Santander Bank v. Ziveli Development

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
SANTANDER BANK, N.A., FORMERLY IN THE SUPERIOR COURT
KNOWN AS SOVEREIGN BANK, N.A., OF PENNSYLVANIA
SUCCESSOR IN INTEREST TO
PREFERRED CAPITAL BIDCO, INC.,
B.A.R. RIVERSIDE LLC
Appellees
v.
ZIVELI DEVELOPMENT CORPORATION
D/B/A JEFFRIES LANDING, JEFFREY P.
SYNDER AND GEORGENE M. SYNDER
Appellants No. 555 WDA 2018
Appeal from the Order Entered March 22, 2018
In the Court of Common Pleas of Beaver County
Civil Division at No: 32343-2014
BEFORE: PANELLA, P.J., STABILE, and McLAUGHLIN, JJ.
MEMORANDUM BY STABILE, J.: FILED AUGUST 12, 2019
Ziveli Development Corporation d/b/a Jeffries Landing, Jeffrey P. Snyder
and Georgene M. Snyder (collectively “Ziveli”) appeal from the March 22, 2018
order entered in the Court of Common Pleas of Beaver County granting the
”Petition to Permit Access to/and Control of Real Estate during Pendency of
Litigation” filed by Appellee, B.A.R. Riverside, LLC “(Riverside). 1 Ziveli
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1In addition to Riverside, Appellees include Santander Bank, N.A., formerly
known as Sovereign Bank, N.A., successor in interest to Preferred Capital
BIDCO, Inc. Santander Bank obtained a judgment against Appellants in an
amount in excess of $2,000,000. The judgment was assigned to Cadles of
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contends the trial court committed error of law in five different respects in
granting the petition. However, because the order appealed from is not an
appealable order, we quash the appeal.
Briefly, in 2008, Ziveli obtained a mortgage that encumbered six parcels
collectively known as Jeffries Landing in Beaver, Pennsylvania.2 On October
29, 2014, the mortgagee’s successor in interest filed a complaint and
confession of judgment against Ziveli for failure to make the required
payments. On December 3, 2014, Ziveli filed a petition to strike or open the
judgment. The matter was continued several times by the parties in 2015.
Four status conferences took place between mid-2015 and mid-2017. As of
this time, no dispositional order has been issued on the petition to strike or
open.
Between 2014 and 2018, there were a number of assignments of the
loan at issue, with the most recent assignment in favor of Riverside. In 2018,
Riverside filed a petition to permit access to and control of the real estate to
prevent further deterioration of the secured property. Following a March 21,
2018 hearing, the trial court issued an order granting the petition and awarded
Riverside “full access to and control over the Jeffries Landing Building
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West Virginia, LLC, and later to Appellee, Riverside. For the sake of simplicity,
we shall refer to Riverside only as the Appellee.
2 While not important to our disposition of this matter, we note that five of the
six parcels were sold at sheriff sale in 2013 to an entity managed by Blaine
Roberts. Roberts also manages Riverside.
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including, but not limited to, occupying, repairing, activating utilities, insuring,
and retaining all income generated therefrom until such time as [Riverside]
obtains legal title to said property.” Order, 3/22/18, at 1. Ziveli filed a timely
appeal. Both Ziveli and the trial court complied with Pa.R.A.P. 1925.
Before considering any issues raised by Ziveli, we must determine
whether we have jurisdiction over this appeal. “The appealability of an order
directly implicates the jurisdiction of the court asked to review the order.”
Commonwealth v. Sabula, 46 A.3d 1287, 1290 (Pa. Super. 2012) (citation
omitted). “[S]ince we lack jurisdiction over an unappealable order it is
incumbent on us to determine, sua sponte when necessary, whether the
appeal is taken from an appealable order.” A.J.B. v. A.G.B., 180 A.3d 1263,
1270 (Pa. Super. 2018) (citations omitted) (alteration in original).
In its docketing statement, Ziveli indicated that the order was
appealable as a collateral order under Pa.R.A.P. 313. Civil Docketing
Statement, 5/15/18, at 1 ¶ C. However, in its brief, Ziveli abandoned its
contention that the order is appealable as a collateral order and instead
indicates the order is appealable as an interlocutory appeal as of right
pursuant to Pa.R.A.P. 311(a)(2), i.e., as an appeal from an order “confirming,
modifying, or dissolving or refusing to confirm, modify or dissolve an
attachment, custodianship, receivership, or similar matter affecting the
possession or control of property.” Appellant’s Brief at 1.
