Provident National Bank, N.A. v. Song

832 A.2d 1077, 2003 Pa. Super. 333, 2003 Pa. Super. LEXIS 2830
CourtSuperior Court of Pennsylvania
DecidedSeptember 9, 2003
StatusPublished
Cited by18 cases

This text of 832 A.2d 1077 (Provident National Bank, N.A. v. Song) 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
Provident National Bank, N.A. v. Song, 832 A.2d 1077, 2003 Pa. Super. 333, 2003 Pa. Super. LEXIS 2830 (Pa. Ct. App. 2003).

Opinions

JOHNSON, J.

¶ 1 Jen-Shenn Song and Sue-Jen Song appeal, pro se, from an order denying their Petition to set aside the Sheriffs Sale of their real property. The Songs contend that it was error for the trial court to affirm the sheriffs sale because Provident National Bank (hereinafter “the Bank”) conducted an unfair sale, unfairly marketed the property, undersold the property and misstated the true debt owed on the property. The Songs also contend that their due process rights were violated because the Bank failed to provide them with adequate notice of the total debt to be paid and that there is a material dispute regarding the amount of interest owed on the debt. Upon review, we find no error and thus affirm the trial court’s order.

¶ 2 The record establishes the following facts and procedural history:

[1079]*1079[The Songs] are the former owners of three properties identified as 511 Thomas Road, Downingtown, Pennsylvania; 512 Thomas Road, Downingtown, Pennsylvania; and 5 Ingleside Drive (Lot 21-4), Coatesville, Pennsylvania. On December 19, 1989, [the Songs] obtained a home equity line of credit from [the Bank] in the amount of $170,000. Mortgage instruments were executed on the above named properties in order to secure this line of credit. On October 15, 1992, [the Bank] filed a Complaint in Mortgage Foreclosure alleging that [the Songs] had defaulted on their mortgage payment and had failed to make a payment since June 5, 1992. The Complaint alleged that [the Songs] failed to pay $188,715.78 on this debt. [The Songs] accepted service of this Complaint on December 7,1992.
[The Songs] filed a response to this Complaint, pro se [,] and admitted the mortgage debt, admitted they received all the notices, and admitted that they did not cure the default and did not have the assets to pay this debt. On June 10, 1992, [the Bank] filed a Motion for Summary Judgment, which was granted on July 26, 1993 in the amount of $196,117.21 by the Honorable Paula Francisco Ott.
From 1993 until 2001, [the Bank] scheduled numerous sales of these properties through the Sheriff of Chester County. The sales were continued numerous times: six times due to six separate bankruptcy filings by [the Songs], and several other times by mutual consent of the parties in order to afford [the Songs] the opportunity to make partial payments and avoid sale of the properties. [The Songs] failed to make the promised payments. Finally, the three properties were sold at sheriffs sale on March 16, 2001 for one dollar.
On March 29, 2001, [the Songs] filed a Petition to Set Aside Sheriffs Sale. [The Songs’] petition was denied following a hearing on December 16, 2002.

Trial Court Opinion, 2/11/03, at 1-2. The Songs now appeal and raise the following issues for this Court’s review:

A. WHETHER THE LOWER COURT ERRONEOUSLY AFFIRMED THE SHERIFF’S SALE SINCE THE LENDER CONDUCTED AN UNFAIR SALE, UNFAIRLY MARKETED THE PROPERTY, ERRONEOUSLY STATED THE TRUE DEBT OWED ON THE PROPERTY AND UNDERSOLD THE PROPERTY?
B. WHETHER THE LENDER’S FAILURE TO PROVIDE ADEQUATE NOTICE OF THE ALLEGED TOTAL DEBT TO BE PAID AT THE SHERIFF’S SALE IS A VIOLATION OF DUE PROCESS?
C. WHETHER A JUSTIFIED MATERIAL DISPUTE EXISTS AS TO THE AMOUNT OF INTEREST OWED ON A DEBT IS A GOOD CAUSE TO SET ASIDE A SHERIFF’S SALE?

Brief for Appellant at 4.

¶ 3 Before we address the merits of these claims, however, we must determine whether they are properly before us for appellate review. In its brief, the Bank contends that issues B and C, set forth above, are waived because the Songs failed to raise them in both their Statement of Matters Complained Of On Appeal and their Petition to Set Aside the Sheriff Sale of Real Property. Brief for Appellee at 9. Moreover, in its 1925(a) opinion, the trial court acknowledges that the Songs’ Statement of Matters Complained of on Appeal failed to specifically enumerate the alleged [1080]*1080errors made by the trial court, and thus handicapped its ability to directly address the issues underlying the Songs’ appeal.

