The state Superior Court has denied a woman’s claim for attorney fees, holding that a bank’s decision to voluntarily discontinue a mortgage foreclosure suit did not change the fact that the Superior Court had already affirmed a trial court’s grant of summary judgment in favor of the bank, which precluded an attorney fee award.

In Washington Mutual Bank v. Duraney, a three-judge panel unanimously upheld Allegheny County Court of Common Pleas Senior Judge R. Stanton Wettick’s ruling denying defendant Laurie L. Duraney’s motion for attorney fees.

Duraney claimed she was entitled to attorney fees under Act 6, known as the Loan Interest and Protection Law, because she prevailed in plaintiff Washington Mutual Bank’s foreclosure suit against her by virtue of the fact that the bank ultimately decided to discontinue the suit.

But Judge Christine L. Donohue, writing for the court, said that by the time Washington Mutual withdrew the suit, the trial court and the Superior Court had already found Washington Mutual did not violate Act 6, therefore precluding Duraney from an attorney fee award under the statute.

"An affirmed grant of summary judgment does not evaporate upon dismissal of the case," Donohue said. "The court’s findings and legal conclusions are dispositive of the positions of the parties in the decided case even though it is dismissed."

Donohue was joined by Judges Jacqueline O. Shogan and David N. Wecht.

In Washington Mutual, according to Donohue, Duraney defaulted on a $39,780 mortgage loan and Washington Mutual filed a complaint in foreclosure in the Allegheny Court of Common Pleas in December 2005.

In January 2006, Duraney filed an answer, new matter and counterclaims, according to Donohue.

In October 2006, Washington Mutual filed a motion for summary judgment and a motion to dismiss Duraney’s counterclaims, Donohue said.

In November 2006, Duraney filed a motion for summary judgment, alleging Washington Mutual failed to comply with the notice requirements of both Act 6 and Act 91, known as the Homeowner’s Emergency Mortgage Assistance Act, according to Donohue.

In December 2006, Donohue said, Allegheny County Court of Common Pleas Judge Michael Della Vecchia denied Duraney’s motion for summary judgment and granted Washington Mutual’s motion for summary judgment, dismissing Duraney’s counterclaims with prejudice.

Duraney appealed to the Superior Court in January 2007 but subsequently filed for bankruptcy and the court dismissed her appeal without prejudice to file a petition for reinstatement, according to Donohue.

Almost three years later, Donohue said, the Superior Court granted Duraney’s petition for reinstatement and affirmed the trial court’s ruling in all respects, except with regard to Duraney’s Act 91 defense.

But while the Superior Court found there was a genuine issue of material fact with regard to whether Washington Mutual had violated Act 91, it also found that the record showed the bank had complied with Act 6, Donohue said.

On remand to the trial court, according to Donohue, Duraney served Washington Mutual with interrogatories that included 169 questions. 
Washington Mutual requested a protective order and Wettick issued an order reducing the number of interrogatories to 25, according to Donohue.

Washington Mutual never answered the interrogatories and instead filed a praecipe to settle and discontinue the mortgage foreclosure action without prejudice, which prompted Duraney to file a motion to strike the discontinuance or to discontinue with prejudice, Donohue said.

On March 10, 2012, Wettick denied Duraney’s motion, finding that Washington Mutual was within its rights to send new pre-foreclosure notices and file a new suit. Duraney did not appeal this ruling, according to Donohue.

On March 12, 2012, Duraney filed a motion seeking attorney fees under Section 503 of Act 6 and 42 Pa.C.S.A. §2503(6), (7) and (9), which provide for attorney fees as "a sanction for dilatory, obdurate or vexatious conduct," according to Donohue.

Wettick denied the motion, reasoning that the Superior Court’s affirmation of the dismissal of Duraney’s Act 6 defenses and counterclaims precluded her from recovering attorney fees under the statute, Donohue said.

As for Duraney’s attempt to collect attorney fees under 42 Pa.C.S.A. §2503(6), (7) and (9), Wettick found that Washington Mutual’s suit was not baseless, as evidenced by the fact that the trial court granted Washington Mutual summary judgment, which was largely upheld by the Superior Court, according to Donohue.

On appeal to the Superior Court, Donohue agreed with Wettick’s reasoning.

"Assuming, arguendo, that Washington Mutual failed to provide Duraney with proper Act 91 notice, we cannot conclude, as does Duraney, that this procedural defect means Washington Mutual’s underlying foreclosure action has no basis in law or fact," Donohue said.

With regard to Duraney’s claim for attorney fees under Act 6, Donohue said a previous panel of the Superior Court "established conclusively that Duraney did not prevail in her defense arising under Act 6."

"We specifically found that there was no genuine issue of material fact with respect to Duraney’s Act 6 defense because the Act 6 notice clearly informed Duraney of the amount she was required to pay in order to cure her default," Donohue said. "Pursuant to established case law, this prior ruling, finding no Act 6 violation, forecloses Duraney’s claim for attorney fees as a prevailing party in an action arising under Act 6."

Donohue rejected what she said was Duraney’s attempt to extrapolate the Superior Court’s 1988 ruling in Williams Studio Division of Photography by Tallas v. Nationwide Mutual Fire Insurance, which held that a suit that is dismissed without prejudice by a voluntary nonsuit does not toll the statute of limitations.

"This court’s affirmance of summary judgment against Duraney is in no way analogous to the plaintiff’s sua sponte decision to discontinue its lawsuit in the Nationwide Mutual Fire Insurance case," Donohue said.

Duraney’s attorney, William F. Askin of Pittsburgh, declined to comment on the case.

Counsel for Washington Mutual, James McNally of Metz Lewis Brodman Must O’Keefe in Pittsburgh, also declined to comment.

Zack Needles can be contacted at 215-557-2493 or zneedles@alm.com. Follow him on Twitter @ZNeedlesTLI. •

(Copies of the 20-page opinion in Washington Mutual Bank v. Duraney, PICS No. 13-0671, are available from Pennsylvania Law Weekly. Please call the Pennsylvania Instant Case Service at 800-276-PICS to order or for information.) •