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While Ziveli now invokes this Court’s jurisdiction under Rule 311(a)(2),
Ziveli does not contend that any attachment, custodianship or receivership is
at issue or is the subject of the trial court’s order. Instead, he argues that the
trial court “improperly ruled upon [Riverside’s] unverified petition without due
process” and, in doing so, “exceeded the authority of Pa.R.C.P. 3118 by
granting possession of the property to [Riverside] and changing the status
quo.” Appellant’s Brief at 8.
Rather than address the issue of jurisdiction under Rule 311(a)(2), Ziveli
focuses on Pa.R.A.P. 3118, which provides for supplementary relief in aid of
execution. However, Riverside did not seek entry onto the property as a
request in aid of execution. In light of the pending petition to open or strike
the confessed judgment, execution is not yet an available option. Clearly, the
trial court’s order does not deprive Ziveli of ownership of Jeffries Landing. As
the trial court recognized, a mortgagee is entitled to take and hold possession
of a property until the mortgagor pays the outstanding deft, “but the
mortgagor remains the ‘real owner’ of the property; the mortgagee does not
obtain legal title until the foreclosure process is complete.” Trial Court
Opinion, 6/15/18, at 4 (citing Winthrop v. Arthur W. Binns, Inc., 50 A.2d
718, 719 (Pa. Super. 1947)). Here, the trial court did not eliminate all of
Ziveli’s rights to the property. “While their rights may now be limited to those
of a mortgagor in default, the [c]ourt does not believe or allege Ziveli is no
longer the legal owner.” Id.
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Although the trial court did not address the appealability of its order,
Riverside asserts the order is interlocutory and unappealable. Appellee’s Brief
at 8-9. This Court addressed Rule 311(a)(2) with respect to real property in
related cases involving the same parties. In Rappaport v. Stein, 506 A.2d
393, 395 (Pa. Super. 1985), appeal granted on other grounds, 513 A.2d 391
(Pa. 1986), (“Rappaport I”), the appellant claimed this Court had jurisdiction
under Rule 311(a)(2) over an appeal from an order appointing a real estate
management firm to manage investment properties owned by the parties’
investment partnership. This Court held:
We hold that the order in question does not satisfy the
jurisdictional requirements of Pa.R.A.P. 311(a)(2); it does not
relate to “an attachment, custodianship, receivership or similar
matter affecting the possession or control of property.” The real
estate firm was empowered to collect rents and perform routine
management functions but was barred from selling, encumbering
or renovating the properties. This limited management function
is not the “possession or control of property” which justifies an
exception to the nonappealability of interlocutory orders. We
therefore quash the appeal for lack of jurisdiction.
Id. at 395-96.
In further proceedings between the two parties, the trial court entered
an order giving the management firm even more authority over the properties.
However, that order indicated the firm had no authority to sell or encumber
the properties, use assets of the entities to purchase other properties, or enter
into contracts for extensive renovations or alteration of the properties. On
appeal, this Court again quashed the appeal, finding there was no suggestion
in the order that appellees have “now been given the power actually to
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consummate the sale of the properties with no further involvement of the
court.” Rappaport v. Stein, 520 A.2d 480, 483 (Pa. Super. 1987)
(“Rappaport II”).
In the instant case, Riverside argues:
It is submitted that the order of the lower court is not one that
confirms, modifies, or dissolves an attachment, custodianship or
receivership, nor is it one that refuses to do so. The order of the
lower court has nothing to do with attachments, custodianships,
receiverships or similar matters. Rather it is a simple interim
order allowing the party that has acquired an interest in the
property to preserve it while it proceeds to acquire title.
Appellee’s Brief at 9. Therefore, Riverside contends, as did the appellees in
Rappaport I and Rappaport II, the order is interlocutory and this Court
lacks jurisdiction under Rule 311(a)(2). Again, the order here permits
Riverside to, inter alia, “occupy, repair, activate utilities, and insure” the
Jeffries Landing Building “until such time as [Riverside] obtains legal title to
said property.” On the face of the order, it is clear the order does not confirm,
modify or dissolve an attachment, custodianship, receivership, or similar
matter affecting the possession or control of property. Just as in the
Rappaport cases, the order in question does not deprive Ziveli of actual
ownership of the property but simply authorizes Riverside to preserve its
interest in the property. Consequently, this Court lacks jurisdiction over the
appeal.
Appeal quashed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/12/2019
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