TD Bank v. Massengill, S.

J-A24003-24

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

TD BANK, N.A. : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

SKIP J. MASSENGILL AND JOANN :

MASSENGILL :

: No. 3047 EDA 2023

:

APPEAL OF: SKIP J. MASSENGILL :

Appeal from the Judgment Entered November 2, 2023

In the Court of Common Pleas of Montgomery County Civil Division at

No(s): 2013-28311

BEFORE: LAZARUS, P.J., KING, J., and LANE, J.

MEMORANDUM BY LAZARUS, P.J.: FILED MAY 7, 2025

Skip J. Massengill appeals from the judgment, entered in the Court of

Common Pleas of Montgomery County, following a nonjury trial resulting in a

verdict in favor of Appellee TD Bank, N.A., in this foreclosure matter. After

our careful review, we affirm in part, vacate in part, and remand the case to

the trial court for the entry of an amended judgment consistent with the

dictates of this memorandum.

The trial court set forth the facts of this matter as follows:

To prove its claim for mortgage foreclosure, TD Bank, N.A. (“TD”)

presented the testimony of its employee, Jordan Purington. We

find Mr. Purington’s testimony to be credible.

In 2008, Commerce Bank, N.A. (“Commerce”) merged into TD.

Mr. Purington’s title with TD is controls group manager. In this

role, Mr. Purington does business processes and “some other

activity for the U.S. customer assistance business, which is

collections and recovery.” He supports both [] servicing and

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collections of [TD’s] mortgages. Mr. Purington has knowledge of

TD’s practices in servicing mortgages. Mr. Purington was familiar

with TD’s business records kept in its business log of servicing

mortgages, and he was familiar with the Borrowers’ Note and

mortgage at issue in this case.

On May 12, 2004, [Massengill] and Joann Flynn Massengill

(“Borrowers”) executed the following: (1) a fixed/adjustable rate

note (“Note”) in which, in return for a loan they received from

Commerce, they agreed to pay $1.4 million, plus interest, to

Commerce; and (2) a mortgage on the property located at 400

Glyn Wynne Road (AKA 126 Grays Ln), Haverford, PA 19041

(“Property”).

As stated in the preceding paragraph, the Note was a

fixed/adjustable rate note that provided, in relevant part, that

Borrowers would pay a yearly interest rate of 4.500%, which “may

change in accordance with Section 4 of this Note.” Paragraph 4

of the Note informed Borrowers that the initial fixed interest rate

“will change to an adjustable interest rate on the first day of

June[] 2009, and the adjustable interest rate [Borrowers] will pay

may change on that day and every 12 months thereafter.”

(emphasis added).

Borrowers made payments on the Note through September 1,

2011. Payments due on the Note for October 1, 2011 and

thereafter remained outstanding at the time of trial. The last

payment was applied on January 31, 2012. On November 16,

2012, TD sent Act 91 Notice (“Notice”) to Borrowers, which

notified Borrowers they were in default on the mortgage. The

Notice informed Borrowers that the amount past due was

$125,782.89, and they could cure the default within 30 days of

the date of the Notice by paying that amount, as well as any

mortgage payments and late charges which become due during

the 30-day period.

Since Borrowers defaulted on the loan, TD has made homeowner’s

insurance and tax payments on the Property. TD introduced

records showing a breakdown of fees it has paid consisting of

property inspection fees, appraisal fees, and legal fees.

On March 8, 2013, while Borrowers were in default of the loan on

the Property but before TD had filed the instant mortgage

foreclosure action on September 16, 2013, [Massengill] and TD

entered into a Settlement and General Release (“Settlement and

Release”) that related to [Massengill’s] claims against TD that he

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had brought before FINRA (Financial Industry Regulatory

Authority) concerning his employment with Commerce/TD. Prior

to entering into this Settlement and Release with TD, [Massengill]

had received the Act 91 Notice notifying Borrowers that they were

in default of their loan with Commerce/TD that TD had sent on

November 16, 2012. Pursuant to the Settlement and Release, TD

issued payments in the total amount of $3,196,770.11 to

[Massengill]. The Settlement and Release contains an integration

clause at § 23, which states:

23. Entire Agreement. This Agreement is the entire

agreement between the parties with respect to [Skip]

Massengill’s employment with TD Bank and TDWMSI

[TD Wealth Management Services, Inc.] and the

termination of that employment and supersedes and

replaces any and all prior and contemporaneous

agreements, representations, promises or understandings

of any kind between the parties. No modification,

amendment or waiver of any of the provisions of this

Agreement shall be effective unless in writing and signed by

both parties.

(emphasis added).

