in-re-sale-of-real-estate-by-lackawanna-tcb-judicial-tax-sale-property ( 2014 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
In Re: Sale of Real Estate by :
Lackawanna Tax Claim Bureau :
:
Judicial Tax Sale Property Situated :
at 102-104 S. Main Avenue, :
Scranton, PA 18504 :
:
Tax Map No. 145.18.040-050 :
:
Real Owner(s) Jean Calixte :
:
HSBC Bank USA, N.A., as :
Indentured Trustee for the Registered :
Holders of the Renaissance Home :
Equity Loan Asset-Backed :
Certificates, Series 2005-1 :
:
v. : No. 2027 C.D. 2013
:
Lackawanna County-Tax Claim : Argued: June 16, 2014
Bureau :
:
Christopher T. Tracy :
:
Appeal of: HSBC Bank USA, N.A., :
as Indentured Trustee for the :
Registered Holders of the :
Renaissance Home Equity Loan :
Asset-Backed Certificates, :
Series 2005-1 :
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge
HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE COHN JUBELIRER FILED: August 1, 2014
HSBC Bank USA, N.A., as Indentured Trustee for the Registered Holders of
the Renaissance Home Equity Loan Asset-Backed Certificates, Series 2005-1
(Bank), appeals from the Order of the Court of Common Pleas of Lackawanna
County (trial court) denying Bank’s Petition to Set Aside Tax Sale (Petition to Set
Aside) of property located at 102-104 South Main Avenue, Scranton, Pennsylvania
(Property), which was sold at judicial tax sale on February 27, 2012. On appeal,
Bank asserts that the judicial tax sale of the Property should be set aside and/or
Bank’s liens should not be discharged because the Lackawanna County Tax Claim
Bureau (Bureau) did not comply with the service requirements of Section 611 of
the Real Estate Tax Sale Law1 (Law) and did not present the documents necessary
to support the grant of its Petition to Sell the Property at judicial tax sale (Petition
to Sell). Discerning no error, we affirm.
On January 14, 2005, Jean Calixte obtained a mortgage in the amount of
$131,440 from Delta Funding Corporation (Delta) for the Property. The mortgage
was evidenced by a Note and identified the Mortgage Registration Systems, Inc.
(MERS) as Delta’s mortgage nominee. In December 2010, MERS assigned the
mortgage to Bank. The address Bank provided on the Assignment of Mortgage
(Assignment) was “HSBC Bank USA, N.A. . . ., whose address is c/o Ocwen Loan
Servicing, LLC [(Ocwen)], 1661 Worthington Road, Suite 100, West Palm Beach,
1
Act of July 7, 1947, P.L. 1368, as amended, 72 P.S. § 5860.611.
2
Florida, 33409” (Florida Address), and the assignee Cory Messer certified the
address. (Assignment, R.R. at 50a-51a.) The Florida Address was the only
address for Bank provided to the Bureau. (Trial Ct. Op. at 2.) No taxes were paid
on the Property, and the Bureau exposed the Property to public sale. (Trial Ct. Op.
at 3.) The Bureau held an upset tax sale, but no bids were made that would pay the
upset price. (Trial Ct. Op. at 3.) After a records search on December 9, 2011, the
Bureau identified Bank as the Property’s mortgage holder, with the Florida
Address as Bank’s address. (Trial Ct. Op. at 3.) Thereafter, the Bureau filed its
Petition to Sell with the trial court. (Trial Ct. Op. at 3.)
The trial court issued a Rule to Show Cause (Rule) upon all the parties with
interests in the Property as to why the Property should not be “sold free and clear
of their respective tax and municipal claims, liens, mortgages, charges, estates and
encumbrances.” (Trial Ct. Op. at 3.) The Rule was filed with the Lackawanna
County Clerk of Judicial Records on December 30, 2011. (Trial Ct. Op. at 3-4.)
