Wells Fargo Bank v. Barron, D. & M.

2020 Pa. Super. 82, 230 A.3d 1269

• Court: Superior Court of Pennsylvania
• Decided: March 31, 2020
• Docket: 1113 MDA 2019
• Status: Published

Opinion

J-A03004-20

2020 PA Super 82

WELLS FARGO BANK MINNESOTA : IN THE SUPERIOR COURT OF NATIONAL ASSOCIATION AS : PENNSYLVANIA TRUSTEE FOR CERTIFICATE : HOLDERS OF EMC MORTGAGE LOAN : TRUST 2002-A MORTGAGE LOAN : PASS-THROUGH CERTIFICATES, : SERIES 2002-A : : : No. 1113 MDA 2019 v. : : : DONALD L. & MARIA BARRON : : Appellants :

Appeal from the Order Entered June 12, 2019 In the Court of Common Pleas of Lancaster County Civil Division at No(s): CI-04-08099

BEFORE: LAZARUS, J., STABILE, J., and DUBOW, J.

OPINION BY LAZARUS, J.: FILED MARCH 31, 2020

Donald L. and Maria Barron (h/w) (collectively, the Barrons) appeal from

the order, entered in the Court of Common Pleas of Lancaster Country,

denying their petitions to strike a judgment and to set aside a sheriff’s sale.

After careful review, we affirm.

On August 27, 2004, Appellees Wells Fargo Bank Minnesota, N.A., as

trustee for the EMC Mortgage Loan Trust 2002-A, Mortgage Pass-Through

Certificates Series 2002-A (collectively, Wells Fargo) filed a complaint in

mortgage foreclosure against the Barrons after they defaulted on a mortgage

dated September 24, 1992, which was secured by real estate located at 1541

Hiemenz Road, Manheim Township, Lancaster County (Property). On October J-A03004-20

8, 2004, Maria Barron, appearing pro se, filed an answer to the complaint. On

February 28, 2005, Wells Fargo filed a motion for summary judgment, which

was unopposed by the Barrons. On May 26, 2005, the court granted the

motion and entered an in rem judgment in the amount of $185,215.63, plus

interest and costs, against the Barrons.

On October 13, 2005, Wells Fargo filed a writ of execution and began

execution proceedings. The sheriff’s sale for the Property was originally

scheduled for February 22, 2006. However, through a series of stays and

continuances over the following thirteen years, the sheriff’s sale did not take

place until November 28, 2018. On November 28, 2018, the Property was

sold to a third party, AJ Home Solutions, LLC, for the sum of $230,000.00.

On December 17, 2018, before the sheriff issued and recorded the deed to

the Property, the Barrons filed a petition to open or strike judgment, as well

as a petition to set aside the sheriff’s sale. In the petition to set aside, the

Barrons raised a number of arguments, including Plaintiff’s alleged non-

compliance with Pa.R.C.P. 3129.1-3129.3 regarding failure to file a new

affidavit under Rule 3129.1 before the November 2018 sale. On January 24,

2019, Wells Fargo filed its opposition to the Barrons’ petitions arguing that the

Barrons failed to meet their burden of proof for setting aside the sale where

Wells Fargo had legal standing to foreclose, both the Barrons and all other

lienholders were served with a notice of the sale indicating the scheduled date

of the sheriff's sale (January 31, 2018) and were also served with a notice of

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the date of the continued sheriff's sale on or about October 4, 2018, when the

sale was moved to November 28, 2018.

On June 10, 2019, the trial court denied the Barrons’ petitions.

Regarding the petition to set aside, the court found that: the Barrons received

notice of the November 28, 2018 sale; they failed to cite to any supporting

case law; they lacked standing to assert any rights on behalf of the other

lienholders; and, while it appeared those other lienholders did not have any

claims of priority over the subject mortgage, their liens were not necessarily

divested by virtue of the sale. The Barrons filed a timely notice of appeal and

court-ordered Pa.R.A.P. 1925(b) concise statement of errors complained of on

appeal.1 They present the following issue for our review: “[Whether] the

[c]ourt erred in not setting aside the [s]heriff’s [s]ale of November 28, 2018[,]

due to Plaintiff not following the mandated notices of P[a].R[.]]C[.]P[.] 3129.1

through (and notably) 3129.3.” Appellants’ Brief, at 8.

We first note that “[e]quitable considerations govern the trial court’s

decision to set aside a sheriff’s sale, and [an appellate court] will not reverse

the trial court’s decision absent an abuse of discretion. An abuse of discretion ____________________________________________

1 Appellees argue that the Barrons have waived their argument on appeal due

to the vagueness of their Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal. We do not find the statement, which is almost identical to the issue quoted in the body of this opinion, too vague to permit proper appellate review. Thus, we decline to find their issue waived on appeal. Cf. Lineberger v. Wyeth, 894 A.2d 141 (Pa. Super. 2006) (patient, who sued pharmaceutical companies that manufactured and sold drug patient was prescribed, waived all arguments on appeal where her Rule 1925(b) statement was so vague and overbroad that it was functional equivalent of no statement at all).

