J. S29032/19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 KHADIJA SINES, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellant
v. No. 309 EDA 2018
OCWEN LOAN SERVICING, LLC
Appeal from the Order Entered December 11, 2017, inthe Court of Common Pleas of Philadelphia County Civil Division at No. 02775 August Term, 2016
BEFORE: BENDER, P.J.E., LAZARUS, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED AUGUST 07, 2019
Khadija Sines appeals from the December 11, 2017 order entered in the
Court of Common Pleas of Philadelphia County sustaining Ocwen Loan
Servicing, LLC's ("Ocwen") preliminary objections and dismissing appellant's
amended complaint with prejudice. We affirm.
The factual and procedural posture of this case, as gleaned from the
record, is as follows: Appellant defaulted on her mortgage and her home was
sold to U.S. Bank National Association ("U.S. Bank") at sheriff's sale. Ocwen
purchased the mortgage servicing rights to the mortgage and was an agent
for U.S. Bank acting on its behalf. Appellant filed a two -count complaint
against Ocwen alleging violations of the Fair Credit Extension Uniformity Act
and Unfair Trade Practices and Consumer Protection Law and for conversion
of appellant's personal property. (Appellant's amended complaint, 8/24/17.) J. S29032/19
Appellant's conversion claim stemmed from Ocwen's alleged removal of
appellant's personal property from the foreclosed -upon property. Ocwen filed
preliminary objections in the nature of a demurrer to both counts of appellant's
amended complaint. The trial court sustained Ocwen's preliminary objections
and dismissed appellant's amended complaint with prejudice.
Appellant filed a timely notice of appeal. The trial court did not order
appellant to file a concise statement of errors complained of on appeal
pursuant to Pa.R.A.P. 1925(b). However, the trial court did file a Rule 1925(a)
opinion.
Appellant raises the following issue for our review:
Whether the trial court erred in dismissing [appellant's] claim for conversion, with prejudice, for failure to "demand" the return of her property, where the Amended Complaint alleges that during the pendency of an ejectment action, [Ocwen] conducted a 'selfhelp' eviction and dispossessed her, she then entered into an agreement with [Ocwen], entered on record the ejectment action to return possession to her but five days later [Ocwen] breached the agreement and removed her possessions from the home?
Appellant's brief at 4.1
Our standard of review of an order of the trial court overruling or granting preliminary objections is to determine whether the trial court committed an error of law. When considering the appropriateness of a ruling on preliminary objections, the appellate court must apply the same standard as the trial court.
1 We note that appellant does not challenge the dismissal of her claim for violations of the Fair Credit Extension Uniformity Act and Unfair Trade Practices and Consumer Protection Law.
- 2 - J. S29032/19
Preliminary objections in the nature of a demurrer test the legal sufficiency of the complaint. When considering preliminary objections, all material facts set forth in the challenged pleadings are admitted as true, as well as all inferences reasonably deducible therefrom. Preliminary objections which seek the dismissal of a cause of action should be sustained only in cases in which it is clear and free from doubt that the pleader will be unable to prove facts legally sufficient to establish the right to relief. If any doubt exists as to whether a demurrer should be sustained, it should be resolved in favor of overruling the preliminary objections.
Gross v. Nova Chemical Services, Inc., 161 A.3d 257, 262 (Pa.Super.
2017) (citations and brackets omitted).
Here, appellant argues that the trial court erred in sustaining the
preliminary objections when it held that Ocwen's "demurrer was free of
doubt." (Appellant's brief at 10.) Specifically, appellant claims that the trial
court incorrectly held that appellant was required to plead the demand and
refusal requirement for an action of conversion under the theory that Ocwen
unreasonably withheld appellant's property. (Id. at 12-13.) Appellant
contends Ocwen wrongfully came into possession of her property in violation
of an agreement the parties had and, therefore, the demand and refusal
requirement is not required. (Id.) This court has long held that: "[a] conversion is the deprivation of
another's right of property in, or use or possession of, a chattel, or other
interference therewith, without the owner's consent and without lawful
justification." Gottesfeld v. Mechanics & Traders Ins. Co., 173 A.2d 763,
-3 J. S29032/19
766 (Pa.Super. 1961), citing Pearl Assur. Co., Ltd. v. Nat'l Ins. Agency, Inc., 30 A.2d 333 (Pa. 1943). Conversion can be committed by: (1) acquiring
possession of the goods with the intent to exercise dominion and control over
the goods adverse to the owner's rights and for the offender's own personal
use; (2) transferring possession of the goods to another with serious
interference of the owner's right of control; (3) unreasonably withholding
possession of the goods from one who has rights to the goods; or
(4) destroying or seriously damaging the goods in defiance of the owner's
rights. See Norriton East Realty Corp. v. Central -Penn Nat'l Bank, 254
A.2d 637, 638 (Pa. 1969); see also W. Page Keeton et al., Prosser & Keeton on the Law of Torts § 15, p. 95-102 (5th ed. 1984). For possession to be
unreasonably withheld, there must be a demand for and refusal of the return
of the property. Norriton, 254 A.2d at 638-639. However, demand and
refusal is not required for an action of conversion when possession is initially
obtained unlawfully. Id. at 639. Here, a review of the allegations contained in appellant's amended
complaint supports the trial court's conclusion that "[t]he amended complaint
itself reflects that [Ocwen] possessed legal title to the Property and was
attempting to enforce its right to possession of the Property." (Trial court
opinion, 11/9/18 at 1, citing appellant's amended complaint 8/24/17 at
III 6-8.). As Ocwen had legal title to the property and had the right to remove
appellant's items "left in the property," an allegation of demand by appellant
-4 J. S29032/19
for the return of the personal property and a refusal by Ocwen is necessary to
sufficiently plead an action of conversion on the basis that Ocwen
unreasonably withheld possession of the property.