On November 7, 2022, TD sent [Massengill] a letter stating the

loan payoff amount, $2,205,099.59[, which] comprised the

following: $1,194,802.26 (principal); $462,376.31 (interest);

$41,716.17 (late charges); $487,481.14 (escrow); and

$18,732.71 (fees & expenses). The daily interest rate is a

systemically-created figure; it is a point-in-time figure projection.

Per the terms of the Note, the interest rate changed from fixed to

adjustable. Accordingly, the daily interest rate has changed

during the course of the loan. The figure $487,481.14 represents

escrow payments made by TD.

The court conducted a bench trial on January 24, 2023. At the

conclusion of trial, the court requested the parties to submit post-

trial briefs. On February 16, 2023, following its review of the

briefs submitted, the court issued its decision in which it found in

favor of TD and against Borrowers, in rem, in the amount of

$2,205,099.59, together with continuing interest at the rate of

$147.3044 per day from the date of the decision on the unpaid

balance, together with continuing costs and attorney’s fees, and

for the sale of the Property.

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On February 24, 2023, [Massengill] filed a [post-trial motion]. On

February 27, 2023, the court issued an order directing TD to file

an answer and memorandum of law in response to [Massengill’s]

post-trial motion. On March 7, 2023, TD filed its answer and

memorandum of law.

On March 14, 2023, while [Massengill’s] post-trial motion

remained pending, [Massengill] filed a notice of appeal from the

court’s decision entered on February 16, 2023. By order filed on

June 8, 2023, the Superior Court quashed said appeal as

premature[,] as no disposition had been issued regarding

[Massengill’s] post-trial motion. The Superior Court also noted

that judgment had not been entered on the trial court docket. By

order entered on June 21, 2023, this court denied [Massengill’s]

post-trial motion.

On July 20, 2023, [Massengill] filed a notice of appeal regarding

the court’s denial of his post-trial motion. On September 12,

2023, this court filed its opinion pursuant to Pa.R.A.P. 1925(a) in

which it stated that: (1) judgment had not been entered in the

case; and (2) an appeal from the denial of a post-trial motion is

interlocutory and not a final appealable order. On October 2,

2023, [Massengill] withdrew that appeal in the Superior Court.

On November 2, 2023, pursuant to a praecipe to enter final

judgment on court order filed by TD, the Montgomery County

Prothonotary entered judgment on the court’s decision. On

November 7, 2023, [Massengill] filed the instant appeal from the

final in rem judgment. On November 13, 2023, [Massengill] filed

an amended notice of appeal to note his appeal concerned the

order denying his post-trial motion as well as the subsequently[

]entered in rem judgment.

Trial Court Opinion, 1/17/24, at 1-6 (footnotes, brackets, unnecessary

capitalization, and headings omitted).

Both Massengill and the trial court have complied with Pa.R.A.P. 1925.

Massengill raises the following claims for our review:

1. Whether the trial court erred in entering in rem judgment in

foreclosure where[,] after issuing its [Act] 91 Notice of Default,

[TD] held cash funds that established [Massengill’s] valid tender

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of payment in excess of amounts to cure arrears on the mortgage

and reinstate loan to pre-default status?

2. Whether [the] trial court lacked jurisdiction in foreclosure

matter where [TD] failed to issue a new Act 91 notice after

rejecting [Massengill’s] tender of payment resulting in discharge

of cure amount and returning loan to pre-default status? [1]

3. Whether [the] trial court erred in its speculation of a sum

certain due under [the] loan where the amount claimed by [TD]

was not supported by consistent and sufficient evidence?

4. Whether [the] trial court erred in ordering post-judgment

continuous costs, legal fees[,] and interest rate, not authorized by

the mortgage and note which merged with the in rem judgment?

Brief of Appellant, at 4 (unnecessary capitalization omitted).

We begin by noting that Massengill’s brief fails to comply with our Rules

of Appellate Procedure. Specifically, Pa.R.A.P. 2116(a) provides that the

statement of questions involved must state concisely the issues to be resolved

and that “[n]o question will be considered unless it is stated in the statement

of questions involved or is fairly suggested thereby.” Pa.R.A.P. 2116(a). Rule

2119(a) requires that “[t]he argument shall be divided into as many parts as

there are questions to be argued[.]” Pa.R.A.P. 2119(a). Here, in his

statement of questions involved, Massengill purports to raise four questions

for our review. However, his argument section is divided into nine sections,

only two of which directly correspond to issues raised in the statement of

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1 We may summarily dispose of this claim by noting that, in Beneficial

Consumer Discount Co. v. Vukman, 77 A.3d 547 (Pa. 2013), our Supreme

Court held that a lender’s provision of a defective Act 91 notice does not

deprive the courts of subject matter jurisdiction. See id. at 553 (“assertion

that Act 91 imposes jurisdictional prerequisites on mortgage foreclosure

actions is unsupportable”). Moreover, in light of our conclusion infra that

Massengill did not tender payment to TD, no new Act 91 notice was required.

