J-A16006-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

1400 MARKET STREET, LLC                          IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                       v.

FOX FUNDING, LLC, FOX FUNDING PA
LLC, MELO ENTERPRISES, LLC, DENNIS
WASELUS AND ELSIE WASELUS, JOSEPH
SINISI AND TWO RIVER COMMUNITY
S/B/M THE TOWN BANK


TWO RIVER COMMUNITY BANK S/B/M TO
THE TOWN BANK

                        v.

FOX FUNDING PA LLC




MELO ENTERPRISES, LLC

                        v.

FOX FUNDING LLC, 1400 MARKET
STREET, LLC


APPEAL OF: MELO ENTERPRISES, LLC
                                                     No. 3391 EDA 2014


              Appeal from the Judgment Entered January 12, 2015
                in the Court of Common Pleas of Carbon County
                         Civil Division at No.: 09-0006

BEFORE: LAZARUS, J., OLSON, J., and PLATT, J.*

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
J-A16006-15


MEMORANDUM BY PLATT, J.:                           FILED AUGUST 12, 2015

       In this appeal, Appellant, Melo Enterprises, LLC, appeals from the

judgment1 entered in favor of Appellee, 1400 Market Street, LLC, in these

consolidated actions, two in mortgage foreclosure, and one in mortgage

reformation. For the reasons discussed below, we affirm.

       We take the underlying facts and procedural history in this matter

from the certified record and the trial court’s opinions of February 15, 2012,

September 10, 2013, November 10, 2014, and February 3, 2015.

             On October 21, 2005, James Harrison executed two
       mortgages in favor of The Town Bank on property located in
       Carbon County, Pennsylvania. Both mortgages identified Fox
       Funding PA, LLC, a Pennsylvania limited liability company of
       which Harrison was the principal owner and managing agent, as
       the mortgagor. This was a mistake. Fox Funding PA was not the
       owner of the properties pledged as security; rather, Fox Funding
       LLC, a New Jersey limited liability company, also owned and
       controlled by Harrison, was the owner. This fact has resulted in
       extensive litigation, including the instant proceedings for
       reformation asking that the name of the mortgagor in the larger
       of the two mortgages, that for $1,075,000.00, be corrected to
       Fox Funding, LLC, the actual owner of the property and intended
       mortgagor.
____________________________________________


1
  In the caption of its brief Appellant purported to appeal from four different
orders. However, an appeal properly lies from the entry of judgment. See
Jackson v. Kassab, 812 A.2d 1233, 1233 n.1 (Pa. Super. 2002), appeal
denied, 825 A.2d 1261 (Pa. 2003).          By order of January 6, 2015, we
directed Appellant to praecipe for entry of judgment as required by
Pennsylvania Rule of Appellate Procedure 301. Appellant filed a praecipe on
January 12, 2015. In accordance with Pennsylvania Rule of Appellate
Procedure 905(a), we treat the notice of appeal previously filed as filed after
the entry of judgment. We have corrected the caption.




                                           -2-
J-A16006-15



                                   *     *   *

             On October 18, 2005, the Bank[a] extended a loan
     commitment to Fox Funding, LLC (“Fox Funding”) for
     $1,300,000.00. The purpose of this loan was to finance Fox
     Funding’s purchase and development of 168 acres of property
     located along the Maury Road in Penn Forest Township, Carbon
     County, Pennsylvania (“Property”). At the time, the Property
     was owned in part by Harry, Catherine, John and Linda Roscoe
     (the “Roscoe Parcels”) and in part by Dennis and Elsie Waselus
     (the “Waselus Parcels”). The loan was to be secured by a valid
     first lien mortgage on the Property. Fox Funding accepted the
     loan terms as presented.
          [a]
             The Town Bank later merged with Two River
          Community Bank whose name appears in the caption
          of this case. For purposes of this litigation, no
          meaningful distinction exists between the two.
          Hence, our reference to “the Bank” is inclusive of
          both The Town Bank and Two River Community
          Bank.

           Between Fox Funding’s acceptance of the loan commitment
     and the date of closing, the parties agreed to divide the loan
     proceeds into two different loan amounts to be secured by
     separate mortgages. The sum of $1,075,000.00 was to be
     secured by a first lien mortgage on the Property. The balance,
     $225,000.00, was to be secured by a second mortgage intended
     to be a third lien on the Waselus Parcels—subordinate to a
     purchase money mortgage held by the Waseluses—and a second
     lien on the Roscoe Parcels.

           Closing on the loan was held at the offices of [the] Bank’s
     counsel in Pennsylvania on October 21, 2005. At that time, two
     deeds were delivered for recording: one for 132 acres from
     Dennis and Elsie Waselus (i.e., the Waselus Parcels), and one for
     36 acres from Harry, Catherine, John and Linda Roscoe (i.e., the
     Roscoe Parcels). The grantee named in both deeds was Fox
     Funding.

          At closing, Harrison signed two mortgages with the Bank
     as mortgagee—one for $1,075,000.00 (the “Bank Mortgage”)
     and one for $225,000.00—both listing the Property as collateral.

