The Bank of New York Mellon v. Johnson, J. ( 2015 )

J-A17043-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
THE BANK OF NEW YORK MELLON F/K/A IN THE SUPERIOR COURT OF
THE BANK OF NEW YORK, AS TRUSTEE PENNSYLVANIA
FOR THE CERTIFICATE HOLDERS OF
CWMBS 2004-R2
Appellee
v.
JACQUELINE M. JOHNSON
Appellant No. 3409 EDA 2014
Appeal from the Order Entered November 14, 2014
In the Court of Common Pleas of Philadelphia County
Civil Division at No(s): September Term, 2010 No. 3793
BEFORE: GANTMAN, P.J., BENDER, P.J.E., and OTT, J.
MEMORANDUM BY GANTMAN, P.J.: FILED JULY 15, 2015
Appellant, Jacqueline M. Johnson, appeals from the order entered in
the Philadelphia County Court of Common Pleas, which denied her petition to
strike a default judgment entered in favor of Appellee, The Bank of New York
Mellon f/k/a The Bank of New York, as Trustee for the Certificate Holders of
CWMBS 2004-R2. We affirm.
The relevant facts and procedural history of this appeal are as follows.
This case commenced September 29, 2010, with the filing
of a complaint in mortgage foreclosure on the premises of
936 E. Phil Ellena Street, Philadelphia, PA 19150 by
Appellee…. The complaint averred that Appellant was in
default on a mortgage recorded at No. 0451, page 339, in
the Office of the Recorder of Philadelphia County, and
assigned at Mortgage Instrument No. 51951797.
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On August 30, 2011, Appellee filed a Motion for Alternative
Service, which averred that attempts to serve Appellant
have been unsuccessful and that, following a good faith
investigation, Appellant had no change of address on
record from the mortgaged premises.
On September 9, 2011, [the trial court] granted Appellee’s
Motion for Alternative Service and allowed service of the
complaint upon Appellant at 936 E. Phil Ellena Street,
Philadelphia, PA 19150, by certified mail, first class regular
mail, and posting of the premises.
On September 20, 2011, Appellee filed an Affidavit of
Service of the Complaint by regular mail and certified mail,
return receipt requested, to Appellant at 3028 N. 26 th
Street, Philadelphia, PA 19132 and 936 E. Phil Ellena
Street, Philadelphia, PA 19150 on September 19, 2011.
On September 22, 2011, Appellee filed an Affidavit of
Service of the Complaint by posting of the premises at 936
E. Phil Ellena Street, Philadelphia, PA 19150 on September
20, 2011, at 11:30 a.m.
On December 11, 2011, Appellee filed a Praecipe for
Judgment by Default in the amount of $145,602.28.
On March 13, 2012, Appellee filed a Praecipe for Writ of
Execution.
On April 18, 2012, Appellee filed a Motion to Reassess
Damages.
On May 17, 2012, [the trial court] amended the in rem
judgment to a total of $168,095.41 plus interest from June
5, 2012 through the date of sale at six (6) percent per
annum.
On May 21, 2012, Appellee filed an Affidavit of Service of
Notice of Sale upon Appellant by certified mail and first
class regular mail.
On July 13, 2012, the Writ was returned as the sale was
stayed by Appellee’s attorney.
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On May 16, 2013, another Praecipe for Writ of Execution
was filed on behalf of Appellee.
On August 13, 2013, Appellee filed an Affidavit of Service
of Notice of Sale upon Appellant by certified mail and first
class regular mail to 936 E. Phil Ellena Street, Philadelphia,
PA 19150 on June 7, 2013.
On August 23, 2013, Appellant filed a Motion to Postpone
Sheriff’s Sale and a Petition to Open Judgment. That same
day, [the trial court] issued a Rule to Show Cause why the
Motion to Postpone should not be granted. In her Petition
to Open, Appellant argued that she had not been served
and that she was incarcerated at the time the petition was
served.
On September 5, 2013, [the trial court] granted
Appellant’s Motion to Postpone and postponed the Sheriff’s
Sale until December 3, 2013, with no further notice or
advertisement to be required.
On September 12, 2013, Appellee filed an Answer in
Opposition to Appellant’s Petition to Open Judgment.
Appellee denied Appellant’s averments and further attested
that the Complaint had been properly served after the
grant of a Motion for Alternative Service, and that
Appellant had not demonstrated a meritorious defense,
filed a timely petition, or offered a reasonable excuse as to
why the petition had not been timely filed.
On October 29, 2013, [the trial court] denied Appellant’s
Petition to Open Judgment.