On January 5, 2012, the Lackawanna County Sheriff’s Office (Sheriff) served the
Rule on Bank2 via certified mail, with the Sheriff’s address as the return, at the
Florida Address. (Trial Ct. Op. at 4; Sheriff’s Return, R.R. at 186a.) Anthony
Piamonte of Ocwen’s legal department accepted and signed for the Rule on
January 11, 2012. (Trial Ct. Op. at 4; Sheriff’s Return, R.R. at 186a.) The sale
was advertised and, following a hearing on the Rule at which Bank did not appear,
the trial court issued an order authorizing the judicial sale of the Property free and
2
A mortgagee has a legally protected property interest and “is entitled to notice
reasonably calculated to apprise him of a pending tax sale.” Mennonite Board of Missions v.
Adams, 462 U.S. 791, 798 (1983); Petition of Tax Claim Bureau of Westmoreland County, 613
A.2d 634, 638 (Pa. Cmwlth. 1992).
3
clear.3 (Trial Ct. Op. at 4.) The Property was sold at judicial tax sale to
Christopher T. Tracy (Purchaser) on February 27, 2012. (Trial Ct. Op. at 5.) The
Bureau sent Bank a check, in the amount of $17,499.47, to the Florida Address for
Bank’s portion of the proceeds from the judicial tax sale. (Trial Ct. Op. at 5; Letter
from County Commissioners to Bank (June 7, 2012), R.R. at 157a-58a.) Purchaser
received a Bureau Deed on May 18, 2012, and filed an action to quiet title on the
Property. (Trial Ct. Op. at 5.)
Bank filed its Petition to Set Aside on July 17, 2013 asserting, in pertinent
part, that: the Bureau did not properly serve the Rule on Bank because Bank had
branches in Pennsylvania where it could have been personally served; the Bureau,
not the Sheriff, prepared the certified mailing for service on Bank; and the Bureau
did not file and present all the necessary documents with its Petition to Sell. (Trial
Ct. Op. at 5-6.) Purchaser and the Bureau responded that the Petition to Set Aside
was filed beyond the relevant statute of limitations period, the service on Bank at
the Florida Address was in accordance with Section 611 of the Law, and the
Bureau complied with the requirements of Section 610 of the Law, 72 P.S §
5860.610, pertaining to what documentation must be filed with the Petition to Sell.
(Trial Ct. Op. at 6-7.)
After a hearing, the trial court concluded that Bank’s Petition to Set Aside
was filed after the six month statute of limitations set forth in Section 5522(b)(5) of
3
After a hearing at which the trial court is satisfied that the Rule to Show Cause has been
served on the parties named therein and the facts are correct, the trial court can decree that the
property be sold at a future time free of all “tax and municipal claims, mortgages, liens, charges
and estates of whatsoever kind, except ground rents, separately taxed.” Section 612 of the Law,
72 P.S. § 5860.612.
4
the Judicial Code4 had expired. Applying the discovery rule, the trial court
concluded Bank should have reasonably discovered the judicial tax sale of the
Property no later than June 5, 2012, the date Purchaser’s deed for the Property was
recorded in the County Recorder of Deed’s office. (Trial Ct. Op. at 10.) Using
June 5, 2012, the trial court held that the Petition to Set Aside had to be filed by
December 6, 2012 to be timely, but it was not filed until July 17, 2013. (Trial Ct.
Op. at 10.) Nevertheless, the trial court addressed Bank’s substantive arguments.
The trial court held that the service of the Petition to Sell and Rule on Bank
at the Florida Address complied with the service requirements of Section 611 of
the Law because that was the address for Bank on the Assignment and, pursuant to
Section 611, service on an out-of-state interest holder is to be effectuated by the
Sheriff sending, by certified mail return receipt requested, the Rule to the interest
holder. (Trial Ct. Op. at 11.) The trial court noted that, had the certified mail been
returned as unclaimed or unaccepted, then the Bureau would have been obligated
to engage in further research to locate Bank. (Trial Ct. Op. at 11-12.) The trial
court also held that there was no error in the Bureau’s attorney preparing the
materials for the Sheriff to send to Bank because Section 611 does not require the
Sheriff to prepare the Rule for mailing; it only requires that the Sheriff serve the
Rule by certified mail. (Trial Ct. Op. at 13.) The trial court next concluded that
the Bureau’s documentation regarding its title search of the Property satisfied
4
42 Pa. C.S. § 5522(b)(5). This section states “[a]n action or proceeding to set aside a
judicial sale of property” “must be commenced within six months” of when the action accrued.
