PNC Bank, N.A. v. Unknown Heirs

929 A.2d 219, 2007 Pa. Super. 212, 2007 Pa. Super. LEXIS 2088
CourtSuperior Court of Pennsylvania
DecidedJuly 16, 2007
StatusPublished
Cited by63 cases

This text of 929 A.2d 219 (PNC Bank, N.A. v. Unknown Heirs) 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
PNC Bank, N.A. v. Unknown Heirs, 929 A.2d 219, 2007 Pa. Super. 212, 2007 Pa. Super. LEXIS 2088 (Pa. Ct. App. 2007).

Opinion

OPINION BY

JOYCE, J.:

¶ 1 Appellants, Unknown Heirs, Successors, Assigns, and All Persons, Firms or Associations Claiming Right, Title or Interest From or Under James C. Waters, Deceased, appeal from the February 24, 2006 order entered in the Court of Common Pleas of Philadelphia County that denied Appellants’ petition to open a default judgment obtained by Appellee, PNC Bank, N.A. For the following reasons, we reverse. The relevant facts and procedural history follow.

¶2 On April 7, 2005, Appellee filed a complaint in mortgage foreclosure against Appellants for the property owned by James C. Waters at 1631 South Newkirk Street, Philadelphia. In the complaint, Appellee alleged that James C. Waters executed a mortgage upon the aforementioned premises on July 30, 1993, and had not made a monthly payment of principal and/or interest since September 1, 2004. Appellee filed the action against Appellants after learning that James C. Waters had died. Appellee averred that James C. Waters’ heirs and/or personal representative are unknown and that, as of April 6, 2005, an estate had not been opened.

¶ 3 Appellee filed a motion for alternative service on May 10, 2005. Therein, Appellee made the following averments:

1. On 7/30/93, JAMES C. WATERS made, executed and delivered a Mortgage upon premises known as 1631 SOUTH NEWKIRK STREET, PHILADELPHIA, PA 19145.
2. The loan is in default as payments due 9/1/04 and each month thereafter are due and unpaid.
3. Mortgagor, JAMES C. WATERS, died on 10/14/04, and upon information and belief, his surviving heirs at law are unknown. Any parties who may have an interest in the mortgaged premises are unknown to [Appellee]. Attached hereto, marked as Exhibit “A” is a true and correct copy of [Appellee’s] Affidavit of Good Faith Investigation.
4. [Appellee] contacted the Register of Wills of Philadelphia County and was informed no estate has been raised on *222 behalf of JAMES C. WATERS, the decedent mortgagor.
5. On 2/22/05, [Appellee] was contacted by JOE WATERS who stated that he is the brother of JAMES C. WATERS. JOE WATERS stated that his brother was not married and had no children at the time of his death. JOE WATERS did not provide any additional heir information for JAMES C. WATERS, DECEASED.
6. By letter dated 3/15/05, [Appellee] attempted to contact JOE WATERS, Possible Heir of JAMES C. WATERS, DECEASED to inform him of the foreclosure. [Appellee] attached with its letter a waiver by heir of right to be named as a defendant. [Appellee] also requested additional heir information for JAMES C. WATERS, DECEASED. To date, [Appellee] has received no further response or executed waiver from JOE WATERS. Attached hereto, marked as Exhibit “B” is a true and correct copy of [Appellee’s] letter.
7. On 4/7/05, [Appellee] filed an Action in Mortgage Foreclosure naming as defendant, the UNKNOWN HEIRS, SUCCESSORS, ASSIGNS, AND ALL PERSONS, FIRMS, OR ASSOCIATIONS CLAIMING RIGHT, TITLE, OR INTEREST FROM OR UNDER JAMES C. WATERS, DECEASED. Attached hereto, marked as Exhibit “C” is a true and correct copy of the Complaint in Mortgage Foreclosure, which sets forth that defendants are unknown to [Appel-lee].
8. [Appellee] hereby releases mortgagor, JAMES C. WATERS, from liability for the debt secured by the mortgage.
9. On 4/13/05, [Appellee] attempted service of the Complaint on the UNKNOWN HEIRS OF JAMES C. WATERS, DECEASED, at the mortgaged premises. Service was not made. The mortgaged premises of 1631 SOUTH NEWKIRK STREET, PHILADELPHIA, PA 19145 is vacant. Attached hereto, marked as Exhibit “D” is a true and correct copy of the Affidavit of no Service.
10. On 4/13/05, [Appellee] attempted service of the Complaint on [Appellants] at the mailing address of 744 SOUTH 18TH STREET, PHILADELPHIA, PA 19146. Service was not made. Attached hereto, marked as Exhibit “E” is a true and correct copy of the Affidavit of no Service.
11. On 4/13/05, [Appellee] attempted service of the Complaint on [Appellants] at the mailing address of 1216 SOUTH 8TH STREET, PHILADELPHIA, PA 19147. Service was not made. Attached hereto, marked as Exhibit “F” is a true and correct copy of the Affidavit of no Service.
12. In order to convey clear and marketable title after a foreclosure sale, title companies customarily require the foreclosing mortgagee name as a defendant the unknown heirs, successors, assigns and all persons, firms or associations claiming right, title or interest from or under the decedent mortgagor.
13. It deserves special mention that [Appellee’s] action is merely seeking a judgment in rem in order to divest all claims against the mortgaged premises.
14. Because there may be parties with an interest in the mortgaged premises who [Appellee] does not know of, [Ap-pellee] must effectuate service through Special Order of Court.
WHEREFORE, [Appellee] respectfully requests this Honorable Court enter an Order pursuant to Pa.R.C.P. 430 directing service of the Complaint, and all future pleadings by publication and posting of the premises.

*223 Certified Record, at 1. In the attached Affidavit of Good Faith Investigation, a member of the research firm stated that he checked credit information, the National Address database, voter registration records, death records, records of public licensure, and driver’s license information. He also performed a directory assistance search and inquired of neighbors. This researcher indicated that he did not obtain any information regarding the mortgagor. However, one of the mortgagor’s neighbors confirmed that the mortgagor’s brother, Joe Waters, worked at the law offices of Vincent Melchiorre, Esquire. Appellee also attached a letter that its counsel sent to Joe Waters on March 15, 2005. This letter stated, in relevant part:

Dear Mr. Waters:
Kindly be advised that the Law Offices of Phelan Hallinan & Schmieg, LLP represent [Appellee], the holder of the mortgage against the above-referenced mortgaged premises. The loan is in default as payments due 9/1/04 and each month thereafter remain due and unpaid. Our office has been retained to bring a foreclosure action.
Our office has been informed of JAMES’ unfortunate death. We are sorry for your loss. As you are a possible heir of JAMES C. WATERS, you were automatically vested with an ownership interest in the mortgaged premises upon his death under 20 Pa.C.S.A. § 301(b). Accordingly, it will be necessary to bring a foreclosure action against your interest in the property.
This letter serves to afford you an opportunity to waive your right to be named as a defendant in the foreclosure action. Please find attached a Waiver which I would appreciate your executing and returning to the undersigned within fourteen (14) days of the date of this correspondence.

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Bluebook (online)
929 A.2d 219, 2007 Pa. Super. 212, 2007 Pa. Super. LEXIS 2088, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pnc-bank-na-v-unknown-heirs-pasuperct-2007.