Cohn S. v. Dubrovsky, M.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

STEVEN COHN, SUCCESSOR IN IN THE SUPERIOR COURT OF INTEREST TO WELLS FARGO BANK, N.A. PENNSYLVANIA

Appellee

v.

MARC DUBROVSKY

Appellant No. 3473 EDA 2013

Appeal from the Order Entered November 13, 2013 In the Court of Common Pleas of Wayne County Civil Division at No(s): 673-Civil-2010

BEFORE: GANTMAN, P.J., ALLEN, J., and FITZGERALD, J.* MEMORANDUM BY GANTMAN, P.J.: FILED SEPTEMBER 11, 2014

Appellant, Marc Dubrovsky, appeals from the order entered in the Wayne County Court of Common Pleas, denying his petition to set aside

The relevant facts and procedural history of this appeal are as follows. mortgage foreclosure against Appellant. Appellant did not respond to the complaint. On December 30, 2010, Bank filed a praecipe for in rem judgment. That same day, the court entered judgment against Appellant. Bank filed a praecipe for a writ of execution on February 23, 2011. Steven Cohn and recorded the assignment on October 4, 2011. Also on _____________________________ *Former Justice specially assigned to the Superior Court.

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October 4, 2011, Bank filed a praecipe for the voluntary substitution of Appellee as plaintiff. That same day, Bank filed a praecipe to mark its judgment against Appellant to the use of Appellee. On October 5, 2011, 2011. On December 23, 2011, Appellee filed a petition to correct the

o Pa.R.C.P. 3135(b).1 In the petition, Appellee explained the legal description in the deed did not include the correct metes

uary 15, 2012, the court permitted Appellee to prepare and execute an amended deed. 82a). Specifically, Appellant argued Appellee was not a real party in interest:

On March 23, 2011, [Bank] assigned the underlying mortgage to [Appellee]. [Bank] never assigned the December 30, 2010 judgment. Based solely upon the ____________________________________________

1 If the sheriff has made a defective return of the execution proceeding or has executed a defective deed, including the erroneous description of the

successors in title may correct the return or deed or order that a new return .P. 3135(b).

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assignment of a mortgage that had been extinguished by merger [Appellee] substituted himself as a plaintiff in the action. This substitution was invalid, because without assignment of the judgment he obtained no interest in the action itself.

Id. Appellant also claimed Bank had assigned its interest in the mortgage to an entity other than Appellee:

[A]round March 2011 or April 2011, [Bank] transferred or otherwise assigned the mortgage and/or note underlying said mortgage to PennyMac Loan Services, LLC

transfer, [Bank] had no interest in the underlying mortgage at the time it pursued and directed execution proceedings in this matter. Consequently, [Bank] was not

(Id. at 2-3; R.R. at 82a-83a). Ultimately, the court conducted a hearing on October 25, 2013. By order dated November 13, 2013, the court denied

Appellant timely filed a notice of appeal on December 10, 2013. On December 23, 2013, the court ordered Appellant to file a concise statement of errors complained of on appeal, pursuant to Pa.R.A.P. 1925(b). Appellant timely filed a Rule 1925(b) statement on January 10, 2014.

Appellant now raises three issues for our review:

WHETHER THE TRIAL COURT ABUSED ITS DISCRETION AND MISAPPLIED LAW WHEN IT FOUND THAT [APPELLEE]

MORTGAGE AND JUDGMENT DESPITE THE FACT THAT THE ONLY EVIDENCE OF RECORD ESTABLISHED THAT [BANK] HAD PREVIOUSLY ASSIGNED ITS INTEREST TO PENNYMAC?

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WHETHER THE TRIAL COURT ABUSED ITS DISCRETION AND MISAPPLIED LAW WHEN IT FOUND THAT [APPELLEE] WAS A REAL PARTY IN INTEREST AS THE RESULT OF THE PURPORTED ASSIGNMENT FROM [BANK]?

WHETHER THE TRIAL COURT ABUSED ITS DISCRETION AND MISAPPLIED LAW IN CONCLUDING THAT THERE WAS NEITHER A LACK OF AUTHORITY NOR FRAUD SUFFICIENT

SUBSTITUTED HIMSELF INTO THIS LITIGATION BY RECORDING AN IMPROPER ASSIGNMENT WHICH MISREPRESENTS THE TRUE CHAIN OF ASSIGNMENTS AND FAILS TO DISCLOSE THAT OTHER NON-PARTY ENTITIES HAVE BEEN DOCUMENTED ASSIGNEES OF [BANK] SINCE MARCH 2011?

