The Bank of New York Mellon v. Johnson, J.

121 A.3d 1056, 2015 Pa. Super. 174, 2015 Pa. Super. LEXIS 469, 2015 WL 4931662
Superior Court of Pennsylvania·Decided August 19, 2015·No. 3409 EDA 2014·Published·Cited by 31 cases

Opinion

OPINION BY

GANTMAN, P.J.:

Appellant, Jacqueline M. Johnson, appeals from the order entered in the Philadelphia County Court of Common Pleas, which denied her petition to strike a default judgment entered in favor of Appel- *1058 lee, The Bank of New York Mellon f/k/a The Bank of New York, as Trustee for the Certificate Holders of CWMBS 2004-R2. We affirm.

The relevant facts and procedural history of this appeal are as follows.

This case commenced September 29, 2010, with the filing of a complaint in mortgage foreclosure on the premises of 936 E. Phil Ellena Street, Philadelphia, PA 19150 by Appellee- The complaint averred that Appellant was in default on a mortgage recorded at No. 0451, page 389, in the Office of the Recorder of Philadelphia County, and assigned at Mortgage Instrument No. 51951797.
On August 30, 2011, Appellee filed a Motion for Alternative Service, which averred that attempts to serve Appellant have been unsuccessful and that, following a good faith investigation, Appellant had no change of address on record from the mortgaged premises.
On September 9, 2011, [the trial court] granted Appellee’s Motion for Alternative Service and allowed service of the complaint upon Appellant at 936 E. Phil Ellena Street, Philadelphia, PA 19150, by certified mail, first class regular mail, and posting of the premises.
On September 20, 2011, Appellee filed an Affidavit of Service of the Complaint by regular mail and certified mail, return receipt requested, to Appellant at 3028 N. 26th Street, Philadelphia, PA 19132 and 936 E. Phil Ellena Street, Philadelphia, PA 19150 on September 19, 2011.
On September 22, 2011, Appellee filed an Affidavit of Service of the Complaint by posting of the premises at 936 E. Phil Ellena Street, Philadelphia, PA 19150 on September 20, 2011, at 11:30 a.m.
On December 11, 2011, Appellee filed a Praecipe for Judgment by Default in the amount of $145,602.28.
On March 13, 2012, Appellee filed a Praecipe for Writ of Execution.
On April 18, 2012, Appellee filed a Motion to Reassess Damages.
On May 17, 2012, [the trial court] amended the in rem judgment to a total of $168,095.41 plus interest from June 5, 2012 through the date of sale at six (6) percent per annum.
On May 21, 2012, Appellee filed an Affidavit of Service of Notice of Sale upon Appellant by certified mail and first class regular mail.
On July 13, 2012, the Writ was returned as the sale was stayed by Appellee’s attorney.
On May 16, 2013, another Praecipe for Writ of Execution was filed on behalf of Appellee.
On August 13, 2013, Appellee filed an Affidavit of Service of Notice of Sale upon Appellant by certified mail and first class regular mail to 936 E. Phil Ellena Street, Philadelphia, PA 19150 on June 7, 2013.
On August 23, 2013, Appellant filed a Motion to Postpone Sheriffs Sale and a Petition to Open Judgment. That same day, [the trial court] issued a Rule to Show Cause why the Motion to Postpone should not be granted. In her Petition to Open, Appellant argued that she had not. been served and that she was incarcerated at the time the petition was served.
On September 5, 2013, [the trial court] granted Appellant’s Motion to Postpone and postponed the Sheriffs Sale until December 3, 2013, with no further notice or advertisement to be required.
On September 12, 2013, Appellee filed an Answer in Opposition to Appellant’s *1059 Petition to Open Judgment. Appellee denied Appellant’s averments and further attested that the Complaint had been properly served after the grant of a Motion for Alternative Service, and that Appellant had not demonstrated a meritorious defense, filed a timely petition, or offered a reasonable excuse as to why the petition had not been timely filed.
On October 29, 2013, [the trial court] denied Appellant’s Petition to Open Judgment.
On October 31, 2013, the case was placed in deferred status due to Appellant’s pending bankruptcy.
On August 27, 2014, the case was removed from deferred status.
On September 5, 2014, Appellee filed a' Praecipe for Writ of Execution.
On September 26, 2014, Appellee filed an Affidavit of Service on Appellant by posting the premises of 936 E. Phil Elle-na Street, Philadelphia, PA 19150 on September 18, 2014, as well as an Affidavit of Service on Appellant by personal service.
On October 2, 2014, Appellant filed a Petition to Strike the Judgment as Ap-pellee had failed to provide proof of service by certified mail; failed to set forth a specific averment of default; failed to attach a promissory note; and that Appellee was not the real party of interest in regai-d to the claim.
On October 22, 2014, Appellee filed an Answer in Opposition to Appellant’s Motion, denying Appellant’s averments and attesting that service had been properly effectuated per Pa.R.C.P. 430. Appellee further argued that Appellant’s claims regarding the specific averment of default and attachment of the Promissory Note should have been raised as preliminary objections, -and further, that Appel-lee was not required to attach the Note to its complaint.
On’November 14, 2014, [the trial court] denied Appellant’s [Petition] to Strike Judgment.
On November 21, 2014, Appellant filed a timely Notice of Appeal....
On November 24, 2014, [the trial court] issued its Order pursuant to Pa.R.A.P. 1925(b), directing Appellant tq file her Concise Statement of [Errors] Com-plainéd' of on Appeal within twénty-one (21) days.
On November- 25, 2014, Appellant filed her [Rule 1925(b) statement]....

(Trial Court Opinion, filed February 4, 2015, at 1-4) (internal footnote omitted).

Appellant raises two issues for our review:

■DID THE TRIAL COURT IMPROPERLY DENY APPELLANT’S PETITION TO STRIKE THE DEFAULT JUDGMENT, WHEN APPELLEE HAD FAILED TO PROVIDE PROOF OF SERVICE OF ORIGINAL PROCESS BY CERTIFIED MAIL THAT WOULD INCLUDE A RETURN RECEIPT SIGNED BY [APPELLANT]? DID THE TRIAL COURT IMPROPERLY DENY APPELLANT’S PETITION TO STRIKE THE DEFAULT JUDGMENT, WHEN THE COMPLAINT, ON ITS FACE, FAILED TO STATE A CAUSE OF ACTION IN MORTGAGE FORECLOSURE, BECAUSE, INTER, ALIA, NO UNDERLYING PROMISSORY NOTE WAS ALLEGED?

(Appellant’s Brief at 2).

“An appeal regarding a petition to strike a default judgment implicates the Pennsylvania Rules of Civil Procedure.”

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The Bank of New York Mellon v. Johnson, J., 121 A.3d 1056, 2015 Pa. Super. 174, 2015 Pa. Super. LEXIS 469, 2015 WL 4931662 (Pa. Ct. App. 2015).

121 A.3d 1056 (The Bank of New York Mellon v. Johnson, J.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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