Trust Co. v. Famous
| Decision Date | 15 October 2010 |
| Citation | 2010 PA Super 145,4 A.3d 1099 |
| Parties | IRWIN UNION NATIONAL BANK AND TRUST COMPANY, v. George M. FAMOUS and Nancy L. Famous and ATL Ventures. Appeal of ATL Ventures, Appellant. |
| Court | Pennsylvania Superior Court |
OPINION TEXT STARTS HERE
COPYRIGHT MATERIAL OMITTED.
Thomas R. Kellogg, Plymouth Meeting, for appellant.
Louis P. Vitti, Pittsburgh, for appellee.
Appellant, ATL Ventures (“ATL”), as third party purchaser, appeals from the August 17, 2009 orders of the Court of Common Pleas of Chester County, which denied ATL's amended petition to set aside the sheriff's sale, and ATL's motion for reconsideration. For the reasons discussed below, we affirm.
The relevant facts of this matter are taken from the trial court's November 2, 2009 Opinion. On May 29, 2002, first mortgage holder GE Capital Mortgage (“GE”) filed a complaint in mortgage foreclosure on the property known as parcel number 15-9-37, 5th Ward, Phoenixville Boro, Chester County, Pennsylvania. George and Nancy Famous (“the Famouses”) are the owners of the property. On June 19, 2008, second mortgage holder Irwin Union National Bank & Trust Company (“Irwin Union”) filed a complaint in mortgage foreclosure. Irwin Union obtained a default judgment and assessment of damages. ATL purchased the property at a January 15, 2009 sheriff's sale on Irwin Union's judgment for $25,100.00.
On March 12, 2009, ATL filed a petition to set aside the sheriff's sale of January 15, 2009. Irwin Union filed a response on March 20, 2009. ATL filed an amended petition to set aside the sheriff's sale on April 2, 2009. By Order dated April 16, 2009, the trial court continued a scheduled sheriff's sale in GE's foreclosure action against the Famouses to June 18, 2009. The same order gave ATL thirty (30) days to conduct discovery on its petition to set aside the sheriff's sale.
On August 17, 2009, after argument, the trial court denied ATL's petition to set aside the sheriff's sale. On August 20, 2009, GE purchased the property at a sheriff's sale conducted as a result of its foreclosure action. On August 27, 2009, ATL filed a motion for reconsideration, which was denied by Order of September 2, 2009. ATL filed a timely appeal and was ordered to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). Appellant timely filed the 1925(b) statement, and the trial court issued an opinion.
On appeal, ATL raises the following issues 1 for our review:
1. Should the court have allowed the Appellant, ATL, to develop factual support for its claims that there is a custom in Chester County to announce the existence of potential clouds on the title of property being sold at sheriff's sale before the sale occurs and that the mortgage in this matter was subject to a first mortgage?
2. Where there are irregularities in a sheriff's sale, should not the highest bidder having paid for the property which is of little value and having never received a Sheriff's deed have the right to have the money refunded by the Sheriff?
3. Was ATL deprived of property in the proceeding without due process of law in violation of the Fifth and Fourteenth Amendments of the Constitution of the United States because of the vagueness of the legal provisions governing the proceedings?
4. Should the court have applied the caveat emptor doctrine in this matter where the foreclosing second Mortgagee knew of the existence of a first mortgage and the specific date of the sale with respect to which foreclosure proceedings had been commenced before the commencement of proceedings to foreclose the second mortgage?
5. Should the trial court have considered important substantive issues rather than dismiss the Petition solely on the basis of the caveat emptor doctrine which places a heavy burden on the participating parties in the sheriff's sale?
Pennsylvania Rule of Civil Procedure 3132 2 provides:
Setting Aside Sale
Upon petition of any party in interest before delivery of ... the sheriff's deed to real property, the court may, upon proper cause shown, set aside the sale and order a resale or enter any other order which may be just and proper under the circumstances.
