Opinion
J-S66004-18 No. 1144 EDA 2018
03-20-2019
WELLS FARGO BANK NA Appellee v. JAMES PATRICK MCKENNA Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Order Dated March 28, 2018
In the Court of Common Pleas of Montgomery County
Civil Division at No(s): 2014-07290 BEFORE: GANTMAN, P.J., PANELLA, J., and FORD ELLIOTT, P.J.E. MEMORANDUM BY GANTMAN, P.J.:
Appellant, James Patrick McKenna, appeals pro se from the order entered in the Montgomery County Court of Common Pleas, which denied his petition to set aside a sheriff's sale of his foreclosed property. We affirm.
The relevant facts and procedural history of this case are as follows. On May 4, 2004, Appellant executed a residential mortgage in favor of Wachovia Bank, N.A. ("Wachovia"), in the principal amount of $100,000.00. Wachovia later merged with Appellee, Wells Fargo Bank, N.A. ("Bank"). Appellant failed to make the monthly payment due on January 23, 2011, and all subsequent payments. Bank filed a mortgage foreclosure complaint against Appellant on April 3, 2014. On May 28, 2014, Appellant filed an answer and new matter; Bank filed a reply to Appellant's new matter on June 10, 2014.
Bank filed a motion for summary judgment on March 1, 2017. On May 11, 2017, the court granted Bank summary judgment and entered judgment in favor of Bank and against Appellant in the amount of $155,380.59, plus costs and interest. Appellant timely filed a pro se notice of appeal on May 18, 2017. On November 17, 2017, Appellant's counsel filed a petition to withdraw, which the court granted on November 28, 2017. On January 31, 2018, a third party bought the mortgaged property at a sheriff's sale. On February 2, 2018, this Court dismissed Appellant's appeal, from the order granting Bank summary judgment, for failure to file a brief.
On February 15, 2018, Appellant filed a pro se motion to set aside sheriff's sale, which the court denied on March 28, 2018. Appellant timely filed a pro se notice of appeal on April 16, 2018. The court ordered Appellant on April 18, 2018, to file a concise statement of errors complained of on appeal per Pa.R.A.P. 1925(b); Appellant timely complied pro se on April 30, 2018.
Appellant raises the following issues for our review:
1. IS IT A FUNDAMENTAL ERROR AS A MATTER OF LAW THAT THE PENNSYLVANIA COURTS DO NOT ISSUE AN ACTUAL DECREE GRANTING OR DENYING WHAT IS INHERENTLY EQUITABLE AND DISCRETIONARY RELIEF THAT IS THE "FORECLOSURE OF A MORTGAGE" AND "SALE OF THE PROPERTY BY THE SHERIFF" AS UNDER PA.R.C.P. 1037(D)?
2. WAS THE TRIAL COURT REQUIRED AS A MATTER OF LAW TO VACATE THE UNDERLYING "MORTGAGE JUDGMENT" OBTAINED BY ENTRY OF DEFAULT WHERE THE COMPLAINT ITSELF FAILED TO CONFORM WITH A SUBSTANTIVE RULE OF COURT AT PA.R.C.P. 1024(A) & (B) IN THE VERIFICATION OF PLEADINGS, AND DID THIS IN EFFECT ALLOW A "CHAMPERTOUS" SUIT TO PROCEED IN THE NAME OF AN UNVERIFIED PLAINTIFF WHILE ACTUALLY
UNDERWRITTEN BY THE NONPARTY DEBT COLLECTOR?
3. WAS THE SHERIFF SALE ACTUALLY ILLEGAL OR UNLAWFUL BY "SHORTING" THE WRIT OF EXECUTION AT HAND AND SELLING THE PROPERTY FOR LESS THAN THE TOTAL OF "THE JUDGMENT, INTERESTS AND COSTS" AS ESTABLISHED IN KAIB V. SMITH , 684 A.2D 630, 632 (PA.SUPER. 1996), AND DID THIS "SHORT SALE" THEREFORE FAIL TO DIVEST THE MORTGAGOR OF HIS TITLE AS AN "INCOMPLETE PAYMENT"?