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occurs where, for example, the trial court misapplies the law.” Nationstar

Mortgage, LLC v. Lark, 73 A.3d 1265, 1267 (Pa. Super. 2013). Generally,

the burden of proving circumstances warranting the exercise of such equitable

powers is on the petitioner, the allegations of the petition must be proved by

clear evidence, and the request to set aside a sheriff’s sale may be refused

due to insufficient proof to support the allegations in the petition. First Fed.

Sav. Bank v. CPM Energy Sys. Corp., 619 A.2d 371, 373 (Pa. Super. 1993).

The purpose of a sheriff’s sale in mortgage foreclosure proceedings is to realize out of the land, the debt, interest, and costs which are due, or have accrued to, the judgment creditor. A petition to set aside a sheriff’s sale is grounded in equitable principles and is addressed to the sound discretion of the hearing court. The burden of proving circumstances warranting the exercise of the court’s equitable powers rests on the petitioner, as does the burden of showing inadequate notice resulting in prejudice, which is on the person who seeks to set aside the sale. When reviewing a trial court’s ruling on a petition to set aside a sheriff’s sale, we recognize that the court’s ruling is a discretionary one, and it will not be reversed on appeal unless there is a clear abuse of that discretion.

An abuse of discretion is not merely an error of judgment. Furthermore, it is insufficient to persuade the appellate court that it might have reached a different conclusion if, in the first place, charged with the duty imposed on the trial court. An abuse of discretion exists when the trial court has rendered a judgment that is manifestly unreasonable, arbitrary, or capricious, has failed to apply the law, or was motivated by partiality, prejudice, bias, or ill will. Where the record adequately supports the trial court’s reasons and factual basis, the court did not abuse its discretion.

GMAC Mortgage Corporation of PA v. Buchanan, 929 A.2d 1164, 1167

(Pa. Super. 2007) (emphasis added) (internal quotation marks and citations

omitted).

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On appeal, the Barrons complain that, pursuant to Rule 3129.3(b)(1),

Wells Fargo was required to hold a sheriff’s sale within 130 days after a

continued sale, rather than postpone it more than twice without first re-

serving an affidavit. Specifically, they argue that where Wells Fargo

postponed a scheduled sheriff’s sale from January 31, 2018, to March 28,

2018, to May 30, 2018, to July 25, 2018, to September 26, 2018, and, finally,

to November 28, 2018, and did not re-serve an affidavit since January 12,

2018, the sale should be set aside for non-compliance with Rule 3129.3.

With regard to sheriff’s sales in Pennsylvania, “[t]he notice requirements

of [Rules] 3129.1, 3129.2, and 3129.3 were intended to protect fundamental

rights of due process by insuring that persons with an interest in real estate

would receive adequate notice before being deprived of their property.” First

Eastern Bank, N.A. v. Campstead, Inc., 637 A.2d 1364, 1366 (Pa. Super.

1994). Because notice is “the most basic requirement of due process, [it]

must ‘be reasonably calculated to inform interested parties of the pending

action, and the information necessary to provide an opportunity to present

objections. The form of notice required depends on what is reasonable

considering the interests at stake and the burdens of providing notice.’” Id.

(citations omitted).

Pennsylvania Rule of Civil Procedure 3129.1(a) mandates that “[n]o sale

of real property upon a writ of execution shall be held until the plaintiff has

filed with the sheriff the affidavit required by subdivision (b) [of Rule 3129.1]

and the notice required by Rule 3129.2 has been served.” See Pa.R.C.P.

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3129.1(a)2 (emphasis added). A Rule 3129.1(b) affidavit shall set forth: the

owners or reputed owners of the real property and of the defendant in the

judgment; every other person who has a record lien on the property; any

person who has a record interest in the property which may be affected by

the sale; and any person who has an interest in the property that is not of

record which may be affected by the sale and of which the plaintiff has

knowledge. Pa.R.C.P. 3129.1(b)(1)-(4). In addition, a Rule 3129.2 notice of

the sale of real property “shall be given by handbills,[3] by written notice . . .

to all persons whose names and addresses are set forth in the affidavit

required by Rule 3129.1, and by publication[.]” Pa.R.C.P. 3129.2(a)

(emphasis added). “The written notice shall be prepared by the plaintiff, shall

contain the same information as the handbills or may consist of the handbill

and shall be served at least thirty days before the sale on all persons whose

names and addresses are set forth in the affidavit required by Rule 3129.1.”

Pa.R.C.P. 3129.1(c). The handbills shall include, in part, a brief description of

the property to be sold; its location; any improvements; the judgment of the

court on which the sale is being held; the name of the owner or reputed owner;

and the time and place of the sale. Pa.R.C.P. 3129.2(b)(1).

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2 The required content for an affidavit is set forth in Rule 3129.1(b), while the

notice of sale provisions are found in Rule 3129.2. 3 A “handbill” is defined as “a small printed sheet to be distributed (as for advertising) by hand.” See https://www.merriam- webster.com/dictionary/handbill (last visited 2/24/20).

