Bank of New York v, Foster, R.

• Court: Superior Court of Pennsylvania
• Decided: December 23, 2014
• Docket: 53 EDA 2014
• Status: Unpublished

Opinion

J-A30005-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

BANK OF NEW YORK, MELLON FKA BANK IN THE SUPERIOR COURT OF OF NEW YORK SUCCESSOR TO JP PENNSYLVANIA MORGAN CHASE BANK AS TRUSTEE FOR THE HOLDERS OF THE STRUCTURED ASSETS SECURITY MORTGAGE PASS THROUGH CERTIFICATES SERIES 2003- BC2

Appellee

v.

ROBERT FOSTER

Appellant No. 53 EDA 2014

Appeal from the Order November 18, 2013 In the Court of Common Pleas of Delaware County Civil Division at No(s): 2010-000946

BEFORE: LAZARUS, J., MUNDY, J., and PLATT, J.*

JUDGMENT ORDER BY LAZARUS, J.: FILED DECEMBER 23, 2014

Robert Foster appeals from the order entered in the Court of Common

Pleas of Delaware County denying his motion to postpone/stay ejectment

from residential home. Due to Foster’s failure to preserve his claims for

appellate review, we affirm.

This matter stems from a foreclosure action. On November 15, 2013,

Foster filed an emergency motion to postpone/stay ejectment from

residential home. An emergency hearing occurred on November 18, 2013.

____________________________________________

* Retired Senior Judge assigned to the Superior Court. J-A30005-14

At the hearing, Foster argued that the ejectment action should be stayed to

permit his counsel to file a nunc pro tunc motion to set aside the Sheriff’s

sale. The court denied Foster’s motion following the hearing, characterizing

it as a collateral attack on the foreclosure action.1 This timely appeal

followed.

On appeal, Foster challenges the trial court’s decision to deny his

motion to postpone/stay the ejectment proceedings. However, Foster has

waived his claims. See Pa.R.A.P. 1925(b)(4)(vii) (issues not included in

Rule 1925(b) statement are waived); see also, Commonwealth v.

Kearney, 92 A.3d 51 (Pa. Super. 2014) quoting Commonwealth v. Lord,

719 A.2d 306, 309 (Pa. 1998) (“Any issues not raised in a Pa.R.A.P. 1925(b)

statement will be deemed waived.”). Specifically, Foster’s concise statement

of errors complained of on appeal is a nearly verbatim restatement of his

November 15, 2013 emergency motion and does not include his issues on

appeal. Because Foster failed to include his appellate issues in his Rule

1925(b) statement, we are constrained to affirm. Lord, supra.

Order affirmed. ____________________________________________

1 We note that a Sheriff’s sale or foreclosure judgment is only open to attack on the grounds of fraud, or want of authority in the officers making the sale. See Roberts v. Gibson, 251 A.2d 799, 800 (Pa. Super. 1969). Thus it follows that an attack on a Sheriff’s sale usually cannot be made in a collateral proceeding. Caplan v. Kent, 76 A.2d 764 (Pa. 1950). An ejectment action is a proceeding collateral to that under which the land was sold. Mencke v. Rosenberg, 51 A. 767, 769 (Pa. 1902). Accordingly, Foster’s challenge is an impermissible collateral attack on the Sheriff’s sale.

-2- J-A30005-14

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 12/23/2014

-3-