Id.
5
Section 610 of the Law because it contained the information required by that
section. (Trial Ct. Op. at 14.) Bank’s appeal is now before this Court.5
Purchaser and Bureau argue, as they did before the trial court, that Bank’s
Petition to Set Aside is untimely because it was not filed within the six month
statute of limitations period set forth in Section 5522(b)(5) of the Judicial Code, 42
Pa. C.S. § 5522(b)(5). The Bureau argues that the discovery rule,6 which would
extend the statute of limitations period, does not apply in this matter because Bank
received notice of the judicial tax sale in accordance with Section 611 of the Law
and, therefore, any petition to set aside had to be filed within six months of the
February 27, 2012 sale. Bank asserts, inter alia, that its Petition to Set Aside was
timely because the Rule was not served in accordance with Section 611 and it filed
5
The appeal was filed with the Superior Court and was then transferred to this Court.
“Our scope of review in tax sale cases is limited to determining whether the trial court abused its
discretion, rendered a decision with a lack of supporting evidence, or clearly erred as a matter of
law.” Plank v. Monroe County Tax Claim Bureau, 735 A.2d 178, 181 n.6 (Pa. Cmwlth. 1999).
The trial court is the finder of fact and “has exclusive authority to weigh the evidence, make
credibility determinations and draw reasonable inferences from the evidence presented.” In re:
Sale of Real Estate by Lackawanna Tax Claim Bureau (Appeal of Yankowski), 986 A.2d 213,
216 (Pa. Cmwlth. 2009).
6
A statute of “limitations period begins to run when the injured party possesses sufficient
critical facts to put him on notice that a wrong has been committed and that he need investigate
to determine whether he is entitled to redress.” Weik v. Estate of Margaret D. Brown, 794 A.2d
907, 909 (Pa. Super. 2002) (citation omitted). “The discovery rule is an exception to the statute
which provides that ‘the statute is tolled, and does not begin to run until the injured party
discovers or reasonably should discover that he has been injured and that his injury has been
caused by another party’s conduct.’” Constantino v. Carbon County Tax Claim Bureau, 895
A.2d 72, 74-75 (Pa. Cmwlth. 2006) (quoting Fine v Checcio, 870 A.2d 850, 859 (Pa. 2005)).
The party invoking the discovery rule has the burden of proving its applicability. Weik, 794
A.2d at 909. To meet this burden, “the party must establish that he acted with reasonable
diligence in determining the fact of the injury but was unable to ascertain it.” Id.
6
the Petition to Set Aside within six months of when it discovered the sale of the
Property. Alternatively, Bank argues that the six month limitations period does not
apply to its request that its mortgage interest be reinstated, which is independent of
its claim that the judicial tax sale be set aside. In order to determine whether the
discovery rule applies to extend the statute of limitations, we must first determine
whether the Petition to Sell was properly served on Bank.
Bank argues that the Bureau did not comply with Section 611 when serving
the Petition to Sell and, therefore, the judicial tax sale of the Property should be set
aside or Bank’s lien should be reinstated. There is no question that Bank, as a
mortgagee, has a legally protected interest in the Property and was “entitled to
notice reasonably calculated to apprise” it of the upcoming judicial tax sale of the
Property. Mennonite Board of Missions v. Adams, 462 U.S. 791, 798 (1983)
(emphasis added); Petition of Tax Claim Bureau of Westmoreland County, 613
A.2d 634, 638 (Pa. Cmwlth. 1992). Section 611 of the Law governs service of the
Rule and states
Service of the rule shall be made in the same manner as writs of
scire facias are served in this Commonwealth. When service cannot
be made in the county where the rule was granted, the sheriff of the
county shall deputize the sheriff of any other county in this
Commonwealth, where service can be made. If service of the rule
cannot be made in this Commonwealth, then the rule shall be served
on the person named in the rule by the sheriff, by sending him, by
registered mail, return receipt requested, postage prepaid, at least
fifteen (15) days before the return day of the rule, a true and attested
copy thereof, addressed to such person’s last known post office
address. The sheriff shall attach to his return, the return receipts, and
if the person named in the rule has refused to accept the registered
mail or cannot be found at his last known address, shall attach
evidence thereof. This shall constitute sufficient service under this
act.
