Hous. Opportunity Partners Reo, LLC v. Mehalshick

• Decision Date: 11 March 2015
• Docket Number: J-S14004-15,No. 2106 EDA 2013,No. 624 EDA 2014,2106 EDA 2013,624 EDA 2014
• Court: Pennsylvania Superior Court
• Parties: HOUSING OPPORTUNITY PARTNERS REO, LLC, v. MARIANNE MEHALSHICK AND MICHAEL MEHALSHICK, APPEAL OF: MARIANNE MEHALSHICK

HOUSING OPPORTUNITY PARTNERS REO, LLC, v. MARIANNE MEHALSHICK AND MICHAEL MEHALSHICK,APPEAL OF: MARIANNE MEHALSHICK

J-S14004-15

No. 2106 EDA 2013

No. 624 EDA 2014

SUPERIOR COURT OF PENNSYLVANIA

MARCH 11, 2015

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P 65.37

Appeal from the Order entered June 26, 2013, Court of Common Pleas, Northampton County, Civil Division at No. C-48-CV-2006-6855I

Appeal from the Order dated January 22, 2014, Court of Common Pleas, Northampton County, Civil Division at No. C-48-CV-2006-6855I

BEFORE: DONOHUE, OLSON and MUSMANNO, JJ.

MEMORANDUM BY DONOHUE, J.:

Marianne Mehalshick ("Home Owner") appeals pro se from two orders entered by the Northampton County Court of Common Pleas. The first is the June 26, 2013 order denying Home Owner's petition to open or strike the February 26, 2007 default judgment, which granted foreclosure of 234 James Avenue, Northampton, Pennsylvania 18067 ("the Property").Wachovia Bank National Association ("Wachovia"), predecessor in interest to Housing Opportunity Partners REO, LLC ("HOP"), filed the complaint seeking foreclosure. The second order appealed from is the January 22, 2014 order denying Home Owner's petition to set aside the sheriff's sale of the Property. After careful review, we affirm.

The trial court¹ provided the following summary of the factual and procedural histories of this case:

This matter stems from a [c]omplaint in mortgage foreclosure filed on August 31, 2006. The [c]omplaint was filed by Wachovia [] as Trustee of the Secretary National Mortgage Loan Trust 2004-1 against [Home Owner] and Michael A. Mehalshick^[FN]1 for failure to make payment on the mortgage on the [P]roperty .... A [p]raecipe for [j]udgment was entered on December 15, 2006 in the amount of ... $87,624.89. This was later vacated as [Home Owner] filed a petition in [b]ankruptcy on November 21, 2006. On February 26, 2007, judgment in mortgage foreclosure was entered against [Home Owner] in the amount of ... $87,624.89. On July 3, 2007, the [trial c]ourt granted Wachovia['s] [] [p]etition to [a]mend [j]udgment to the amount of ... $110,111.68. [Home Owner] avers she paid ... $2,500 prior to [the] [s]heriff's [s]ale, which stayed the [s]heriff['s] [s]ale. On December 3, 2009, Wachovia [] filed a [p]raecipe for [w]rit of [e]xecution in the amount of ... $110,111.68. The Property was listed for [s]heriff's [s]ale on March 5, 2010. The [trial c]ourt ultimately continued the sale in order to allow [Home Owner] to participate in the Northampton County Mortgage Foreclosure Conciliation Conference program.^[FN]2 The [s]heriff's [s]ale was further continued by several [trial c]ourt [o]rders.

Subsequently, Wachovia [] assigned the mortgage to U.S. Bank National Association ["U.S. Bank"] on November 21, 2011. Then, on May 1, 2012, U.S. Bank assigned the mortgage to [HOP].

On November [21], 2012, [plaintiff's counsel] filed a [p]raecipe for [w]rit of [e]xecution. The [s]heriff's [s]ale was continued pending [Home Owner]'s [p]etition to [o]pen/[s]trike [j]udgment filed on March 14, 2013. The [p]etition was subsequently denied on June 26, 2013. [On July 24, 2013, Home Owner] appealed the [o]rder denying the [p]etition to [o]pen/[s]trike [j]udgment to the Superior Court and further [trial c]ourt [o]rders were entered granting [Home Owner]'s continuance of the [s]heriff's [s]ale.^[FN]3 On August 5, 2013, [Home Owner] filed a [p]etition of [s]upersedeas and [s]tay of the [o]rder of [the trial c]ourt dated June 26, 2013. The [p]etition was denied the following day by the [trial court]. On August 7, 2013, [Home Owner] filed an [e]mergency [a]pplication for [s]upersedeas [p]ending [a]ppeal with the Superior Court. The Superior Court entered an Order denying the application the following day. On August 9, 2013, the [p]roperty was sold at [s]heriff's [s]ale to [HOP] for costs of ... $8,615.61. Th[e] [p]etition to [s]et [a]side the [s]heriff's [s]ale was filed on September 9, 2013. This matter was listed on the December 17, 2013 [n]on-[j]ury [l]ist and in an [o]pinion and [o]rder dated January 22, 2014, [the trial c]ourt denied [Home Owner]'s [p]etition.

