Opinion
J-S55031-19 No. 317 WDA 2019
10-18-2019
DEUTSCHE BANK, NATIONAL TRUST COMPANY v. GINA ACKERMAN Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Order Entered January 29, 2019
In the Court of Common Pleas of Allegheny County Civil Division at No(s): MG 16-001201 BEFORE: MURRAY, J., McLAUGHLIN, J., and COLINS, J. JUDGMENT ORDER BY COLINS, J.:
Retired Senior Judge assigned to the Superior Court.
Appellant, Gina Ackerman, appeals from the order denying her petition to set aside sheriff's sale of her real property. We affirm on the basis of the trial court opinion.
In its opinion, the trial court fully and correctly set forth the relevant facts and procedural history of this case. See Trial Court Opinion, filed April 29, 2019, at 1-2. Therefore, we have no reason to restate them at length here. For the convenience of the reader, we briefly note that, in 2005, Appellant and her late husband, Sean Ackerman, executed and delivered a mortgage to Mortgage Electronic Registration Systems Inc., the predecessor in interest of Appellee, Deutsche Bank National Trust Company. Appellant defaulted on the mortgage on May 1, 2015, and Appellee sent an Act 91 notice to Appellant on July 1, 2015. See 35 P.S. §§ 1680.401c-1680.412c. Appellee commenced a foreclosure action against Appellant in 2016 and entered judgment in 2018, and the property was sold at sheriff's sale on January 7, 2019. Appellant subsequently filed a petition to set aside sheriff's sale, which the trial court denied on January 29, 2019. On February 28, 2019, Appellant filed this timely appeal.
Appellant filed her statement of errors complained of on appeal on March 21, 2019. The trial court entered its opinion on April 29, 2019. --------
Appellant now presents the following issue for our review:
Whether the Common Pleas Court erred in denying the petition to set aside sheriff's sale where [Appellee]'s Act 91 notice was defective and premature?Appellant's Brief at 2.
"A petition to set aside a sheriff's sale is grounded in equitable principles." Wells Fargo Bank N.A. v. Zumer , 205 A.3d 1241, 1244 (Pa. Super. 2019) (citations and internal brackets and quotation marks omitted).
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.GMAC Mortgage Corporation of PA v. Buchanan , 929 A.2d 1164, 1167 (Pa. Super. 2007) (citations omitted).
Upon petition of any party in interest before delivery of . . . the sheriff's deed to real property, the court may, upon proper cause
shown, set aside the sale and order a resale or enter any other order which may be just and proper under the circumstances.Pa.R.C.P. 3132.
After a thorough review of the record, the briefs of the parties, the applicable law, and the well-reasoned opinion of the Honorable John T. McVay, Jr., we conclude that Appellant's issue merits no relief. The trial court opinion comprehensively discusses and properly disposes of that question. See Trial Court Opinion, filed April 29, 2019, at 3-7 (finding: (1) the Act 91 notice was not premature, because it was sent "at least" 60 days after the default, the minimum time required by statute; and (2) the Act 91 notice properly itemized the amount to cure the default). Our only addition is that Appellant's reliance on JP Morgan Chase Bank , N.A. v. Taggart , 203 A.3d 187 (Pa. 2019), is misplaced. Appellant's Brief at 5-6. Taggart , 203 A.3d at 189, analyzed the sufficiency of a pre-foreclosure notice under Act 6, 41 P.S. §§ 101-605, not Act 91. Taggart , 203 A.3d at 195, also held only that a new pre-foreclosure notice is required "each time the lender initiates a mortgage foreclosure action[,]" whereas, in the current action, Appellee commenced only one foreclosure action against Appellant. Consequently, Taggart is inapposite. The trial court hence did not abuse its discretion by denying Appellant's petition to set aside sheriff's sale. See GMAC , 929 A.2d at 1167. The parties are instructed to attach the opinion of the trial court in any filings referencing this Court's decision.
Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 10/18/2019
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