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questions involved. It is within this Court’s power to quash an appeal for clear

violations of the Rules of Appellate Procedure. See Universal Underwriters

Ins. Co. v. A. Richard Kacin, Inc., 916 A.2d 686, 689 n.6 (Pa. Super. 2007).

However, because Massengill’s brief is not so defective as to preclude effective

appellate review of his preserved claims, we decline to quash his appeal and

will review those claims raised in his statement of questions presented.

Nevertheless, we remind counsel that the Rules of Appellate Procedure “are

not guideposts but a mandate” and that full compliance is expected. McGee

v. Muldowney, 750 A.2d 912, 913 n.1 (Pa. Super. 2000).

The following principles govern our review of an appeal following a bench

trial:

Our standard of review in non-jury trials is to assess whether the

findings of facts by the trial court are supported by the record and

whether the trial court erred in applying the law. Upon appellate

review, the appellate court must consider the evidence in the light

most favorable to the verdict winner and reverse the trial court

only where the findings are not supported by the evidence of

record or are based on an error of law. Our scope of review

regarding questions of law is plenary.

Stoley v. Wampler, 317 A.3d 1007, 1015 (Pa. Super. 2024), quoting

Riverview Carpet & Flooring, Inc. v. Presbyterian SeniorCare, 299 A.3d

937, 956 (Pa. Super. 2023).

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Massengill first claims that the trial court erred in entering in rem

judgment in foreclosure where, after issuing its Act 91 notice 2 of default, TD

held cash funds that established Massengill’s valid tender of payment in excess

of the amount necessary to cure the arrears on the mortgage and pay off the

loan in full. Essentially, Massengill argues that, after the Settlement and

Release regarding his employment claim was executed, but prior to TD’s

disbursement of the settlement funds to Massengill and his counsel, the

settlement funds held by TD should have been considered a “tender” under

the Pennsylvania Commercial Code and TD should have used those funds to

satisfy Massengill’s mortgage arrears. Because TD did not do so and instead

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2 Prior to commencing a foreclosure action, a lender is required to provide the

mortgagor with notice pursuant to Act 91, the Homeowner’s Emergency

Assistance Act. See 35 P.S. §§ 1680.401c-1680.412c.

This notice shall be in plain language and specifically state that

the recipient of the notice may qualify for financial assistance

under the Homeowner's Emergency Mortgage Assistance

Program. This notice shall contain the telephone number and the

address of a local consumer credit counseling agency. . . . This

notice shall also advise the mortgagor of his delinquency or other

default under the mortgage, including an itemized breakdown of

the total amount past due, and that such mortgagor has thirty

(30) days, plus three (3) days for mailing, to have a face-to-face

meeting with a consumer credit counseling agency to attempt to

resolve the delinquency or default by restructuring the loan

payment schedule or otherwise.

35 P.S. § 1680.403c (Notice requirements). “If, after receiving [Act 91]

notice, the homeowner cures the delinquency or default . . . and the

homeowner subsequently becomes more than 60 days delinquent, the

mortgagee shall again provide [Act 91] notice before taking legal action.” 12

Pa.Code § 31.203(b)(10).

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paid the funds to Massengill and his counsel, his tender should be deemed

refused and his mortgage deemed satisfied. He is entitled to no relief.

A promissory note securing a mortgage is a negotiable instrument

governed by Pennsylvania’s version of the Uniform Commercial Code

(“PUCC”).3 See JP Morgan Chase Bank, N.A. v. Murray, 63 A.3d 1258,

1265 (Pa. Super. 2013). Section 3-603 of the PUCC, “Tender of Payment,”

provides, in relevant part, as follows:

(b) Effect of refusal of tender of payment.--If tender of payment

of an obligation to pay an instrument is made to a person entitled

to enforce the instrument and the tender is refused, there is

discharge, to the extent of the amount of the tender, of the

obligation of an indorser or accommodation party having a right

of recourse with respect to the obligation to which the tender

relates.

(c) Obligation to pay interest discharged.--If tender of payment of

an amount due on an instrument is made to a person entitled to

enforce the instrument, the obligation of the obligor to pay

interest after the due date on the amount tendered is discharged.

...