4. DOES THE FAILURE OF PENNSYLVANIA LAW TO REQUIRE "ADEQUATE COMPENSATION" AT "FAIR PRICE" FOR THE "PUBLIC TAKING" BY A "PUBLIC OFFICER" IN A "SHERIFF SALE" MAKE AN UNCONSTITUTIONAL BREACH OF SUBSTANTIVE PROPERTY AND DUE PROCESS RIGHTS?
5. WAS [BANK]'S MORTGAGE JUDGMENT A CLOG ON THE EQUITY OF REDEMPTION FOR BEING TWICE THE SALE PRICE AND THE COURT MUST THEREFORE SET ASIDE THE SHERIFF SALE AND THE FAILURE TO DO SO WAS A MANIFEST ABUSE OF DISCRETION?
6. DOES THE FAILURE OF PENNSYLVANIA LAW TO GUARANTEE SALE PRICE REDEMPTION MAKE AN UNCONSTITUTIONAL BREACH OF SUBSTANTIVE PROPERTY AND DUE PROCESS RIGHTS, AND THAT THE COURT MUST THEREFORE ORDER SALE PRICE REDEMPTION AS A MATTER OF LAW ANALOG TO THE PROCEDURE FOR "JUDICIAL TAX SALES" IN THIS STATE?
7. DID THE COURT ERR AS A MATTER OF LAW IN REFUSING TO VACATE THE MORTGAGE JUDGMENT WHERE THE UNDERLYING COMPLAINT FAILED TO STATE ANY "GROUNDS" FOR A MORTGAGE FORECLOSURE REMEDY AS UNDER PA.R.C.P. 1146?
8. WAS [BANK]'S FAILURE TO FIRST PRESENT THE MORTGAGE NOTE FOR EXCHANGE AT THE "PLACE OF PAYMENT" OR TO OBTAIN A DISCHARGE AS UNDER GERBER V. PIERGROSSI [, 142 A.3D 854 (PA.SUPER. 2016), APPEAL DENIED, 641 PA. 179, 166 A.3D 1215 (2017)] A FATAL DEFECT PRIMA FACIE IN THE UNDERLYING COMPLAINT WHERE NEGOTIABLE INSTRUMENTS ARE
PERSONAL CLAIMS BARRED IN FORECLOSURE CASES UNDER RULES 1141, 1146 & 1148?
9. "[M]ORTGAGE FORECLOSURE" BEING THE WRONG FORM OF ACTION FOR "NEGOTIABLE INSTRUMENTS" ("IN REM VS. IN PERSONAM"), THEREFORE DID THE COURT ERR AS A MATTER OF LAW BY REFUSING TO STRIKE THE "IN REM" MORTGAGE JUDGMENT THAT [WAS] OBTAINED ON A FICTITIOUS AND ILLEGAL PERSONAL OBLIGATION INSTEAD OF SETTING FORTH THE "ASSIGNMENTS OF MORTGAGE DEBT" AS THE "REAL INTERESTED PARTY"?
10. IS IT AN ERROR AS A MATTER OF LAW WHERE REAL ESTATE IS INHERENTLY EXCLUDED FROM NEGOTIABLE COLLATERAL BY DEFINITION AND THEREFORE IMPOSSIBLE TO STATE A CLAIM FOR WHICH RELIEF COULD BE GRANTED, RELATING TO BOTH THE "UNIFORM COMMERCIAL CODE" IN THE SAME CAUSE OF ACTION AS FOR "IN REM MORTGAGE FORECLOSURE AGAINST LAND PARCELS" ESPECIALLY WHERE LAND IS AN IMMOVABLE THING AND NEGOTIABLE INSTRUMENTS RELATE TO TOKENS OF EXCHANGE FOR THINGS WHICH ARE ACTUALLY MOVABLE?
