Reverse Mortgage Solutions v. Gibson, J.

• Court: Superior Court of Pennsylvania
• Decided: April 24, 2019
• Docket: 2856 EDA 2018
• Status: Unpublished

Opinion

J-S08002-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

REVERSE MORTGAGE SOLUTIONS, INC., IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

JOCELYN GIBSON, KNOWN HEIR OF LILLIAN R. GIBSON,

Appellant No. 2856 EDA 2018

Appeal from the Order Entered August 31, 2018 In the Court of Common Pleas of Montgomery County Civil Division at No(s): 2015-02471

BEFORE: BENDER, P.J.E., KUNSELMAN, J., and STEVENS, P.J.E.*

MEMORANDUM BY BENDER, P.J.E.: FILED APRIL 24, 2019

Appellant, Jocelyn Gibson, known heir of Lillian R. Gibson, appeals from

the August 31, 2018 order denying her emergency motion to void, set aside,

and nullify the sheriff’s sale of the property located at 1607 Reservoir Avenue,

Willow Grove, PA (“the Property”). After careful review, we affirm.

This matter arises from a complaint in mortgage foreclosure filed by

Reverse Mortgage Solutions, Inc. (“Reverse Mortgage”) on February 2, 2015,

against Appellant. The Property was subsequently sold to Reverse Mortgage

at a sheriff’s sale on June 27, 2018. We need not reiterate the history of this

case at length herein, as the trial court sufficiently set forth the relevant facts

____________________________________________

* Former Justice specially assigned to the Superior Court. J-S08002-19

and procedural history in its November 16, 2018 opinion. See Trial Court

Opinion, 11/16/18, at 1-4.

On October 1, 2018, Appellant filed a timely notice of appeal. Herein,

Appellant presents the following issue for our review:

Whether the April 25, 2018[] filing by [Reverse Mortgage] of a new motion for a postponement of the sheriff[’s] sale for [the Property] before Judge Bertin of the Montgomery County Court of Common Pleas as opposed to filing a motion for reconsideration before Judge Moore to remove the requirement that the sheriff[’s] sale be postponed pending dispositions of pending motions was fraud on the court[?]

Appellant’s Brief at 8 (unnecessary capitalization omitted).

We have reviewed the certified record, the briefs of the parties, and the

applicable law. Additionally, we have reviewed the thorough opinion of the

Honorable Bernard A. Moore of the Court of Common Pleas of Montgomery

County, entered on November 16, 2018. We conclude that Judge Moore’s

well-reasoned opinion accurately disposes of the issues presented, and we

discern no abuse of discretion or error of law. Accordingly, we adopt Judge

Moore’s opinion as our own and affirm the order denying Appellant’s motion

to void, set aside, and nullify the June 27, 2018 sheriff’s sale.

Order affirmed.

-2- J-S08002-19

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 4/24/19

-3- Circulated 04/02/2019 2015-02471-0115 03:23 PM Opinion, Page 1

IN THE COURT OF COMMON PLEAS OF MONTGOMERY COUNTY, PENNSYLVANIA CIVIL DMSION

REVERSE MORTGAGE SOLUTIONS, INC. Superior Ct. No. 2856 EDA 2018

Plaintiff Comm. Pl. Ct. No. 2015-02471

v. JOCELYN GIBSON, et al

Defendants

OPINION

Moore, S.J. November 16, 2018

I. FACTS AND PROCEDURAL IDSTORY

Plaintiff Reverse Mortgage Solutions, Inc. (hereinafter "Reverse Mortgage") filed a

mortgage foreclosure lawsuit on February 2, 2015, against the Mortgagor, Lillian R. Gibson

(hereinafter Lillian Gibson) seeking possession of property located at 1607 Reservoir Ave.,

Willow Grove, Pennsylvania (hereinafter "the Property"). The original complaint alleged that

the mortgage was in default because the Property was no longer the principal residence of

Lillian Gibson, in violation of the terms of the mortgage.