13 Pa.C.S.A. § 3603(b)-(c).

The word “tender” is not defined in the PUCC and we can uncover no

case law providing a definition. However, Black’s Law Dictionary defines

“tender” as “an unconditional offer of money or performance to satisfy a

debt or obligation[.]” Black’s Law Dictionary (12 th ed. 2024), tender

(emphasis added). See also 86 CJS Tender § 1 (“A tender is an

unconditional offer by a debtor to pay a sum of money not less than the

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3 13 Pa.C.S.A. §§ 1101-91136.

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amount due under an obligation.”) (emphasis added). Thus, a “tender” clearly

requires an affirmative “offer” on the part of the debtor. Here, there was no

evidence presented at trial that Massengill ever made an offer to TD to apply

any portion of his settlement proceeds to his mortgage arrears. Accordingly,

TD’s failure to apply those proceeds to Massengill’s arrears does not amount

to a refusal of tender that would require discharge of Massengill’s mortgage

obligations under section 3-603 of the PUCC. 4

Next, Massengill claims that trial court erred by speculating as to the

sum certain due under the loan where the amount claimed by TD was not

supported by consistent and sufficient evidence. He is entitled to no relief.

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4 As both the trial court and TD aptly note, had TD unilaterally applied a portion

of Massengill’s settlement funds to satisfy his mortgage arrears, it could have

been subject to potential claims by Massengill for conversion or breach of

contract. In any event, Massengill could have chosen to satisfy his mortgage

arrears upon receipt of his settlement payment. For whatever reason, he

opted not to do so.

Moreover, to the extent that Massengill attempts to argue that the settlement

agreement in his employment action resolved all claims between the parties,

including TD’s claims on Massengill’s mortgage, he is entitled to no relief.

First, Massengill did not raise the claim in his statement of questions

presented, nor is it fairly suggested thereby. See Pa.R.A.P. 2116(a).

Accordingly, the claim is waived. Id. Second, even if the claim were not

waived, the settlement agreement between TD and Massengill clearly states

that it pertains only to claims, or potential claims, that Massengill had, has, or

may have against TD. See Settlement Agreement and General Release,

3/8/13, at 1 (parties agreeing to compromise all claims of any kind that

Massengill had, has, or may have against TD); id. at 6 (Massengill releasing

TD from any and all claims). Accordingly, TD’s mortgage-related claims

against Massengill were not released in the employment settlement.

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At trial, TD presented the testimony of Jordan Purington, a controls

group manager in the U.S. Customer Assistance Business, responsible for

collections and recovery. See N.T. Nonjury Trial, 1/24/23, at 24. Purington

testified that he is familiar with TD’s business records, as well as with

Massengill’s account. Id. at 24-25. Purington testified that Massengill’s

adjustable-rate mortgage was for $1.4 million with an initial interest rate of

4.5%. Id. at 32-33. Purington further testified that, in the event of default,

TD is entitled to collect late fees, inspection fees, and attorneys’ fees, in

addition to principal and interest. Id. at 33-34. Purington testified that Act

91 notice dated November 16, 2012, was sent to Massengill. Id. at 36;

Plaintiff’s Exhibit P-3. Purington authenticated the Massengill mortgage’s

transactional history, which showed that “the loan was paid through

September 1st of 2011, is currently outstanding for October 1st of 2011, and

the last payment was applied on January 31 st of 2012.” Id. at 38. Purington

testified that, according to a payoff letter dated November 7, 2022,

Massengill’s account showed a principal balance due of $1,194,802.26,

interest owed in the amount of $462,376.31, late charges in the amount of

$41,716.17, a negative escrow balance of $487,481.14,5 and outstanding fees

totaling $18,723.71.6 Id. at 41; Plaintiff’s Exhibit P-7. Purington testified

____________________________________________

5 Purington testified that the escrow deficiency consisted of payments made

by TD for taxes and insurance between 2012 and 2022. Id. at 42; Plaintiff’s

Exhibit P-9.

6 Purington testified that the fees included inspection, appraisal, and legal

fees. Id. at 46; Plaintiff’s Exhibit P-10.

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that the documentation supporting the above account delinquencies were

taken from TD records kept in the normal course of business. Id. at 49.

Judgment was entered in the amount of $2,205,099.59, the total of the above

amounts.

The trial court credited Purington’s testimony, concluding that it

“demonstrated the current, precise balance of [Massengill’s] loan.

[Massengill’s] claims to the contrary are disingenuous legal gymnastics.” Trial

Court Opinion, 1/17/24, at 15. Based on our review, it is clear that the trial

court’s judgment was not based on speculation, but rather on the testimony

and evidence presented at trial. Accordingly, Massengill is entitled to no relief.