¶ 4 Pennsylvania Rule of Appellate Procedure 1925(b) allows the trial court to issue an order directing the appellant to serve on the trial judge a concise statement of matters complained of on appeal no later than 14 days after entry of such an order. See Pa.R.A.P.1925(b); see also Giles v. Douglass, 747 A.2d 1236 (Pa.Super.2000). Rule 1925(b) states in pertinent part:

Rule 1925. Opinion in Support of Order
(b) Direction to file statement of matters complained of. The lower court forthwith may enter an order directing the appellant to file of record in the lower court and serve on the trial judge a concise statement of the matters complained of on the appeal no later than 14 days after entry of such order. A failure to comply with such direction may be considered by the appellate court as a waiver of all objections to the order, ruling or other matter complained of.

Pa.R.A.P.1925(b). The Supreme Court discussed Rule 1925(b) in Commonwealth v. Lord, 553 Pa. 415, 719 A.2d 306 (1998). In Lord, the Court held that “from this date forward, in order to preserve their claims for appellate review, Appellants must comply whenever the trial court orders them to file a Statement of Matters Complained of on Appeal pursuant to Rule 1925. Any issues not raised in a 1925(b) statement will be deemed waived.” Id. at 309. This Court later addressed Lord in Commonwealth v. Overby, 744 A.2d 797 (Pa.Super.2000). In Overby, the trial court directed appellant to file a Rule 1925(b) statement, but the appellant failed to comply with the order. See id. The trial court determined that it was without a basis to render an opinion, but suggested a dismissal of the appeal as the record was free from error. See id. On appeal, this Court deemed all issues raised on appeal to be waived because appellant’s failure to adhere to the court order hampered the trial court’s ability to prepare its 1925(a) opinion and thereby hindered the appellate review process. See id. at 798.

¶ 5 In the present case, the Songs filed a timely document titled “Concise Statement of Matters Complained of on Appeal.” However, the document, which contained twenty-six numbered paragraphs, failed to specifically enumerate any alleged errors made by the trial court. As a result of the defective document, the trial court was unable to specially address the claims that the Songs raise on appeal. Instead, the trial court’s opinion addresses the arguments that the Songs raised in their petition to set aside the sheriffs sale and sets forth its rationale for denying the Songs’ petition. The Songs contend that English is not their primary language, and therefore urge this Court not to “penalize” them for “reducing]” and “rewordfing]” the Statement of Matters Complained of on Appeal into “three main issues.” Reply Brief for Appellant at 5-6. We are compelled to conclude, however, that the “three main issues” the Songs seek to raise now are not apparent in their 1925(b) statement.

¶ 6 In

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Citizens Bank v. Smith, J. and Smith, T.
Superior Court of Pennsylvania, 2023
City of Philadelphia v. D. Hart ~ Appeal of: O. Wiggins
Commonwealth Court of Pennsylvania, 2020
Wilmington Savings v. Stewart, T.
Superior Court of Pennsylvania, 2018
Wells Fargo Bank, N.A. v. Doughty, T.
Superior Court of Pennsylvania, 2018
The Bank of New York Mellon v. O'Quinn, A.
Superior Court of Pennsylvania, 2018
Metro Bank v. Howard, D., Jr.
Superior Court of Pennsylvania, 2018
M & T Bank v. ACLI Trading, LLC
Superior Court of Pennsylvania, 2017
Phoenixville Federal Bank v. Puleo, F.
Superior Court of Pennsylvania, 2016
Goldman Sachs v. Cedeno, J.
Superior Court of Pennsylvania, 2015
Nationstar Mortgage, LLC v. Lark
73 A.3d 1265 (Superior Court of Pennsylvania, 2013)
Bank of America v. Estate of Hood
47 A.3d 1208 (Superior Court of Pennsylvania, 2012)
Bank of America, NA v. ESTATE OF HOOD
40 A.3d 1255 (Superior Court of Pennsylvania, 2012)
Allegheny County v. Golf Resort, Inc.
974 A.2d 1242 (Commonwealth Court of Pennsylvania, 2009)
First Union National Bank v. Diamonds & Gold Inc.
850 A.2d 642 (Superior Court of Pennsylvania, 2004)
Provident National Bank, N.A. v. Song
832 A.2d 1077 (Superior Court of Pennsylvania, 2003)

Cite This Page — Counsel Stack

Bluebook (online)
832 A.2d 1077, 2003 Pa. Super. 333, 2003 Pa. Super. LEXIS 2830, Counsel Stack Legal Research, https://law.counselstack.com/opinion/provident-national-bank-na-v-song-pasuperct-2003.