Thus, the relevant inquiry is whether proper cause has been shown to set aside the sheriff's sale. The decision to set aside a sheriff's sale is within the sound discretion of the trial court. Merrill Lynch Mortgage Capital v. Steele, 859 A.2d 788, 791 (Pa.Super.2004), appeal denied, 582 Pa. 718, 872 A.2d 1199 (2005) (table). A petition to set aside a sheriff's sale is based on equitable principles. National Penn Bank v. Shaffer, 448 Pa.Super. 496, 672 A.2d 326, 329 (1996). “The burden of proving circumstances warranting the exercise of the court's equitable powers is on the petitioner, and the request to set aside a sheriff's sale may be refused due to insufficient proof to support the allegations in the petition.” Kaib v. Smith, 454 Pa.Super. 67, 684 A.2d 630, 631 (1996) (internal citations omitted). Sheriff's sales have been set aside where the validity of the sale proceedings is challenged, a deficiency pertaining to the notice of the sale exists, or where misconduct occurs in the bidding process. Blue Ball National Bank v. Balmer, 810 A.2d 164, 167 (Pa.Super.2002), appeal denied, 573 Pa. 662, 820 A.2d 702 (2003) (table). This court will not reverse the trial court's decision absent a clear abuse of discretion. Kaib, supra.
ATL claims that the trial court erred by failing to allow full discovery in this matter, so that it could more fully develop its claim that custom in Chester County required Irwin Union to disclose the existence of a first mortgage on the property. The April 16, 2009 Order in this matter allowed thirty (30) days for discovery.
The record reflects that ATL served several sets of interrogatories. On June 16, 2009, ATL filed a motion to compel further answers to the interrogatories from Irwin Union. For reasons that are not apparent from the record, the motion to compel was not ruled upon.
Pennsylvania Rule of Civil Procedure 4003.1(a) provides for the scope of discovery as follows:
Scope of Discovery Generally. Opinions and Contentions
Subject to the provisions of Rules 4003.2 to 4003.5 inclusive and Rule 4011, a party may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party ...
Appellant contends that the thirty (30) day time period in which to conduct discovery was inadequate and, because of this, it was unable to fully develop the record on this matter to establish a custom of announcement of the liens prior to the sheriff's sale.
ATL did not file a petition to extend the discovery period in this matter. Therefore, it cannot complain that the allotted time for discovery was too short.
Further, in the motion to compel, ATL does not specify the nature of the information sought; what specific interrogatories Irwin Union either declined to answer or did not fully answer; in what manner Irwin Union's responses were inadequate; and how the information sought was reasonably calculated to lead to the discovery of admissible evidence. ATL claims that it was unable to fully develop the record with respect to the contention that it was the custom at Chester County Sheriff's sales for the attorney for the foreclosing party to announce the existence of an encumbrance on the property. However, ATL does not explain in its argument how the responses impacted on its ability to prove that the custom was breached. This Court will not act as counsel and will not develop arguments on behalf of an appellant. Commonwealth v. Hardy, 918 A.2d 766, 771 (Pa.Super.2007), appeal denied, 596 Pa. 703, 940 A.2d 362 (2008) (table); Bombar v. West American Insurance Company, 932 A.2d 78, 94 (Pa.Super.2007). When deficiencies in a brief hinder our ability to conduct meaningful appellate review, we may dismiss the appeal entirely or find certain issues to be waived. Pa.R.A.P. 2101; Hardy, supra. It is not this Court's responsibility to comb through the record seeking the factual underpinnings of ATL's claim. Commonwealth v. Mulholland, 549 Pa. 634, 702 A.2d 1027, 1034 n. 5 (1997). Because ATL failed to clarify the specifics of its discovery claims, and further because it did not seek additional time for discovery, we find this claim to be waived. Pa.R.A.P. 302(a); Pa.R.A.P. 2119(e); Pa.R.A.P. 2101; Hardy, supra.
Finally, discovery is limited to that which is “relevant to the subject matter involved in the pending action.” Pa.R.C.P. 4003.1(a). As will be developed infra, the existence of such a local custom is irrelevant to this case.
ATL also argues that it is entitled to a refund of the money it paid because it did not receive a deed to the property. 3 Additionally, ATL claims that it was deprived of the money it advanced for the purchase price without due process of law in violation of the Fifth and Fourteenth Amendments of the United States Constitution. Irwin Union responds that these claims are waived because ATL raised them for the first time in its 1925(b) concise statement. In its reply brief, ATL concedes that the issues were raised for the first time in the 1925(b) statement but claims that the issues are not waived because they are matters of law.
It is well settled that issues not raised below cannot be advanced for the first time in a 1925(b) statement or on appeal. See Pa.R.A.P. 302(a) (); Diamond Reo Truck Company v. Mid-Pacific Industries, Inc., 806 A.2d 423, 430 (Pa.Super.2002) (). In support of its contention that it was not required to...
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