11. IS A PENNSYLVANIA TRIAL COURT BOUND BY THE SUPREMACY CLAUSE OF THE UNITED STATES CONSTITUTION TO "MAKE NOTHING BUT GOLD OR SILVER TENDER FOR DEBT" AS UNDER ARTICLE 1, SECTION 10 UNITED STATES CONSTITUTION, AND THAT THEREFORE UNDER THE PREVAILING CIRCUMSTANCES IN THIS DAY, ALL DEBTS ARE FICTITIOUS ACCOUNT ENTRIES THAT CANNOT BE GIVEN THE SUBSTANCE OF LAW UNLESS THE COURTS WILL RENDER JUDGMENT IN THE VALUE OF LAWFUL UNITED STATES GOLD OR SILVER MONEY?
12. WAS IT THEREFORE IN LIGHT OF THE TOTAL CIRCUMSTANCE MORE EFFICIENT AND REASONABLE TO EXERCISE THE POWER OF SOUND DISCRETION AND IMPOSE A "CONSTRUCTIVE TRUST" OR TO RECOGNIZE THAT THE MODERN BANKING RELATIONSHIP IS A "RESULTING TRUST" WHERE THE MORTGAGOR IS ACTUALLY A SECURITIZATION TRUSTOR WITH THE RIGHT TO SEE THE CONTINUATION OF THE UNDERLYING FDIC "FAIR VALUE" GUARANTEE, ALONG WITH A SUBSTANTIAL
VICARIOUS INTEREST IN THE BENEFITS OF THE FDIC "80% LOSS SHARING" ARRANGEMENT AS PLEAD WITHIN THE UNDERLYING MOTION BEFORE THE...TRIAL COURT?(Appellant's Brief at 8-11).
13. [D]ID THE...TRIAL COURT COMMIT A MANIFEST ABUSE OF DISCRETION BY REFUSING TO GRANT THE EQUITABLE RELIEF THEREIN REQUESTED, SEEKING THE IMPOSITION OR RECOGNITION OF THE UNDERLYING FINANCIALIZATION ARRANGEMENT AS AN EXTENDED SECURITIZATION MODEL THAT ALSO INURES TO THE BENEFIT OF A MORTGAGOR WHO IS REALLY THE SECURITIZATION TRUSTOR?
As a prefatory matter, we must address the timeliness of Appellant's appeal. Pennsylvania Rule of Appellate Procedure 903 provides: "[E]xcept as otherwise prescribed by this rule, the notice of appeal required by Rule 902 (manner of taking appeal) shall be filed within 30 days after the entry of the order from which the appeal is taken." Pa.R.A.P. 903(a). Time limitations for taking appeals are strictly construed and cannot be extended as a matter of grace. Commonwealth v. Valentine , 928 A.2d 346 (Pa.Super. 2007). This Court can raise the matter sua sponte, as the issue is one of jurisdiction to entertain the appeal. Id. This Court has no jurisdiction to entertain an untimely appeal. Commonwealth v. Patterson , 940 A.2d 493 (Pa.Super. 2007), appeal denied, 599 Pa. 691, 960 A.2d 838 (2008). "Where a party fails to appeal a final order, it operates as res judicata on the issues decided." Morgan Guar. Trust Co. of New York v. Mowl , 705 A.2d 923, 928 (Pa.Super. 1998), appeal denied, 556 Pa. 693, 727 A.2d 1211 (1998).
Here, Appellant raises on appeal numerous issues, which effectively challenge the court's prior May 11, 2017 order granting summary judgment in favor of Bank in the mortgage foreclosure action. Appellant initially timely appealed from the summary judgment, which disposed of all claims and parties. See Pa.R.A.P. 341(b), 903(a). This Court, however, dismissed the appeal for Appellant's failure to file a brief, and Appellant sought no further relief. To the extent he now seeks review of the May 11, 2017 summary judgment, Appellant's current appeal, filed in April 2018, is well beyond the applicable 30-day appeal period for that challenge. Additionally, the current notice of appeal expressly refers to the order of March 28, 2018, which denied Appellant's petition to set aside the sheriff's sale. Therefore, this Court has no jurisdiction to address Appellant's claims challenging the mortgage foreclosure summary judgment. See Patterson , supra ; Pa.R.A.P. 903(a). Accordingly, we dismiss Appellant's first, second, fifth, seventh, eighth, ninth, tenth, and eleventh issues for lack of jurisdiction.