On October 31, 2013, the case was placed in deferred
status due to Appellant’s pending bankruptcy.
On August 27, 2014, the case was removed from deferred
status.
On September 5, 2014, Appellee filed a Praecipe for Writ
of Execution.
On September 26, 2014, Appellee filed an Affidavit of
Service on Appellant by posting the premises of 936 E. Phil
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Ellena Street, Philadelphia, PA 19150 on September 18,
2014, as well as an Affidavit of Service on Appellant by
personal service.
On October 2, 2014, Appellant filed a Petition to Strike the
Judgment as Appellee had failed to provide proof of service
by certified mail; failed to set forth a specific averment of
default; failed to attach a promissory note; and that
Appellee was not the real party of interest in regard to the
claim.
On October 22, 2014, Appellee filed an Answer in
Opposition to Appellant’s Motion, denying Appellant’s
averments and attesting that service had been properly
effectuated per Pa.R.C.P. 430. Appellee further argued
that Appellant’s claims regarding the specific averment of
default and attachment of the Promissory Note should
have been raised as preliminary objections, and further,
that Appellee was not required to attach the Note to its
complaint.
On November 14, 2014, [the trial court] denied Appellant’s
[Petition] to Strike Judgment.
On November 21, 2014, Appellant filed a timely Notice of
Appeal….
On November 24, 2014, [the trial court] issued its Order
pursuant to Pa.R.A.P. 1925(b), directing Appellant to file
her Concise Statement of [Errors] Complained of on Appeal
within twenty-one (21) days.
On November 25, 2014, Appellant filed her [Rule 1925(b)
statement]….
(Trial Court Opinion, filed February 4, 2015, at 1-4) (internal footnote
omitted).
Appellant raises two issues for our review:
DID THE TRIAL COURT IMPROPERLY DENY APPELLANT’S
PETITION TO STRIKE THE DEFAULT JUDGMENT, WHEN
APPELLEE HAD FAILED TO PROVIDE PROOF OF SERVICE
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OF ORIGINAL PROCESS BY CERTIFIED MAIL THAT WOULD
INCLUDE A RETURN RECEIPT SIGNED BY [APPELLANT]?
DID THE TRIAL COURT IMPROPERLY DENY APPELLANT’S
PETITION TO STRIKE THE DEFAULT JUDGMENT, WHEN
THE COMPLAINT, ON ITS FACE, FAILED TO STATE A
CAUSE OF ACTION IN MORTGAGE FORECLOSURE,
BECAUSE, INTER ALIA, NO UNDERLYING PROMISSORY
NOTE WAS ALLEGED?
(Appellant’s Brief at 2).
“An appeal regarding a petition to strike a default judgment implicates
the Pennsylvania Rules of Civil Procedure.” Green Acres Rehabilitation
and Nursing Center v. Sullivan, 113 A.3d 1261, 1267 (Pa.Super. 2015).
Issues regarding the operation of procedural rules of court
present us with questions of law. Therefore, our standard
of review is de novo and our scope of review is plenary.
A petition to strike a judgment is a common law
proceeding which operates as a demurrer to the record. A
petition to strike a judgment may be granted only for a
fatal defect or irregularity appearing on the face of the
record. [A] petition to strike is not a chance to review the
merits of the allegations of a complaint. Rather, a petition
to strike is aimed at defects that affect the validity of the
judgment and that entitle the petitioner, as a matter of
law, to relief. A fatal defect on the face of the record
denies the prothonotary the authority to enter judgment.
When a prothonotary enters judgment without authority,
that judgment is void ab initio. When deciding if there are
fatal defects on the face of the record for the purposes of a
petition to strike a [default] judgment, a court may only
look at what was in the record when the judgment was
entered.
Id. at 1267-68 (internal citations and quotation marks omitted).
In her first issue, Appellant cites Pa.R.C.P. 405(c) for the proposition
that proof of service by certified mail must include a return receipt signed by
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a defendant. Appellant contends a plaintiff cannot prove service if a certified
mail return receipt lacks a defendant’s signature to demonstrate actual
delivery. Appellant asserts Appellee failed to prove service of the complaint
and case management order by certified mail, because Appellee did not
provide a return receipt signed by Appellant. Appellant insists “no return
receipt was attached [to Appellee’s affidavit of service of complaint], signed
or unsigned.” (Appellant’s Brief at 7) (emphasis in original). Appellant
concludes Appellee’s failure to prove service of original process constituted a
fatal defect on the face of the record, and the court should have granted
Appellant’s petition to strike the default judgment on this basis. We
disagree.