7
72 P.S. § 5860.611. The notice requirements for judicial tax sales are less onerous
than those for upset tax sales, In re Serfass, 651 A.2d 677, 679 (Pa. Cmwlth. 1994);
however, they must be strictly construed, Manufacturers and Traders Trust Co. v.
Luzerne County Tax Claim Bureau, 56 A.3d 36, 39 (Pa. Cmwlth. 2012) (M&T
Trust). “Service of the rule to show cause is the final required notice to be served
on [a lienholder] prior to the [j]udicial [s]ale,” and there is no requirement under
the Law that lienholders or landowners receive actual notice of the judicial tax
sale. In re Sale of Real Estate Northampton County Tax Claim Bureau, 874 A.2d
697, 698, 701 (Pa. Cmwlth. 2005). Although a judicial tax sale purchaser takes
title to the property free and clear of all mortgages and liens, 72 P.S. § 5860.612, if
a mortgagee does not receive adequate notice of the judicial tax sale, which is the
notice of the rule to show cause that is served pursuant to Section 611 of the Law,
the lien is not discharged and the purchaser at the judicial sale takes the property
subject to the lien, Plank v. Monroe County Tax Claim Bureau, 735 A.2d 178, 182
n.10 (Pa. Cmwlth. 1999). The tax claim bureau bears the burden of proving that it
complied with the statutory notice requirements. In re: Sale of Real Estate by
Lackawanna Tax Claim Bureau (Appeal of Yankowski), 986 A.2d 213, 216 (Pa.
Cmwlth. 2009).
To accomplish this notice, a tax claim bureau has “to use ordinary common
sense business practices in ascertaining the proper addresses to which [the Rule]
must be sent.” Krumbine v. Lebanon County Tax Claim Bureau, 621 A.2d 1139,
1141 (Pa. Cmwlth. 1993). This Court discussed what address a tax claim bureau
should use to provide notice of the rule to a similar lienholder in M&T Trust. In
that case, the lienholder filed a petition to set aside a judicial tax sale because the
8
rule to show cause sent by the tax claim bureau was not sent to the complete
address listed on the lien documents for the lienholder. M&T Trust, 56 A.3d at 37.
A representative from the tax claim bureau testified that the recorded mortgage
documents set forth the lienholder’s address as “One M&T Plaza, Buffalo, New
York” and included the appellation “Attn: General Counsel’s Office”; however, the
tax claim bureau did not include the appellation “Attn: General Counsel’s Office”
with the rest of the address it provided to the sheriff for the purpose of serving the
lienholder. Id. at 38. We observed that the “One M&T Plaza building in Buffalo,
New York, has twenty-one stories and is ninety-eight percent occupied by” the
lienholder. Id. at 38 n.6. The trial court dismissed the petition to set aside,
concluding that the tax claim bureau had satisfied the requirements of Section 611.
Id. at 38. The lienholder appealed to this Court, arguing that the trial court’s
conclusion was erroneous, and we agreed. Id. at 39. This Court held that Section
611 “requires that notice must be sent to a lienholder’s ‘last known post office
address,’” and that the lienholder’s last known address was provided in the
recorded lien documents. Id. at 39 (quoting 72 P.S. § 5860.611). We explained
that the tax claim “[b]ureau . . . did not use the [lienholder’s] full, correct address
when notifying the [lienholder]” and that the failure “to use the [lienholder’s] full
address as listed in the lien documents” rendered the service of notice on the
lienholder contrary to Section 611 of the Law. M&T Trust, 56 A.3d at 39-40.
