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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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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