mortgage to PennyMac in March 2011, before Bank purportedly assigned its assignment to Appellee was invalid. Appellant also avers there is no evidence that Bank assigned the December 30, 2010 judgment to Appellee. successor in interest. Further, Appellant argues Appellee misrepresented the chain of assignments for the mortgage, and the record does not support the the sheriff lacked authority to sell the property, because the case proceeded without a real party in intere Appellant concludes this Court must reverse the order denying the petition

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to realize out of the land, the debt, interest, and costs which are due, or

GMAC Mortg. Corp. of PA v. Buchanan, 929 A.2d 1164, 1167 (Pa.Super. 2007) (quoting Kaib v. Smith, 684 A.2d 630, 632 (Pa.Super. 1996)).

equitable principles and is addressed to the sound discretion of the hearing court. The burden of proving

equitable powers rests on the petitioner When

discretionary one, and it will not be reversed on appeal unless there is a clear abuse of that discretion.

Buchanan, supra at 1167 (internal citations omitted). as follows:

Rule 3132. Setting Aside Sale

Upon petition of any party in interest before delivery of

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.

Mortgage Electronic Registration Systems, Inc. v. Ralich, 982 A.2d 77, 79 (Pa.Super. 2009), appeal denied, 606 Pa. 650, 992 A.2d 889 (2010)

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(quoting First Union Nat. Bank v. Estate of Shevlin, 897 A.2d 1241, 1246 (Pa.Super. 2006)).

o Real Property. Correction of Deed

(a) When real property is sold in execution and no petition to set aside the sale has been filed, the sheriff, at the expiration of twenty days but no later than 40 days after either the filing of the schedule of distribution or the execution sale if no schedule of distribution need be filed, shall execute and acknowledge before the prothonotary a deed to the property sold. The sheriff shall forthwith deliver the deed to the appropriate officers for recording and for registry if required. Confirmation of the sale by the court shall not be required.

the sale, but befo Ralich, supra There is an exception to this time bar, however. A

Id.

actions shall be prosecuted by and in the name of is a real party in interest if it has the legal right under the applicable

US Bank N.A. v. Mallory, 982 A.2d 986, 994 (Pa.Super. 2009) (quoting Cole v. Boyd, 719

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A.2d 311, 312 13 (Pa.Super. 1998) who by operation of law, election or appointment has succeeded to the may become a party to a pending action by filing of record a statement of the material facts on which the right to subs 2352(a).

Instantly, Bank filed its complaint in mortgage foreclosure on August 9, 2010. On December 30, 2010, Bank obtained an in rem judgment in foreclosure against Appellant. On March 23, 2011, Bank assigned October 4, 2011. Also on October 4, 2011, Bank filed a praecipe to substitute Appellee as the successor plaintiff,2 as well as a praecipe to mark its judgment against Appellant to the use of Appellee. Appellee purchased was recorded on November 8, 2011.

Appellant subsequently file the October 25, 2013 hearing on the petition, Appellant submitted multiple documents in an attempt to prove that Bank had assigned its interest in

est to ____________________________________________

2 The praecipe holder of the mortgage by virtue of that certain Assignment of Mortgage, which Assignment has been executed and sent for recording in Wayne County on or about 09/30 See Praecipe, filed 10/4/11, at 1.)

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purported assignment from Bank to PennyMac had occurred. The documents included an assignment of mortgage form, which Appellant

See submitted 10/25/13, at 4; R.R. at 102a.) The incomplete, unrecorded form did not list an assignee. (Id. at Attachment 1; R.R. at 106a).

Regarding the involvement of PennyMac, Appellee conceded that Bank had assigned its interest in the mortgage to PennyMac at some point. (See

See N.T. Hearing, 10/25/13, at 7; R.R. at 95a.) assignment of mortgage form he executed with Bank. (See Exhibit 3, submitted 10/25/13, at 1.)3 The form confirmed that the parties executed the assignment on March 23, 2011, and Appellee recorded the assignment on October 4, 2011. Moreover, Appellee presented another assignment of mortgage form, indicating PennyMac assigned any interest it had in the mortgage to Appellee in August 2011. (See Appelle submitted 10/25/13, at 1.) ____________________________________________ 3

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Based upon the foregoing, Bank had assigned Bank assigned its interest to Appellee. In any event, the record shows Bank was the original real party in interest, and Appellee properly acted as its successor to the pending action. See Mallory, supra; Pa.R.C.P. 2352(a). Therefore, Appellant failed to excuse the untimely filing of his petition to set

sale. See Ralich, supra. Absent more, the court correctly

-aside petition. See Buchanan, supra. Accordingly, we affirm.

Order affirmed. Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 9/11/2014

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