In her amended complaint, appellant admits that her former house was
sold at a sheriff's sale; that Ocwen locked appellant out of the house by
changing the locks; that Ocwen then agreed to "return possession" of the
house to appellant; that appellant packed some of her belongings and needed
to find a new home; and that "five days later" Ocwen "returned and broke into
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J. S29032/19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 KHADIJA SINES, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellant
v. No. 309 EDA 2018
OCWEN LOAN SERVICING, LLC
Appeal from the Order Entered December 11, 2017, inthe Court of Common Pleas of Philadelphia County Civil Division at No. 02775 August Term, 2016
BEFORE: BENDER, P.J.E., LAZARUS, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED AUGUST 07, 2019
Khadija Sines appeals from the December 11, 2017 order entered in the
Court of Common Pleas of Philadelphia County sustaining Ocwen Loan
Servicing, LLC's ("Ocwen") preliminary objections and dismissing appellant's
amended complaint with prejudice. We affirm.
The factual and procedural posture of this case, as gleaned from the
record, is as follows: Appellant defaulted on her mortgage and her home was
sold to U.S. Bank National Association ("U.S. Bank") at sheriff's sale. Ocwen
purchased the mortgage servicing rights to the mortgage and was an agent
for U.S. Bank acting on its behalf. Appellant filed a two -count complaint
against Ocwen alleging violations of the Fair Credit Extension Uniformity Act
and Unfair Trade Practices and Consumer Protection Law and for conversion
of appellant's personal property. (Appellant's amended complaint, 8/24/17.) J. S29032/19
Appellant's conversion claim stemmed from Ocwen's alleged removal of
appellant's personal property from the foreclosed -upon property. Ocwen filed
preliminary objections in the nature of a demurrer to both counts of appellant's
amended complaint. The trial court sustained Ocwen's preliminary objections
and dismissed appellant's amended complaint with prejudice.
Appellant filed a timely notice of appeal. The trial court did not order
appellant to file a concise statement of errors complained of on appeal
pursuant to Pa.R.A.P. 1925(b). However, the trial court did file a Rule 1925(a)
opinion.
Appellant raises the following issue for our review:
Whether the trial court erred in dismissing [appellant's] claim for conversion, with prejudice, for failure to "demand" the return of her property, where the Amended Complaint alleges that during the pendency of an ejectment action, [Ocwen] conducted a 'selfhelp' eviction and dispossessed her, she then entered into an agreement with [Ocwen], entered on record the ejectment action to return possession to her but five days later [Ocwen] breached the agreement and removed her possessions from the home?
Appellant's brief at 4.1
Our standard of review of an order of the trial court overruling or granting preliminary objections is to determine whether the trial court committed an error of law. When considering the appropriateness of a ruling on preliminary objections, the appellate court must apply the same standard as the trial court.
1 We note that appellant does not challenge the dismissal of her claim for violations of the Fair Credit Extension Uniformity Act and Unfair Trade Practices and Consumer Protection Law.
- 2 - J. S29032/19
Preliminary objections in the nature of a demurrer test the legal sufficiency of the complaint. When considering preliminary objections, all material facts set forth in the challenged pleadings are admitted as true, as well as all inferences reasonably deducible therefrom. Preliminary objections which seek the dismissal of a cause of action should be sustained only in cases in which it is clear and free from doubt that the pleader will be unable to prove facts legally sufficient to establish the right to relief. If any doubt exists as to whether a demurrer should be sustained, it should be resolved in favor of overruling the preliminary objections.
Gross v. Nova Chemical Services, Inc., 161 A.3d 257, 262 (Pa.Super.
2017) (citations and brackets omitted).