The Pennsylvania Rules of Civil Procedure govern service by mail as
follows:
Rule 403. Service by Mail
If a rule of civil procedure authorizes original process to
be served by mail, a copy of the process shall be mailed to
the defendant by any form of mail requiring a receipt
signed by the defendant or [her] authorized agent.
Service is complete upon delivery of the mail.
* * *
Pa.R.C.P. 403. Additionally, Rule 405 provides:
Rule 405. Return of Service
(a) When service of original process has been made
the sheriff or other person making service shall make a
return of service forthwith. If service has not been made
and the writ has not been reissued or the complaint
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reinstated, a return of no service shall be made upon the
expiration of the period allowed for service.
* * *
(b) A return of service shall set forth the date, time,
place and manner of service, the identity of the person
served and any other facts necessary for the court to
determine whether proper service has been made.
(c) Proof of service by mail under Rule 403 shall
include a return receipt signed by the defendant or, if the
defendant has refused to accept mail service and the
plaintiff thereafter has served the defendant by ordinary
mail,
(1) the returned letter with the notation that
the defendant refused to accept delivery, and
(2) an affidavit that the letter was mailed by
ordinary mail and was not returned within fifteen days
after mailing.
Pa.R.C.P. 405(a), (b), (c).
A party can also petition for alternative methods of service:
Rule 430. Service Pursuant to Special Order of
Court. Publication
(a) If service cannot be made under the applicable
rule the plaintiff may move the court for a special order
directing the method of service. The motion shall be
accompanied by an affidavit stating the nature and extent
of the investigation which has been made to determine the
whereabouts of the defendant and the reasons why service
cannot be made.
Pa.R.C.P. 430(a). “Due process, reduced to its most elemental component,
requires notice.” PNC Bank, N.A. v. Unknown Heirs, 929 A.2d 219, 230
(Pa.Super. 2007). “The adequacy of this notice, as applied to substituted
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service, depends upon whether it is reasonably calculated to give the party
actual notice of the pending litigation and an opportunity to be heard.” Id.Instantly, Appellee filed a motion for alternative service on August 30,
2011. In it, Appellee noted a process server unsuccessfully attempted to
serve Appellant at both the mortgaged premises and Appellant’s last known
address.1 Appellee also stated it had conducted a good faith investigation to
locate Appellant. Consequently, Appellee asked the court to enter an order
pursuant to Rule 430, directing service of the complaint and all future
pleadings by first class mail and posting of the mortgaged premises.
The court granted Appellee’s motion for alternative service on
September 9, 2011. Specifically, the court permitted Appellee to serve the
complaint and all future pleadings by posting of the mortgaged premises and
first class and certified mail to Appellant at both the mortgaged premises
and her last known address. The court also required Appellee to file a
certificate of service to ensure compliance with the court’s order. On
September 20, 2011, Appellee filed an affidavit of service indicating it had
sent a copy of the complaint to Appellant at both the mortgaged premises
and her last known address via regular and certified mail, return receipt
requested. On September 22, 2011, Appellee filed another affidavit of
service indicating it had served the complaint by posting of the mortgaged
____________________________________________
1
The motion for alternative service listed Appellant’s last known address as
3028 North 26th Street in Philadelphia.
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premises.
Contrary to Appellant’s argument, Rule 405 did not control the manner
of service at issue. Rule 405 applies to “[p]roof of service by mail under
Rule 403….” See Pa.R.C.P. 405(c). Further, Rule 403 applies “[i]f a rule of
civil procedure authorizes original process to be served by mail.” See
Pa.R.C.P. 403. Appellee, however, did not proceed under Rules 403 and
405. Rather, Appellee effectuated service pursuant to a special order of the
court granting the motion for alternative service. Here, Appellee fully
complied with the court’s special order. Moreover, the court reasonably
calculated the manner of alternative service to give Appellant actual notice
of the pending litigation and an opportunity to be heard. See PNC Bank,
N.A., supra. Therefore, Appellant has not demonstrated a fatal defect in
the record, and she is not entitled to relief on her first claim. See Green
Acres Rehabilitation and Nursing Center, supra.
In her second issue, Appellant asserts a mortgage foreclosure
complaint must include a specific averment of default. Appellant contends
“[t]his means that the promissory note that the alleged mortgage purports
to secure must be attached to the complaint….” (Appellant’s Brief at 8)
(emphasis in original). Appellant maintains Appellee’s complaint was
deficient, because Appellee did not include the promissory note as an
attachment. Moreover, Appellant argues the complaint failed to allege that a
promissory note even existed, and Appellee did not aver that it legally
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owned the mortgage. Appellant concludes the court should have struck the
default judgment on this basis. We disagree.