                                   -3-
J-A16006-15


     The mortgage documents were provided by the Bank and
     prepared by its counsel. What Harrison did not realize was that
     each of the bank mortgages incorrectly identified the mortgagor
     as Fox Funding PA, LLC (“Fox Funding PA”), rather than the
     actual and intended mortgagor, Fox Funding, the owner of the
     Property. The notes secured by these two mortgages also
     mistakenly identified the borrower as Fox Funding PA, rather
     than Fox Funding.[b]
          [b]
             Fox Funding was formed by Harrison in 2004 for
          the purpose of acquiring and developing real estate
          in its name. Fox Funding PA was formed in 2005 as
          a construction firm to build the required
          improvements on property acquired by Fox Funding.
          Fox Funding PA was to make separate arrangements
          for financing its construction equipment with the
          Bank.

            In addition to the two mortgages given to the Bank at
     closing, Harrison also signed a third mortgage to the Waseluses
     in the amount of $372,000.00, using as collateral the Property
     conveyed by them to Fox Funding. This mortgage correctly
     identified Fox Funding as the mortgagor. The Waselus Mortgage
     expressly stated on its face that it was:

          UNDER AND SUBJECT, in both lien and payment, to a
          construction and purchase loan mortgage to secure
          the payment of the principal sum of ONE MILLION
          SEVENTY-FIVE        THOUSAND      AND      00/100
          ($1,075,000.00) DOLLARS given by [Fox Funding] to
          [the] Bank dated October 21, 2005, and intended to
          be recorded forthwith.

           On October 24, 2005, the settlement documents were
     recorded in the Carbon County Recorder of Deeds Office in the
     following sequence at the record book and page numbers
     indicated:

          1. Deed from the Roscoes to Fox Funding—Record
             Book 1385, at page 709;

          2. Deed from the Waseluses to Fox Funding—Record
          Book 1385, at page 713;


                                  -4-
J-A16006-15


          3. Mortgage from Fox Funding PA to the Bank in the
          amount of $1,075,000.00—Record Book 1385, at
          page 720;[c]

          4. Mortgage from Fox Funding to the Waseluses in
          the amount of $372,000.00—Record Book 1385, at
          page 731;

          And

          5. Mortgage from Fox Funding PA to the Bank in the
          amount of $225,000.00—Record Book 1385, at page
          743.
                [c]
                   Notwithstanding that this mortgage
                identified the mortgagor as Fox Funding
                PA, the mortgage was indexed against
                Fox Funding by the Recorder of Deeds.

           The intended effect of this recording was to create a first
     lien mortgage on the Property in favor of the Bank in the amount
     of $1,075,000.00, a second lien mortgage on the Waselus
     Parcels in favor of the Waseluses in the amount of $372,000.00,
     and a second lien mortgage on the Roscoe Parcels and third lien
     mortgage on the Waselus Parcels in favor of the Bank in the
     amount of $225,000.00.[d]
          [d]
             On December 30, 2008, Fox Funding executed a
          mortgage encumbering multiple parcels, including
          the Property, in favor of Joseph Sinisi in the amount
          of $860,000.00. This mortgage was recorded on
          January 9, 2009, in the Carbon County Recorder of
          Deeds Office in Record Book 1739, at page 784.

           Payments on the Bank Mortgage became delinquent as of
     August 31, 2008. Prior to this date, the mortgage was paid by
     Fox Funding. As a result of this default, the Bank filed a
     mortgage foreclosure complaint against Fox Funding PA, the
     named mortgagor in the Bank Mortgage, on January 2, 2009.
     This action is docketed to No. 09-0006 in the Carbon County
     Prothonotary’s Office.

          An in rem judgment was entered against Fox Funding PA in
     the amount of $1,126,126.55 on September 1, 2009, and a writ

                                   -5-
J-A16006-15


     of execution issued on September 10, 2009. All interested
     parties, including the Waseluses, were given notice of the
     execution proceedings. On November 6, 2009, the Property was
     sold at sheriff’s sale to the Bank’s assignee, 1400 Market Street,
     LLC, for costs.[e]       A sheriff’s deed for the Property dated
     November 30, 2009, with 1400 Market Street named as the
     grantee, was duly recorded in the Recorder of Deeds Office on
     December 7, 2009, in Book 1810, at page 652.
           [e]
              All of the Bank’s interest in the Bank Mortgage and
           underlying note was assigned to 1400 Market Street
           by Assignment of Note and Mortgage dated
           November 3, 2009, and recorded on November 4,
           2009, in the Carbon County Recorder of Deeds Office
           in Record Book 1804, at Page 513. The Bank also
           assigned all of its interest in the September 1, 2009,
           judgment to 1400 Market Street the same date.

                  1400 Market Street is a wholly-owned
           subsidiary of Atlantic Central Bankers Bank
           (“ACBB”).     ACBB was a one hundred percent
           participant with respect to the Bank Mortgage since
           closing.