Here, appellant argues that the trial court erred in sustaining the
preliminary objections when it held that Ocwen's "demurrer was free of
doubt." (Appellant's brief at 10.) Specifically, appellant claims that the trial
court incorrectly held that appellant was required to plead the demand and
refusal requirement for an action of conversion under the theory that Ocwen
unreasonably withheld appellant's property. (Id. at 12-13.) Appellant
contends Ocwen wrongfully came into possession of her property in violation
of an agreement the parties had and, therefore, the demand and refusal
requirement is not required. (Id.) This court has long held that: "[a] conversion is the deprivation of
another's right of property in, or use or possession of, a chattel, or other
interference therewith, without the owner's consent and without lawful
justification." Gottesfeld v. Mechanics & Traders Ins. Co., 173 A.2d 763,
-3 J. S29032/19
766 (Pa.Super. 1961), citing Pearl Assur. Co., Ltd. v. Nat'l Ins. Agency, Inc., 30 A.2d 333 (Pa. 1943). Conversion can be committed by: (1) acquiring
possession of the goods with the intent to exercise dominion and control over
the goods adverse to the owner's rights and for the offender's own personal
use; (2) transferring possession of the goods to another with serious
interference of the owner's right of control; (3) unreasonably withholding
possession of the goods from one who has rights to the goods; or
(4) destroying or seriously damaging the goods in defiance of the owner's
rights. See Norriton East Realty Corp. v. Central -Penn Nat'l Bank, 254
A.2d 637, 638 (Pa. 1969); see also W. Page Keeton et al., Prosser & Keeton on the Law of Torts § 15, p. 95-102 (5th ed. 1984). For possession to be
unreasonably withheld, there must be a demand for and refusal of the return
of the property. Norriton, 254 A.2d at 638-639. However, demand and
refusal is not required for an action of conversion when possession is initially
obtained unlawfully. Id. at 639. Here, a review of the allegations contained in appellant's amended
complaint supports the trial court's conclusion that "[t]he amended complaint
itself reflects that [Ocwen] possessed legal title to the Property and was
attempting to enforce its right to possession of the Property." (Trial court
opinion, 11/9/18 at 1, citing appellant's amended complaint 8/24/17 at
III 6-8.). As Ocwen had legal title to the property and had the right to remove
appellant's items "left in the property," an allegation of demand by appellant
-4 J. S29032/19
for the return of the personal property and a refusal by Ocwen is necessary to
sufficiently plead an action of conversion on the basis that Ocwen
unreasonably withheld possession of the property.
In her amended complaint, appellant admits that her former house was
sold at a sheriff's sale; that Ocwen locked appellant out of the house by
changing the locks; that Ocwen then agreed to "return possession" of the
house to appellant; that appellant packed some of her belongings and needed
to find a new home; and that "five days later" Ocwen "returned and broke into
the home" and "cleaned out all of the remaining possessions that [appellant
had] left in the property." (Appellant's amended complaint, 8/24/17 at 1118,
13, 15, 17-19 (emphasis added).) In her conversion claim, appellant alleges:
30. Ocwen deprived [appellant] and her children of their rights in their personal property, without their lawful consent and without justification.
31. Ocwen's outrageous and egregious conduct was undertaken with reckless disregard to the rights of [appellant] and her children, and warrants the imposition of punitive damages.
Appellant's amended complaint, 8/24/17 at 111130-31. Appellant incorporates
into her conversion claim, inter alia, paragraphs 17 to 19 of her amended
complaint which allege:
17. After possession of the home was returned to [appellant], she began packing her belongings and trying to find a new home for her family.
18. Just five days later, Ocwen returned and broke into the home.
-5 J. S29032/19
19. This time, agents from Ocwen cleaned out all of the remaining possessions that [appellant] has left in the property . . . .
Id. at III 17-19 (emphasis omitted). Appellant's amended complaint reveals she failed to plead any
allegations that she demanded the return of the items and Ocwen refused as
is required for an action of conversion under the theory Ocwen unreasonably
withheld appellant's property. Moreover, appellant failed to allege that Ocwen
exercised dominion and control over the property for its own personal use;
that Ocwen transferred the property to another that deprived appellant of
control over the property; or that the property was destroyed or seriously
damaged in defiance of appellant's rights. Therefore, appellant's allegations
do not allow appellant to bring an action for conversation under any other
theory.
Appellant does not cite any legal precedent or law of this Commonwealth
that permits an action for conversion when an agent for the legal owner of the
foreclosed -upon property "cleans out" the personal property "left" at the
property after affording the foreclosed -upon party five days to pack and
remove all personal property. Consequently, appellant's amended complaint
clearly and without doubt failed to state a cause of action for conversion, and
the trial court properly sustained Ocwen's preliminary objections and
dismissed appellant's amended complaint with prejudice.
Order affirmed.
-6 J. S29032/19
Judgment Entered.
Joseph D. Seletyn, Prothonotary
Date: 8/7/19
_7