Nebesho v. Brown

846 A.2d 721, 2004 Pa. Super. 83, 2004 Pa. Super. LEXIS 308
CourtSuperior Court of Pennsylvania
DecidedMarch 26, 2004
StatusPublished
Cited by18 cases

This text of 846 A.2d 721 (Nebesho v. Brown) 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
Nebesho v. Brown, 846 A.2d 721, 2004 Pa. Super. 83, 2004 Pa. Super. LEXIS 308 (Pa. Ct. App. 2004).

Opinion

BENDER, J.

¶ 1 Albert D. Brown (Brown) and Ellen Ann Milos (Milos) individually appeal from the June 5, 2003 Decree that denied their exceptions to the Decree Nisi issued on February 10, 2003. Although Brown and Milos each raise different issues in their appeals to this Court, the underlying equity action filed by Brenda L. Nebesho f/k/a Brenda L. Brown (Nebesho) against Brown and Mhos arose from the same set of facts and was tried before a Chancellor sitting in equity. For that reason, we consolidate the appeals, although we will address each appellant’s issues separately.

¶2 Nebesho filed this equity action seeking to nullify a deed that she alleged contained her forged signature and purported to convey the marital home in which she and Brown lived during their marriage. The deed purported to convey the property to Mhos, who is Brown’s new wife. As found by the Chancellor, Brown either forged Nebesho’s signature or had someone else forge her signature, without Nebesho’s or Milos’s knowledge, to effectuate transfer of the property to Milos. In her complaint, Nebesho requested “rescission of the deed and reconveyance of her undivided one-half interest in the property.” Chancellor’s Opinion (C.O.), 2/10/03, at 1-2. Nebesho also requested an award of counsel fees, costs, and punitive damages.

¶ 3 In the opinion supporting the Decree Nisi, the Chancellor set forth the following recitation of the facts:

Nebesho and Brown were husband and wife until divorcing in March of 1998. During their marriage, they acquired a residence at 3733 Viewpoint Court in Washington Township, Lehigh County. Nebesho vacated their marital home in February or March of 1997, but Brown continued to reside there. At the time of their separation, the property was encumbered by a first mortgage in favor of Federal Mortgage National Bank and a second mortgage held by Household Finance Corporation. Both mortgages were in default. The first mortgagee commenced foreclosure proceedings and the property was eventually scheduled for a Sheriffs sale. During this period, Brown phoned Nebesho and offered her $1,000.00 for her interest in [724]*724the home She rejected this offer, countering that she would be willing to convey her interest for $15,000.00, which counter-offer Brown declined. Thereafter, Nebesho heard nothing further regarding the property until March 2001. Curious that she was no longer receiving notices concerning the foreclosure proceeding, she asked her [new] husband to cheek the records in the Lehigh County Recorder of Deeds Office. Mr. Ne-besho’s inquiries uncovered the July 17, 2000 deed which conveyed the property to Milos for a consideration of $130,000.00.
In the early part of 1998, Nebesho filed a Chapter Seven bankruptcy proceeding. In her Debtor’s Statement of Intention filed with the Bankruptcy Court, she declared that that [sic] the Viewpoint Court property was “to be surrendered” to the mortgage holders. Prior to 2000, the Bankruptcy Court granted Nebesho a discharge which relieved her from any further personal liability on the mortgage notes and any potential liability for a deficiency judgment.
Settlement on the transfer of the Viewpoint Court property to Milos was held on July 31, 2000, at the Hellertown office of William H. Duh, Esquire. Mi-los financed the purchase with a $104,000.00 mortgage loan from Green-point Mortgage Funding, Inc. and approximately $35,000.00 of her own funds. Out of the proceeds of that settlement, the first mortgage to Federal Mortgage National Bank was paid in full in the amount of $122,720.00. The second mortgage was compromised outside of settlement by Milos paying Household Finance the sum of $10,000.00. The settlement statement indicates net proceeds to the sellers of $3,600.00, but that amount was paid to a mortgage broker for his services in arranging the financing for the transaction and negotiating with the mortgage holders. (Exhibit “Brown 2”) Accordingly, neither Brown nor Nebesho realized any money from the settlement. Brown did, however, receive the benefit of being able to continue living in the former marital home which he testified he wanted to do all along. Brown now lives in the home with Milos, whom he has now married.
The deed conveying title to Milos was notarized by Shirley B. Gilbert, a self-employed Allentown notary public. In answers to written interrogatories, Gilbert stated that she had no independent recollection of the transaction, could find no records pertaining to same, and could not remember either Brown or Nebesho being in her office. However, she indicated that she would not have notarized a document unless both subscribers appeared before her and presented photo identification.... Brown testified that both he and Nebesho arrived at Gilbert’s office in separate vehicles, entered together, presented their photo LD.’s and signed the deed in Gilbert’s presence.
Nebesho categorically denied either signing the deed or being in Gilbert’s office on the day the deed was executed.
The deed was dated July 17, 2000, and recorded on July 31, 2000, in Lehigh County Deed Book Volume 1664, at Page 493.
In addition to the pay-off of the second mortgage for the sum of $10,000.00, Milos paid $35,295.69 in down monies and closing costs. Since acquiring title to the property, she has spent $35,299.66 for renovations, repairs and other improvements and $47,524.54 on account of debt service, real estate taxes and insurance.
Milos and Brown were married on December 2, 2001. They both continue to reside in the home.
[725]*725The purported signature of Nebesho on the July 17, 2000 deed is not Ne-besho’s signature but, rather, is a forgery. The identity of the forger was not established during the hearings, but a reasonable inference from the evidence is that Brown either signed his former wife’s name to the deed or arranged for someone else to sign it.

C.O. at 2-5. Additionally, the Chancellor noted that no evidence was produced that tended to prove that Milos was a party to the forgery and, thus, she was deemed a bona fide purchaser for value.

¶ 4 In reaching a decision with regard to what relief should be granted, the Chancellor recognized that to reconvey a one-half interest in the property to Nebesho, who admitted that at the time of the fraudulent conveyance she had no equity in the property, would be inequitable in that Mi-los, who did not participate in or have any knowledge of Brown’s forgery, was a bona fide purchaser for value. Accordingly, the Chancellor issued a Decree Nisi, ordering the reconveyance of an undivided one-half interest in the property to Nebesho, but also requiring Nebesho to reimburse Milos for one-half of the payoffs made on the two mortgages, with the reimbursement to be secured by a lien on the property. The Chancellor also imposed all costs and transfer taxes due in connection with the reconveyance of the property on Brown. Additionally, Nebesho’s claim for counsel fees, costs, and expenses against Brown was granted.

¶ 5 After exceptions to the Decree Nisi were denied by the Chancellor, both Milos and Brown filed appeals to this Court, which we have consolidated. Brown raises the following two issues for our review:

I.Did the trial court err in its determination that plaintiff Nebesho had sustained her burden of proof by clear and convincing evidence?

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Cite This Page — Counsel Stack

Bluebook (online)
846 A.2d 721, 2004 Pa. Super. 83, 2004 Pa. Super. LEXIS 308, Counsel Stack Legal Research, https://law.counselstack.com/opinion/nebesho-v-brown-pasuperct-2004.