HSBC Bank USA National v. Kronberg, K. ( 2015 )

J-S68036-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
HSBC BANK USA IN THE SUPERIOR COURT OF
NATIONAL ASSOCIATION TRUSTEE PENNSYLVANIA
Appellee
v.
KEVIN A. KRONBERG
Appellant No. 3365 EDA 2014
Appeal from the Order October 21, 2014
In the Court of Common Pleas of Montgomery County
Civil Division at No(s): 2010-08737
BEFORE: BENDER, P.J.E., DONOHUE, J., and MUNDY, J.
MEMORANDUM BY MUNDY, J.: FILED DECEMBER 28, 2015
Appellant, Kevin A. Kroberg, appeals from the October 21, 2014 order
denying his “Motion to Set-Aside Sheriff’s Foreclosure Sale.” After careful
consideration, we affirm on the basis expressed in the thorough and well-
supported opinion of the Honorable Thomas C. Branca.
The trial court summarized the procedural and factual history of this
case in its April 27, 2015 opinion, and we need not repeat it here in full. We
highlight a few salient points for clarity. This matter commenced with the
filing of a mortgage foreclosure complaint by Appellee, HSBC Bank, NA
Trustee (HSBC Bank), on April 5, 2010. HSBC Bank obtained a default
judgment on May 28, 2010, and the matter proceeded to a sheriff’s sale on
December 18, 2013. Throughout this time, Appellant took no responsive
action in the case except to move to adjourn the sheriff’s sale on September
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23, 2013, which was withdrawn later that same day. The motion was refiled
on December 17, 2013 and denied the following day. The property was sold
at a sheriff’s sale on February 10, 2014. The sheriff’s deed was delivered
and recorded on February 20, 2014. Not until March 5, 2014, did Appellant
file the instant petition to set aside the sheriff’s sale. After hearing
argument, and receiving briefs from the parties, the trial court denied
Appellant’s petition on October 23, 2014. Appellant filed a timely notice of
appeal on November 19, 2014.1
On appeal, Appellant raises the following issues for our review.
(1) Did the trial court commit an error of law in
denying Kronberg’s Motion to Set-Aside Sheriff’s
[F]oreclosure Sale when [HSBC Bank] (Plaintiff
below), foreclosing lender did not have
“authority”/standing to execute on its foreclosure
judgment for want of a pre-judgment record
assigned mortgage and negotiated transferred note
such as to allow foreclosing lender to have conducted
its Sheriff’s Sale?
(2) Did the trial court commit an error of law in
denying a requested evidentiary hearing, or,
alternatively, discovery towards oral argument?
Appellant’s Brief at 8.2
____________________________________________
1
Appellant and the trial court have complied with Pennsylvania Rule of
Appellate Procedure 1925.
2
Appellant failed to include his second issue in his Rule 1925(b) statement.
Therefore, we conclude this issue is waived. See Commonwealth v. Hill,
16 A.3d 484, 494 (Pa. 2011) (holding “any issues not raised in a Rule
1925(b) statement will be deemed waived”).
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We note the following standards guiding our review of this appeal.
Pursuant to Rule 3132 of the Pennsylvania
Rules of Civil Procedure, a sheriff’s sale may be set
aside upon petition of an interested party “upon
proper cause shown” and where the trial court
deems it “just and proper under the circumstances.”
Pa.R.C.P. 3132. The burden of proving
circumstances warranting the exercise of the court’s
equitable powers is on the petitioner. Equitable
considerations govern the trial court’s decision to set
aside a sheriff’s sale, and this Court will not reverse
the trial court’s decision absent an abuse of
discretion. An abuse of discretion occurs where, for
example, the trial court misapplies the law.
Nationstar Mortgage, LLC v. Lark, 73 A.3d 1265, 1267 (Pa. Super.
2013).
[Pennsylvania] Rule [of Civil Procedure] 3135 makes
it clear that a party has 20 days to take exceptions
before the sheriff executes a sheriff’s deed.
Taken together, Rule 3132 and 3135(a) make
clear a party must raise a challenge to a sheriff’s sale
within a period of time after the sale, but before the
deed is delivered.
Mortgage Elec. Registration Sys., Inc. v. Ralich, 982 A.2d 77, 80 (Pa.
Super. 2009), appeal denied, 992 A.2d 889 (Pa. 2010). “There is an
exception to this time bar, however. A sheriff’s sale may be set aside after
delivery of the sheriff’s deed based on fraud or lack of authority to make the
sale.” Id. (citations omitted).
Instantly, Appellant’s petition was patently late. However, Appellant
asserts that he has demonstrated lack of authority for the sheriff’s sale,
because “[t]he failure of a pre-judgment record assigned mortgage and
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negotiated transferred note through the chain of loan title precludes
foreclosing lender’s authority/standing to have executed thereupon its
default judgment ….” Appellant’s Brief at 14. Essentially, Appellant claims
the sheriff had no authority to sell the property because HSBC Bank
allegedly lacked standing at the time it brought the suit. Id.
We agree with the trial court that Appellant’s claim is meritless.
Standing is a non-jurisdictional and waivable issue. In re Condemnation
by Urban Redev. Auth. of Pittsburgh, 913 A.2d 178, 181 n.6 (Pa. 2006).
Any challenges to a party’s capacity to sue must be raised in preliminary
objections or in an answer to the complaint. In re Estate of Alexander,
758 A.2d 182, 189 (Pa. Super. 2000); see also Pa.R.C.P., Rule 1028(a)(5).
The issue of standing to sue is waived unless specifically raised in a
preliminary objection or in the answer to the complaint. Erie Indem. Co. v.
Coal Operators Cas. Co., 272 A.2d 465, 467 (Pa. 1971). Appellant never
challenged HSBC Bank’s standing during the foreclosure proceedings, and
has waived the issue. We also agree with the trial court that HSBC Bank’s
various pleadings and averments were adequate on their face to indicate
HSBC Bank’s standing was proper. Trial Court Opinion, 4/27/15, at 6-7.
Accordingly, we adopt the April 27, 2015 opinion of the Honorable
Thomas C. Branca as our own for the purposes of our disposition of this
appeal. We conclude the trial court did not abuse its discretion when it
denied Appellant’s petition to set aside the sheriff’s sale in this case. See
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Lark, supra. Accordingly, we affirm the trial court’s October 21, 2014
order.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/28/2015
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