           1400 Market Street placed the Property for sale and an
     agreement was reached with Melo Enterprises, LLC (“Melo”) to
     purchase the Property for $580,000.00. This sale did not occur
     after Melo questioned the ability of 1400 Market Street to convey
     good title since 1400 Market Street’s source of title was that
     obtained at the sheriff’s sale and Fox Funding PA, the party
     executed upon, never held title to the Property. Once aware of
     this concern and at the suggestion of Melo’s counsel, 1400
     Market Street requested and obtained from Fox Funding a quit-
     claim deed conveying title to 1400 Market Street.[f] This deed
     dated November 29, 2010, was recorded on December 27, 2010,
     and is filed in the Carbon County Recorder of Deeds Office in
     Record Book 1883, at page 847.
           [f]
              This issue appears to have been first brought to
           1400 Market Street’s attention in a letter from Melo’s
           counsel dated October 19, 2010. In this letter Melo’s
           counsel suggested either a quit-claim deed from Fox
           Funding or reformation of the Bank Mortgage
           followed by a new foreclosure action on the reformed

                                   -6-
J-A16006-15


             mortgage as options for 1400 Market Street to gain
             title. Counsel’s October 19, 2010 letter was followed
             by a second letter two days later advising that after
             further reflection foreclosure on the reformed
             mortgage would be necessary to discharge the
             Waselus and Sinisi mortgages.

            Though the effect of this quit-claim deed was to transfer
      whatever title was retained by Fox Funding in the Property to
      1400 Market Street, 1400 Market Street was nevertheless
      unable to convey good and marketable title to Melo due to the
      Waselus and Sinisi Mortgages, both constituting valid liens
      properly entered against Fox Funding as the mortgagor. Neither
      the Waselus nor Sinisi mortgages were discharged in the Bank’s
      foreclosure on the Bank Mortgage as the mortgagor named
      therein, Fox Funding PA, never held title to the Property.

(Trial Court Opinion, 11/10/14, at 1-7) (record citations and one footnote

omitted).

      On December 3, 2010, Appellant filed a foreclosure action against Fox

Funding, LLC docketed at Carbon County No. 10-3538.          In 2011, the trial

court granted Appellee’s petition to intervene. Appellant and Appellee filed

cross motions for summary judgment. On February 15, 2012, the trial court

denied both motions.

      On February 28, 2013, Appellant filed a petition to mark the judgment

satisfied, released and discharged in the original foreclosure action at Carbon

County No. 09-0006.      On March 8, 2013, Appellee filed a petition to set

aside the sheriff’s sale in that matter. On July 9, 2013, the trial court denied

Appellant’s petition and granted Appellee’s petition, setting aside the

sheriff’s sale.




                                     -7-
J-A16006-15


     On April 13, 2012, Appellee filed a mortgage reformation action

docketed at Carbon County No. 12-0788 seeking to reform the sheriff’s

deed, or in the alternative, to vacate the sheriff’s sale and reform the

mortgage and note to reflect the correct owner. On April 15, 2013, Appellee

filed a petition to consolidate the foreclosure action docketed at Carbon

County No. 09-0006 with the reformation action docketed at Carbon County

No. 12-0788, and with the foreclosure action filed by Appellant and docketed

at Carbon County No. 10-3538. The trial court granted the petition on May

16, 2013.

     A non-jury trial took place on March 7, 2014.           At trial, Tom

Katsigiannis, a representative of Two River Community Bank, testified that

the intended borrower on the mortgage was Fox Funding. (See N.T. Trial,

3/07/14, at 27).   He further testified that the loan documents named Fox

Funding as the borrower. (See id. at 28). Katsigiannis stated there was a

subsequent loan involving Fox Funding PA that was secured by construction

equipment. (See id. at 29-30). Katsigiannis asserted that the use of Fox

Funding PA in the mortgage documents rather than Fox Funding was a

“typographical error” caused by the fact that there were two loans involving

Fox Funding and one involving Fox Funding PA. (Id. at 30).

     James Harrison, the principal owner of Fox Funding and Fox Funding

PA stated that Fox Funding was formed for the purpose of buying real estate

while Fox Funding, PA was formed for the purpose of construction. (See id.


                                   -8-
J-A16006-15


at 45).      He testified that he paid all interest payments on the mortgage

through Fox Funding.        (See id. at 46).   Harrison said that the mortgage

should have been in the name of Fox Funding and he never intended to

borrow money for real estate using Fox Funding PA. (See id. at 46-47). He

asserted that he did not read the mortgage at the closing and thus did not

notice that the wrong name was on the papers. (See id. at 48-49).

          Salvador Melo testified on behalf of Melo Enterprises. (See id. at 68-

85).      Melo stated he opposed the mortgage reformation because “[m]y

interests come before yours.” (Id. at 80). When asked how he would be

prejudiced if the mortgage was reformed, he was unable to answer. (See

id. at 85).

          Following trial, on November 10, 2014, the trial court entered an order

and opinion directing that the first lien mortgage and the first lien note was

reformed.       The order corrected the name of the mortgagee and borrower

from Fox Funding Pa, LLC to Fox Funding, LLC.