^[FN]1 [Home Owner] and Michael A. Mehalshick obtained the mortgage and purchased the Property in 1987. Pursuant to their divorce settlement, [Home Owner] became the sole owner of the Property .... Michael A. Mehalshick, though, was never removedfrom the mortgage. At this juncture of the proceeding, Michael A. Mehalshick has never entered an appearance.

^[FN]2 [Home Owner] was unable to participate in this program because Michael Mehalshick was still listed as a mortgagor and was not present.

^[FN]3 Sherriff's [s]ales were scheduled but ultimately continued on the following dates: May 10, June 7, July 6, and August 9, 2013.

Trial Court Opinion, 4/22/14, at 1-3 (footnotes in the original; record citation omitted).

Based upon Home Owner's failure to file the required docketing, this Court dismissed the appeal from the June 26, 2013 order on September 20, 2013. See Order, 9/20/13; Pa.R.A.P. 3517. On February 21, 2014, Home Owner filed a notice of appeal from the trial court's January 22, 2014 order. On February 27, 2014, Home Owner filed an application to reinstate the appeal from the June 26, 2013 order, which we granted on March 17, 2014. On March 18, 2014, this Court sua sponte consolidated the appeals.

Home Owner raises the following three issues for our review:

1. Is the mortgage foreclosure complaint defective by virtue of the fact that it does not identify the various assignments of the mortgage and does not allege that Wachovia is the "legal owner" of the mortgage?

2. Were any of the parties that appeared as plaintiffs after the entry of the default judgment properly substituted for the original plaintiff or otherwise entitled to execute?

3. Should the lower court have ordered an evidentiary hearing to determine the fair market value of the property sold at sheriff's sale and to consider [Home Owner]'s allegation that the judgment amount was incorrect?

Home Owner's Brief at 6.

The first issue raised on appeal challenges the trial court's denial of Home Owner's request to strike the default judgment. See id. at 19-20.

With regard to a motion to strike a default judgment, a court may only look at the facts of record at the time judgment was entered to decide if the record supports the judgment. A petition to strike does not involve the discretion of the court. A petition to strike a judgment will not be granted unless a fatal defect in the judgment appears on the face of the record. Matters outside of the record will not be considered, and if the record is self-sustaining, the judgment will not be stricken.

A petition to strike a judgment is a common law proceeding which operates as a demurrer to the record. Where a fatal defect or irregularity is apparent from the face of the record, the prothonotary will be held to have lacked the authority to enter a default judgment and the default judgment will be considered void.

Wells Fargo Bank, N.A. v. Lupori, 8 A.3d 919, 920-21 (Pa. Super. 2010) (internal citations and quotation marks omitted).

Home Owner raises two arguments in support of her first issue on appeal. First, Home Owner asserts that the complaint violated Rule 1147(a)(1) of the Pennsylvania Rules of Civil Procedure² because "it did notidentify the various assignments of the mortgage," instead identifying only the bank that originally held the mortgage (Keystone Savings Association) and indicating that the mortgage was subsequently assigned to Wachovia. Home Owner's Brief at 21-23. Second, Home Owner claims that Wachovia failed to identify itself as the "legal owner" of the mortgage in the complaint, rendering the complaint defective. Id. at 21, 23-24. Our review of the record reveals that Home Owner failed to raise these arguments before the trial court below.³ The law is clear: "Issues not raised in the lower court are waived and cannot be raised for the first time on appeal." Pa.R.A.P. 302(a). Home Owner likewise failed to include these arguments in her concise statement of errors complained of on appeal, which also compels a finding of waiver. See Concise Statement of Errors Complained of on Appeal, 8/19/13. "Issues not included in the Statement and/or not raised in accordance with the provisions of this paragraph (b)(4) are waived. Pa.R.A.P. 1925(b)(4)(vii). We are thus constrained to find these arguments waived.

In her second issue raised on appeal, Home Owner argues that both U.S. Bank and HOP lacked standing to enforce the judgment obtained byWachovia or to execute that judgment. Home Owner's Brief at 24-30. She observes that Wachovia, and subsequently U.S. Bank, filed praecipes for voluntary substitution pursuant to Rule 2352 of the Pennsylvania Rules of Civil Procedure⁴ following the assignment of the mortgage from Wachovia to U.S. Bank and then from U.S. Bank to HOP. Id. at 25. Wachovia filed its praecipe on November 29, 2011, substituting U.S. Bank as plaintiff, and the caption in the case changed to name U.S. Bank as the plaintiff. Id. U.S. Bank filed its praecipe on November 21, 2012, substituting HOP as plaintiff, but the caption remained the same, with U.S. Bank identified as the sole named plaintiff in the case. Id. at 25-26. Home Owner asserts that this was error, as "all actions must be prosecuted and in the name of the real party in interest." Id. at 29 (citing Pa.R.C.P. 2002(a)).

The trial court found no error pursuant to Rule 2004 of the Pennsylvania Rules of Civil procedure, which states:

If a plaintiff has commenced an action in his or her own name and thereafter transfers the interest therein, in whole or in part, the action may continue in the name of the original plaintiff, or upon petition of the original plaintiff or of the transferee or of any other party in interest in the action, the court may direct the transferee to be substituted as plaintiff or joined with the original plaintiff.

Pa.R.C.P. 2004; see Trial Court...