J. S15031/18


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

THE BANK OF NEW YORK MELLON FKA          :    IN THE SUPERIOR COURT OF
THE BANK OF NEW YORK AS TRUSTEE          :          PENNSYLVANIA
FOR THE CERTIFICATEHOLDERS               :
THE CWABS, INC., ASSET-BACKED            :
CERTIFICATES, SERIES 2007-5              :
                                         :
                   v.                    :
                                         :
ANTHONY S. O’QUINN,                      :         No. 1739 EDA 2017
                                         :
                        Appellant        :


                 Appeal from the Order Entered May 1, 2017,
            in the Court of Common Pleas of Philadelphia County
                       Civil Division at No. 140801768


BEFORE: STABILE, J., DUBOW, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                   FILED JUNE 01, 2018

      Anthony S. O’Quinn appeals the orders of the Court of Common Pleas

of Philadelphia County that awarded The Bank of New York Mellon f/k/a The

Bank of New York, as trustee for the certificate holders of the CWABS, Inc.,

Asset-Backed Certificates, Series 2007-5 (“appellee”), an in rem judgment

in mortgage foreclosure, denied appellant’s motion to set aside sheriff’s sale,

denied appellant’s motion to stay sheriff’s deed transfer, and denied
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appellant’s emergency motion to stay action to stay deed transfer.1        We

affirm.

      The record reflects that on August 14, 2014, appellee filed a complaint

in mortgage foreclosure in the trial court. In the complaint, appellee alleged

that appellant made, executed, and delivered a mortgage upon property

located at 3617 Red Lion Road, Philadelphia, PA       19114 (“Property”), to

Mortgage Electronic Registration Systems, Inc., as nominee for America’s

Wholesale Lender. The mortgage was assigned to appellee by assignment of

mortgage on September 8, 2011.        Appellee also asserted that it was in

possession of the promissory note. Appellee alleged that the mortgage was

in default because no payments had been made for the payment due on

June 1, 2008, and every payment thereafter. Appellee asserted that it was

due a total of $319,825.50.       Appellee sought an in rem judgment in

mortgage foreclosure in the sum of $319,825.50 plus interest from June 14,

2014, at the adjustable rate in effect from time to time until the date of

judgment and other costs and charges. (Complaint in mortgage foreclosure,

8/14/14 at 1-3.)

      Appellant filed an answer on September 5, 2014, and asserted that

appellee lacked standing because there was no such entity as The Bank of


1 Although appellant lists four orders as the orders from which he appeals in
his brief, he does not challenge the denial of the motion to stay sheriff’s
deed transfer or the emergency motion in the argument section of his brief.
Further, as we affirm the denial of the motion to set aside the sheriff’s sale,
the other motions are moot.


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New   York    Mellon     f/k/a    Bank   of   New      York,   as   Trustee   for   the

Certificateholders     of   the    CWABS,      Inc.,    Asset-Backed     Certificates,

Series 2007-5 c/o Specialized Loan Servicing, LLC, and appellee was not

registered to do business in 2017.            Appellant also alleged violations of

various federal and Pennsylvania real estate and lending acts. In addition,

appellant alleged that appellee and its predecessors engaged in fraud.

Appellant asserted that he had made all required payments.                    (Answer,

9/5/14 at 1-8.)

      Appellee replied and denied the material allegations. When appellant

obtained representation, he moved to amend his answer. Appellee did not

contest the motion. After the parties stipulated that appellant could amend

his answer, the trial court declared the motion moot. On January 5, 2015,

appellant filed his amended answer and alleged that appellee lacked

standing because it was not the note holder and sought dismissal of the

complaint.    In new matter, appellant raised some of the same alleged

statutory violations as in the original answer. Appellee denied the allegation

in its reply to new matter filed January 21, 2015.

      On March 30, 2016, the trial court conducted a non-jury trial.

Following the trial, the trial court made the following relevant findings of fact

and conclusions of law:

             1.      On February 21, 2007, [appellant] executed an
                     Adjustable Rate Note to America’s Wholesale
                     Lender (hereinafter “Lender”) in the amount of



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                 $171,500.00 (hereinafter, the “Note” and/or
                 “Loan”).