          On November 20, 2014, Appellant filed a motion seeking post-trial

relief.     The trial court denied that motion on December 4, 2014.           On

December 8, 2014, Appellant filed the instant, timely appeal. On December

11, 2014, the trial court ordered Appellant to file a concise statement of

errors complained of on appeal. See Pa.R.A.P. 1925(b). On December 29,

2014, Appellant filed a twelve-page timely Rule 1925(b) statement; on

February 3, 2014, the trial court issued an opinion. See Pa.R.A.P. 1925(a).


                                        -9-
J-A16006-15


       On appeal, Appellant raises the following questions for our review:

       A: Petition to Set Aside a Mortgage Foreclosure After Delivery of
       the Sheriff’s Deed. Does the [trial c]ourt have authority in 2013
       under the law to set aside a 2009 mortgage foreclosure two
       years after delivery of the Sheriff’s deed?

       B. PA Deficiency Judgment Act: Did the [trial c]ourt have
       authority to refuse to satisfy the mortgage from which a Sheriff’s
       deed was issued in 2009 under the Pennsylvania Deficiency
       Judgment Act?

       C. Statute of Limitations: Was the argument that the six-month
       statute of limitations applicable to [j]udicial [s]ales waived?

       D. Jurisdiction Over a Mortgage Foreclosure: Did the [trial]
       court’s finding that it “lacked jurisdiction” over a mortgage
       foreclosure case because the [p]laintiff [l]ender failed to secure
       a judgment against the true owner of the property described in
       the mortgage supported by law?

       E. Mistake as Basis for Reforming a Mortgage: Whether the
       [l]ender has stated a case for reformation of a mortgage on the
       basis of a mistake when no mistake was proven?

       F. Vacating of a Voluntary Deed in Lieu of Foreclosure Upon
       Request of the Lender[:] Whether the [trial c]ourt has authority
       under law to vacate a quit-claim deed accepted by the lender in
       lieu of foreclosure?

(Appellant’s     Brief,   at    unnumbered         pages   11-13)2   (unnecessary

capitalization and underlining omitted).



____________________________________________


2
  Appellant’s brief lacks a table of contents. See Pa.R.A.P. 2174(a). It
begins numbering the pages with what Appellant believes to be page sixteen
but by our count is actually page seventeen.          Appellant then starts
numbering the pages anew at the beginning of the argument section. In the
interest of simplicity, we have renumbered the pages.



                                          - 10 -
J-A16006-15


       Initially, we note that Appellant’s brief utterly fails to comply with the

Rules of Appellate Procedure.        Appellant’s statement of jurisdiction does not

comply with Rule 2114.           (See id. at 5).    The brief includes an “Order of

Determination of Question” which is not contemplated by the Rules of

Appellate Procedure.        (See id. at 6).        Its statement of the scope and

standard of review is incorrect.          (See id. at 7).    The statement of the

questions involved is in violation of Rule 2116(a) and is largely unintelligible.

(See id. at 11-13).       Its statement of the case does not comply with Rule

2117(a)(4).     (See id. at 14-16).        Its summary of the argument does not

comply with Rule 2118. (See id. at 18-21).            Further, Appellant’s argument

does not comply with Rule 2119(a) and is all but incoherent. (See id. at 22-

69). Lastly, Appellant’s brief is thirty-five pages longer than the page limit

contained in Rule 2135(a), and Appellant has not filed the requisite

certificate of compliance in accordance with that Rule.              See Pa.R.A.P.

2135(a).

       Therefore, because of Appellant’s failure to adhere to the Rules of

Appellate Procedure, this Court has the right to quash or dismiss Appellant’s

appeal pursuant to Rule 2101.3 See Commonwealth v. Sanford, 445 A.2d

____________________________________________


3
  We would be totally justified in finding that Appellant has not preserved
any issues for our review because its twelve-page 1925(b) statement does
not comply with Rule 1925(b)(4)(ii) and (iv). See Kanter v. Epstein, 866
A.2d 394, 401 (Pa. Super. 2004), appeal denied, 880 A.2d 1239 (Pa. 2005),
cert. denied, 546 U.S. 1092 (2006) (waiving prolix Rule 1925(b) statement
(Footnote Continued Next Page)


                                          - 11 -
J-A16006-15


149, 150 (Pa. Super. 1982) (“When issues are not properly raised and

developed in briefs, and when the briefs are wholly inadequate to present

specific issues for review, a court will not consider the merits thereof.”)

(citations omitted). Despite this, “in the interest of justice we address the

arguments that can reasonably be discerned from this defective brief.”

Commonwealth v. Lyons, 833 A.2d 245, 252 (Pa. Super. 2003), appeal

denied, 879 A.2d 782 (Pa. 2005).