In the case at bar, the Bureau did use the address on the lien documents,
which was the Florida Address. However, nonetheless, Bank first argues that the
service of the Rule did not conform to Section 611 of the Law because the Bureau
should have searched for a branch of Bank anywhere in Pennsylvania at which the
9
Rule could have been personally served and, had it done so, the Bureau would
have found two branches in Philadelphia County. What Bank appears to argue is
that the Bureau should have hand delivered, via a deputized sheriff, the Rule to a
branch of Bank somewhere, anywhere, in Pennsylvania rather than send the Rule,
via certified mail return receipt requested, to the specific, certified address
identified as Bank’s address on the recorded Assignment, which established
Bank’s legal interest in the Property. We are unpersuaded that the Law requires
such searches, particularly where, as here, the certified mail return receipt was
signed and returned to the Bureau.
Bank’s argument is the converse to the one made by the lienholder in In re
Monroe County Tax Claim Bureau, 91 A.3d 265 (Pa. Cmwlth. 2014). In that case,
the tax claim bureau had the rule to show cause personally served on the lienholder
at the address contained in the mortgage documents, which was a branch of the
lienholder located in Pennsylvania, and the rule to show cause was signed for by a
branch supervisor. Id. at 268. The lienholder argued that service was improper
because the tax claim bureau should have taken “reasonable steps to discover [the
lienholder’s] corporate address,” which was out-of-state, and served the rule to
show cause there and not on the Pennsylvania branch listed in the lien documents.
Id. at 270. We rejected the lienholder’s argument that service on the Pennsylvania
branch was unreasonable, concluding that this was the address listed on, inter alia,
the lien documents as the lienholder’s address and that the tax claim bureau could
reasonably conclude that that address was the correct address for the lienholder.
Id. at 271.
10
Bank’s argument, in essence, would place the burden on tax claim bureaus
to determine when an address listed for a lienholder in the recorded lien documents
for a property is not the address the lienholder prefers for the service of legal
notices such that it should then search for another, better address, at which to serve
the lienholder. According to Bank, even where, as here, the Rule was not sent
back as unclaimed, service was not refused, or other circumstances raised doubt
that the Rule had been received by Bank, in which case the Bureau would have
been obligated to take additional, reasonable steps to discover Bank’s
whereabouts,7 the Bureau nonetheless should have known to look for and use a
different address. However, this result is not required by the Law or supported by
our holding in M&T Trust that tax claim bureaus should use the full addresses
contained in the lien documents to effectuate service under Section 611 of the Law.
After all, the lienholder can determine which address to place in a property’s
recorded lien documents for service of legal documents and develop any additional
internal processes necessary to direct the documents, once delivered, to the
appropriate personnel.
In the present matter, the Assignment provided the following address for
Bank: “HSBC Bank USA, N.A. . . ., whose address is c/o Ocwen Loan Servicing,
LLC, 1661 Worthington Road, Suite 100, West Palm Beach, Florida, 33409.”
(Assignment, R.R. at 50a (emphasis added).) Because this address was outside of
Pennsylvania, Section 611 required the Bureau to have the Sheriff serve the Rule
7
Section 607.1(a) of the Law, added by Section 30 of the Act of July 3, 1986, P.L. 351,
72 P.S. § 5860.607a(a); In re Sale No. 10, 801 A.2d 1280, 1288 (Pa. Cmwlth. 2002).
11
via certified mail return receipt requested. 72 P.S. § 5860.611. It is undisputed
that this is the address to which the Sheriff sent the Rule via certified mail and that
Ocwen employee Mr. Piamonte signed for and accepted the Rule on Bank’s behalf.
Bank acknowledges having a relationship with Ocwen regarding the Property.
Having sent the Rule “to [the] lienholder’s ‘last known post office address’ . . .
listed in the lien documents,” the Bureau’s service was not contrary to Law. M&T
Trust, 56 A.3d at 39-40. Furthermore, because service of the Rule via certified
mail was successful, there was no need for the Bureau to attempt to find an
alternate address at which to serve Bank. See In re Monroe County Tax Claim
Bureau, 91 A.3d at 270 (noting that the additional search requirements of Section
607.1(a) of the Law are mandatory when there is an unsuccessful attempt to serve a
person with interest in a property with notice of a upset or judicial tax sale).
