JP Morgan Chase Bank v. Palumbo, G. ( 2020 )

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
JP MORGAN CHASE BANK N.A., : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
GREGORY PALUMBO AND LISA :
PALUMBO, :
:
Appellants : No. 2413 EDA 2019
Appeal from the Order Entered July 16, 2019
in the Court of Common Pleas of Delaware County
Civil Division at No(s): CV-2012-001389
BEFORE: BOWES, J., KUNSELMAN, J. and STRASSBURGER, J.*
MEMORANDUM BY STRASSBURGER, J.: FILED FEBRUARY 25, 2020
Gregory1 and Lisa Palumbo (Appellants) appeal pro se from the order
entered on July 16, 2019, which denied Appellants’ petition to set aside a
sheriff’s mortgage foreclosure sale and execution. We affirm.
We provide the following background. “On February 16, 2001,
[Appellants] executed a mortgage and a note with [Appellee] JP Morgan
Chase Bank, NA (the Bank).” Trial Court Opinion, 10/2/2019, at 1-2.
“[Appellants] defaulted on the mortgage in August 2010.” Id. at 2. On
February 12, 2012, the Bank filed a complaint in mortgage foreclosure
against Appellants. Summary judgment was granted in the Bank’s favor on
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1Gregory Palumbo is an attorney whose license was suspended temporarily
on August 9, 2018.
* Retired Senior Judge assigned to the Superior Court.
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December 15, 2015,2 and Appellants filed a notice of appeal to this Court.
This Court affirmed the judgment entered in the trial court, and our
Supreme Court denied Appellants’ petition for allowance of appeal. JP
Morgan Chase Bank N.A. v. Palumbo, 158 A.3d 178 (Pa. Super. 2016)
(unpublished memorandum), appeal denied, 168 A.3d 1291 (Pa. 2017).
Subsequently, the Bank began the process of taking the property at
issue to sheriff’s sale. On February 23, 2017, the Bank praeciped for a writ
of execution in this case. That writ was sent via regular mail to, inter alia,
Appellants. The sheriff’s sale was scheduled for June 16, 2017. “On June 15,
2017, [Appellants] filed via [their attorney], Michael P. Forbes, Esquire, an
Emergency Petition to Postpone the Sheriff’s Sale.” Trial Court Opinion,
10/2/2019, at 2. “In addition, Attorney Forbes appeared at the June 16,
2017 hearing on this [p]etition and argued on [Appellants’] behalf before the
[t]rial [c]ourt.” Id. At that hearing, Attorney Forbes argued in favor of
postponement3 and also contended that there was an issue with service. It
was his position that the writ had to be served by the sheriff, and Appellants
had only received it via regular mail. See generally N.T., 6/16/2017. The
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2 “In an action for mortgage foreclosure, the entry of summary judgment is
proper if the mortgagors admit that the mortgage is in default, that they
have failed to pay interest on the obligation, and that the recorded mortgage
is in the specified amount.” Cunningham v. McWilliams, 714 A.2d 1054,
1057 (Pa. Super. 1998).
3 According to Attorney Forbes, Gregory Palumbo’s father was willing to
liquidate assets in order to satisfy the arrearages on the mortgage, but
needed an additional 120 days to do that. N.T., 6/16/2017, at 3-4.
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trial court granted the continuance, and Appellants then filed for
bankruptcy.4 The bankruptcy was dismissed on May 24, 2018, and the
sheriff’s sale was rescheduled for October 19, 2018. In preparation, the
Bank praeciped for a writ of execution on June 29, 2018. That writ was sent
via regular mail to Appellants in the care of Attorney Forbes as attorney for
Appellants. After two more postponements, the sheriff’s sale finally occurred
on January 18, 2019.
On February 17, 2019, Appellants filed a petition to set aside the
sheriff’s sale. According to Appellants, who were then represented by
Attorney John Hickey, the writ was served improperly on Attorney Forbes
who was no longer counsel of record. It was Appellants’ position that the
writ had to be served on Appellants. Thus, Appellants argued that the
sheriff’s sale must be set aside. N.T., 5/30/2019, at 4-5. The Bank
contended that because Attorney Forbes filed a petition, argued on behalf of
Appellants in 2017, and never withdrew his appearance, service on Attorney
Forbes was proper. Id. at 8.
On July 16, 2019, the trial court denied Appellants’ petition to set
aside the sheriff’s sale. Appellants filed a motion for reconsideration, which
was denied. Appellants timely filed a notice of appeal, and both Appellants
and the trial court complied with Pa.R.A.P. 1925.
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4 The trial court did not rule on the service-related issue.
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On appeal, Appellants contend the trial court abused its discretion by
denying the petition to set aside the sheriff’s sale. Appellants argue the
sheriff’s sale should be set aside because the sheriff’s returns of service for
the writ do not appear in the record as they were never filed with the
Prothonotary.5 See Appellants’ Brief at 15. We consider this issue mindful of
the following.