As a second prefatory matter, appellate briefs must conform in all material respects to the briefing requirements in the Pennsylvania Rules of Appellate Procedure. Pa.R.A.P. 2101. See also Pa.R.A.P. 2114-2119 (addressing specific requirements of each subsection of brief on appeal). Regarding the argument section of an appellate brief, Rule 2119(a) provides:
Rule 2119. Argument
(a) General rule.—The argument shall be divided into as many parts as there are questions to be argued; and shall have at the head of each part—in distinctive type or in type distinctively displayed—the particular point treated therein,
followed by such discussion and citation of authorities as are deemed pertinent.Pa.R.A.P. 2119(a). Importantly, where an appellant fails to raise or develop his issues on appeal properly, or where his brief is wholly inadequate to present specific issues for review, this Court can decline to address the appellant's claims on the merits. Butler v. Illes , 747 A.2d 943 (Pa.Super. 2000). See also Lackner v. Glosser , 892 A.2d 21 (Pa.Super. 2006) (explaining arguments must adhere to rules of appellate procedure and arguments which are not appropriately developed are waived; arguments not appropriately developed include those where party has failed to cite authority to support contention); Estate of Haiko v. McGinley , 799 A.2d 155 (Pa.Super. 2002) (stating appellant must support each question raised by discussion and analysis of pertinent authority; absent reasoned discussion of law in appellate brief, appellant hampers this Court's review and risks waiver). This Court is willing to construe materials of a pro se litigant liberally, but pro se status confers no special benefit upon the appellant. Wilkins v. Marsico , 903 A.2d 1281, 1284-85 (Pa.Super. 2006), appeal denied, 591 Pa. 704, 918 A.2d 747 (2007). When the issues on appeal are waived, the trial court's order is more properly "affirmed." In re K.L.S., 594 Pa. 194, 197 n.3, 934 A.2d 1244, 1246 n.3 (2007) (noting upon waiver of issues on appeal, this Court should affirm trial court's decision, not quash appeal).
Instantly, Appellant fails to cite to any relevant authority in his brief to support his fourth, twelfth, and thirteenth issues. The arguments contained in these claims amount to rambling and subjective discussions of Constitutional law and public policy, without citation to any relevant legal authority. Appellant's failure to develop his arguments with citations to pertinent law precludes meaningful review and constitutes waiver of his fourth, twelfth, and thirteenth issues. See Butler , supra ; Pa.R.A.P. 2119(a).
With respect to Appellant's remaining issues three and six, "[t]he 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." 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)).
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.... 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.Buchanan , supra at 1167 (internal citations omitted). See also Mortgage Electronic Registration Systems , Inc. v. Ralich , 982 A.2d 77, 80 (Pa.Super. 2009), appeal denied, 606 Pa. 650, 992 A.2d 889 (2010) (stating sheriff's sale may be set aside after delivery of sheriff's deed, if sale was product of fraud or lack of authority to make sale); Blue Ball Nat'l Bank v. Balmer , 810 A.2d 164, 166 (Pa.Super. 2002), appeal denied, 573 Pa. 662, 820 A.2d 702 (2003) (noting that gross inadequacy in sale price is sufficient grounds to set aside sheriff's sale); First Eastern Bank , N.A. v. Campstead , Inc., 637 A.2d 1364, 1365-66 (Pa.Super. 1994) (stating lack of adequate notice constitutes clear and convincing evidence to set aside sheriff's sale).
After a thorough review of the record, the briefs of the parties, the applicable law, and the well-reasoned opinion of the Honorable Garrett D. Page, we conclude Appellant's third and sixth issues merit no relief. The trial court opinion comprehensively discusses and properly disposes of the questions presented. ( See Trial Court Opinion, filed May 8, 2018, at 9-11) (finding: (3, 6) Appellant fails to raise any equitable grounds for court to set aside sheriff sale; Appellant does not challenge sale itself, bidding process, notice, or price; equity does not permit Appellant to fail to meet his contractual obligations under mortgage note and then redeem property for price paid by highest bidder at sheriff sale). The record supports the trial court's rationale. Accordingly, as to Appellant's third and sixth issues, we affirm on the basis of the trial court opinion.
Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 3/20/19
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