          ....

          4.     This Mortgage was admitted into evidence.
                 The Mortgage was for real property situated at
                 3617    Red    Lion    Road,     Philadelphia,
                 Pennsylvania    19114-1435        (hereinafter
                 “Premises).

          5.     On the same date, [appellant] executed a
                 Mortgage in favor of Mortgage Electronic
                 Registration Systems, Inc. (“MERS”), as
                 nominee for Lender and Lender’s successors
                 and assigns, in the amount of $171,500.00
                 (hereinafter the “Mortgage”).

          6.     The Mortgage was recorded on February 28,
                 2007, with the Philadelphia Commissioner of
                 Records, Instrument Number 51640405.

          ....

          8.     The Mortgage was assigned to [appellee] by
                 MERS pursuant to Assignment of Mortgage
                 recorded on September 8, 2011, with
                 Philadelphia   Commissioner  of  Records,
                 Instrument Number 52388104 (hereinafter
                 “Assignment”).

          9.     The Assignment was admitted into evidence.

          10.    The language within the Mortgage authorized
                 this assignment.

          11.    [Appellant] is the mortgagor and owner of
                 record of the mortgaged premises.

          12.    Specialized Loan Servicing LLC (hereinafter
                 “SLS”) began servicing the loan in December of
                 2011.




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          13.    At trial, Ms. Poch testified as a representative
                 of SLS.

          14.    Ms. Poch testified that records pertaining to
                 [appellant’s] loan were verified by SLS and no
                 discrepancies were found.

          15.    Ms. Poch testified that [appellee] appointed
                 SLS as [appellee’s] attorneys-in-fact and
                 agents to effect a foreclosure of a loan.

          16.    Ms. Poch testified that [appellee’s] custodian
                 was in possession of the note at the time the
                 Complaint was filed and since 2007.

          ....

          22.     The Total balance      due   on   the   loan   is
                 $363,782.92.

          23.    The interest accrued at a per diem rate of
                 $55.8112 for each day that the Loan remains
                 unpaid.

                         CONCLUSIONS OF LAW

          1.     [Appellant] defaulted on this mortgage
                 obligation by failing to make monthly
                 payments due on May 1, 2008 and for each
                 month after.

          2.     Attorneys’ fees, interest and any and all
                 services to protect [appellee’s] interest in the
                 Mortgaged Property are all immediately due
                 and collectible.

          ....

          7.     [Appellee] is the legal owner and holder of the
                 note.    MERS acted within its authority in
                 executing the assignment on the note to
                 [appellee]. [Appellee] established standing by
                 tendering proof of assignment.



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            ....

            9.     [Appellee] legally owned the mortgage and
                   was entitled to make demand upon and to
                   enforce obligations under the note.

            ....

            11.    [Appellant] lacks standing to challenge the
                   mortgage securitization and/or compliance
                   with any pooling or servicing agreement.

            12.    [Appellee] has demonstrated proper standing
                   to foreclose on the Note and Mortgage.

            ....

            16.    [Appellee] has sustained its burden of proof
                   and is entitled to in rem judgment in
                   mortgage foreclosure against [appellant] on
                   the property located at 3617 Red Lion Road,
                   Philadelphia, Pennsylvania 19114, in the
                   amount of $363,782.92, together with interest
                   at the per diem rate of $55.8112.

Findings of fact and conclusions of law, 5/3/16 at 1-5.

      On May 27, 2016, appellant filed a notice of appeal from the May 3,

2016 finding that appellee had sustained its burden of proof and was entitled

to an in rem judgment.      The trial court did not order appellant to file a

statement of matters complained of on appeal. On June 15, 2016, the trial

court filed its opinion in this matter.   On September 16, 2016, this court

quashed the appeal at No. 1705 EDA 2016 because a final judgment had not

been entered on the docket.

      On October 5, 2016, appellee praeciped for a writ of execution. That

same day, a writ of execution was issued that directed the Sheriff of


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Philadelphia County to sell the Property with an amount due of $363,782.92

plus interest from May 7, 2016, in the amount of $13,896.69.               On

October 18, 2016, appellee’s attorney filed an affidavit of service of process

which indicated that on October 7, 2016, appellee served a true and correct

copy of the notice of sale upon appellant’s attorney.

