Ocwen Loan Servicing v. Filimon, G. ( 2018 )


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  • J-A03035-18
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    OCWEN LOAN SERVICING, LLC,                     IN THE SUPERIOR COURT
    OF
    PENNSYLVANIA
    v.
    GHEORGHE FILIMON AND RODICA
    FILIMON
    APPEAL OF: GHEORGHE FILIMON
    No. 1605 EDA 2017
    Appeal from the Order Dated April 20, 2017
    in the Court of Common Pleas of Wayne County
    Civil Division at No.: 596-CIVIL-2010
    BEFORE: GANTMAN, P.J., McLAUGHLIN, J., and PLATT, J.*
    JUDGMENT ORDER BY PLATT, J.:                      FILED FEBRUARY 01, 2018
    Appellant, Gheorghe Filimon, appeals pro se from the trial court’s order
    denying his motion to vacate the sheriff’s sale as untimely. We affirm.
    We take an abbreviated factual and procedural history in this matter
    from our review of the certified record. A complaint in mortgage foreclosure
    was filed on July 15, 2010. On August 16, 2013, judgment was entered in
    favor of Appellee, Ocwen Loan Servicing, LLC, and against Appellant and
    ____________________________________________
    *   Retired Senior Judge assigned to the Superior Court.
    J-A03035-18
    Rodica Filimon. On May 4, 2016,1 the property was sold at sheriff’s sale. The
    sheriff’s deed was recorded in Wayne County on September 12, 2016.
    Appellant filed a motion to vacate sheriff’s sale on September 15, 2016. The
    trial court heard argument on the motion to vacate on March 1, 2017, and on
    April 20, 2017, denied the motion as untimely. This appeal followed.
    The trial court concludes that the motion to vacate was untimely. (See
    Trial Court Opinion and Order, 4/20/17, at 1-3). We agree.
    We review the denial of a motion to set aside a sheriff’s sale for an abuse
    of discretion. See Irwin Union Nat. Bank & Tr. Co. v. Famous, 
    4 A.3d 1099
    , 1102 (Pa. Super. 2010), appeal denied, 
    20 A.3d 1212
     (Pa. 2011). Only
    when a party proves that a sheriff’s sale was based on fraud, may the trial
    court grant a motion to set aside a sheriff’s sale that was filed after the sheriff’s
    delivery of the deed. See Mortg. Elec. Registration Sys., Inc. v. Ralich,
    
    982 A.2d 77
    , 79-80 (Pa. Super. 2009), appeal denied, 
    992 A.2d 889
     (Pa.
    2010) (citation omitted).       A trial court may not set aside a sale based on
    allegations of procedural deficiencies. See 
    id.
    Here, the sheriff’s delivery of the deed occurred on September 12, 2016,
    and Appellant filed his motion to vacate sale on September 15, 2016. Thus,
    unless Appellant proved that the sheriff’s sale was based on fraud, his motion
    was untimely. See 
    id.
    ____________________________________________
    1 The sheriff’s sale was originally scheduled for February 24, 2016, but was
    continued until April 27, 2016, and continued again until May 4, 2016. (See
    N.T. Hearing, 3/01/17, at 4).
    -2-
    J-A03035-18
    Appellant argues that the sale was based on fraud because he did not
    receive notice of his rights prior to commencement of the sheriff’s sale. (See
    Motion to Vacate Sheriff Sale, 9/15/16, at unnumbered pages 1-2). However,
    as the trial court noted, the record reflects that, on April 12, 2016, Appellant
    received notice of the continued sale date.       (See Notice of the Date of
    Continued Sheriff’s Sale, 4/12/16; see also Certificate of Service, 4/13/16).
    Although the notice contained a spelling error in Appellant’s name,2 the error
    was not fraudulent, and the court could not vacate the sheriff’s sale based on
    procedural deficiencies. (See Trial Ct. Op., at 2).
    Upon review, we conclude that the trial court did not abuse its discretion
    when it denied Appellant’s motion. We agree that Appellant did not prove that
    the sheriff’s sale was based on fraud; therefore, Appellant’s motion, filed after
    the sheriff’s deed was recorded, was properly denied as untimely. See Mortg.
    Elec. Registration Sys., Inc., supra at 79-80.
    Order affirmed. Case is stricken from the argument list.
    ____________________________________________
    2 Notice of the continuance was served upon “Gheorge Filimon” and “Rodica
    Filimon” on April 12, 2016. (See Certificate of Service, 4/13/16). The address
    at which service was made corresponds with Appellant’s address on the
    docket.
    -3-
    J-A03035-18
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 2/1/18
    -4-
    

Document Info

Docket Number: 1605 EDA 2017

Filed Date: 2/1/2018

Precedential Status: Precedential

Modified Date: 2/1/2018