Bank of N.Y. Mellon v. Tarboro

31 Pa. D. & C.5th 526
CourtPennsylvania Court of Common Pleas, Philadelphia County
DecidedAugust 2, 2013
DocketNo. 02181
StatusPublished

This text of 31 Pa. D. & C.5th 526 (Bank of N.Y. Mellon v. Tarboro) 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
Bank of N.Y. Mellon v. Tarboro, 31 Pa. D. & C.5th 526 (Pa. Super. Ct. 2013).

Opinion

TUCKER, J.,

I. PROCEDURAL HISTORY & FACTS

This matter comes before the court from the granting of The Bank of New York Mellon’s (hereinafter referred to as “appellee”) motion to enforce settlement against Robert Lee Tarboro, Jr. (deceased), Robert Tarboro III, and Stacie Tarboro (hereinafter collectively referred to as “appellants” [528]*528and separately as named). On July 21, 2010, appellee, serving as trustee for the holders of the certificates, First Horizon Mortgage Pass-Through Certificates Series FH06-FA3, by First Horizon Home Loans, a division of First Tennessee Bank National Association, Master Servicer, in its capacity as agent for the trustee under the pooling and servicing agreement, filed a complaint in mortgage foreclosure against the appellants for a property located in Philadelphia, PA. Compl. filed (07/21/2010).

On March 27, 2006, in consideration of a loan, Robert Lee Tarboro, Jr., executed and delivered to First Horizon Home Loan Corporation, an “Interest First Note” with a principal amount of one hundred and twenty-seven thousand five hundred dollars ($127,500.00) and initial monthly installments of seven hundred seventeen dollars and nineteen cents ($717.19) payable as to the principal and interest for the first one hundred twenty (120) months. Compl. filed (07/21/2010). Thereafter, the monthly installments were to increase to nine hundred sixty-nine dollars and forty-seven cents ($969.47), commencing on May 1, 2006, with a maturity date of April 1, 2036. Id. This “Interest First Note” was secured by a mortgage on the Philadelphia, PA subject to appellee’s compliant in mortgage foreclosure. Id.

Mortgager, Robert Lee Tarboro Jr. died intestate on December 25, 2009. Compl. filed (07/21/2010). By letter of administration dated January 12, 2010, Stacie Tarboro, the daughter of Robert Lee Tarboro, Jr., and Robert Tarboro III, the son of Robert Lee Tarboro, Jr., were appointed co-administrators of the estate of Robert L. Tarboro, Jr. Id. Appellee’s complaint in mortgage foreclosure seeks the [529]*529balance of the principal and accrued but unpaid interest from January 1, 2010 through July 23, 2010. Id.

Appellants filed their answer to the complaint in mortgage foreclosure on August 18, 2010 and the matter proceeded to litigation. Ans. (08/18/2010). Appellants’ answer was filed by Michael H. Gaier, Esq. (hereinafter referred to as “Attorney Gaier”) on behalf of all appellants. Id. Depositions for this matter were scheduled for March 13, 2012. Mot. to enforce settlement (01/30/2013). The deposition evolved into settlement discussions and a resolution to the underlying action in mortgage foreclosure was reached. Id. A resolution was reached as a result of these discussions; both Stacie Tarboro and Attorney Gaier participated in the deposition/settlement discussions. Id. On April 12, 2012, the court sustained a number of preliminary objections filed by appellee against appellants’ counterclaims to the mortgage foreclosure action. Order entered by J. Panepinto (04/12/2012).

On August 22, 2012, almost five (5) months after the depositions, appellants executed a settlement and release agreement memorializing the terms of the March 2012 deposition settlement. Mot. to enforce settlement (01/30/2013). Appellee remitted fifteen thousand dollars ($15,000.00) to appellants pursuant to the settlement argeement. Id. The appellants failed to comply with the terms of the settlement agreement. Id. On January 9,2013, Christian C. Nduka, Esq. entered his appearance on behalf of appellants (hereinafter referred to as “Attorney Nduka”). Withdraw/entry of appearance of counsel. (01/09/2013).

On January 30, 2013, appellee filed a motion to [530]*530enforce settlement; the response date was February 21, 2013 pursuant to the Philadelphia County Rules of Court. Mot. to enforce settlement (01/30/2013). Instead of filing an answer to appellee’s motion to enforce settlement, Attorney Nduka inadvertently filed a separate motion to enforce settlement with an entirely different control number.1 Mot. to enforce settlement (02/19/2013); N.T. (04/18/2013) at 2-3. Unfortunately, this action resulted in the cumbersome disposition of appellee’s January 2012 motion to enforce settlement.

Essentially, the court granted both appellants and appellee’s’ uncontested motions to enforce settlement, thereby entering conflicting relief. Order entered by J. Tucker (02/28/2013); order entered by J. Tucker (03/14/2013). Appellee filed a motion for reconsideration of the court’s order granting appellants’ motion to enforce settlement. Mot. for reconsideration (03/25/2013). On April 2, 2013, the court issued a rule for the parties to show cause why appellee’s motion for reconsideration should not be granted. Rule issued (04/02/2013). The rule was returnable April 18, 2013 at 10:00 am, Courtroom 675, City Hall, Philadelphia, PA. Id. A Pa.R.C.P. 236 notice of the rule was sent via the Philadelphia County Civil Administration electronic filing system the same day. Notice Given Under Rule 236 (04/02/2013).

On April 18, 2013, the court crier called the instant matter for disposition; although appellants’ counsel was [531]*531present, Ms. Tarboro was not present. N.T. (04/18/2013). After the rule was disposed, the court entered an order vacating the March 2013 order and granted appellee’s motion to enforce settlement. Order entered by J. Tucker (04/18/2013). The court notes irregularities on this order, which states, “Plaintiffs motion for reconsideration and vacate the March 14, 2013 docketed Order is Granted. Defendants motion to Enforce Settlement is Granted.” Id. Clearly, the court meant to grant appellees’ motion to enforce settlement and not appellant’s motion to enforce settlement. Id.

Appellants filed their own motion for reconsideration of the court’s April 18, 2013 order, wherein seeking the following relief: 1) that the settlement and release agreement be set-aside; 2) a reversal of a prior court’s ruling on appellee’s preliminary objections; and 3) a rescission of the settlement and release agreement via a refund of the fifteen thousand dollar ($15,000.00) check remitted to appellants by appellee. Mot. for reconsideration (04/25/2013). On April 30, 2013, the court granted appellants’ motion for reconsideration and reiterated that the March 2013 granting of their motion to enforce settlement agreement was vacated and the granting of appellee’s February 2013 motion to enforce settlement was reinstated.

It is from this order that appellants appeal to the Superior Court. Superior Court Appeal (5/20/2013). On May 23, 2013, the court ordered appellants to file of record a concise statement of matters complained of on appeal pursuant to Pa.R.A.P. 1925(b) (“1925(b) statement”). Order entered by J. Tucker (05/23/2013). [532]*532Appellants complied; appellants allege the following errors committed by the court, verbatim:

1. The Notice of Motion Hearing, dated April 3, 2013, never indicated that Defendant Stacie Tarboro must be present to testify at the motion hearing scheduled on April 18, 2013 at 10:00 A.M. in Courtroom 675, City Hall, Philadelphia, PA 19107. Attached as Exhibit “A” see copy of Notice of Motion Hearing.
2. The Court denied Defendant, Stacie Tarboro, her constitutional rights of notice and opportunity to be heard.

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Bluebook (online)
31 Pa. D. & C.5th 526, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bank-of-ny-mellon-v-tarboro-pactcomplphilad-2013.