      The sheriff’s sale was originally scheduled for January 10, 2017, but

was continued twice until March 7, 2017.      At that time, the Property was

sold to appellee for $155,000.

      On March 24, 2017, appellant moved to set aside the sheriff’s sale. In

the motion, appellant asserted that the verification attached to the complaint

was deficient because it was signed by an alleged agent for appellee,

Specialized Loan Servicing LLC (“SLS”) and not by appellee. Appellant also

asserted that appellee did not serve appellant but served someone else who

happened to be at the Property at that time. In addition, appellant asserted

that appellee lacked a license to operate in Pennsylvania. Appellant stated

that the mortgage attached to the complaint was not the original and was

insufficient to establish standing. Further, because appellee did not respond

to certain discovery requests, appellant asserts that the requests for

admissions should be deemed all admitted, which would result in appellee’s

admitting a lack of standing.

      Appellant added that appellee failed to prove standing at trial. First,

appellee’s representative was not a representative of appellee but of SLS.



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Second, the original mortgage was never recorded.         Third, it was unclear

that appellee had possession of the note prior to the commencement of the

action on August 14, 2014.      Fourth, the payment history was inadequate.

Fifth, service was inadequate.            Sixth, appellee was not licensed in

Pennsylvania.

      Appellant argued that appellee moved forward with a foreclosure sale

in bad faith that contradicted public policy so the sale should be set aside.

Furthermore, appellant argued that the sale should be set aside because the

sale was inadequate in that the Property was sold for a price less than it is

worth.

      On March 27, 2017, appellant filed an emergency motion to stay deed

transfer pursuant to Pa.R.C.P. 3135.        Appellant alleged that the sale was

improper and that appellee had harassed tenants on the Property.            On

March 27, 2017, the trial court granted the emergency motion to stay deed

transfer until further order of court and pending disposition of appellant’s

motion to set aside the sheriff’s sale.

      On April 25, 2017, appellant filed an emergency motion to stay actions

by appellee’s agents and sought a court order that would bar appellee from

entering onto the property or communicating with tenants in any way while

proceedings were ongoing. Appellant alleged that George Prinos, an agent

of appellee, had been harassing tenants at the Property and had caused

appellant severe economic hardship and financial damages.



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      On April 26, 2017, the trial court granted the motion, stayed any

action by appellee’s agents until further order of court, and barred the

agents from entering onto the Property or communicating with tenants while

the proceedings were ongoing.       The trial court scheduled a hearing for

May 1, 2017.

      On May 1, 2017, the trial court denied the motion to set aside sheriff’s

sale, the emergency motion to stay action by appellee’s agents, and the

motion to stay sheriff’s deed transfer.

      On May 31, 2017, appellant filed a Praecipe to record a lis pendens.

That same date, appellant filed an appeal. On June 6, 2017, appellant filed

an emergency motion to stay deed transfer pending appeal.              On June 8,

2017, the trial court denied the emergency motion.         On June 26, 2017,

appellant filed an application for stay with this court. On June 27, 2017, the

court denied the application for stay by per curiam order. The trial court

did not order a statement of errors complained of on appeal. The trial court

filed an opinion on August 29, 2017.

      Appellant raises the following issues for this court’s review:

            a.    Whether the [trial c]ourt committed an error of
                  law by allowing [appellee] to commit fraud on
                  the court by permitting [appellee] to submit
                  the unfiled allegedly original mortgage as
                  evidence and further, relying on it to show
                  standing and the right to sue?

            b.    Whether the [trial c]ourt committed an error of
                  law by allowing [appellee] to fail to comply
                  with the proper recording statutes in regards


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                   to the mortgage, assignments and all other
                   relevant agreements?

             c.    Whether the [trial c]ourt committed an error of
                   law by allowing [appellee] to fail to have a
                   witness with personal knowledge of anything in
                   this matter, simply someone who read from a
                   computer and admitted that [appellee] relied
                   on the wrong paperwork?

