Wells Fargo Bank v. Scicchitano, M. ( 2018 )

J-A10023-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
WELLS FARGO BANK, N.A. : IN THE SUPERIOR COURT OF
SUCCESSOR BY MERGER TO : PENNSYLVANIA
WACHOVIA BANK, N.A. :
:
:
v. :
:
:
MARZAILE SCICCHITANO : No. 3056 EDA 2017
:
Appellant :
Appeal from the Order Entered August 25, 2017
In the Court of Common Pleas of Delaware County Civil Division at
No(s): 2014-11559
BEFORE: GANTMAN, P.J., McLAUGHLIN, J., and RANSOM*, J.
MEMORANDUM BY McLAUGHLIN, J.: FILED JUNE 22, 2018
In this mortgage foreclosure action, Marzaile Scicchitano has appealed
from an order that denied his Petition to Set Aside Sheriff’s Sale. He sought
to undo the sheriff’s sale because of alleged misrepresentations in
communications from Appellee, Wells Fargo Bank, N.A. Successor by Merger
to Wachovia Bank, N.A. (“Bank”), allegedly causing him to believe that the
sale would not proceed. He also contended that the sale price at the sheriff’s
sale was too low. The Court of Common Pleas, the Honorable Chad F. Kenney,
denied the petition. Judge Kenney concluded that Scicchitano reasonably
should have known that the sheriff’s sale would proceed. He also rejected
Scicchitano’s price challenge. We affirm based on Judge Kenney’s opinion.
We adopt Judge Kenney’s recitation of the factual and procedural
history. See Trial Court Opinion, filed 10/24/17, at 1-3.
____________________________________
* Retired Senior Judge assigned to the Superior Court.
J-A10023-18
Scicchitano raises four issues on appeal:
1. Did the Court abuse its discretion or otherwise err in denying
[Scicchitano’s] Petition to Set Aside Sheriff’s Sale where,
after a hearing, it was undisputed that (a) [Bank] last direct
communication (in contrast to ongoing communications
from [Bank’s] third party attorney which [Bank] instructed
[Scicchitano] would occur) misrepresented that [Bank] (i)
“received the documentation you sent us supporting your
request for mortgage assistance...;” (ii) “as part of the
foreclosure process, you may receive notices from a third
party attorney delivered by mail or see steps being taken to
proceed with foreclosure...;” and (iii) “if your loan has been
referred to foreclosure and you have submitted all required
documentation, we will not conduct a foreclosure sale while
your documents are being reviewed” ((i), (ii) and (iii) being
hereinafter referred to as the “Final Communication
Misrepresentations”); and (b) despite those Final
Communication Misrepresentations, Appellant [sic], without
any further direct communication, proceeded with a sheriff’s
sale and sold [Scicchitano’s] property at 61.8% of it’s [sic]
appraised Fair Market Value of $100,000, approximately
49% of [Bank’s] internal value and 30% of the total debt
alleged to be due from [Scicchitano] to [Bank]?
2. Did the Court abuse its discretion or otherwise err in not
finding that the combination of (a) the grossly inadequate
or inadequate price; and (b) the irregularities in the notice
process, consisting of (i) the Final Communication
Misrepresentation, and (ii) two prior continuances of the
ultimate sale unilaterally effectuated by [Bank] (which
created a false sense of security in [Scicchitano] that the
ultimate sale would also be continued based on the Final
Communication Misrepresentation); created an irregularity
in the notice procedure and denied [Scicchitano] of due
process rights, and was sufficient cause to set aside the
sale?
3. Did the Court abuse its discretion or otherwise err in not
granting [Scicchitano’s] Petition to Set Aside Sheriff’s Sale
by in effect inequitably and unfairly shifting the burden to
[Scicchitano] to (a) have understood the Final
Communication Misrepresentation was a misrepresentation,
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and (b) correct [Bank’s] Final Communication
Misrepresentation?
4. Did the Court err by allowing undue bias against other
alleged misbehaviors of [Scicchitano] that are not relevant
to the due process question to unduly influence the
determination of whether the substantially below value sale
and the irregularities and defect in notice created by the
Final Communication Misrepresentation and prior unilateral
continuances establish sufficient cause to set aside the sale
and violate [Scicchitano’s] due process rights?
Appellant’s Br. at 4-6.
Scicchitano waived his second and fourth issues by not raising them
below. See Pa.R.A.P. 302. They are meritless in any event. As to the second
issue, Judge Kenney did not err in not considering the combined effect of
Scicchitano’s sale price and misrepresentation arguments. The issues are not
logically related – that is, any misunderstanding on Scicchitano’s part about
whether the sale would proceed had nothing to do with the price obtained at
the sale, and vice-versa – and to the extent either argument would carry any
weight, it would not reinforce the other. Regarding the fourth issue, as we
explain below, Judge Kenney only mentioned Scicchitano’s failure to make
payments as one of the reasons that Scicchitano reasonably should have
known that the foreclosure sale would occur.
