than recycle the old notice from a prior action.
Looking beyond the plain language, Taggart relies upon the purpose of Act 6,
which, he asserts, aims to provide a borrower with notice and opportunity to cure a default
(5) The former law, if any, including other statutes upon the same or similar
subjects.
1 Pa.C.S. § 1921(c).
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before a foreclosure action is initiated. According to Taggart, this purpose would be
disserved by waiving the requirement of Act 6 notice when the lender provided notice in
notes that the Superior Court’s analysis in this case is inconsistent with that court’s
issue an Act 6 notice in connection with the second complaint by arguing that Section 403
does not, by its terms, require a lender to send multiple pre-foreclosure notices,
particularly where a prior action was dismissed on preliminary objections. Urging this
Court to construe Act 6 and Act 91 in pari materia, Great Ajax observes that Act 91
expressly provides that, after the lender provides pre-foreclosure notice, the lender need
not provide any additional notice. See 35 P.S. §§ 1680.403c(d), (g).5 Great Ajax notes
that the Commonwealth Court has construed Act 91 not to require a second pre-
Section 403-C(g) of Act 91 provides that “a mortgagee shall not be required to send the
uniform notice . . . to any mortgagor who has already been sent the uniform notice and”
has not applied for a mortgage assistance loan, has applied for a mortgage assistance
loan and was denied, or whose mortgage assistance disbursements were terminated for
any reason. Id. § 1680.403c(g).
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foreclosure notice after an earlier foreclosure action was withdrawn. See Fish v. Pa.
Great Ajax further argues that the amount necessary to cure a mortgage default
fluctuates daily, making it unreasonable to construe Act 6 to require notice prior to each
and every foreclosure action. Finally, like the Superior Court, Great Ajax distinguishes
Spivak by arguing that there is a difference for Act 6 purposes between a prior action that
is discontinued and one that is dismissed. According to Great Ajax, in the first scenario,
the Act 6 notice effectively is withdrawn, while, in the second scenario, dismissal of the
We begin, as we must, with the statutory language. Section 403 of Act 6 requires
a lender to provide pre-foreclosure notice at least thirty days before “accelerat[ing] the
maturity of any residential mortgage obligation, commenc[ing] any legal action including
security of the residential mortgage debtor for such residential mortgage obligation.” 41
P.S. § 403(a) (emphasis added). By its terms, the statutory notice is mandatory and must
be provided at least thirty days before the lender institutes “any” legal action, including
foreclosure.
The parties present this Court with differing interpretations of this requirement.
Taggart asserts that “any” means “each and every.” Great Ajax would have us hold that
“any,” in this context, indicates merely the kind or type of action for which the pre-
foreclosure notice is required, such that a prior Act 6 notice, issued once and at any time
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Each party’s plain language interpretation is reasonable. The short yet opaque
astutely has explained, “any,” when used as an adjective, is susceptible to no fewer than
six meanings:
Courts likewise have struggled to define this term. See, e.g., Snyder Bros., Inc. v.
Pa. Pub. Util. Comm’n, __ A.3d __, 2018 WL 6817092 *14 (Pa. 2018) (recognizing that
“any” can mean “all” or “every,” as well as “one”) (citing BLACK’S LAW DICTIONARY 94 (6th
ed. 1991), WEBSTER’S NEW UNIVERSAL UNABRIDGED DICTIONARY (2001), and THE AMERICAN
6 Elsewhere, Bryan Garner has observed that, in legislation, “any” “is greatly
overworked” and usually can be replaced with the indefinite article “a” or “an” for
“heightened readability with no change in meaning.” A DICTIONARY OF MODERN LEGAL
USAGE 65 (2d ed. 1995).
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HERITAGE DICTIONARY 117 (2nd. coll. ed. 1982)); Commonwealth v. Heller, 67 A. 925, 926
(Pa. 1907). Consequently, this Court has held that the meaning of “any” is “wholly
dependent on the context in which it is used in the particular statute under review.”