             d.    Whether the [trial c]ourt committed an error of
                   law by allowing [appellee] to use an
                   assignment of mortgage that is a statutory
                   forgery?

             e.    Whether the [trial c]ourt committed an error of
                   law by failing to find that [appellee] completely
                   lacked standing at the time the case was
                   brought as well as at trial?

             f.    Whether the [trial c]ourt committed an error of
                   law by allowing [appellee] to proceed even
                   without standing?

             g.    Whether the [trial c]ourt committed an error of
                   law   in    finding   for   [appellee]  despite
                   [appellant’s] sound arguments in fact and law?

             h.    Whether the [trial c]ourt committed an error of
                   law in permitting the sheriff sale to proceed
                   and not setting it aside?

Appellant’s brief at 3.

      Before addressing the merits of the issues appellant raises, this court

must address appellee’s contention that appellant waived all of his issues

except the last one, issue h, which pertains to the motion to set aside the

sheriff’s sale.




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      Appellee asserts that appellant should be barred from appealing the

disposition of the complaint in mortgage foreclosure in favor of appellee

because appellee waived the issues he attempts to assert for the first time

on appeal because he failed to raise them at trial and/or object at trial and

he failed to file any post-trial motions.

      In its opinion, the trial court referred to the failure to file post-trial

motions in a footnote:

            In his motion to set aside, [appellant] also argues,
            inter alia, that (1) the verification attached to
            [appellee’s] Mortgage Foreclosure Complaint was
            deficient, (2) service of the Mortgage Foreclosure
            Complaint was deficient, and (3) there were several
            errors at the non-jury trial before Judge Coleman.
            Because [appellant] failed to file a post-trial motion
            following Judge Coleman’s May 3, 2016 Order, all of
            those claims of error are waived for appellate review.
            See Pa.R.C.P. 227.1(c)(2) (“Post-trial motions shall
            be filed within ten days after notice of nonsuit or the
            filing of the decisions or adjudication in the case of a
            trial without jury or equity trial.”). “Issues not raised
            in the lower court are waived and cannot be raised
            for the first time on appeal.” Pa.R.A.P. 302(a); see
            also Chalkey v. Roush, 805 A.2d 491 (Pa. 2002)
            (under Pa.R.C.P. 227.1, a party must file post-trial
            motions at the conclusion of a trial in any type of
            action in order to preserve claims that the party may
            wish to raise on appeal); Peters v. National
            Interstate Ins. Co., 108 A.3d 38 (Pa. Super.
            2014[)] (same).

Trial court opinion, 8/29/17 at 1-2 n. 1.

      This court agrees with the trial court’s analysis and its determination

that appellant’s failure to file post-trial motions results in a waiver of all

issues related to the disposition of the complaint in mortgage foreclosure.


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      Regarding the motion to set aside the sheriff’s sale, appellant contends

that the trial court committed an error of law in permitting the sheriff’s sale

to proceed and not setting it aside.

      We begin our analysis with our standard of review:

            When reviewing a trial court’s ruling on a petition to
            set aside a sheriff’s sale, it is recognized that the
            trial court’s ruling is one of discretion, thus a ruling
            will not be reversed on appeal absent a clear
            demonstration of an abuse of that discretion. See
            Blue Ball National Bank v. Balmer, 810 A.2d 164,
            167 (Pa.Super.2002).

                  The purpose of a sheriff’s sale in
                  mortgage foreclosure proceedings is to
                  realize out of the land, the debt, interest,
                  and costs which are due, or have accrued
                  to, the judgment creditor.        Kaib v.
                  Smith, [] 684 A.2d 630 ([Pa.Super.]
                  1996). A sale may be set aside upon
                  petition of an interested party where
                  ‘upon proper cause shown’ the court
                  deems it ‘just and proper under the
                  circumstances.’     Pa.R.C.P. 3132.     The
                  burden     of    proving     circumstances
                  warranting the exercise of the court’s
                  equitable powers is on the petitioner.
                  Bornman v. Gordon, [] 527 A.2d 109,
                  111 ([Pa.Super.] 1987).        Courts have
                  entertained petitions and granted relief
                  where the validity of sale proceedings is
                  challenged, or a deficiency pertaining to
                  the notice of sale exists or where
                  misconduct occurs in the bidding
                  process.      National Penn Bank v.
                  Shaffer, [] 672 A.2d 326 ([Pa.Super.]
                  1996). Where a sale is challenged based
                  upon the adequacy of the price our
                  courts have frequently said that mere
                  inadequacy of price standing alone is not
                  a sufficient basis for setting aside a


