U.S. Bank v. Carey, R.

Superior Court of Pennsylvania·Decided May 19, 2015·No. 2206 EDA 2014·Unpublished

Opinion

J-A09026-15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

U.S. BANK NATIONAL ASSOCIATION, : IN THE SUPERIOR COURT OF : PENNSYLVANIA V. : : ROBERT J. CAREY, : : APPEAL OF: GARY LEHNDORFF, JOY : LEHNDORFF AND MICHELE M. CAREY, : No. 2206 EDA 2014

Appeal from the Order dated June 26, 2014, Court of Common Pleas, Chester County, Civil Division at No. 07-05584

BEFORE: BOWES, DONOHUE and STABILE, JJ.

MEMORANDUM BY DONOHUE, J.: FILED MAY 19, 2015

Gary Lehndorff, Joy Lehndorff (together “the Lehndorffs”), and Michele

M. Carey (“Mrs. Carey”) (collectively “Appellants”) appeal from the orders

entered on June 26, 2014 by the Court of Common Pleas of Chester County,

Civil Division. For the reasons that follow, we affirm.

We summarize the relevant facts and procedural history of this case as

follows. On April 28, 2006, Robert J. Carey (“Mr. Carey”), as the sole owner

of 106 Windridge Drive, West Goshen Township, Pennsylvania (“the

property”), executed a note and mortgage in favor of New Century Mortgage

Corporation. New Century Mortgage Corporation subsequently assigned the

mortgage to U.S. Bank National Association (“U.S. Bank”). On September

15, 2006, Mr. Carey executed a second mortgage on the property in favor of

the Lehndorffs. On November 1, 2006, Mr. Carey defaulted on the U.S.

Bank mortgage. On June 13, 2007, U.S. Bank filed this mortgage J-A09026-15

foreclosure action against Mr. Carey, serving Mr. Carey on June 20, 2007.

Four days later, on June 24, 2007, Mr. Carey executed a deed transferring

title to the property from himself, individually, to both himself and Mrs.

Carey, his wife. This deed was acknowledged on June 27, 2007 and

recorded with the Chester County Recorder of Deeds on August 31, 2007.

Likewise, the Lehndorff’s mortgage was both acknowledged and recorded on

June 27, 2007.

On March 24, 2008, U.S. Bank filed a motion for summary judgment.

On May 5, 2008, the trial court granted U.S. Bank’s motion for summary

judgment and entered an in rem judgment in favor of U.S. Bank and against

Mr. Carey. On November 20, 2008, U.S. Bank purchased the property as

the successful bidder at the sheriff’s sale (“the first sheriff’s sale”). The

sheriff’s deed was issued on February 25, 2009 and recorded on March 25,

2009. U.S. Bank failed to provide notice to Mrs. Carey of the first sheriff’s

sale, however, because U.S. Bank’s title company did not discover the deed

transferring title to the property into both Mr. and Mrs. Carey’s names.

Thus, on September 2, 2009, U.S. Bank filed a motion seeking to confirm

the first sheriff’s sale and strike the June 24, 2007 deed transferring title of

the property from Mr. Carey, individually, to both Mr. and Mrs. Carey. On

December 4, 2009, the trial court denied U.S. Bank’s motion, and sua

sponte set aside the first sheriff’s sale based on U.S. Bank’s failure to

-2- J-A09026-15

provide notice to Mrs. Carey of the first sheriff’s sale. See Trial Court Order,

12/4/09.

On January 4, 2010, Mr. Carey appealed the trial court’s decision to

set aside the first sheriff’s sale. See Notice of Appeal, 1/4/10. On March 3,

2011, the Superior Court affirmed the trial court’s order setting aside the

first sheriff’s sale. See U.S. Bank Nat’l Ass’n v. Carey, 42 EDA 2010

(Pa. Super. March 3, 2011) (unpublished memorandum). Mr. Carey filed a

petition for allowance of appeal to the Supreme Court of Pennsylvania, which

it denied on May 1, 2012.

On April 5, 2013, U.S. Bank filed and served upon Mr. and Mrs. Carey

a praecipe for a new writ of execution and the affidavit required under Rule

3129 of the Pennsylvania Rules of Civil Procedure to list the property for

sheriff’s sale. On July 2, 2013, U.S. Bank filed an amended affidavit

pursuant to Rule 3129.1. Thereafter, on January 16, 2014, U.S. Bank again

purchased the property at sheriff’s sale (“the second sheriff’s sale”).

On February 4, 2014, however, prior to the issuance of the deed,

Appellants filed a counseled joint petition to set aside the second sheriff’s

sale, which sought to set aside that sheriff’s sale on the basis that the trial

court should not have set aside the first sheriff’s sale. That same day, the

trial court issued a rule upon U.S. Bank to show cause why Appellants were

not entitled to the relief requested. See Trial Court Order, 2/4/14. On

March 5, 2014, having received no answer from U.S. Bank by the rule return

-3- J-A09026-15

date of February 24, 2014, Appellants filed a motion to make the rule

absolute.

On March 10, 2014, U.S. Bank filed its answers to the Appellants’ joint

petition to set aside the second sheriff’s sale and motion to make the rule

absolute. On March 14, 2014, Appellants filed a motion to quash as

untimely U.S. Bank’s answer to the joint petition to set aside the second

sheriff’s sale. On May 2, 2014, U.S. Bank filed a response to Appellants’

motion to quash. On June 26, 2014, the trial court denied Appellants’ joint

petition to set aside the second sheriff’s sale. That same day, the trial court

also denied Appellants’ motion to make the rule to show cause absolute and

the motion to quash.

On July 9, 2014, Appellants filed a motion for reconsideration of the

trial court’s June 26, 2014 orders, which the trial court denied on July 17,

2014. On July 25, 2014, Appellants filed a timely notice of appeal from the

trial court’s June 26, 2014 orders. On July 30, 2014, the trial court ordered

Appellants to file a concise statement of the errors complained of on appeal

pursuant to Rule 1925(b) of the Pennsylvania Rules of Appellate Procedure.

On August 20, 2014, Appellants filed a timely Rule 1925(b) statement.

On appeal, Appellants raise the following issues for our review and

determination1:

1 We reordered the issues raised by Appellants for ease of review.

-4- J-A09026-15

1. Whether the trial court abused its discretion and/or committed errors of law by denying a petition to set aside [the] second sheriff’s sale of [the] property where the exclusive procedures for setting aside the first sheriff’s sale were neither invoked by any party in interest nor followed by the trial court[?]

2. Whether the trial court abused its discretion and/or committed errors of law by denying a petition to set aside [the] second sheriff’s sale of [the] property where the first [sheriff’s] sale was properly conducted, the resulting [sheriff’s] deed is valid and neither has ever been contested by any of the parties?

3. Whether the trial court abused its discretion and/or committed errors of law by denying a petition to set aside [the] second sheriff’s sale of [the] property where the trial court had no authority to sua sponte set aside the first [sheriff’s] sale[?]

4. Whether the trial court abused its discretion and/or committed errors of law by declaring that a prior order of the trial court and a memorandum opinion affirmation of that order acted as the “law of the case” to deny a petition to set aside [the second sheriff’s] sale brought by parties in interest who had never before been parties to the litigation?

5. Whether the trial court abused its discretion and/or committed errors of law by denying a motion to make a rule absolute and a motion to quash as untimely an answer to a petition to set aside the [second sheriff’s] sale where [U.S.

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