        In the first question listed in its statement of the question involved,

Appellant asserts that the trial court erred in setting aside the sheriff’s

sale two years after delivery of the sheriff’s deed. (See Appellant’s Brief,

at 11). However, it is nearly impossible to discern Appellant’s argument in

support of this issue. The argument begins with a fourteen-page section

in which Appellant “reviews” numerous cases allegedly erroneously cited

by the trial court in support of its holding, and then inserts a brief

“comment” consisting of Appellant’s interpretation of the holding of each

case.    (See id. at 22-35).          Many of the cases discussed in detail by

Appellant appear to be utterly irrelevant to his argument on this issue

since the trial court simply cited them for general principles of law. (See

id. at 23-30; Trial Ct. Op., 9/10/13, at 6-11).
                       _______________________
(Footnote Continued)

where court determined that presentation of “outrageous number of issues”
was deliberate attempt to circumvent purpose of Rule 1925); see also
Jiricko v. Geico Ins. Co., 947 A.2d 206, 210 (Pa. Super. 2008), appeal
denied, 958 A.2d 1048 (Pa. 2008).



                                           - 12 -
J-A16006-15


       To the extent that we can ascertain Appellant’s argument, it appears

to claim that the trial court erred in setting aside the sheriff’s sale

because: (1) it could not find any relevant law in which the lender filed

the petition to set aside the sheriff’s sale; (2) the courts have never set

aside a sheriff’s sale after issuance of the deed; and (3) the petition to set

aside the sheriff’s sale was not filed within six months of the date of the

issuance of the sheriff’s deed.         (See Appellant’s Brief, at 41-42).    We

disagree.

       Pennsylvania Rule of Civil Procedure 31324 provides:

       Setting Aside Sale

             Upon petition of any party in interest before delivery of the
       personal property or of the sheriff’s deed to real property, the
       court may, upon proper cause shown, set aside the sale and
       order a resale or enter any other order which may be just and
       proper under the circumstances.

Pa.R.C.P. 3132.       Pennsylvania Rule of Civil Procedure 3135 provides in

pertinent part:

             (a) When real property is sold in execution and no petition
       to set aside the sale has been filed, the sheriff, at the expiration
       of twenty days but no later than 40 days after either the filing of
       the schedule of distribution or the execution sale if no schedule
       of distribution need be filed, shall execute and acknowledge
       before the prothonotary a deed to the property sold. The sheriff
       shall forthwith deliver the deed to the appropriate officers for
       recording and for registry if required. Confirmation of the sale by
       the court shall not be required.
____________________________________________


4
 Pennsylvania Rule of Civil Procedure 3181(a)(8) makes Rule 3132
applicable to mortgage foreclosure actions. See Pa.R.C.P. 3181(a)(8).



                                          - 13 -
J-A16006-15



Pa.R.C.P. 3135(a).       This Court has stated that:   “[t]aken together, Rules

3132 and 3135(a) make clear a party must raise a challenge to a sheriff’s

sale within a period of time after the sale but before the deed is delivered.”

Mortg. Elec. Reg. Sys. v. Ralich, 982 A.2d 77, 80 (Pa. Super. 2009),

appeal denied, 992 A.2d 889 (Pa. 2010). However, there is an exception to

the time bar. “A sheriff’s sale may be set aside after delivery of the sheriff’s

deed based on fraud or lack of authority to make the sale.”                 Id.

(citations omitted, emphasis added).

      “The decision to set aside a sheriff’s sale is within the sound discretion

of the trial court[.]”    Merrill Lynch Mortg. Capital v. Steele, 859 A.2d

788, 791 (Pa. Super. 2004), appeal denied, 872 A.2d 1199 (Pa. 2005). “[A]

petition to set aside a sheriff’s sale is based on equitable principles.” Nat’l.

Penn Bank v. Shaffer, 672 A.2d 326, 329 (Pa. Super. 1996) (citation

omitted). “The burden of proving circumstances warranting the exercise of

the court’s equitable powers is on the petitioner, and the request to set

aside a sheriff’s sale may be refused due to insufficient proof to support the

allegations in the petition.” Kaib v. Smith, 684 A.2d 630, 631 (Pa. Super.

1996) (citation omitted).      “This [C]ourt will not reverse the trial court’s

decision absent a clear abuse of discretion.” Id. at 631-32.

      Here, in a thorough and well-reasoned opinion, the trial court found

that the sheriff lacked authority to make the sale because an indispensable

party, the real owner of the property, was not a party to the mortgage

                                      - 14 -
J-A16006-15


proceedings, rendering the judgment entered in those proceedings a legal

nullity; thus, the trial court opinion properly disposes of this issue.          (See

Trial Ct. Op., 9/10/13, at 6-9) (finding, inter alia, that: (1) the real owner of

property    must     be   named     as    a    defendant   in   mortgage   foreclosure

proceedings and is an indispensable party; (2) the real owner was not

named as a defendant in the foreclosure proceeding; (3) the sheriff’s deed

cannot convey any better title than that owned by the judgment debtor, in

this case it conveyed nothing; (4) therefore the sheriff lacked authority to

make the sale). See Wells Fargo Bank v. Lupori, 8 A.3d 919, 922 (Pa.

Super. 2010) (overruling trial court and granting petition to set aside

sheriff’s sale filed nearly eight months after delivery of deed where bank

failed to allege in foreclosure complaint that it was owner of mortgage).

