Ocwen Loan Servicing v. Filimon, G.

• Court: Superior Court of Pennsylvania
• Decided: February 1, 2018
• Docket: 1605 EDA 2017
• Status: Unpublished

Opinion

J-A03035-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

OCWEN LOAN SERVICING, LLC, IN THE SUPERIOR COURT OF PENNSYLVANIA

v.

GHEORGHE FILIMON AND RODICA FILIMON

APPEAL OF: GHEORGHE FILIMON

No. 1605 EDA 2017

Appeal from the Order Dated April 20, 2017 in the Court of Common Pleas of Wayne County Civil Division at No.: 596-CIVIL-2010

BEFORE: GANTMAN, P.J., McLAUGHLIN, J., and PLATT, J.*

JUDGMENT ORDER BY PLATT, J.: FILED FEBRUARY 01, 2018

Appellant, Gheorghe Filimon, appeals pro se from the trial court’s order

denying his motion to vacate the sheriff’s sale as untimely. We affirm.

We take an abbreviated factual and procedural history in this matter

from our review of the certified record. A complaint in mortgage foreclosure

was filed on July 15, 2010. On August 16, 2013, judgment was entered in

favor of Appellee, Ocwen Loan Servicing, LLC, and against Appellant and

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* Retired Senior Judge assigned to the Superior Court. J-A03035-18

Rodica Filimon. On May 4, 2016,1 the property was sold at sheriff’s sale. The

sheriff’s deed was recorded in Wayne County on September 12, 2016.

Appellant filed a motion to vacate sheriff’s sale on September 15, 2016. The

trial court heard argument on the motion to vacate on March 1, 2017, and on

April 20, 2017, denied the motion as untimely. This appeal followed.

The trial court concludes that the motion to vacate was untimely. (See

Trial Court Opinion and Order, 4/20/17, at 1-3). We agree.

We review the denial of a motion to set aside a sheriff’s sale for an abuse

of discretion. See Irwin Union Nat. Bank & Tr. Co. v. Famous, 4 A.3d

1099, 1102 (Pa. Super. 2010), appeal denied, 20 A.3d 1212 (Pa. 2011). Only

when a party proves that a sheriff’s sale was based on fraud, may the trial

court grant a motion to set aside a sheriff’s sale that was filed after the sheriff’s

delivery of the deed. See Mortg. Elec. Registration Sys., Inc. v. Ralich,

982 A.2d 77, 79-80 (Pa. Super. 2009), appeal denied, 992 A.2d 889 (Pa.

2010) (citation omitted). A trial court may not set aside a sale based on

allegations of procedural deficiencies. See id.

Here, the sheriff’s delivery of the deed occurred on September 12, 2016,

and Appellant filed his motion to vacate sale on September 15, 2016. Thus,

unless Appellant proved that the sheriff’s sale was based on fraud, his motion

was untimely. See id.

1 The sheriff’s sale was originally scheduled for February 24, 2016, but was continued until April 27, 2016, and continued again until May 4, 2016. (See N.T. Hearing, 3/01/17, at 4).

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Appellant argues that the sale was based on fraud because he did not

receive notice of his rights prior to commencement of the sheriff’s sale. (See

Motion to Vacate Sheriff Sale, 9/15/16, at unnumbered pages 1-2). However,

as the trial court noted, the record reflects that, on April 12, 2016, Appellant

received notice of the continued sale date. (See Notice of the Date of

Continued Sheriff’s Sale, 4/12/16; see also Certificate of Service, 4/13/16).

Although the notice contained a spelling error in Appellant’s name,2 the error

was not fraudulent, and the court could not vacate the sheriff’s sale based on

procedural deficiencies. (See Trial Ct. Op., at 2).

Upon review, we conclude that the trial court did not abuse its discretion

when it denied Appellant’s motion. We agree that Appellant did not prove that

the sheriff’s sale was based on fraud; therefore, Appellant’s motion, filed after

the sheriff’s deed was recorded, was properly denied as untimely. See Mortg.

Elec. Registration Sys., Inc., supra at 79-80.

Order affirmed. Case is stricken from the argument list.

2 Notice of the continuance was served upon “Gheorge Filimon” and “Rodica Filimon” on April 12, 2016. (See Certificate of Service, 4/13/16). The address at which service was made corresponds with Appellant’s address on the docket.

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 2/1/18

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