Snyder Brothers, at *14; see also Commonwealth v. Ricker, 170 A.3d 494, 512 (Pa. 2017)
(per curiam) (Wecht, J., dissenting) (“‘Any,’ at first blush a simple word, has variable
the text.” A.S. v. Pa. State Police, 143 A.3d 896, 905-906 (Pa. 2016). Because the
alternative interpretations of “any” offered by the parties both are reasonable, rendering
its meaning ambiguous, we resort to the canons of statutory construction. Those canons
require us to consider matters beyond the statutory language, including the occasion and
necessity of the statute, the mischief to be remedied, and the object to be attained. See
1 Pa.C.S. § 1921(c). In addition, we read the sections of Act 6 together, and we construe
As this Court has explained, “Act 6 is a usury law, designed to protect borrowers
7 See also Benner v. Bank of Am., N.A., 917 F.Supp. 2d 338, 357 (E.D. Pa. 2013)
(“Act 6 is a comprehensive interest and usury law with numerous functions, one of which
is that it offers homeowners with residential mortgages a measure of protection from
overly zealous residential mortgage lenders.”); Bennett, 554 A.2d at 892 (Papadakos, J.,
concurring) (observing that the General Assembly enacted Act 6 to assist homeowners
who encounter “abuses and hardships occasioned by periods of high unemployment and
downturns in the economy”); Continental Bank v. Rapp, 485 A.2d 480, 485 (Pa. Super.
1984) (“Act 6 was intended to afford homeowners who were in dire economic straits a
measure of protection from over-enthusiastic mortgagees.”).
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mortgage foreclosures.”8 Bennett v. Seave, 554 A.2d 886, 891 (Pa. 1989). In addition to
borrowers before they face foreclosure. Consistent with these remedial purposes, we
construe the statute liberally in order to effectuate its aims. Glover v. Udren Law Offices,
The General Assembly has identified industry customs that it deems “particularly
pernicious,” one of which is the initiation of foreclosure with insufficient notice. Id. (citing
41 P.S. § 403). In order to remedy this problem, the lawmakers created specific notice
requirements to ensure that borrowers are aware not only that they are considered to be
in default, but also of the amount required to cure that default and the time within which
8 Indeed, the purpose of Act 6 is suggested at considerable length in the title of the
statute itself:
General Elec. Credit Corp. v. Slawek, 409 A.2d 420, 422 n.3 (Pa. Super. 1979); 2008 P.L.
824, No. 57 § 1.
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To this end, while Subsection 403(a) describes the circumstances under which Act
6 notice is required, it is Subsection 403(c) that details the content of the notice. The
notice must inform the borrower of, inter alia, “the right of the debtor to cure the default,”
“what performance including what sum of money, if any, must be tendered to cure the
default,” and “the time within which the debtor must cure the default.” 41 P.S. § 403(c).
Section 404 permits the borrower to cure the default after receiving Act 6 notice “at any
time at least one hour prior to the commencement of bidding at a sheriff sale or other
troubled residential homeowner to learn exactly what sum of money is necessary to cure
the mortgage default.” Spivak, 104 A.3d at 14. This number does not remain static as
time passes. To the contrary, compounding interest, late fees, and missed payments
accrue steadily. The amount required to cure the default will depend as well upon whether
the borrower has made any payments, changes in the escrow portion of the payments,
In view of the statutory language, the occasion and necessity for Act 6, the mischief
to be remedied, and the object to be attained, we conclude that Act 6 requires a new pre-
foreclosure notice each time the lender initiates a mortgage foreclosure action. It is not
sufficient for the lender to recycle a stale notice that preceded a prior action, regardless
9 In view of these fluctuations, the United States Bankruptcy Court for the Eastern
District of Pennsylvania has observed that the most important considerations of the Act 6
Notice are whether the borrower can determine the precise amount due to cure the default
by referring to the Notice, In re Mosley, 85 B.R. 942, 954 (Bankr. E.D. Pa. 1988), and
whether the borrower can ascertain how the lender calculated the amount of the default,
In re Miller, 90 B.R. 762, 768 (Bankr. E.D. Pa. 1988).
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of how that action finally was resolved. Notice, and the thirty-day safe harbor period that
follows, give the homeowner time to save her home by refinancing or transferring the
home to another person who may cure the default. See 41 P.S. § 403(c)(6). This also
The amounts necessary to cure the default, and the calculations used to arrive at
this amount, will differ between the first and second action in mortgage foreclosure. So
too may the lender’s identity and/or contact information. Only by requiring a new Act 6
notice, provided in advance of a new complaint in mortgage foreclosure, will the borrower
have the “clear and conspicuous” information that the General Assembly has determined
is critical to enable residential homeowners to cure default and avoid foreclosure. See
41 P.S. § 403(c). Without such notice, the borrower would be unable to determine the
amount required to cure the default prior to the second action, to learn how the lender
Indeed, this case exemplifies what can occur with the passage of time between
the initial Act 6 notice and the second complaint in mortgage foreclosure. When Chase
Bank sent the Notice on April 22, 2010, it was the lender to whom it instructed Taggart to
send payment. The amount to cure the default reflected in the Notice was $15,849.39.
