Myers v. RB & AK Properties, Inc.

44 Pa. D. & C.5th 430
CourtPennsylvania Court of Common Pleas, Montgomery County
DecidedFebruary 11, 2015
DocketNo. 2013-06890
StatusPublished

This text of 44 Pa. D. & C.5th 430 (Myers v. RB & AK Properties, Inc.) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Montgomery County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Myers v. RB & AK Properties, Inc., 44 Pa. D. & C.5th 430 (Pa. Super. Ct. 2015).

Opinion

CORSO, J.,

Prospective intervenors, [432]*432Albert Martin and Jacob Singer, petitioners, appeal from this court’s order of November 12, 2014 denying their emergency petition to intervene in this action of mortgage foreclosure. The relevant facts are not complex.

On April 2,2013, Harold and VeraMyers, h/w, plaintiffs, filed and the prothonotary duly indexed a complaint in mortgage Foreclosure against defendant, RB & AK Properties, Inc. The property subject to the mortgage is 2752 Mt. Carmel Avenue, Glenside, Montgomery County, Pennsylvania. On October 23,2013, default judgment was entered in favor of plaintiff.

Petitioners purchased the subject property at an upset tax sale held by the Montgomery County Tax Claim Bureau on September 12,2013, and received a deed which was recorded on January 17, 2014.

Whenplaintiffproceededto sell the property at a sheriff’s sale, they discovered that petitioners had purchased the property at an upset tax sale. Petitioners were notified of the pending sheriff’s sale, originally scheduled for June 25, 2014.

On October 7, 2014, the instant “emergency petition to intervene” was filed. Petitioners challenged the validity and enforceability of plaintiffs’ mortgage against “their” property and sought to intervene to protect their financial interest pursuant to Pa. R. C.P. 2327.

On October 5, 2014, the court held a hearing on the emergency petition. At the outset, Martin stated that the substantive issue is whether the plaintiffs’ mortgage is ahead of “my purchase.” Addressing the procedural issue, he stated: “The defendant (plaintiff) has filed a foreclosure action against me, the property owner — I have a deed to [433]*433the property — without my being part of the foreclosure action. So I haven’t had my day in court, so to speak, and I’m here to have that —Petitioners also contended that the mortgage sought to be foreclosed was indexed under an incorrect parcel number.

The hearing concluded with the court continuing the next scheduled sheriff’s sale for sixty (60) days and requesting legal memoranda. Thereafter, on November 10, 2014, the emergency petition was denied “based upon the holding in Financial Freedom, SFC v. Cooper, 21 A.3d 1229 (Pa. Super. 2011).”

Following “request for reconsideration” and denial, on December 8,2014, notice of appeal to the Commonwealth Court from theNovember 10,2014 order was filed. Pursuant to Pa. R.A.P. 1925(b)(1), petitioners filed a timely “concise statement of errors complained of on appeal.” Basically, petitioners state that they had no knowledge, actual or constructive of the mortgage foreclosure proceedings, and that they are “long experienced” in matters of tax sales, and had conducted their “usual careful title search” of the public records to determine if any mortgage or liens existed. They concluded the mortgage was not found and could not be found because it had not been properly indexed.

Petitioners also stated that the Financial Freedom case relied upon by the court “is not applicable to the case at bar”, and that the controlling case is M.J.M. Financial v. Burgess, 533 A.2d 1092 (Pa. Commonwealth, 1987).

Initially, it must be noted that a purchaser at an upset tax sale takes the property subject to all existing mortgages, liens and encumbrances. Section 609, Real Estate Tax [434]*434Sale Law, 72. P.S. Section 5860.609.

Petitioners’ contention that they did not have, nor could they have had constructive notice of plaintiffs’ mortgage is without merit. Petitioners fail to aver or present any evidence that they searched the records of the Prothonotary of Montgomery County or that they searched the alphabetical indexes of the recorder of deeds.

Petitioners assert they did not have constructive notice of this action because the mortgage itself was not properly indexed. A parcel number search is not a complete title search. Also required, among other things, is a search in the Prothonotary’s index. 42 Pa. C.S. §4302(a), provides:

(a) Real property. — Except as otherwise provided by stature or prescribed by general rule...every document affecting title to or any other interest in real property which is filed and indexed in the office of the clerk of the court of common pleas of the county where the real property is situated...shall be constructive notice to all persons of the filing and full contents of such document.”1

By this statute, petitioners did have constructive notice of the mortgage and foreclosure action.

In addition to the lack of notice argument, petitioners’ statement of errors assesrts that the court erred in relying on Financial Freedom, SFC v. Cooper, 21 A.3D 1229 (Pa. Super. 2011) rather than M.J.M. Financial v. Burgess, 111 Pa. Cmwlth. 301, 533 A.2d 1092 (1987). Petitioners, are incorrect. Financial Freedom, SFC is on point and [435]*435controls this case. There, the Superior Court affirmed an order denying the petition of a tax sale purchaser to intervene in a mortgage foreclosure action commenced before the tax sale. The following is language of the court is relevant to this case:

“The right to intervene in an action is governed by Pa. R.C.P. 2327 which states that a person who has a recognized interest in the outcome of the litigation shall be permitted to intervene ‘at any time during the pendency of an action.’ In the instant case, appellant filed his petition to intervene after default judgment was entered in favor of appellee.
To petition the court to intervene after a matter has been finally resolved is not allowed by our Rules of Civil Procedure. It is only during the pendency of an action that the court may allow intervention. Pa. R.C.P. 2327.

The court quoted Blacks Law Dictionary for when an action is pending, and concluded “where a court no longer has power to permit intervention because a matter has been finally adjudicated, a hearing on a petition to intervene would be pointless.”

The appellant, petitioner to intervene, also claimed that he was an indispensable party and needed to be joined. The court stated:

“As appellant acquired his interest during the course of the mortgage foreclosure proceedings, appellant was clearly not required to join him as a party. On this point, the law is well settled. ‘[Ojnce a foreclosure has been commenced, any person or entity acquiring an interest in the property will be bound by the decree and need not [436]*436be joined.”' First Union Mortgage Corp. v. Frempong, 744 A.2d 327, 336 (Pa. Super. 1994) (emphasis added).
It is perfectly well settled that encumbrance[r]s who become such pendente lite

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Related

First Union Mortgage Corp. v. Frempong
744 A.2d 327 (Superior Court of Pennsylvania, 1999)
FINANCIAL FREEDOM, SFC v. Cooper
21 A.3d 1229 (Superior Court of Pennsylvania, 2011)
M.J.M. Financial Services, Inc. v. Burgess
533 A.2d 1092 (Commonwealth Court of Pennsylvania, 1987)

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Bluebook (online)
44 Pa. D. & C.5th 430, Counsel Stack Legal Research, https://law.counselstack.com/opinion/myers-v-rb-ak-properties-inc-pactcomplmontgo-2015.