On October 7, 2016, after learning that Lillian Gibson had died, Reverse Mortgage filed a

Motion to file an Amended Complaint against Lillian Gibson's heirs. A response to this motion

was filed by Jocelyn Gibson in which she stated that she was the owner of the Property and the 2015-02471-0115 Opinion, Page 2

daughter of Lillian Gibson. The Motion to Amend was granted, and on December 14, 2016, an

Amended Complaint was filed, naming all known and heirs as well as any unknown heirs. The

Amended Complaint added as additional grounds of default that taxes and insurance bills had

not been paid. Service of the Amended Complaint on the unknown parties by publication was

allowed by court order. Jocelyn Gibson filed an answer to the Amended Complaint on January

3, 2017.

Reverse Mortgage filed a motion for summary judgment to which no response was filed.

This motion was granted on August 17, 2017. Jocelyn Gibson failed to timely appeal the grant

of swnmary judgement. A Praecipe to Issue Writ of Execution was filed on October 17, 2017.

On November 1, 2017, Gibson filed a "Petition for Leave to Appeal Nunc Pro Tune, Vacate

Judgement and Stay Execution", seeking to appeal the grant of summary judgment. On

December 15, 2017, the undersigned granted Gibson's motion to stay execution proceedings,

including the sheriff's sale scheduled for January 21, 2018, "pending disposition of Defendant's

Petition for Leave to Appeal Nunc Pro Tune, Vacate Judgement in the Court of Common

Pleas." On December 21, 2018, the undersigned amended the Order entered on December 15,

2017 to state that the sheriffs sale was "postponed" rather than "stayed."

2 2015-02471-0115 Opinion, Page 3

While the motion to appeal nunc pro tune was pending, in support of her motion to appeal . nunc pro tune, Jocelyn Gibson sought to subpoena her mail carrier to support her claim that she

did not respond to the motion for summary judgment because she did not receive her mail. This

led to this case being removed to federal court on March 27, 2018. 1 While the case was in

federal court, Plaintiff, Reverse Mortgage, filed a motion to postpone the sheriffs sale until

June 27, 2018 to allow its motion to remand to be ruled upon. Gibson did not oppose Plaintiff's

motion seeking this postponement. Reverse Mortgage's motion was granted and the

postponement of the sale was "extended" until June 27, 2018 by an order signed by the

Honorable Emanuel A. Bertin dated April 25, 2018. Gibson did not seek to appeal this order

postponing the sale until June 27, 2017.

Gibson did not seek any further postponement of the sheriffs sale. Thus, in accordance

with the terms of Judge Bertin's order, the Property was sold to Reverse Mortgage at sheriff's

sale on June 27, 2018. The deed was recorded in the Montgomery County Recorder of Deeds

office on July 23, 2018. On July 6, 2018, Gibson's motion to appeal the grant of summary

judgement nunc pro tune was denied. No appeal was taken of this July 6, 2018 order. On August 21, 2018, approximately a month after the sheriff's deed granting ownership

to Reverse Mortgage was recorded, and over a month after her nunc pro tune appeal of the

grant of summary judgment was denied, Gibson filed an "Emergency Motion to Void, Set Aside and Nullify the June 27, 2018 Sheriff's Sale Based on Fraud." In this motion, the only issue

Gibson argued is that the "coordinate jurisdiction rule" was violated because orders concerning

the postponement of scheduled sheriffs sales were entered by different judges in Montgomery

County. A hearing on this motion was held on August 31, 2018. Following this hearing, on

1This lawsuit was remanded to state court by order of the Honorable Robert Kelly on May 4, 2018, approximately two month prior to the sheriffs sale. 3 2015-02471-0115 Opinion, Page 4

August 31, 2018 this court denied Gibson's motion to set aside the sheriffs sale. This appeal

followed.

Ii. DISCUSSION An appellate court's scope of review in cases such as this is limited to

determining whether the trial court abused its discretion, rendered a decision which

lacked supporting evidence, or clearly erred as a matter of law. City ofAllentown v.