Accordingly, we affirm the rejection of this issue based on the trial court’s

opinion. Appellant’s first issue lacks merit.5

       In its second issue, Appellant claims that the trial court erred in

denying its petition to mark the judgment as satisfied pursuant to the
____________________________________________


5
  We are utterly unpersuaded by Appellant’s rambling argument that Fox
Funding was not an indispensable party in the mortgage foreclosure
proceeding. (See Appellant’s Brief, at 23, 31). We note that Appellant also
confuses the issue of lack of subject matter jurisdiction over an action with
subject matter jurisdiction over a mortgage. (See id. at 34-35). Lastly,
while Appellant acknowledges that a sheriff’s sale can be set aside for lack of
authority, it provides no legal support for its assertion that lack of authority
only applies to cases where the property is located outside of Pennsylvania;
a bankruptcy court stayed the sale; or cases involving a sale of maritime
property. (See id. at 42).



                                          - 15 -
J-A16006-15


Pennsylvania Deficiency Judgment Act, 42 Pa.C.S.A. § 8103.                   (See

Appellant’s Brief, at 45-50). We disagree.

      “Preliminarily, we note that the scope of our review of deficiency

judgment proceedings is limited to a determination of whether there is

sufficient evidence to sustain the holding of the trial court, or whether the

court committed reversible error of law.” Commonwealth Bank & Trust

Co., N.A. v. Hemsley, 577 A.2d 627, 629 (Pa. Super. 1990), appeal denied,

583 A.2d 793 (Pa. 1990) (citations omitted). The Deficiency Judgment Act

provides in relevant part:

      (a) General rule.—Whenever any real property is sold, directly
      or indirectly, to the judgment creditor in execution proceedings
      and the price for which such property has been sold is not
      sufficient to satisfy the amount of the judgment, interest and
      costs and the judgment creditor seeks to collect the balance due
      on said judgment, interest and costs, the judgment creditor shall
      petition the court to fix the fair market value of the real property
      sold. The petition shall be filed as a supplementary proceeding
      in the matter in which the judgment was entered.              If the
      judgment was transferred from the county in which it was
      entered to the county where the execution sale was held, the
      judgment shall be deemed entered in the county in which the
      sale took place.

                                  *     *      *

      (d) Action in absence of petition.—If the judgment creditor
      shall fail to present a petition to fix the fair market value of the
      real property sold within the time after the sale of such real
      property provided by section 5522 (relating to six months
      limitation), the debtor, obligor, guarantor or any other person
      liable directly or indirectly to the judgment creditor for the
      payment of the debt, or any person interested in any real
      estate which would, except for the provisions of this
      section, be bound by the judgment, may file a petition, as a
      supplementary proceeding in the matter in which the judgment

                                      - 16 -
J-A16006-15


      was entered, in the court having jurisdiction, setting forth the
      fact of the sale, and that no petition has been filed within the
      time limited by section 5522 to fix the fair market value of the
      property sold, whereupon the court, after notice as prescribed by
      general rule, and being satisfied of such facts, shall direct the
      clerk to mark the judgment satisfied, released and discharged.

42 Pa.C.S.A. § 8103(a) and (d) (emphasis added).

      The purpose of the Deficiency Judgment Act is “to protect debtors after

their property was foreclosed.       The act was aimed at shielding the

mortgagor-debtor from the mortgagee who would purchase the mortgaged

property for less than fair market value, usually for cost, and then reduce

the debt only by the purchase price.” Fidelity Fed. Sav. And Loan Ass’n

v. Capponi, 684 A.2d 580, 586 (Pa. Super. 1996), appeal denied, 698 A.2d

67 (Pa. 1997) (citation omitted).

      In the instant matter, the Deficiency Judgment Act is inapplicable.

Here, as discussed above, the trial court correctly held that the judgment in

foreclosure was a legal nullity because the Bank failed to name the property

owner as a party in the proceeding. (See Trial Ct. Op., 9/10/13, at 7-8).

Since the judgment was invalid, no real estate is bound by it and the Act is

inapplicable.   See 42 Pa.C.S.A. § 8103(d).     Appellant’s second issue lacks

merit.

      In its third issue, Appellant claims that the trial court erred in finding

that it waived the claim that the six-month statute of limitations applicable

to judicial sales, 42 Pa.C.S.A. § 5522(b)(5), applied in this matter.     (See

Appellant’s Brief at 42-45, 48-50). We disagree.

                                    - 17 -
J-A16006-15


       The trial court found the issue waived, stating that Appellant “never

raised [the issue] as a defense to [the] Bank’s petition to set aside the

sheriff’s sale, nor was it raised at the argument held on July 9, 2013, or at

any time to prior to the entry of our orders dated July 9, 2013.” (Trial Ct.

Op., 9/10/13, at 10) (footnote omitted). The trial court noted that the sole

statute of limitations argument contained in Appellant’s memorandum of law

opposing the petition to set aside sheriff’s sale was based upon Pennsylvania

Rule of Civil Procedure 3132.          (See id. at 10 n.6).6   Appellant does not

dispute that it did not argue this issue in its brief in response to the petition

to set aside the sheriff’s sale.        (See Appellant’s Brief, at 50).   However,

Appellant claims it raised the issue in its response including new matter.