We affirm Scicchitano’s remaining issues based on Judge Kenney’s
opinion. A petition to set aside a sheriff’s sale is a request for equitable relief
addressed to the sound discretion of the Court of Common Pleas. Blue Ball
Nat’l Bank v. Balmer, 810 A.2d 164, 167 (Pa.Super. 2002); Greater
Pittsburgh Bus. Dev. Corp. v. Braunstein, 568 A.2d 1261, 1263 (Pa.Super.
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1989). The petitioner bears the burden of proving circumstances warranting
the Court of Common Pleas to exercise its equitable powers and set aside the
sale. Id. We will reverse the Court of Common Pleas’ decision not to set aside
a sheriff’s sale only for a clear abuse of discretion. Kaib v. Smith, 684 A.2d
630, 631-32 (Pa.Super. 1996).
Scicchitano argues that the Bank’s alleged misrepresentations led him
to believe that the sheriff’s sale would not take place. Scicchitano had applied
to the Bank to participate in a loan assistance program. The Bank first advised
him by letter that “[b]ecause you have not provided us with all the required
documentation to complete the application, we are not able to offer you
assistance options.” Letter from Bank to Appellant of 12/16/16, at 1, R.191a.
The Bank sent a subsequent letter three days later, stating that “[i]f your loan
has been referred to foreclosure and you have submitted all required
documentation, we will not conduct a foreclosure sale on this loan while your
documents are being reviewed. . . .” Letter from Bank to Appellant of
12/19/16, at 1, R.58a. This letter also advised Scicchitano that “[a]s part of
the foreclosure process,” he might “receive notices from a third-party attorney
delivered by mail or see steps being taken to proceed with a foreclosure sale
of your home.” Id. Scicchitano argues that the second letter misled him and
caused him to incorrectly believe that the sheriff’s sale would not take place
as scheduled.
Regarding the sale price, Scicchitano argues that the amount ($61,800)
was grossly inadequate because it was 61.8% of the Bank’s appraisal of the
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property’s value ($100,000), and 49% of the Bank’s internal valuation
($125,000).
Scicchitano also contends that Judge Kenney improperly put the burden
on Scicchitano to learn that the alleged “misrepresentation that his loan was
still under review” was untrue. Appellant’s Br. at 22. He further argues that
he reasonably understood the statements that he might receive
communications from attorneys about the foreclosure process, and that the
sale would not happen while his loan assistance application was under review,
“as an instruction not to be concerned by attorney communications.” Id.
(emphasis in original).
Judge Kenney’s Pa.R.A.P. 1925(a) opinion explains that Scicchitano
should have known that the sheriff’s sale would take place. Judge Kenney
points out that the second letter did not in fact suggest that a sheriff’s sale
would never occur. Rather, the letter simply let Scicchitano know that the
sheriff’s sale would not take place during the review period, which the previous
letter told him had already ended. Judge Kenney concluded that because of
the language of the letters, and the fact that Scicchitano did not make any
payments between the time of the letters and the day of the sheriff’s sale,
Scicchitano reasonably should have known that the sale would go forward.
Regarding the sale price, Judge Kenney explained that the law presumes
that the price obtained at a sheriff’s sale is the highest and best obtainable
price. Trial Court Opinion at 5 (citing Blue Ball Nat’l Bank, 810 A.2d at 167).
Judge Kenney observed that cases in which Pennsylvania courts have set aside
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a sheriff’s sale for an inadequate sale price were cases where the sale price
was ten percent or less of the established market value. Id. at 6 (citing Bank
of America, N.A. v. Hood, 47 A.3d 1208, 1212 (Pa.Super. 2002)). Judge
Kenney concluded that because the only evidence Scicchitano produced on
this issue was an appraiser’s affidavit that the property was worth $100,000,
and the property sold for 61.8% of that figure, Scicchitano failed to rebut the
presumption.
Finally, Judge Kenney properly put the burden on Scicchitano to
persuade the court that the alleged misrepresentations merited setting aside
the sheriff’s sale. See Blue Ball Nat’l Bank, 810 A.2d at 167. The court
concluded that Scicchitano failed to carry his burden to do so, and Scicchitano
has not established that Judge Kenney’s decision was a clear abuse of
discretion. Id. We affirm based on Judge Kenney’s Opinion.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/22/18
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