Landmark Community Bank v. Nasser, W., Jr. ( 2018 )

J-S60031-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
LANDMARK COMMUNITY BANK, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
WILLIAM K. NASSER, JR. AND :
DONNA M. NASSER, :
:
Appellants : No. 531 MDA 2018
Appeal from the Order Entered March 8, 2018
in the Court of Common Pleas of Lackawanna County
Civil Division at No(s): 2017-CV-1075
BEFORE: SHOGAN, J., NICHOLS, J. and STRASSBURGER, J.*
MEMORANDUM BY STRASSBURGER, J.: FILED DECEMBER 18, 2018
William K. Nasser, Jr. and Donna M. Nasser (the Nassers) appeal from
the order entered March 8, 2018, which denied the Nassers’ petition to
open/strike a default judgment filed by Landmark Community Bank
(Landmark). We affirm.
We summarize the relevant facts and procedural history of this case as
follows. On February 8, 2017, Landmark filed a complaint in mortgage
foreclosure against the Nassers. According to Landmark, Landmark made
three separate loans to the Nassers. The first was secured by a mortgage of
$285,000 on August 12, 2003. Landmark avers that the Nassers still owe
$15,258.20 on that loan as a result “of a long overdue late charge.” Complaint,
2/8/2017, at ¶ 6. The second loan was a home equity line of credit for
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* Retired Senior Judge assigned to the Superior Court.
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$150,000 made on July 8, 2010. Landmark avers that the Nassers have not
made any payments on the line of credit since April of 2016. Finally, on August
31, 2010, Landmark made another residential loan to the Nassers for
$160,000. Landmark avers that the Nassers have not made any payments on
this loan since March of 2016. Thus, according to Landmark, the Nassers owe
$311,352.02 plus costs, legal expenses, reasonable attorney’s fees, and
ongoing interest. Id. at ¶ 21.
The Nassers did not file an answer to the complaint, and on April 25,
2017, Landmark filed and served a ten-day notice pursuant to Pa.R.C.P.
237(a)(2)(ii). On May 8, 2017, Landmark filed a praecipe for entry of default
judgment, and judgment was entered against the Nassers and in favor of
Landmark in the amount of $316,868.82.1
On May 24, 2017, the Nassers filed a petition to strike and/or open the
default judgment. According to the Nassers, they did not file a responsive
pleading because their attorney “was in the process of attempting to negotiate
a resolution to not only the mortgage foreclosure complaint but other issues
between Landmark and” Mr. Nasser. Petition to Strike and/or Open Default
Judgment, 5/24/2017, at ¶ 9. The Nassers also averred that they had a
meritorious defense against the complaint because “they attempted to make
payments upon the loans[,]” but those payments were refused by Landmark.
Id. at ¶ 12.
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1 The increased amount was due to additional accrued interest.
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Landmark filed an answer to the petition, and the trial court heard
argument on the petition on October 12, 2017. At argument, the Nassers
reiterated their position that they were attempting to cure the defaults on
these loans as part of an overall settlement regarding these mortgage
foreclosures and other matters. N.T., 10/12/2017, at 39. On March 8, 2018,
the trial court entered an order denying the Nassers’ motion to open/strike
the default judgment.2 The Nassers filed a timely notice of appeal. The trial
court did not order a concise statement of errors complained of on appeal,
and directs this Court to consider the memorandum filed on February 28, 2018
pursuant to Pa.R.A.P. 1925(a).
On appeal, the Nassers argue the trial court erred in denying the petition
to open the default judgment.3 The Nassers’ Brief at 7.
We review this claim mindful of the following.
It is well settled that a petition to open a default
judgment is an appeal to the equitable powers of the
court, and absent an error of law or a clear, manifest
abuse of discretion, it will not be disturbed on appeal.
An abuse of discretion occurs when a trial court, in
reaching its conclusions, overrides or misapplies the
law, or exercises judgment which is manifestly
unreasonable, or the result of partiality, prejudice,
bias or ill will.
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2A memorandum and order was originally filed on February 28, 2018, but was
amended due to the trial court’s missing signature on that order.
3 It appears that the Nassers have abandoned their claim that the trial court
erred by denying their motion to strike the default judgment.