A petition to set aside a sheriff’s sale is grounded in
equitable principles[.] The burden of establishing grounds for
relief rests with the petitioner.
***
The decision to set aside a sheriff’s sale is within the sound
discretion of the trial court, and we shall not reverse its decision
on appeal absent a clear abuse of discretion. An abuse of
discretion is not merely an error of judgment, but if in reaching a
conclusion the law is overridden or misapplied, or the judgment
exercised is manifestly unreasonable, or [the judgment is] the
result of partiality, prejudice, bias or ill-will, as shown by the
evidence of record, discretion is abused.
Wells Fargo Bank N.A. v. Zumar, 205 A.3d 1241, 1244-45 (Pa. Super.
2019) (internal citations and quotation marks omitted).
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5 We first consider whether this issue was waived, as “[i]ssues not raised in
the lower court are waived and cannot be raised for the first time on
appeal.” Pa.R.A.P. 302(a). The primary issue at the hearing was whether
service on Attorney Forbes was proper. N.T., 5/30/2019, at 9-12. The issue
of the sheriff’s returns was addressed briefly, when the trial court requested
that the Bank produce the returns, and the Bank could not locate them. Id.
at 8-9. Nevertheless, Appellants preserved the issue regarding the returns
of service in their petition to set aside sheriff’s sale and in their Pa.R.A.P.
1925(b) statement, and we consider this issue infra.
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In Pennsylvania, mortgage foreclosures are governed by Pa.R.C.P.
3180-3183. A judgment in mortgage foreclosure “shall be enforced by a writ
of execution.” Pa.R.C.P. 3180. Issuance of the writ of execution shall be in
conformance with Pa.R.C.P. 3103(a) (providing that “[e]xecution shall be
commenced by filing a praecipe for a writ of execution with the
prothonotary”) and (e) (requiring the prothonotary to “transmit [the writ] to
the sheriff to whom it is directed or upon plaintiff’s request deliver it to the
plaintiff or plaintiff’s representative for transmittal”) and 3015. See
Pa.R.C.P. 3181(a)(1). Furthermore, sheriff’s returns of service are governed
by Pa.R.C.P. 3139(a)(1), (c), and (d), and do not require a return to be filed
until after the execution proceedings.6 See Pa.R.C.P. 3181(a)(12).
“Service of the writ shall be made by the sheriff.”7 Pa.R.C.P. 3182. The
note to that rule clarifies that “[s]ervice of the writ upon the mortgagor or
real owner is not required but notice of the sale is required by Rule 3129.1.”
Pa.R.C.P. 3182 (Note) (emphasis added). Rule 3129.1 provides that no sale
shall take place until the plaintiff files “with the sheriff the affidavit required
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6 Based upon this rule, Appellants’ contention that the sale should be set
aside because no return was filed prior to execution is without merit.
Appellants’ Brief at 15 (arguing the sheriff’s failure to file a return rendered
any notice of sale defective).
7 Notably, this rule does not require service of the writ in conformity with
Pa.R.C.P. 3108. Thus, Appellants’ argument that this sale should be set
aside for violation of that rule is without merit. See Appellants’ Brief at 14-
15 (arguing Pennsylvania law requires service of the writ in a mortgage
foreclosure action pursuant to Pa.R.C.P. 3108).
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by subdivision (b) and the notice required by Rule 3129.2 has been served.”
Pa.R.C.P. 3129.1(a).
Instantly, the certified record reveals that on June 29, 2018, the Bank
filed a praecipe for writ of execution. On the same day, the certified record
shows the Bank filed an affidavit in compliance with Pa.R.C.P. 3129.1(b).
Finally, on July 16, 2018, the certified record contains a certification of
mailing to Appellants8 and lienholders pursuant to Pa.R.C.P. 3129.2. These
documents together satisfy the issuance, service, and notice requirements of
a writ of execution for a mortgage foreclosure pursuant to the
aforementioned rules. See also Trial Court Opinion, 10/2/2019, at 7-9
(concluding that service of both the writ and notice of sale were proper).
Accordingly, we agree with the trial court that Appellants are not entitled to
relief and conclude the trial court did not abuse its discretion in denying
Appellants’ petition to set aside the sheriff’s sale.
Order affirmed.
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8 This notice was sent to Attorney Forbes. Even though at the hearing
Appellants argued that service on Attorney Forbes was improper, they do not
make that argument on appeal. Even if they did make that argument on
appeal, it would not entitle them to relief, as we agree with the trial court
that service on Attorney Forbes was proper because he never withdrew his
appearance. See Trial Court Opinion, 10/2/2019, at 9.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/25/20
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