Opinion
J-A14008-18 No. 2074 EDA 2017
08-03-2018
US BANK NATIONAL ASSOCIATION, AS TRUSTEE FOR STRUCTURED ASSET CORPORATION MORTGAGE PASS CERTIFICATES, SERIES 2006 BCA C/O WELLS FARGO BANK, N.A. Appellee v. SABRINA THIGPEN AND JULIUS THIGPEN Appellants
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Order Dated June 9, 2017
In the Court of Common Pleas of Philadelphia County
Civil Division at No(s): October Term, 2013 No. 03024 BEFORE: GANTMAN, P.J., SHOGAN, J., and PLATT, J. MEMORANDUM BY GANTMAN, P.J.:
Retired Senior Judge assigned to the Superior Court.
Appellants, Sabrina Thigpen and Julius Thigpen, appeal from the order entered in the Philadelphia County Court of Common Pleas, which denied their petition to set aside a sheriff's sale of their foreclosed property. We affirm.
The relevant facts and procedural history of this case are as follows. On September 13, 2006, Appellants executed a residential mortgage on an investment property ("Property") in favor of Mortgage Electronic Registration Systems, Inc., ("MERS") as Nominee for BNC Mortgage, Inc., in the principal amount of $225,250.00. MERS assigned the mortgage to Appellee, U.S. Bank, on September 21, 2011. On August 1, 2012, Appellants failed to make the monthly payment and all subsequent payments. In response, Appellee filed a mortgage foreclosure complaint against Appellants on October 29, 2013.
Appellants failed to file an answer, and on January 7, 2014, the prothonotary entered a default judgment in favor of Appellee in the amount of $249,857.15. On November 23, 2016, Appellee filed a praecipe for writ of execution, setting a sheriff sale of the Property for February 7, 2017. On February 7, 2017, Appellee continued the sheriff's sale until March 7, 2017. On March 6, 2017, Appellants filed an emergency motion to stay the sheriff's sale, and proceeded to a hearing that same day. Appellants stated they were seeking a loan modification. The court, on March 7, 2017, postponed the sheriff's sale until April 4, 2017.
On April 3, 2017, at 4:45 p.m., Appellants electronically filed a second emergency motion to stay the sheriff's sale, which again stated they were seeking a loan modification. The prothonotary on April 4, 2017, rejected Appellant's motion as untimely filed. That same day, the Property sold at sheriff's sale to Appellee. Appellants filed a motion to set aside the sheriff's sale on April 10, 2017.
On June 9, 2017, the court held a hearing on Appellants' motion to set aside the sheriff's sale. The court denied Appellants' motion that same day. On June 22, 2017, Appellants timely filed a notice of appeal. The court ordered Appellant, on June 26, 2017, to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b); Appellant timely complied on July 14, 2017.
Appellants raise the following issue for our review:
DID THE [TRIAL] COURT ERR IN REFUSING [APPELLANTS]' PETITION TO SET ASIDE THE SHERIFF SALE ON APRIL 4, 2017 WHEREIN THE PROPERTY SITUATE 5137 SPRUCE STREET, PHILADELPHIA, PA 19139 VIA EXECUTION ON WRIT NUMBER 1702-581 WAS SOLD AFTER AN ADMINISTRATIVE BREAKDOWN DENIED THEM AN OPPORTUNITY TO BE HEARD ON THEIR EMERGENCY MOTION TO STAY?(Appellants' Brief at 4).
"The purpose of a sheriff's sale in mortgage foreclosure proceedings is to realize out of the land, the debt, interest, and costs which are due, or have accrued to, the judgment creditor." GMAC Mortg. Corp. of PA v. Buchanan , 929 A.2d 1164, 1167 (Pa.Super. 2007) (quoting Kaib v. Smith , 684 A.2d 630, 632 (Pa.Super. 1996)).
A petition to set aside a sheriff's sale is grounded in equitable principles and is addressed to the sound discretion of the hearing court. The burden of proving circumstances warranting the exercise of the court's equitable powers rests on the petitioner.... When reviewing a trial court's ruling on a petition to set aside a sheriff's sale, we recognize that the court's ruling is a discretionary one, and it will not be reversed on appeal unless there is a clear abuse of that discretion.Buchanan , supra at 1167 (internal citations omitted). See also Mortgage Electronic Registration Systems , Inc. v. Ralich , 982 A.2d 77, 80 (Pa.Super. 2009), appeal denied, 606 Pa. 650, 992 A.2d 889 (2010) (stating sheriff's sale may be set aside after delivery of sheriff's deed, if sale was product of fraud or lack of authority to make sale); Blue Ball Nat'l Bank v. Balmer , 810 A.2d 164, 166 (Pa.Super. 2002), appeal denied, 573 Pa. 662, 820 A.2d 702 (2003) (noting that gross inadequacy in sale price is sufficient grounds to set aside sheriff's sale); First Eastern Bank , N.A. v. Campstead , Inc., 637 A.2d 1364, 1365-66 (Pa.Super. 1994) (stating lack of adequate notice constitutes clear and convincing evidence to set aside sheriff's sale).
After a thorough review of the record, the briefs of the parties, the applicable law, and the well-reasoned opinion of the Honorable Daniel J. Anders, we conclude Appellants' issue merits no relief. The trial court opinion comprehensively discusses and properly disposes of the question presented. ( See Trial Court Opinion, filed September 13, 2017, at 2-6) (finding: breakdown in court operations occurred when Office of Judicial Records' Civil Filing Motion Court did not assign Appellants' emergency motion to stay sheriff's sale to judge, but instead rejected motion as untimely on morning of sale; notwithstanding any breakdown in operations of court, Appellants failed to carry their burden to set aside sheriff's sale with clear and convincing evidence; Appellants asserted same basis in April 3, 2017 emergency motion to stay sheriff's sale as they raised in March 6, 2017 emergency motion; in both motions, Appellants sought to stay sale to pursue loan modification; although court had granted March 6, 2017 emergency motion, court's decision had no precedential effect, particularly because Appellee opposed second stay of sale; additionally, Appellee had no obligation to consider loan modification request from Appellants less than thirty days before sheriff's sale; court denied Appellants' petition to set aside sheriff's sale based on court's independent review of Appellants' April 3, 2017 emergency motion to stay, default judgment entered against Appellants, two Chapter 13 bankruptcies filed by Appellants, bankruptcy court lifted stay as to mortgaged property, and Appellee's unwillingness to agree to loan modification or another stay of sheriff's sale; neither Appellants' counsel nor Appellants physically appeared in motions court on April 3, 2017, to argue their emergency motion to stay; court had discretion to extend time for Appellee's response to Appellants' petition to set aside sheriff's sale; Appellee's response at oral argument did not require verification because it did not introduce new facts; record demonstrates no witnesses testified at June 9, 2017 hearing; rather, at June 9, 2017 hearing, parties' counsel both argued based on their personal knowledge of case; Appellants did not provide clear and convincing evidence to support their petition to set aside sheriff's sale; court properly denied Appellants' petition to set aside sheriff's sale). The record supports the court's reasoning. Accordingly, we affirm on the basis of the trial court opinion.
Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 8/3/18
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