Penn Security Bank & Trust Co. v. Matchulat

30 Pa. D. & C.3d 427, 1983 Pa. Dist. & Cnty. Dec. LEXIS 146
CourtPennsylvania Court of Common Pleas, Lackawanna County
DecidedDecember 5, 1983
Docketno. 80 Civ. 4512
StatusPublished
Cited by1 cases

This text of 30 Pa. D. & C.3d 427 (Penn Security Bank & Trust Co. v. Matchulat) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Lackawanna County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Penn Security Bank & Trust Co. v. Matchulat, 30 Pa. D. & C.3d 427, 1983 Pa. Dist. & Cnty. Dec. LEXIS 146 (Pa. Super. Ct. 1983).

Opinion

MUNLEY, J.,

Before the court is defendant-petitioner’s request to set aside a sheriffs sale pursuant to Pa.R.C.P. Rule 3132 provides as follows:

“RULE 3132. Setting Aside Sale

Upon petition of any party in interest before delivery of the personal property or of the sheriffs deed to real property, the court may, upon proper cause shown, set aside the sale and order a resale or enter any other order which may be just and proper under the circumstances.”

Petitioners have presented several arguments wherein they complained that a gross inadequacy of price was obtained at the execution sale, that there were irregularities in the notice of the sheriffs sale itself and that respondent bank made fraudulent representations to the defendant-petitioners. Respondent denies each of these complaints and charges that defendant-petitioners were themselves guilty of laches.

[429]*429We find based on a careful review of this record no merit in the petitioner’s complaints and an appropriate order will be entered discharging their rule.

The facts established that the bank approved a mortgage in 1976 for petitioners, on a property owned by them individually, and located in Springbrook Township. The amount of the mortgage indebtedness was $41,500. It appears that the bank instituted an action to foreclose on the mortgage, on August 7, 1980, as a result of petitioner’s failure to make their required payments on the mortgage obligation. At the time of the institution of foreclosure proceedings defendant had been in default on their mortgage for over a year.

On October 19, 1981, the bank praeciped the court to enter a judgment against petitioners, damages were assessed in the amount of $28,502.48 and then respondent praeciped the clerk of judicial records to issue a writ of execution for that amount. The original sale was scheduled and advertised to be held on November 17, 1981 but it was postponed until the next regularly scheduled sale, December 22, 1981, at the request of petitioners’ attorney, who was present at the November 17, 1981 proceeding. On December 22, 1981, the sheriff’s sale was conducted, no interested buyers appeared to bid on the property, and respondent bank purchased the property with a bid in the amount of $31,468.03, representing costs and delinquent taxes.

Following the sale the sheriff filed its schedule of distribution of proceeds on December 22, 1981. No exceptions, objections, nor any petition to set aside the sale was filed by petitioners, until June 4, 1982 when they obtained the rule to show cause why the December 22, 1981 sale should not be set aside.

[430]*430The applicable legal principles are well established; the burden of proof in proceeding to set aside a sale is generally said to be on the applicant; the applicant must establish his claim by clear proof and by a preponderance of the evidence. To set aside an execution sale on the basis of fraud, it is petitioner’s burden to establish the fraud by clear, precise and indubitable evidence. Charles v. Smith, 29 Pa. Super. 594 (1905); Bankers Bond Mortgage Company V.I.H. Corp., 53 Del. Co. Rep. 473 (1966); 13 Stand. Pa. Prac. 2d § 76:75; and of course there is a presumption in favor of regularity under the circumstances Id. Section 76:88. The determination of an application to set aside an execution sale rests largely in the discretion of the court and that decision will not be set aside in the absence of a manifest abuse of discretion. Id. Section 76:76.

“Mere inadequacy” of price is not sufficient in itself to warrant setting aside an execution sale but a “grossly inadequate” price will support a sufficient basis for such action, Union Bank v. Turnbull, 17 Craw. Co. Leg. J. (Pa.) 317 (1982); 9 Goodrich Amram 2d, at page 341, Section 3132:2, a sale will not be set aside for minor deviations in the advertising unless there is evidence adduced by the Petitioner that persons were actually mislead or deterred by the misdescription or that it resulted in a great inadequacy of price. Id. Section 3132.4; 13 Stand. Pa. 2d §76:61.

We have reviewed the depositions as well as the changed subdivision requirements in Springbrook Township and have taken into consideration the market value of property as opined by the various experts and we find that the price obtained was not unusual under the circumstances. The alleged inadequacy of price does not appear to be so “gross” as to impel the court to call upon the interposition of [431]*431the hand of equity by way of setting aside the sale. The price obtained was over 50 percent of the fair market value as established by the Appraiser, Frank Mikuta, and Petitioners bring forth no prospective bidders nor any evidence of other offers to secure a better price at another sale.

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30 Pa. D. & C.3d 427, 1983 Pa. Dist. & Cnty. Dec. LEXIS 146, Counsel Stack Legal Research, https://law.counselstack.com/opinion/penn-security-bank-trust-co-v-matchulat-pactcompllackaw-1983.