Navigating Motions to Reassess Damages After Biddle: Key Considerations for Lenders

The Pennsylvania Superior Court’s decision in EMC Mortgage, LLC v. Biddle, 114 A.3d 1057 (Pa. Super. Ct. 2015), continues to influence how lenders pursue motions to reassess damages in mortgage foreclosure actions. Although nearly a decade has passed, Biddle remains a touchstone for courts evaluating whether post-judgment costs, fees, and interest may be added to a foreclosure judgment. Recent trends—particularly in Philadelphia and Lancaster Counties—show that courts are increasingly scrutinizing these motions, making it essential for lenders to understand the decision’s scope and its practical implications.

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Understanding the Biddle Decision

In Biddle, the Superior Court vacated a trial court order granting EMC Mortgage’s motion to reassess damages following a default judgment in a foreclosure action. EMC sought to add post-judgment interest and costs, arguing that these amounts had accrued after the judgment was entered. The borrower countered that the judgment was final and could not be modified.

The court’s analysis centered on In re Stenardo, the Third Circuit decision that applied Pennsylvania’s doctrine of merger to mortgage foreclosure judgments. Under the merger doctrine, once a foreclosure judgment is entered, the mortgage’s terms merge into the judgment and the mortgage no longer governs the parties’ obligations.  

Importantly, both Biddle and Stenardo recognized a critical exception: contractual provisions intended to operate only in the event of foreclosure may survive the merger, but only if the mortgage clearly expresses that intent. These surviving terms can support a reassessment of damages, yet they must be unmistakably preserved in the mortgage instrument.

In Stenardo, despite acknowledging the exception, the court denied the creditor’s claim for reimbursement of post-judgment taxes and insurance because the mortgage did not clearly state that such obligations continued beyond judgment. In Biddle, the Superior Court undertook a similar analysis, reviewing each category of EMC’s requested expenses against the precise language of the mortgage.  

Together, these decisions shape Pennsylvania foreclosure practice by underscoring a simple but significant rule: if a mortgagee intends to enforce obligations after judgment, those obligations must be unambiguously stated in the mortgage itself.  

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Recoverable Fees and Costs Post Biddle

The decision in Biddle requires lenders to take a careful, category-by-category approach when seeking to reassess damages. Courts will look to the mortgage, which in Biddle, contained the following relevant provision:  

18. Foreclosure procedure…Lender shall be entitled to collect all expenses incurred in pursuing the remedies provided in this paragraph 18, including, but not limited to, attorneys' fees and costs of title evidence.

Under that backdrop, below is a breakdown of how the Biddle court and recent decisions from the county courts of common pleas have treated common fee types since the ruling.

1. Attorneys’ Fees

Attorneys’ fees remain recoverable in foreclosure actions because they are almost universally identified in the mortgage and are inherently necessary in the pursuit of a foreclosure action.

Importantly, Biddle predates Act 32 of 2018, which now governs the reasonableness of such fees. Under 68 Pa.C.S. § 2311, reasonable attorneys’ fees actually incurred after the commencement of foreclosure may be charged to the borrower. Fees are presumed reasonable if they conform to Fannie Mae, Freddie Mac, HUD, or VA fee schedules. Courts may review the reasonableness of claimed fees upon request.

To support recovery, motions to reassess should include invoices, billing records, or affidavits from counsel documenting the work performed.

2. Title Costs

In Biddle, title costs were recoverable because of the express language in the mortgage and are a necessary element of a foreclosure action. To support recovery, however, lenders should demonstrate that the expenses were actually incurred, and the amounts were reasonable. Supporting documentation is essential.

3. Late Charges

Late charges generally do not survive the entry of judgment. Once the mortgage merges into the judgment, the borrower has no ongoing payment obligation—and therefore cannot incur additional late fees.  

To recover late charges that accrued after the complaint was filed but before judgment, lenders must amend the complaint prior to default.

4. Property Inspection Fees

If the mortgage does not identify property inspections as surviving the entry of judgment, the recoverability of fees will depend on when they occurred and if the lender can demonstrate that they were necessitated by the foreclosure action.  

Prejudgment inspection fees are not recoverable unless included in an amended complaint.  

To recover post-judgment inspections, lenders should provide evidence of the dates inspections were performed, the amounts paid, and the purpose served by each inspection.

5. Escrow Advances

Mortgage provisions providing for the advancement of money for taxes and insurance, without providing that these amounts survive judgment, are not sufficient to permit recovery of pre-judgment amounts through a motion to reassess. These amounts can be recovered through an amended complaint.

Post-judgment escrow advances may be recovered if they were necessary to protect the lender’s interest during the foreclosure process.

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Recent Challenges in Philadelphia County

In recent months, lenders have experienced an uptick in denials of standard motions to reassess damages in Philadelphia and Lancaster Counties. Judges have increasingly relied on Biddle to justify the heightened scrutiny.

Courts have emphasized that prejudgment costs not included in the complaint cannot be recovered without amending the complaint before default. Post-judgment costs may be recovered only when the mortgage expressly authorizes recovery after judgment, and the lender supports the request with affidavits establishing reasonableness.

Philadelphia judges have also articulated specific requirements for lenders:

• A clear breakdown distinguishing amounts claimed in the complaint from post-judgment costs,

• Pinpoint citations to mortgage provisions authorizing post-judgment recovery, and

• Affidavits from competent witnesses supporting the necessity and reasonableness of the costs.

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MDK’s Response to These Challenges

MDK has developed enhanced motions to reassess damages that incorporate the elements courts now consistently require. Our approach begins with a mortgage-specific analysis to determine which post-judgment charges are recoverable under the document’s express terms, mirroring the methodology applied in Biddle.

MDK then provides a clear, detailed comparison between the original judgment amount and the additional sums sought. This structure reinforces compliance with Biddle by demonstrating that the requested amounts are limited to post-judgment obligations the mortgage preserves.

To further support the motion, MDK can include two specific affidavits: one from the lender addressing property inspections, escrow amounts, etc., and one from counsel addressing attorneys’ fees, including confirmation that the fees align with the Fannie Mae fee matrix. Our attorneys evaluate each matter individually to determine the appropriate supporting documentation.

These measures ensure that MDK’s motions are thorough, transparent, and fully aligned with Biddle’s requirements.