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When a scheduled sheriff’s sale is stayed, continued, postponed, or

adjourned, which is what occurred in the present case, Pennsylvania Rule of

Civil Procedure 3129.3 provides, in pertinent part:

(a) except as provided by subdivision (b) or special order of court, new notice shall be given as provided by Rule 3129.2 if a sale of real property is stayed, continued, postponed or adjourned.

(b)

(1) If the sale is stayed, continued, postponed or adjourned to a date certain within one hundred thirty days of the scheduled sale, notice of which sale was given as provided by Rule 3129.2, and public announcement thereof, including the new date, is made to the bidders assembled at the time and place fixed for the sale, no new notice as provided by Rule 3129.2 shall be required, but there may be only two such stays, continuances, postponements or adjournments within the one hundred thirty day period without new notice.

Pa.R.C.P. 3129.3 (a), (b)(1) (emphasis added). Thus, there are two

exceptions under Rule 3129.3(a) where no new notice is required when a sale

has been postponed or stayed: (1) when the court issues a “special order”

dispensing with the requirement of additional notice; and (2) when the sale is

postponed no more than twice within 130 days of the originally scheduled sale

date.

Wells Fargo filed its initial affidavit and served notice of the sale,

pursuant to Rule 3129.1(a), on August 14, 2017. On January 11, 2018, Wells

Fargo gave new Rule 3129.2(a) notice of the intended January 31, 2018 sale,

and filed an amended Rule 3129.1 affidavit. On January 10, 2018, and March

2, 2018, Wells Fargo exhausted its two Rule 3129.3(b)(1) continuances,

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continuing the scheduled sale from January 31, 2018 to March 28, 2018 and

again from March 28, 2018 to May 30, 2018.

On May 9, 2018 and July 24, 2018, in response to Wells Fargo’s motions

to postpone the sheriff’s sale, the court entered special orders postponing the

sale and indicating that “[n]o further advertising or additional notice to

lienholders or Defendants[, the Barrons] is required.” See Order, 5/9/18;

Order, 7/24/18; Order, 9/26/18. Thus, under Rule 3129.3(a), there was no

new need for notice or advertisement. See Pa.R.C.P. 3129.3(a) (Except as

provided by subdivision (b) or special order of court, new notice shall be given

as provided by Rule 3129.2.”) (emphasis added). On September 24, 2018,

the Barrons filed a petition for stay of the scheduled September 26, 2018

sheriff’s sale. The court granted the Barrons’ petition and postponed the sale

until November 28, 2018. See Order, 9/26/18.

Instantly, the Barrons contend that Wells Fargo was required to “re-

serve an Affidavit pursuant to Rule 3129” where it did not hold the sale within

130 days of the scheduled sale and where the sale was continued more than

two times. Appellants’ Brief, at 11.

Fundamentally, “[d]ue process requires that a party who will be

adversely affected by a court order must receive notice and a right to be heard

in an appropriate setting.” McKinney v. Carolus, 634 A.2d 1144, 1146 (Pa.

Super. 1993). “Due process, reduced to its most elemental component,

requires notice.” Romeo v. Looks, 535 A.2d 1101, 1105 (Pa. Super. 1987)

(en banc) (citations omitted). Here, the Barrons do not contend that they

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failed to receive notice of the November 28, 2018 sheriff’s sale. Rather, they

argue that Wells Fargo was required to re-serve an affidavit under Rule

3129.1. We disagree.

Nowhere in Rule 3129.3 does it state that a new affidavit under Rule

3129.1 is required when a sale of real property is stayed, continued,

postponed or adjourned and we decline to read such a burdensome

requirement into the rule. When the “words of a rule are clear and free from

all ambiguity, the letter of it is not to be disregarded under the pretext of

pursuing its spirit.” Pa.R.C.P. 127(b). Rather, Rule 3129.3(a) specifically

requires “new notice as provided by Rule 3129.2” when a sale is stayed,

continued, postponed or adjourned. Pa.R.C.P. 3129.3(a). Moreover, under

Rule 3129.3(b)(1), when the sale is postponed no more than two times within

130 days of the scheduled date, the plaintiff shall file a notice and certificate

as delineated under Rule 3129.3(b)(2)(i)(A-B). Here, Wells Fargo provided

the requisite Rule 3129.3(b)(2) notice when it exercised its two Rule

3129.3(b)(1) continuances within 130 days of the original sale date.

Additionally, the two remaining times that Wells Fargo petitioned to continue

or postpone the sale, the court granted its request by “special order,”

specifying that “[n]o further advertising or additional notice to lienholders or

[the Barrons] is required.” See Pa.R.C.P. 3129.3(a).

Because Wells Fargo provided the requisite notice for postponing the

sheriff’s sale, as required by Rule 3129.3, the Barrons were on notice of the

scheduled sale that took place on November 28, 2018. Romeo, supra;

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McKinney, supra. Accordingly, we conclude that the court did not abuse its

discretion denying the Barrons’ petition to set aside the sheriff’s sale where

the record adequately supports its determination. Buchanan, supra.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 03/31/2020

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