Several months later, Chase Bank filed the 2010 Action seeking $133,695.24. Years
after that action was dismissed, JP Morgan filed the 2013 Action claiming that
$164,887.53 was due on the mortgage as of April 9, 2013. Thus, by 2013, the information
provided in the 2010 Notice was not just stale, but also completely inaccurate. By failing
to send a new Act 6 notice to Taggart before filing the 2013 Action, the lender failed to
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inform the borrower of the amount past due, the calculations that led to that amount, the
lender’s current contact information, and the address to which to send payment.
A new notice under these circumstances also would have effectuated the intent
apparent in Subsection 404(a), which provides the time within which the borrower may
cure the default. If the lender has not informed the borrower of the payment required to
cure the default, and relies instead upon stale notice of a far lesser amount, then the
statutory time within which to make the payment becomes meaningless. Here, Taggart
was not advised of the amount JP Morgan required to cure the default or the time or
manner in which to pay. Instead, the Notice conveyed that a lender that no longer owns
the loan (Chase Bank) demanded an amount far less than the current lender (Great Ajax)
would accept to cure the default. Thus, relying upon the Notice and the information it
provided would have left Taggart well short of the required payment and ignorant of where
Our decision is consistent with the Superior Court’s conclusion in Spivak. There,
the lender sent Act 6 notice to the borrower, who failed to cure the default. The lender
lender filed a second complaint in mortgage foreclosure, but did not file a second Act 6
notice. After the lender obtained judgment in its favor, the Superior Court reversed.
Although the Superior Court found that the plain language of Subsection 403(a) required
a new notice before a second action where we find ambiguity, the result is the same: a
new, updated Act 6 notice must be provided to the borrower before each mortgage
foreclosure action.
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In declining to follow its own Spivak precedent, the Superior Court in this case
observed that the prior action in Spivak was withdrawn, while the earlier action in this
case was dismissed. This factual distinction is immaterial. Even accepting the Superior
Court’s rationale that the notice follows the action, such that withdrawing the action
likewise withdraws the Act 6 notice, the same analysis would apply to a dismissed action:
dismissing a mortgage foreclosure action would likewise dismiss the Act 6 notice upon
We reject Great Ajax’s argument that this Court should construe Act 6 and Act 91
in pari materia. Statutes or parts thereof stand in pari materia only “when they relate to
the same persons or things.” 1 Pa.C.S. § 1932(a). Although there are overlapping
circumstances in which both Act 6 and Act 91 apply, see 35 P.S. § 1680.403c(b)(1), the
two statutes have different points of focus. The purpose of Act 91 is to provide emergency
mortgage assistance for primary residences, while that of Act 6 is to provide residential
mortgagees will be required to comply with Act 6 and Act 91 in circumstances where both
statutes are applicable, Act 91 does not apply in the case before us. As such, it would be
beyond the scope of this appeal to address the distinct statutory language contained in
Act 91.10 For the same reason, the Commonwealth Court’s decision in Fish, 931 A.2d
764, is inapposite. In addition to being decided pursuant to Act 91, rather than Act 6,
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Finally, we disagree with Great Ajax that it is impracticable or unreasonable to
require notice prior to each foreclosure action. As the Superior Court observed in Spivak,
“logic dictates that it is not only practical and reasonable to require a second notice, but
necessary to effectuate the debtor’s statutory right to cure the default under Act 6.” 104
A.3d at 17.
Our holding best serves the remedial purposes of Act 6, reflecting the expressed
legislative intent to impose a robust notice requirement prior to initiation of any mortgage
required to deliver a new Act 6 notice prior to initiating the second foreclosure action.
The Superior Court’s order is reversed, and the case is remanded for further
Chief Justice Saylor and Justices Baer, Todd, Donohue and Dougherty join the
opinion.
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