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                    sheriff’s sale. Fidelity Bank v. Pierson,
                    [] 264 A.2d 682 ([Pa.] 1970). However
                    where a ‘gross inadequacy’ in the price is
                    established courts have found proper
                    grounds exist to set aside a sheriff’s sale.
                    Capozzi v. Antonoplos, [] 201 A.2d
                    420, 422 ([Pa.] 1964).

Provident National Bank, N.A. v. Song, 832 A.2d 1077, 1081 (Pa.Super.

2003).

      First, appellant argues that the motion to set aside should have been

granted due to fraud and tortious interference with a third party contract.

      Apparently, appellant raises arguments based on his version of the

facts and not the fact that the trial court granted the relief requested in the

complaint in mortgage foreclosure and appellant did not challenge that

determination through post-trial motions; thus waiving his arguments in that

regard.     Appellant cites to a regulation regarding fraud in the context of

licensing for mortgage lenders.      He argues that because appellee moved

forward with a foreclosure in bad faith, the sheriff’s sale should be set aside.

He argues that this “proof of fraud” is sufficient to set aside the sheriff’s sale

and he has established that. It is unclear exactly what this fraud was unless

it once again refers back to elements of the foreclosure and not the sheriff’s

sale itself.   The trial court did not abuse its discretion when it declined to

grant the motion to set aside the sheriff’s sale on this basis.

      Appellant also contends that he was not properly served with notice of

the sale.



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      Proper method of service is set forth in Rule 3129.2(a) of the

Pennsylvania Rules of Civil Procedure which provides, as follows:

            Notice of the sale of real property shall be given by
            handbills as provided by subdivision (b), by written
            notice as provided by subdivision (c) to all persons
            whose names and addresses are set forth in the
            affidavit required by Rule 3129.1, and by publication
            as provided by subdivision (d).

Pa.R.C.P. 3129.2(a).

      Here, the trial court determined that appellee submitted evidence that

appellee properly served appellant with notice of the sheriff’s sale. Exhibit B

to the answer to the motion to set aside the sheriff’s sale contained an

affidavit of service of process from appellee’s counsel that indicated that

appellee served a copy of the notice of sale upon appellant’s counsel by first

class mail on October 7, 2016.      Exhibit B also contains the United States

Postal Service Certificate of Mailing that was sent to appellant in care of his

counsel.   Appellant does not refute these documents.        Further, appellant

does not specify in his brief how the service was defective except that

service took place without proper notice given to him and his attorney. The

trial court did not abuse its discretion when it failed to set aside the sale due

to improper service.

      Appellant also asserts that the sale should be set aside because it sold

for far less than its market value.           While price alone has not been

determined to be a sufficient basis for setting aside a sheriff’s sale, where a

“gross inadequacy” in the price is established, courts have set aside a


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sheriff’s sale. There is no fixed amount or percentage of the sales price that

has been deemed grossly inadequate.          Bank of Am., N.A. v. Estate of

Hood, 47 A.3d 1208, 1211 (Pa.Super. 2012).

      Here, the property sold at the sheriff’s sale for $155,000.     There is

nothing in the record that indicates the fair market value of the property.

While the amount due to appellee was more than twice that, the original

mortgage was in the amount of $171,000, and the total balance of

$363,782.92 consisted primarily of unpaid interest, escrow advanced,

property inspection fees, and attorney’s fees. Appellant did not provide an

actual or estimated value of the property. “Absent evidence of the actual or

estimated value of the property sold, however, a determination of gross

inadequacy cannot be made.” Bornman, 527 A.2d at 112. The trial court

did not abuse its discretion when it denied the motion to set aside the sale.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary


Date: 6/1/18




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