(See id. at 48). We disagree.

       In its new matter, Appellant argues that the petition is untimely

pursuant to Rule 3132.         (See Response by Melo Enterprises, LLC to [the

Bank’s] petition to Set Aside Sheriff’s Sale Including New Matter, 4/05/13, at

unnumbered page 5 ¶¶ 62-63).             Appellant never mentions 42 Pa.C.S.A. §

5522(b)(5), and its bald statement that sheriff’s sales have a six-month
____________________________________________


6
  We note that the certified record does not contain the notes of testimony
from the July 9, 2013 argument. Further, Appellant’s memorandum of law
opposing the petition to set aside sheriff’s sale is missing from the certified
record. This Court has clearly stated that it is the appellant’s responsibility
to ensure that the certified record contains all documents necessary to
ensure that this Court is able to review its claims. See Commonwealth v.
B.D.G., 959 A.2d 362, 372 (Pa. Super. 2008); Pa.R.A.P. 1926; Pa.R.A.P.
1931.



                                          - 18 -
J-A16006-15


statute of limitations (see id. at ¶ 68), particularly when combined with its

failure to raise this issue in its brief or at oral argument, was insufficient to

alert either the trial court or Appellee that Appellant was raising a defense

based upon 42 Pa.C.S.A. § 5522(b)(5).

      Appellant also contends that it did not waive the issue because it

specifically raised it in its brief in support of its post-trial motion.   (See

Appellant’s Brief, at 49).   However, a new theory not raised during trial

cannot be raised for the first time in a post-trial motion. See Keffer v. Bob

Nolan’s Auto Serv., Inc., 59 A.3d 621, 630 (Pa. Super. 2012), appeal

denied, 69 A.3d 602 (Pa. 2013).

      Appellant also notes that it raised the issue in its Rule 1925(b)

statement. (See id.). Moreover, as discussed above, Appellant waived this

issue in the lower court; Appellant cannot preserve a claim not raised below

by raising it in its Rule 1925(b) statement.         See Commonwealth v.

Coleman, 19 A.3d 1111, 1118 (Pa. Super. 2011) (issues raised for first time

in Rule 1925(b) statement are waived). Therefore, we agree with the trial

court that Appellant waived its third issue.

      In its fourth claim, Appellant states that the trial court erred in finding

it lacked jurisdiction over the mortgage foreclosure case because the plaintiff

in the foreclosure proceedings did not secure a judgment against the

property owner. (See Appellant’s Brief, at 12). We are unable to address

this issue.


                                     - 19 -
J-A16006-15


        Pennsylvania Rule of Appellate Procedure 2119 provides in pertinent

part:     “The argument shall be divided into as many parts as there are

questions to be argued; and shall have at the head of each part—in

distinctive type or in type distinctively displayed—the particular point treated

therein, followed by such discussion and citation of authorities as are

deemed pertinent.” Pa.R.A.P. 2119(a). As we noted above, Appellant failed

to comply with this Rule. Because of this, we are unable to locate this issue

within its voluminous and discursive argument.      On page fifty of its brief,

Appellant ends its discussion of the third issue.    (See Appellant’s Brief, at

50). Appellant next has a subheading entitled “Part Two” and it immediately

moves into a discussion of mutual mistake, which is the fifth issue listed in

its statements of the questions involved. (See id. at 12, 50).

        Further, it is unclear from the phrasing of Appellant’s fourth issue

whether it is arguing that the property owner was not an indispensable party

or if it is arguing that even if the property owner was an indispensable party,

the trial court still had jurisdiction over the foreclosure proceeding. (See id.

at 12).    If in fact Appellant failed to brief this issue, it is waived.   See

Commonwealth v. Jones, 815 A.2d 598, 604 n.3 (Pa. 2002) (claims raised

in Statement of Questions Involved but not pursued in body of brief are

waived). To the extent that Appellant may have subsumed its fourth issue

into its first issue, (see Appellant’s Brief, at 23, 31, 34-35), we have already

addressed it.


                                     - 20 -
J-A16006-15


        In its fifth claim, Appellant alleges that the trial court erred in

reforming the mortgage based on a mutual mistake. (See id. at 50-55).7

Instead, it argues that the mistake was unilateral on the part of the bank.

(See id. at 51). We disagree.

        Our standard of review is as follows:

              [W]e note that our review of a non-jury trial is limited to
        determining whether the trial court’s findings are supported by
        competent evidence and whether the trial court committed an
        error of law.    In making this determination, we view the
        evidence and all inferences derived from the evidence, in the
        light most favorable to the victorious party. Findings of the trial
        judge in a non-jury case must be given the same weight and
        effect on appeal as a verdict of a jury and will not be disturbed
        on appeal absent an error of law or abuse of discretion.

Voracek v. Crown Castle USA Inc., 907 A.2d 1105, 1107 (Pa. Super.

2006), appeal denied, 919 A.2d 958 (Pa. 2007) (citations and quotation

marks omitted). Because the issue of a mutual mistake raises a question of

law, our scope of review is plenary. See Hess v. Gebhard & Co., 808 A.2d

912, 920 (Pa. 2002) (citation omitted).