Bank also relies on Sections 39.1 and 39.2(a) of the Pennsylvania Municipal
Claims and Tax Lien Act8 (Municipal Claims Act) (indicating that a city of the first
class may mail a rule to show cause to the address in the mortgage document on
record only if the lienholder has not registered an address for service) to argue that
service on Bank at the Florida Address did not comply with Section 611 of the
Law. Bank asserts that, pursuant to these provisions, the General Assembly knew
how to expressly authorize service using the address on a lien document and did
not expressly authorize such service in the Law.
8
Act of May 16, 1923, added by Section 4 of the Act of December 14, 1992, P.L. 850, 53
P.S. §§ 7193.1-7193.2.
12
We find Bank’s argument unconvincing. The registration provisions of the
Municipal Claims Act cited applies only to first class cities, and the Law contains
no similar registration requirement. Accordingly, there would be no need to look
for a registered address in this case and it was appropriate to rely on the lien
documents for Bank’s address. M&T Trust, 56 A.3d at 39-40. In fact, relying on
the lien documents discovered through a title search or, as here, provided to the
Bureau via the Assignment, to discover the address of the lienholder is how service
is accomplished for other taxing entities’ rules to show cause under the Municipal
Claims Act. Section 39.2(a.1) of the Municipal Claims Act, 53 P.S. § 7193.2(a.1).
Bank next asserts that service of the Rule was defective because the Sheriff
did not prepare and serve the Rule as required by Section 611, citing the Bureau
Deputy Director’s testimony that the Bureau’s attorney prepared the Rule for the
Sheriff, (Koldjeski Dep. at 42-43, R.R. at 116a-17a). However, the record shows
that the Rule was mailed, certified mail return receipt requested, by the Sheriff.
Section 611 of the Law states that the rule “shall be served on the person named in
the rule by the sheriff, by sending . . . by registered mail, return receipt requested,
. . . a true and attested copy [of the rule], addressed to such person’s last known
post office address” and to attach a return that includes return receipts. 72 P.S. §
5680.611. As noted by the trial court, Section 611 does not require the Sheriff to
prepare the Rule, that section requires the Sheriff to send the Rule, which was done
here. Accordingly, this is not a reason to hold that the Bureau’s service of the Rule
was defective.
13
For these reasons, we conclude that the Bureau’s use of the address for Bank
contained in the Assignment was “reasonably calculated to apprise” Bank of the
sale of the Property, Mennonite Board of Missions, 462 U.S. at 798, and that the
Bureau used “ordinary common sense business practices,” Krumbine, 621 A.2d at
1141, in providing that address to the Sheriff to effectuate service of the Rule.
Therefore, the trial court did not err in holding that the Bureau’s service of the
Rule on Bank at the Florida Address complied with Section 611 of the Law.
We now return to the issue of whether Bank’s Petition to Set Aside is barred
by the six month statute of limitations set forth in Section 5522(b)(5) of the
Judicial Code. Because we conclude that the Bureau served Bank with the Rule in
accordance with Section 611 of the Law and that is all the notice required by the
Law, In re Sale of Real Estate Northampton County Tax Claim Bureau, 874 A.2d
at 698, 701, the discovery rule does not apply to toll the six month statute of
limitation period.9 Accordingly, Bank had six months from February 27, 2012, the
9
Although we conclude that the discovery rule does not apply here, we will address
Bank’s lengthy argument that the trial court erred in holding that the six month statute of
limitation period began, at the latest, on June 5, 2012, the date Purchaser’s deed for the Property
was recorded in the County Recorder of Deed’s office because, pursuant to Allison v.
Chesapeake Energy Corporation, 2013 WL 787257 (W.D. Pa. January 29, 2013) at *10
(emphasis added), relying on such conduct “has some superficial appeal, it evaporates under the
actual circumstances and scheme alleged” and that, because the plaintiffs in that case had no
reason to conduct a title search, the fact that the documents had been recorded did not provide
the plaintiffs sufficient notice to trigger the statute of limitations. However, while Allison
criticizes relying on the recording of a deed to provide notice, it did so under the unique
circumstances of that case, which involved allegations of fraudulent concealment and affirmative
representations to the plaintiffs that they would receive notice prior to the recording of the deed.
