Bayview Loan Servicing v. Burth, Q.

• Court: Superior Court of Pennsylvania
• Decided: December 5, 2016
• Docket: 592 EDA 2016
• Status: Unpublished

Opinion

J-S75033-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

BAYVIEW LOAN SERVICING, LLC : IN THE SUPERIOR COURT OF : PENNSYLVANIA v. : : QUANDRA R. HOWIE BURTH, IN HER : CAPACITY AS CO-ADMINISTRATRIX : AND HEIR OF THE ESTATE OF ROBERT : L. HOWIE, TANYA D. HOWIE, IN HER : CAPACITY AS CO-ADMINISTRATRIX : AND HEIR OF THE ESTATE OF ROBERT : L. HOWIE, CHERYL ANN NELSON, : SABRINA HOWIE AND ROSCHAEL : GARFIELD, : : APPEAL OF: TANYA D. HOWIE, HEIR : OF THE ESTATE OF ROBERT L. HOWIE : No. 592 EDA 2016

Appeal from the Order dated January 13, 2016 in the Court of Common Pleas of Philadelphia County, Civil Division, No(s): 121201691

BEFORE: BOWES, MOULTON and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.: FILED DECEMBER 05, 2016

Tanya D. Howie (“Howie”), in her capacity as Co-Administratrix and

heir of the Estate of Robert L. Howie (“the Estate”), appeals, pro se, from

the Order denying her Motion to set aside Sherriff’s Sale, which had been

executed pursuant to a mortgage foreclosure action commenced by J.P.

Morgan Chase Bank, NA (“the Bank”).1, 2 We affirm.

1 Following the entry of judgment in favor of the Bank, the judgment was marked to the use of Bayview Loan Servicing, LLC (“Bayview”). 2 The remaining defendants in the court below are not parties to this appeal. J-S75033-16

The trial court set forth the factual and procedural history of this case,

which we adopt for the purpose of this appeal. See Trial Court Opinion,

4/25/16, at 1-4.

On appeal, Howie raises the following issues for our review:

a. [Whether the trial court erred in not concluding that t]here was lack of service as a result of [the Bank] serving [the] Notice of [s]heriff [s]ale by regular mail and certified mail to [] Howie, [as] Co-Administratrix of the Estate [] and individually on May 1, 2015[,] in accordance with the Order of [c]ourt dated March 6, 2013[,] which granted [the Bank] the authority to serve the Complaint only[,] not the Notice of [s]ale as alleged[?]

b. [Whether the trial court erred in not concluding that the Bank,] through Bayview[,] acted in bad faith in actively negotiating a sale with [] Howie[,] who in good faith presented a willing and able buyer prior to the [s]ale which the exact same [b]uyer subsequently bought the property via the [s]heriff’s [s]ale process[?]

c. [Whether the trial court erred in not concluding that t]he property was sold for a grossly inadequate sales price of $72,000.00 after being valued between $148,000[.00] and $152,810.00 by [the Bank?]

d. [Whether the trial court erred in not concluding that the Bank’s] Response to the Motion to [s]et [a]side [s]heriff’s [s]ale was untimely filed[?]

Brief for Appellant at 4.

In her first issue, Howie contends that there was a defect in the

service of the Notice of the sheriff’s sale because the Bank never sought

leave of court to make alternative service to Howie, and instead relied on a

two-year-old Order granting alternative service of the Complaint. Id. at 24-

25. Howie points to a March 7, 2013, Order, wherein the trial court decreed

-2- J-S75033-16

that the “Complaint and Case Management Order having not been served on

Defendant(s), the Conciliation Conference is cancelled. Plaintiff shall serve

the Complaint on Defendant(s) and thereafter file a Praecipe with the

Prothonotary requesting that the Conciliation Conference be rescheduled.”

Id. at 26. Howie asserts that the Bank thereafter filed a Praecipe to re-

instate the Complaint, but used Affidavits of service dated prior to the March

7, 2013, Order, thereby rendering service of the Complaint ineffective. Id.

The trial court addressed Howie’s first issue, set forth the relevant law,

and concluded that it lacks merit. See Trial Court Opinion, 4/25/16, at 5-6.

We agree with the reasoning of the trial court and affirm on this basis as to

Howie’s first issue. See id.

In her second issue, Howie contends that, pursuant to 41 P.S. § 404,

she had a right to cure her default until one hour before the commencement

of bidding at a judicial sale. Brief for Appellant at 27. Howie asserts that

she “presented the means (a [b]uyer) to satisfy the mortgage in total more

than a month before the sale and was in active negotiation with the [Bank]

less than 5 business days before the [s]ale took place.” Id.

The trial court addressed Howie’s second issue, set forth the relevant

law, and concluded that it lacks merit. See Trial Court Opinion, 4/25/16, at

6-7. We agree with the reasoning of the trial court and affirm on this basis

as to Howie’s second issue. See id.

-3- J-S75033-16

Howie’s brief contains no argument regarding her third issue. See

Pa.R.A.P. 2119(a) (stating that the parties’ briefs must include a discussion

of each question raised on appeal and a “citation of authorities as are

deemed pertinent.”). Moreover, Howie failed to raise this issue in the

“Issues for Appeal” section of her court-ordered Pa.R.A.P. 1925(b) Concise

Statement. See Korman Commercial Props. v. Furniture.com, LLC, 81

A.3d 97, 102 (Pa. Super. 2013) (deeming as waived an issue that was not

raised in the concise statement). Therefore, Howie’s third issue is waived.

In her fourth issue, Howie contends that the trial court penalized her

for not filing a timely answer to the Complaint, resulting in a default

judgment. Brief for Appellant at 28. Howie asserts that the Bank should be

“held to the same standards,” due to the untimely filing of its Opposition to

Howie’s Motion to set aside the sheriff’s sale. Id.

Howie’s fourth argument is woefully underdeveloped, and lacks citation

to the record and pertinent legal authority. See Pa.R.A.P. 2119(a).

Nevertheless, the trial court addressed Howie’s fourth issue, set forth the

relevant law, and concluded that it lacks merit. See Trial Court Opinion,

4/25/16, at 7. We agree with the reasoning of the trial court and affirm on

this basis as to Howie’s fourth issue. See id.

Order affirmed.

-4- J-S75033-16

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 12/5/2016

-5- Circulated 10/31/2016 03:09 PM

COPIES SENT PURSUANT TO Pa.R.C.P. 236(b) 04/25/2016