Wells Fargo Bank, N.A. v. Frankel, M. and C.

J-A22008-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
WELLS FARGO BANK, N.A., AS TRUSTEE IN THE SUPERIOR COURT OF
FOR NMST 2004-1 PENNSYLVANIA
Appellee
v.
MARK DAVID FRANKEL
Appellant No. 1912 MDA 2013
Appeal from the Order October 22, 2013
In the Court of Common Pleas of York County
Civil Division at No(s): 2006 SU 2165 Y06
BEFORE: PANELLA, J., SHOGAN, J., and FITZGERALD, J.*
MEMORANDUM BY PANELLA, J. FILED FEBRUARY 25, 2015
Appellant, Mark David Frankel, appeals from the order entered by the
Honorable Stephen P. Linebaugh, Court of Common Pleas of York County,
that denied Frankel’s petition to set aside a sheriff’s sale and stay
proceedings. Frankel has also filed a motion with this Court to strike a
footnote in Appellee, Wells Fargo Bank’s (“the Bank”) appellate brief. After
careful review, we grant the motion to strike,1 and affirm the order denying
Frankel’s petition to set aside sheriff’s sale.
____________________________________________
*
Former Justice specially assigned to the Superior Court.
1
Footnote 1 of Appellee’s Brief is stricken in its entirety, as it contains
matter irrelevant to the appeal before us.
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The Bank initiated foreclosure proceedings on Frankel’s property in
2006. In 2007, the trial court granted summary judgment to the bank and
entered an in rem judgment against Frankel in the amount of $582,953.86.
Frankel did not appeal from this judgment.
From this point until the property was sold at sheriff’s sale in October
of 2013, the parties engaged in negotiations to pay off the arrears and
possibly reinstate the mortgage. However, as of October 7, 2013, there was
no written agreement in place, and the property proceeded to sheriff’s sale.
On October 16, 2013, Frankel filed his petition to set aside the sheriff’s
sale. According to Frankel, he “[a]t all times … represented to the lower
court that his sole ambition was to determine how his $100,000 payment
had been applied so that he [could] seek money from relatives and friends in
order to pay off the mortgage or bring it current and keep his home.”
Appellant’s Brief, at 6. The trial court denied Frankel’s petition, and this
timely appeal followed.
On appeal, Frankel argues that the trial court erred in concluding that
he needed to prove fraud in order to have the sheriff’s sale set aside. We
review the denial of a petition to set aside a sheriff’s sale for an abuse of
discretion. See Irwin Union National Bank and Trust Co. v. Famous, 4
A.3d 1099, 1102 (Pa. Super. 2010). “[T]he relevant inquiry is whether
proper cause has been shown to set aside the sheriff’s sale.” Id. (citation
omitted). The burden of establishing proper cause lies with the petitioner.
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See id. “Sheriff’s sales have been set aside where the validity of the sale
proceedings is challenged, a deficiency pertaining to the notice of the sale
exists, or where misconduct occurs in the bidding process.” Id. (citation
omitted). Furthermore, sheriff’s sales have been successfully set aside
where a third-party purchaser, unaware of the pending sale, satisfied the in
rem judgment prior to the sheriff’s sale. See Merrill Lynch Mortgage
Capital v. Steele, 859 A.2d 788, 792 (Pa. Super. 2004).
While Frankel is correct in his assertion that he was not required to
prove fraud to set aside the sheriff’s sale, we find no error or abuse of
discretion in the trial court’s reasoning. As the trial court aptly notes,
Frankel does not clearly or explicitly identify exactly what it is that he
contends constituted proper cause to set aside this sheriff’s sale. Frankel
does not argue that the judgment is invalid, or that he had no notice of the
sale proceedings. Nor does he raise any other issue with the sale
proceedings. He does not allege that he had satisfied the judgment prior to
the sale.
To the contrary, Frankel offers vague arguments regarding possible
oral agreements to postpone the sale in exchange for payments from
Frankel or other unspecified legal requirements. We cannot fault the trial
court for its attempt to fit Frankel’s nebulous arguments into an actual,
concrete cause of action. By doing so, the trial court gave Frankel significant
leeway to identify proper cause to set aside the sheriff’s sale. However, as
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the trial court notes on appeal, none of Frankel’s arguments or allegations
constitute proper cause to set aside a sheriff’s sale. As such, the trial court
did not abuse its discretion in denying Frankel’s petition.
Order affirmed. Motion to strike portion of Appellee’s Brief is granted.
Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/25/2015
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