Pennsylvania Rule of Civil Procedure 1147 governs the content of
mortgage foreclosure complaints:
Rule 1147. The Complaint
(a) The plaintiff shall set forth in the complaint:
(1) the parties to and the date of the mortgage, and
of any assignments, and a statement of the place of record
of the mortgage and assignments;
(2) a description of the land subject to the mortgage;
(3) the names, addresses and interest of the
defendants in the action and that the present real owner is
unknown if the real owner is not made a party;
(4) a specific averment of default;
(5) an itemized statement of the amount due; and
(6) a demand for judgment for the amount due.
Pa.R.C.P. 1147(a).
Instantly, Appellee filed its complaint on September 29, 2010. The
complaint stated, in relevant part:
2. The name(s) and last known address(es) of the
Defendant(s) are:
[Appellant]
936 EAST PHIL ELLENA STREET
PHILADELPHIA, PA 19150-3606
who is/are the mortgagor(s) and/or real owner(s) of the
property hereinafter described.
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3. On 12/20/1996 [Appellant] made, executed and
delivered a mortgage upon the premises hereinafter
described to COLUMBIA NATIONAL INC. which mortgage is
recorded in the Office of the Recorder of PHILADELPHIA
County, in Mortgage Book No. 0451, Page 339. By
assignment of Mortgage recorded 08/12/2008 the
mortgage was assigned to [Appellee] which Assignment is
recorded in Assignment of Mortgage Instrument No.
51951797. The mortgage and assignment(s), if any, are
matters of public record and are incorporated herein by
reference in accordance with Pa.R.C.P. 1019(g); which
Rule relieves [Appellee] from its obligations to attach
documents to pleadings if those documents are of public
record.
4. The premises subject to said mortgage is described as
attached.[2]
5. The mortgage is in default because monthly payments
of principal and interest upon said mortgage due
12/01/2005 and each month thereafter are due and
unpaid, and by the terms of said mortgage, upon failure of
mortgagor to make such payments after a date specified
by written notice sent to Mortgagor, the entire principal
balance and all interest due thereon are collectible
forthwith.
6. The following amounts are due on the mortgage:
Principal Balance $83,547.95
Interest $35,369.61
11/01/2005 through 09/28/2010
(Per Diem $19.7265)
Attorney’s Fees $ 650.00
Late Charges through 09/28/2010 $ 1,862.95
Property Inspections/
Property Preservations $ 387.25
Mortgage Insurance Premium/
Private Mortgage Insurance
____________________________________________
2
The attachment contained a metes and bounds description of the
mortgaged premises.
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Costs of Suit and Title Search $ 550.00
Escrow Deficit $13,148.44
TOTAL $137,040.98
(See Complaint, filed 9/29/10, at 1-2; R.R. at 22a-23a.) Consequently,
Appellee demanded an in rem judgment against Appellant for $137,040.98,
plus interest, costs, and fees. (Id. at 3; R.R. at 24a)
Here, the trial court found “a complaint in mortgage foreclosure does
not need to include the original promissory note. The complaint did make a
specific averment that monthly installments were due…and that Appellant
failed to pay….” (See Trial Court Opinion at 5.) We agree and emphasize
that Appellee’s complaint fully complied with Rule 1147. The complaint
listed the parties to the mortgage, the date of execution, and the
assignment to Appellee. See Pa.R.C.P. 1147(a)(1). An attachment to the
complaint described the land subject to the mortgage. See Pa.R.C.P.
1147(a)(2). The complaint set forth the name, address, and interest of
Appellant. See Pa.R.C.P. 1147(a)(3). Significantly, Appellee included a
specific averment of default, explaining that Appellant had failed to make her
required monthly payments since 2005. See Pa.R.C.P. 1147(a)(4).
Appellee also provided an itemized statement of the amount due, and it
demanded judgment for that amount. See Pa.R.C.P. 1147(a)(5), (6).
Because the complaint fully complied with Rule 1147(a), Appellant is not
entitled to relief on her second claim.
Based on the foregoing, we conclude Appellant failed to demonstrate a
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fatal defect on the face of the record as it existed when judgment was
entered. See Green Acres Rehabilitation and Nursing Center, supra.
Therefore, the court properly denied Appellant’s petition to strike the default
judgment. Accordingly, we affirm.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/15/2015
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