Id. at *9-10. Such circumstances are not present here. Pennsylvania courts have long held that
the primary object of recording acts for deeds is to give the public notice of the title holder of
property. Clancy v. Recker, 316 A.2d 898, 902 (Pa. 1974); Salter v. Reed, 1850 WL 5989 *4
(Pa. 1850); Weik v. Estate of Margaret D. Brown, 794 A.2d 907, 910 (Pa. Super. 2002); Mancine
(Continued…)
14
date of the tax sale, to file its Petition to Set Aside. Bank filed the Petition to Set
Aside on July 17, 2013, well after the expiration of the six month statute of
limitations period.
Bank also asserts that it is not bound by the six month statute of limitations
because it included in its Petition to Set Aside a request to have its mortgage lien
reinstated, and that request is distinct from requesting that the judicial tax sale be
set aside. First, it is important to note that Bank included its request to have its
mortgage lien reinstated in a single paragraph in its “Petition to Set Aside Judicial
Tax Sale,” and Section 5522(b)(5) expressly provides a six month statute of
limitations for “[a]n action or proceeding to set aside a judicial sale of property.”
42 Pa. C.S. § 5522(b)(5). Bank’s request to reinstate its mortgage lien cannot be
made in a vacuum: there must be legal rationale to support reinstating a mortgage
that was otherwise discharged by a judicial sale. Bank’s legal rationale to support
the discharge in this case is that the judicial sale was not held in accordance with
the Law. However, because we have determined that there was no infirmity with
regard to the notice provided or any other requirements of the Law, there is no
legal basis for reinstatement of the mortgage lien. Therefore, this relief is
unavailable.10
v. Concord-Liberty Savings and Loan Association, 445 A.2d 744-746 (Pa. Super. 1982). The
recording of the deed provides notice to the public of the transfer of the title and, absent fraud or
active concealment, constitutes constructive notice of that transfer to those with an interest in the
property. Weik, 794 A.2d at 911.
10
Bank also argues that the judicial sale of the Property should be set aside, or its lien
reinstated, because the Bureau did not present the documents necessary under Section 610 of the
Law to support its Petition to Sell, citing the Bureau Deputy Director’s testimony that he was
unaware of whether the Bureau presented and filed the actual property search for the Property
(Continued…)
15
Accordingly, the trial court’s Order is affirmed.
________________________________
RENÉE COHN JUBELIRER, Judge
Judge Leadbetter did not participate in the decision in this case.
with the Petition to Sell, (Koldjeski Dep. at 47-48, R.R. at 121a-22a). Although it is unnecessary
to resolve this issue because of our disposition, we note that our review of the documentation the
Bureau presented with its Petition to Sell reveals that it contains all of the information required
by Section 610 of the Law. Thus, the trial court did not err in holding that the Bureau’s Petition
to Sell complied with Section 610 of the Law.
16
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
In Re: Sale of Real Estate by :
Lackawanna Tax Claim Bureau :
:
Judicial Tax Sale Property Situated :
at 102-104 S. Main Avenue, :
Scranton, PA 18504 :
:
Tax Map No. 145.18.040-050 :
:
Real Owner(s) Jean Calixte :
:
HSBC Bank USA, N.A., as :
Indentured Trustee for the Registered :
Holders of the Renaissance Home :
Equity Loan Asset-Backed :
Certificates, Series 2005-1 :
:
v. : No. 2027 C.D. 2013
:
Lackawanna County-Tax Claim :
Bureau :
:
Christopher T. Tracy :
:
Appeal of: HSBC Bank USA, N.A., :
as Indentured Trustee for the :
Registered Holders of the :
Renaissance Home Equity Loan :
Asset-Backed Certificates, :
Series 2005-1 :
ORDER
NOW, August 1, 2014, the Order of the Court of Common Pleas of
Lackawanna County is hereby AFFIRMED.
________________________________
RENÉE COHN JUBELIRER, Judge