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US Bank N.A. v. Mallory, 982 A.2d 986, 994 (Pa. Super. 2009)
(quoting ABG Promotions v. Parkway Publishing, Inc., 834
A.2d 613, 615–16 (Pa. Super. 2003) (en banc) (quotations,
quotation marks, and citations omitted)).
Generally speaking, a default judgment may be opened if the
moving party has (1) promptly filed a petition to open the default
judgment, (2) provided a reasonable excuse or explanation for
failing to file a responsive pleading, and (3) pleaded a meritorious
defense to the allegations contained in the complaint. McFarland
v. Whitham, [] 544 A.2d 929 ([Pa.] 1988); Seeger v. First
Union National Bank, 836 A.2d 163 (Pa. Super. 2003).
Moreover, we note the trial court cannot open a default judgment
based on the “equities” of the case when the defendant has failed
to establish all three of the required criteria. Seeger, supra.Myers v. Wells Fargo Bank, N.A., 986 A.2d 171, 175–76 (Pa. Super. 2009)
(some citations omitted).
We first consider whether the petition to open was filed timely.
The timeliness of a petition to open a judgment is measured from
the date that notice of the entry of the default judgment is
received. The law does not establish a specific time period within
which a petition to open a judgment must be filed to qualify as
timel[y]. Instead, the court must consider the length of time
between discovery of the entry of the default judgment and the
reason for delay.
***
In cases where the appellate courts have found a “prompt” and
timely filing of the petition to open a default judgment, the period
of delay has normally been less than one month.
US Bank N.A., 982 A.2d at 995 (quoting Castings Condo. Assoc., Inc. v.
Klein, 663 A.2d 220, 223 (Pa. Super. 1995) (citations omitted)).
Instantly, the Nassers filed their petition approximately 16 days after
the entry of the default judgment, which is well under the one-month
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timeframe set forth above. Accordingly, the Nassers have satisfied the first
criterion, and we may now consider whether the Nassers have offered a
reasonable excuse for the delay.4 According to the Nassers, the reason they
did not file an answer to the complaint was because their attorney “was in the
process of attempting to negotiate a resolution to not only the mortgage
foreclosure complaint but other issues [as well].” The Nassers’ Brief at 7.
However, this Court has held that excuses similar to this as being
unreasonable. See McEvilly v. Tucci, 362 A.2d 259 (Pa. Super. 1976)
(holding that the trial court did not abuse its discretion in concluding that a
defendant’s mistaken belief that a plaintiff would not pursue default during
settlement negotiations was not a reasonable excuse); Allegheny Hydro No.
1 v. Am. Line Builders, Inc., 722 A.2d 189, 194 (Pa. Super. 1998) (holding
that where reasons amount to a deliberate decision not to defend, as opposed
to being a mere oversight, are not excusable). Thus, we conclude that the
Nassers did not set forth a reasonable excuse for the delay, and conclude that
the trial court did not err in denying the Nassers’ petition to open the default
judgment.
Even assuming arguendo, as the trial court did, that the Nassers offered
a reasonable excuse, we discern no abuse of discretion in the trial court’s
conclusion that the Nassers have not presented a meritorious defense. Trial
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4 The trial court did not address this issue.
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Court Opinion, 2/28/2018, at 3. On appeal, the Nassers reiterate their
position that they have “attempted to make payments upon the loans which
[those] payments were refused by [Landmark]. Further, [the Nassers] aver
that [Landmark] indicated they would only accept payments if [the Nassers]
agreed to provide additional collateral on [other] loans.” The Nassers’ Brief at
8.
The trial court responded that even if the Nassers were attempting to
make payments as they claim, that is still not a defense to their defaulting on
the loans. “While [the Nassers] may be able to present evidence that may
suggest that [Landmark] could have sought remedies with [the Nassers] other
than the ultimate sanction of default, [the Nassers] do not present a
meritorious defense[.]” Trial Court Opinion, 2/28/2018, at 3. We agree. In
fact, the loan documents attached to the complaint permit Landmark to
demand full payment upon default. See Complaint, 2/8/2017, at Exhibits A,
B, C. Accordingly, attempts to make partial payments and attempts to settle
this and other related cases are not meritorious defenses. Thus, we discern
no abuse of discretion in the trial court’s conclusion that the Nassers have
failed to present a meritorious defense.
Having concluded that the Nassers are not entitled to relief, we affirm
the order of the trial court.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/18/2018
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