Aurora Loan Services, LLC v. D'Ambrosio

22 Pa. D. & C.5th 363, 2011 Phila. Ct. Com. Pl. LEXIS 51
CourtPennsylvania Court of Common Pleas, Philadelphia County
DecidedFebruary 23, 2011
Docketno. 3623
StatusPublished

This text of 22 Pa. D. & C.5th 363 (Aurora Loan Services, LLC v. D'Ambrosio) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Philadelphia County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Aurora Loan Services, LLC v. D'Ambrosio, 22 Pa. D. & C.5th 363, 2011 Phila. Ct. Com. Pl. LEXIS 51 (Pa. Super. Ct. 2011).

Opinion

PANEPINTO, J.,

Plaintiff, Aurora Loan Services, LLC, appeals this court’s order of November 19, 2010, which denied plaintiff’s petition for correction of defective execution pursuant to Rule 313 5 (b) and for supplement relief in aid of execution pursuant to Pa.R.C.P. 3118, in an action by plaintiff to foreclose on a defaulted mortgage.

PROCEDURAL AND FACTUAL BACKGROUND

This matter stems from a mortgage foreclosure action filed by plaintiff on December 22, 2008. Plaintiff filed a praecipe for entry of default against defendant on [365]*365November 18,2009 in the amount of $63,925.32. Plaintiff filed a writ of execution on January 11,2010. The property was sold in a sheriff’s sale to plaintiff on April 6, 2010 in the amount of $40,000.00.

On August 31, 2010, plaintiff filed its petition for correction of defective execution pursuant to Rule 313 5 (b) and for supplement relief in aid of execution pursuant to Pa.R.C.P. 3118. In its petition, plaintiff admits that it did not provide Brown Bark with notice of the sheriff’s sale pursuant to Pa.R.C.P. 3129.1-2 (petition at ¶ 9). Plaintiff also admits that Brown Bark’s judgment was recorded on March 12, 2009 at Docket No. 090102485 (petition at ¶8). Despite this, plaintiff alleged that it was unaware of Brown Bark’s lien on the property (petition at ¶10). The sheriff’s sale was allegedly advertised in a newspaper of general circulation and the property was posted with a handbill in accordance with Pa.R.C.P. 3129.1-2 (petition at ¶11). Plaintiff alleged that Brown Bark would not have bid on the property anyway, even if proper notice was provided before the sale took place (petition at ¶13).

Brown Bark filed a reply to the petition on September 15, 2010. Importantly, Brown Bark denied ¶13 of the petition that Brown Bark would not have bid on the property even if it had been given notice of the sale, (reply to petition ¶13). In response to ¶10 of the petition, which alleged plaintiff performed a reasonable search to ascertain liens on the property, Brown Bark brought to the court’s attention that plaintiff provided no evidence of such a reasonable search (reply to petition ¶10).

The petition was denied by this court in a November 19, 2010 order, which was docketed November 22, 2010. Plaintiff filed this appeal to the Superior Court on December 20,2010. Plaintiff also filed a motion for [366]*366reconsideration on December 21, 2010 of this court’s November 19, 2010 order. Brown Bark filed a reply in opposition to the motion for reconsideration on December 21,2010. This court denied the motion for reconsideration in a December 22, 2010 order, docketed December 23, 2010.

On December 23, 2010, this court entered an order directing plaintiff to file a concise statement of errors complained of on appeal. On January 11, 2011, plaintiff filed its concise statement of errors.

ALLEGATIONS OF ERROR

On December 23, 2010, this court entered an order directing plaintiff to file a Rule 1925(b) statement no later than 21 days after the entry of the order. Plaintiff filed a Rule 1925(b) statement pursuant to this court’s order on January 11, 2011. Plaintiff has raised the following issues on appeal:

1. The trial court committed an error of law and abused its discretion in declining to confirm the sheriff’s sale conducted on April 6, 2010 and divest Brown Bark III, L.P. of its purported interest in the property located at 1536 South 28th Street, Philadelphia, Pa. (the 28th Street Property) pursuant to Pa. R.C.P. 3118.
2. The trial court erred in failing to schedule an evidentiary hearing.
3. The trial court failed to consider recently acquired information, which created equitable grounds for granting plaintiff’s motion as follows:
(a) Brown Bark, III, Ltd. (“Brown Bark”) is the purchaser of a defaulted, unsecured commercial [367]*367loan, guaranteed by the judgment debtor in this matter, Marc D’Ambrosio (“D’Ambrosio”).
(b) Since the entry of an order denying plaintiff’s request for supplemental relief, plaintiff learned that Brown Bark’s judgment is improper and subject to being stricken.
(c) Brown Bark is not in possession of nor the holder of a promissory note which would provide Brown Bark with standing to initiate proceedings against D’Ambrosio. Accordingly, Brown Bark was not lawfully entitled to notice of sheriff’s sale under Pennsylvania Rule of Civil Procedure 3129 and it is inequitable to permit Brown Bark to therefore obtain a windfall to which it is not lawfully entitled.
4. There is no dispute that even if Brown Bark had notice of the sheriff’s sale, it would not have bid on the property at the time of the sale since the bank’s prior judgment in mortgage foreclosure exceeded the fair market value of the property.
5. Aurora held a judgment in foreclosure in the approximate amount of $70,000.00 and the fair market value of the 28th Street property was only $42,000.00. Consequently, no junior lien holders with notice of the sale bid on the property. Likewise, if Brown Bark had notice, it too would not have offered a bid.
6. Permitting Brown Bark’s judgment (which is approximately $ 112,000.00) to survive as a lien operates to provide Brown Bark a windfall to the detriment, of the foreclosing mortgagee.
[368]*3687. Brown Bark’s judgment is defective. There is no promissory note or any document assigning or transferring any obligation that U.S. Mortgage had with National City to Brown Bark. It is necessary for a creditor to hold the note before it may commence proceedings. U.S. Bank N.A. v. Mallory, 982 A.2d 986 (Pa. Super. 2009). Brown Bark was not a holder let alone a holder in due course permitted to enter judgment. 13 Pa.C.S.A. §3302. Absent the proper endorsement or transfer of the promissory note which Brown Bark alleges to have entered judgment, Brown Bark lacks standing to enforce any obligations of National City.

DISCUSSION

Plaintiff’s petition for correction of defective execution pursuant to rule 3135(b) and for supplement relief in aid of execution pursuant to Pa.R.C.P. 3118 has been properly denied. It should be noted from the outset that several of plaintiff’s allegations of error were not part of the original petition and are being raised now for the first time. In ¶3 of its statement of errors, plaintiff alleges it was error for this court to not consider recently acquired information, which created equitable grounds to grant plaintiff’s motion (statement of errors at ¶3) (emphasis added).

The court in First E. Bank, N.A. v. Campstead, Inc., 637 A.2d 1364 (Pa. Super. 1994), stated the basic rule for notice requirements in such circumstances:

The notice requirements of Pa.R.C.P. 3129.1, 3129.2, and 3129.3 were intended to protect fundamental rights of due process by insuring that persons with an interest in real estate would receive adequate notice before being deprived of their property. Cf. [369]*369Meritor Mortgage Corp. East v. Henderson,

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Related

Scott v. Adal Corp.
509 A.2d 1279 (Supreme Court of Pennsylvania, 1986)
First Eastern Bank, N.A. v. Campstead, Inc.
637 A.2d 1364 (Superior Court of Pennsylvania, 1994)
US Bank N.A. v. Mallory
982 A.2d 986 (Superior Court of Pennsylvania, 2009)
Pennsylvania Coal Mining Ass'n v. Insurance Department
370 A.2d 685 (Supreme Court of Pennsylvania, 1977)
Noetzel v. Glasgow, Inc.
487 A.2d 1372 (Supreme Court of Pennsylvania, 1985)
Meritor Motgage Corp.—East v. Henderson
617 A.2d 1323 (Superior Court of Pennsylvania, 1992)

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22 Pa. D. & C.5th 363, 2011 Phila. Ct. Com. Pl. LEXIS 51, Counsel Stack Legal Research, https://law.counselstack.com/opinion/aurora-loan-services-llc-v-dambrosio-pactcomplphilad-2011.