Kauth, 874 A.2d 164, 165 n. 4., In re: Dauphin County Tax Claim Bureau, 834 A.2d

1229 (Pa.Cmwlth.2003). An abuse of discretion occurs when in reaching a decision, "the

law is overridden or misapplied, of the judgment exercised is manifestly unreasonable, or

the result of partiality, bias or ill will." Tullytown Borough v. Armstrong, 129 A.3d 619,

622 (Pa Cmwlth. 2015) appeal denied 145 A3d 729 (Pa. 2016). The burden of proving

circumstances warranting the exercise of the court's equitable powers is on the party

seeking relief. Bornman v. Gordon, 363 Pa. Super. 607, 527 A.2d 109, 111 (1987),

appeal denied, 517 Pa. 620, 538 A.2d 874 (1988). Gibson has not met this burden. !

Gibson's arguments for setting the sheriff's sale aside is that this court had

violated the coordinate jurisdiction rule by vacating the stay of the sheriffs sale. No other

allegation of fraud is set forth by Gibson.

The coordinate jurisdiction rule has no application in this case. As explained in

Zane v. Friends Hospital, 515 Pa. 236, 243, 836 A.2d 25, 29 (2003), the coordinate

jurisdiction rule stands for the proposition that judges of coordinate jurisdiction should

not overrule each other's decisions. The stay and postponement orders in this case were

entered by the undersigned while Gibson pursued a petition to appeal a grant of summary

judgment against her nunc pro tune. The December 15' 2017 order entered by the

undersigned stayed the Sheriff's sale. This order was amended to postpone, rather than 4 2015-02471-0115 Opinion, Page 5

stay the sale. Both of these Orders were entered by the same judge. No appeal was taken

of these orders. The April 25, 2018 order by Judge Bertin which continued the

postponement of the sale did not overrule any orders entered by the undersigned. No

appeal was taken of this order

The orders at issue in this appeal deals with postponements or stays of sheriff's

sales. 2 The orders stayed the Sheriff's Sale due to a pending motion by Gibson to appeal

the grant of summary judgment nunc pro tune and the removal of the case to federal

court. These orders were not contradictory. It cannot be seriously argued that once a

postponement of a Sheriff's sale is granted because of circwnstances that existed at one

point in time, that postponement of stay must go on forever, even when the circumstances

which prompted the stay or postponement no longer exist.

Furthermore, after Judge Benin's order was entered giving a date of June 27,

2018 for the Sheriff's sale, Gibson never sought to stay this sale. Thus, she has waived

any argument in regards to the propriety of allowing the June 27, 2018 sale to go forward.

In addition, Gibson's motion to appeal the grant of summary judgment nunc pro tune was

denied. No appeal of this denial was filed. Therefore, Gibson cannot challenge the grant

of swnmary judgment in Reverse Mortgage's favor, and cannot now argue she was

harmed by the sale going forward.

Finally, Gibson's challenge is untimely pursuant to Pa. R.C. P.3132 and Pa. R.C.

P. 3135. Any petition to set aside a sheriff's sale must be filed before delivery of the

sheriff's deed. This court takes judicial notice that the deed granting ownership of 1607

Reservoir Ave., Willow Grove, Pennsylvania to Reverse Mortgage was recorded on July

2 In Montgomery County, different judges sit in equity at different times, and thus address motions for continuances or postponements of sheriffs sales. 5 2015-02471-0115 Opinion, Page 6

18, 2018.' After the sheriff executed the writ and the deed had been recorded, the court

could not issue an order that had any legal force or effect regarding this requested relief.

See Johnson v. Marlo/el, 797 A.2d 943 (Pa. Super. 2002). The relief requested by Gibson

was moot. Her Emergency Motion to Set Aside and Nullify the June 27, 2018 Sheriffs • Sale Based on Fraud was properly denied for this additional reason.

III. CONCLUSION

For all the above stated reasons, it is respectfully submitted that this Court's order

should be affirmed. BY THE COURT: ··���

BERNARD A MOORE, i.

Cc: Brian J. Slipakoff, Esquire Mark S. Keenheel, Esquire