First Eastern Bank, N.A. v. Campstead, Inc.

637 A.2d 1364, 432 Pa. Super. 241, 1994 Pa. Super. LEXIS 544
CourtSuperior Court of Pennsylvania
DecidedMarch 1, 1994
Docket48
StatusPublished
Cited by30 cases

This text of 637 A.2d 1364 (First Eastern Bank, N.A. v. Campstead, Inc.) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
First Eastern Bank, N.A. v. Campstead, Inc., 637 A.2d 1364, 432 Pa. Super. 241, 1994 Pa. Super. LEXIS 544 (Pa. Ct. App. 1994).

Opinions

WIEAND, Judge:

In this appeal we are required to determine the effect of a failure to give notice of a continued sheriffs sale of real estate to a terre tenant. Because the notice requirements of the Rules of Civil Procedure were not complied with, we hold that the sale must be set aside.

On December 13, 1983, Campstead, Inc. executed and delivered to First Eastern Bank a mortgage on 18.71 acres of land in Pike County to secure a loan of seventy-five thousand ($75,000.00) dollars. The mortgage was duly recorded. Campstead subsequently sold 2.457 acres, which First Eastern Bank released from the lien of its mortgage. Thereafter, Campstead conveyed the remaining 16.235 acres to Standard Retail Sales, Inc. This tract was not released from the lien of the mortgage and remained subject thereto. When Standard Retail Sales subsequently sold 11.003 acres, however, this portion was released from the lien of the mortgage. When the mortgage went into default on or about June 15, 1990, only 5.232 acres remained subject to the mortgage, and it was against this tract that mortgage foreclosure proceedings were commenced.

The same tract of 5.232 acres was sold for nonpayment of taxes by the Pike County Tax Claim Bureau; and on November 12, 1990, a deed therefor was executed and delivered to Frontier Country Realty, Inc. (Frontier). The deed was recorded on the following day.

On December 19,1990, First Eastern Bank issued execution against the tract of 5.232 acres, but the writ failed to name Frontier as a terre tenant. A sale scheduled for February, 1991, was continued, and a continued sale on March 20, 1991, was stayed in response to a petition by Frontier. Following hearing, however, the petition was dismissed by the court on July 22, 1991. A petition to reissue the writ of execution was thereafter filed by First Eastern Bank, and a sheriffs sale was scheduled for December 11,1991. Although Frontier was still not named as terre tenant, it was given notice by letter [244]*244that the sheriffs sale had been scheduled for December 11, 1991. When A1 Saggese, an officer of Frontier, appeared at the time of the sale on December 11, however, he learned that the sale had been continued. Wdien he inquired about a later date, he learned that a date certain had not been set. Later, the continued sale was rescheduled for January 29, 1992. Notice of this sale, however, was not given to Frontier. Saggese, according to the uncontradicted testimony, learned of the continued sale on January 28, 1992, and appeared at the time of the sale on January 29, 1992. He did not bid at that time, and the real estate was sold to First Eastern Bank.

On February 27, 1992, Frontier filed exceptions to the sale and also a petition to set aside the sale. On September 11, 1992, First Eastern Bank assigned its interest in the real estate and mortgage to Symar Management, Inc. (Symar), which was substituted for First Eastern as a party to the pending litigation. The trial court subsequently held a hearing; but, on November 20, 1992, the court dismissed Frontier’s exceptions and petition to set aside the sheriffs sale. The sole reason given for its decision was that Saggese had been present at the sale on January 29, 1992. Frontier appealed.

Appellee filed a motion to quash Frontier’s appeal on grounds that appellant’s brief failed to comply with the appellate rules. The deficiencies in appellant’s brief, however, are not of a type which would impair appellate review. In the exercise of our discretion, therefore, we will deny appellee’s motion to quash the appeal. See, e.g.: O’Neill v. Checker Motors Corp., 389 Pa.Super. 430, 433, 567 A.2d 680, 681-682 (1989). See also: Thomas v. APSCUF, 101 Pa.Commw. 174, 176-177, 485 A.2d 903, 904-905 (1985). Contrary to appellee’s suggestion, moreover, we have been supplied with transcripts of hearings held in the trial court.

Pa.R.C.P. 3129.1 requires a plaintiff who pursues a writ of execution against real property to file an affidavit setting forth, to the best of the affiant’s knowledge or information and belief, the owner or reputed owner of the real [245]*245property and every other person who has a record interest in the property. “A terre tenant is ‘... one who purchases and takes land subject to the existing lien of a mortgage or judgment against a former owner.’ ” Marra v. Stocker, 532 Pa. 187, 190 n. 4, 615 A.2d 326, 327 n. 4 (1992), quoting Black’s Law Dictionary at p. 1642 (4th ed. 1968). A terre tenant is entitled to receive notice of a sheriffs sale of real estate. Pa.R.C.P. 3129.1 and 3129.2. Frontier was a terre tenant who was entitled to notice of the sheriffs sale in the instant case. Despite its entitlement to notice, the record is clear that First Eastern Bank failed to include Frontier in its affidavit and that throughout most of these proceedings, Frontier was not given the formal notices required by the rules pertaining to sheriffs sales.

Although an officer of Frontier was present at the sale which was scheduled for December 11, 1991, the sale was not held. It was continued indefinitely, and no date certain was then set for the continued sale. By the provisions of Pa. R.C.P. 3129.3, therefore, a new notice of the rescheduled sheriffs sale was required.1 Such notice, however, was not given to Frontier. The notice, therefore, was defective.

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. Meritor Mortgage Corp.—East v. Henderson, 421 Pa.Super. 339, 342, 617 A.2d 1323, 1325-1326 (1992); Scott v. Adal Corp., 353 Pa.Super. 288, 299-300, 509 A.2d 1279, 1285 (1986), allocatur denied, 514 Pa. 643, 523 A.2d 1132 (1987). [246]*246Because notice is “the most basic requirement of due process, [it] must ‘be reasonably calculated to inform interested parties of the pending action, and the information necessary to provide an opportunity to present objections. The form of notice required depends on what is reasonable considering the interests at stake and the burdens of providing notice.’ ” Noetzel v. Glasgow, Inc., 338 Pa.Super. 458, 469, 487 A.2d 1372, 1377 (1985), citing Pennsylvania Coal Mining Assoc. v. Insurance Dept., 471 Pa. 437, 452-453, 370 A.2d 685, 692-693 (1977). Here, the interest at stake was the potential loss of the title to real estate, and the burden of providing adequate notice was slight.

Appellee argues, however, that appellant cannot complain about the lack of notice because a corporate officer, in fact, was present at the January 29th sale. It relies upon a decision of the Commonwealth Court which, in In re Tax Claim Bureau of Lehigh County, 1981 Upset Tax Sale, 96 Pa.Commw. 452, 507 A.2d 1294 (1986),

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Bluebook (online)
637 A.2d 1364, 432 Pa. Super. 241, 1994 Pa. Super. LEXIS 544, Counsel Stack Legal Research, https://law.counselstack.com/opinion/first-eastern-bank-na-v-campstead-inc-pasuperct-1994.