The Pennsylvania Supreme Court is set to decide whether a mortgagee must issue a new notice of intent to foreclose before filing a second foreclosure complaint after its initial complaint was dismissed.

The case, JPMorgan Chase v. Taggart, potentially hinges on the application of the Superior Court's 2014 ruling in Wells Fargo Bank v. Spivak, which held that a mortgagee was required to provide at least 30 days' notice to a mortgagor before filing a new complaint where the mortgagee voluntarily discontinued its original foreclosure action.

The Spivak court held that “when a residential mortgagee delivers an Act 6 notice, commences a foreclosure action against a mortgagor ('first action'), discontinues that foreclosure action, and re-files another foreclosure action against a mortgagor for the same premises ('second action'), the lack of a new notice prior to the second action is fatal to the second action.”

In Taggart, according to the Superior Court's opinion, Chase Bank commenced a foreclosure action in the Philadelphia Court of Common Pleas against defendant Kenneth Taggart in September 2010 but the complaint was ultimately dismissed because Chase failed to timely answer Taggart's preliminary objections.

In July 2013, however, JPMorgan Chase Bank, to whom Chase had assigned the mortgage and note, filed a new foreclosure complaint against Taggart but did not provide a new notice of intent to foreclose.

In November 2015, Philadelphia Court of Common Pleas Judge Kenneth Powell Jr. rendered a verdict against Taggart and in favor of Great Ajax Operating Partnership, which by that point owned the mortgage and note.

On appeal, Taggart argued that Spivak required JPMorgan to provide a new notice of intent before filing the July 2013 complaint.

But a unanimous three-judge panel of the Superior Court, in a decision issued last August, said Spivak was distinguishable from Taggart because the bank in the former case voluntarily dismissed its initial complaint and the bank in Taggart had its complaint tossed without prejudice.

“The case upon which Taggart relies is distinguishable from the facts here for the plain and simple reason that Chase's earlier action was not voluntarily discontinued, and was refiled by the same entity five months later, before the note was assigned,” Judge Anne Lazarus wrote for the panel, joined by Judge Paula Francisco Ott and Senior Judge James J. Fitzgerald III.

The justices granted allocatur in the case Feb. 22 to hear argument on a single issue: “Whether a lender/mortgagee whose first complaint in mortgage foreclosure against a borrower/mortgagor was dismissed is required to send a new notice of intention to foreclose pursuant to 41 P.S. Section 403(a) (Act 6 Notice) prior to filing a second complaint in mortgage foreclosure.”

Counsel for Taggart, Joshua Thomas of Chadds Ford, said the case could potentially have broad impact on homeowners facing foreclosure actions and that he's already been contacted by three attorneys and a legal services organization interested in submitting amicus briefs.

“We're hoping to help as many homeowners as possible,” he said.

Counsel for the mortgagee parties, Barbara Fein of Philadelphia, could not be reached for comment.