Finally, Massengill claims that the trial court erred in ordering post-

judgment continuing costs, legal fees, and interest at a rate not authorized by

the mortgage and note. Massengill argues that “the terms of a mortgage are

merged into a foreclosure judgment and thereafter no longer provide the basis

for determining the obligations of the parties.” Brief of Appellant, at 62,

quoting Stendardo v. Fed. Nat’l Mortgage Assoc., 991 F.2d 1089, 1095

(3d Cir. 1993). Massengill asserts that “post-judgment expenses [may] only

be recovered [if] they were specifically set forth in the mortgage document.”

Brief of Appellant, at 64. Massengill argues that, here, the mortgage does not

provide for post-judgment fees and costs and only authorizes post-judgment

interest at a rate of 3%. Id. at 66. Thus, Massengill argues, the court’s order

directing payment of post-judgment fees, costs, and per diem interest at a

rate of 4.5% was in error.

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Under controlling Pennsylvania law, [i]t is elementary that

judgment settles everything involved in the right to recover, not

only all matters that were raised, but those which might have been

raised. The cause of action is merged in the judgment which then

evidences a new obligation. The doctrine of merger of judgments

thus provides that the terms of a mortgage are merged into a

foreclosure judgment and thereafter no longer provide the basis

for determining the obligations of the parties.

...

There is an exception to this doctrine. Parties to a mortgage may

rely upon a particular provision post-judgment if the mortgage

clearly evidences their intent to preserve the effectiveness of that

provision post-judgment. The applicability of this exception will

determine whether the instant [m]ortgage clause requiring the

[appellants] to pay the expenses at issue survived the

[j]udgment.

EMC Mortgage, LLC v. Biddle, 114 A.3d 1057, 1065–66 (Pa. Super. 2015),

quoting Stendardo, 991 F.2d at 1094–95 (other citations omitted).

Here, the relevant provisions of the Massengill mortgage document

provide as follows:

22. Acceleration; Remedies. . . . If the default is not cured as

specified, Lender at its option may require immediate payment in

full of all sums secured by this Security Instrument without further

demand and may foreclose this Security Instrument by judicial

proceeding. [TD] shall be entitled to collect all expenses

incurred in pursuing the remedies provided in this Section

22, including, but not limited to, attorneys’ fees and costs

of title evidence to the extent permitted by [a]pplicable

[l]aw.

Mortgage, 5/12/04, at ¶ 22 (emphasis added).

27. Interest Rate After Judgment. [Massengill] agrees that the

interest rate payable after a judgment is entered on the Note or

in an action of mortgage foreclosure shall be the rate payable

from time to time under the [n]ote.

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Id. at ¶ 27 (emphasis added).

In Biddle, supra, this Court interpreted language identical to that

contained in the highlighted portion of paragraph 22 of the Massengill

mortgage and concluded that it:

clearly and unambiguously states that [the lender] is entitled to

collect all expenses incurred in pursuing the remedies [of a

foreclosure action], including, but not limited to, attorneys' fees

and costs of title evidence. We read this provision to mean that

recoverable expenses include those that are necessary to the

pursuit of the foreclosure action. The types of recoverable

expenses that are expressly identified in paragraph 18 support

this interpretation, i.e. attorneys’ fees and costs of title evidence.

Thus, it was not error for the trial court to grant attorneys’ fees

and costs of title[,] as those expenses survived the judgment

under the plain terms of the parties’ security agreement.

Biddle, 114 A.3d at 1068 (internal quotations omitted). Thus, here, it is clear

that Massengill’s obligations under paragraph 22 survived the entry of

judgment and the trial court did not err in imposing post-judgment costs and

attorney’s fees.

Similarly, the Biddle Court concluded that language identical to that

contained in paragraph 27 of the Massengill mortgage, providing for post-

judgment interest at the rate payable from time to time under the note,

survived the entry of judgment. See id. at 1071. Thus, TD is entitled to post-

judgment interest. However, we agree with Massengill that there is no

evidentiary basis for the trial court’s imposition of interest in the amount of

$147.3044 per day, i.e. 4.5%. The note securing Massengill’s mortgage was

an adjustable-rate note, with an initial rate of 4.5%. At trial, the only

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evidence presented regarding the current interest rate was the November 7,

2022 payoff letter, which indicated a current rate of 3%. See Plaintiff’s Exhibit

P-6. Accordingly, we are constrained to conclude that the trial court erred in

imposing per diem post-judgment interest in the amount of $147.3044. Upon

remand, the trial court shall enter an amended judgment imposing post-

judgment interest at a rate of 3%.

Judgment affirmed in part and vacated in part. Case remanded with

instructions. Jurisdiction relinquished.

Date: 5/7/2025

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