        A reformation of a written instrument is a matter of equity.          See

Evans v. Marks, 218 A.2d 802, 805 (Pa. 1966).           Courts sitting in equity

“have the power to reform a written instrument where there has been a

showing of fraud, accident or mistake.” Id. (citation omitted). Further, “[a]

mutual mistake is 1. A mistake in which each party misunderstands the

____________________________________________


7
    Pages 56-60 of Appellant’s brief are duplicates of pages 50-55.



                                          - 21 -
J-A16006-15


other’s intent. . . . 2. A mistake that is shared and relied on by both parties

to a contract.”    Regions Mortg., Inc. v. Muthler, 889 A.2d 39, 41 (Pa.

Super. 2005) (citation and internal quotation marks omitted). “[E]vidence

of a mistake must be clear and convincing.”          Jones v. Prudential Prop.

and Cas. Ins. Co., 856 A.2d 838, 844 (Pa. Super. 2004), appeal denied,

876 A.2d 396 (Pa. 2005) (citation and internal quotation marks omitted).

“The right to reformation of a deed in equity, if mutual mistakes appear, is

unquestionable where the purpose is to correct the inaccurate description

given therein, and make it conform to the intention of the parties.” Krieger

v. Rizzo, 161 A. 483, 484 (Pa. Super. 1932) (citation omitted).              “It is a

well-known general rule that where parties have come to a mutual

understanding as to the terms to be embodied in a proposed written contract

or   conveyance,    and   the   writing   executed   is   at   variance   with   that

understanding, it will be reformed to express their intention.”           Broida, in

Own Right and For Use of Day v. Travelers’ Ins. Co., 175 A. 492, 493-

94 (Pa. 1934) (citations omitted).

      The trial court aptly summarized the clear and convincing evidence in

support of its finding of mutual mistake as follows:

           That Fox Funding was intended to be the mortgagor in the
      Bank Mortgage and that the parties acted as though Fox Funding
      was the borrower and mortgagor, is clear on the record before
      us. The initial loan commitment by the Bank dated October 18,
      2005, and accepted by Fox Funding identified Fox Funding as the
      borrower and the purpose of the loan Fox Funding’s acquisition
      and development of the Property. (Stipulated Facts, No. 15).
      This commitment was signed by Harrison as the managing

                                      - 22 -
J-A16006-15


     member of Fox Funding. The deeds delivered at closing named
     Fox Funding as the grantee. The mortgage given at closing to
     the Waseluses was properly executed in the name of Fox
     Funding and expressly stated that it was under and subject to a
     first mortgage being given that same date by Fox Funding to the
     Bank. Thereafter, the payments on the mortgage were made by
     Fox Funding.

           At the March 7, 2014 hearing, Harrison testified the
     intended borrower and mortgagor was Fox Funding and he
     executed the mortgage believing he was signing in his capacity
     as manager for Fox Funding. This only makes sense since Fox
     Funding PA was neither the intended owner of the Property nor
     the intended borrower of the loan proceeds, as further evidenced
     on the settlement statement executed by the Waseluses and by
     Harrison on behalf of Fox Funding. (Plaintiff’s Exhibit No. 3). It
     strains credulity to believe that the Bank would loan 1.3 Million
     Dollars, request the loan be secured by a mortgage on the
     Property being purchased, and then have the mortgage executed
     by an entity which had no interest in the Property.

(Trial Ct. Op., 11/10/14, at 11-12). We agree.

     We have held that in determining whether a mutual mistake occurred,

the court should consider, “the subject matter, the apparent object or

purpose of the parties and the conditions existing when it was executed.”

Voracek, supra at 1108 (citation omitted). In Voracek, an employee and

the employer’s hiring manager discussed and reviewed the terms of a

severance provision on multiple occasions prior to the signing of an

employment contract.     See id. at 1106-07.        However, the employment

contract that the employee signed omitted the provision. See id. at 1107.

Therefore,   the   employer   refused to     pay   the   severance   package   at

termination. See id. At trial the employee and the hiring manager testified

that the contract should have contained the provision and that neither

                                    - 23 -
J-A16006-15


reviewed the contract prior to signing it. See id. at 1108-09. On appeal,

we affirmed the trial court’s finding of a mutual mistake. See id. at 1109.

       We see very little difference between Voracek and the instant

matter.8 As the trial court stated, it was clear that the Bank and Harrison

both intended that Fox Funding be the mortgagor and borrower for the loan

with the Property as the collateral. (See Trial Ct. Op., 11/10/14, at 13-14).

It is readily apparent from the record that, at the time of closing, both

parties believed that Fox Funding was the designated mortgagor and

borrower named in the documents. (See N.T. Trial, 3/07/14, at 30, 48-49).

Thus, the trial court’s finding that the mistake was a “drafting error” that

was contrary to both parties’ intent is supported by clear and convincing

evidence. (Trial Ct. Op., 11/10/14, at 14).

       This Court has long held that a trial court has the power to reform a

document to correct a scrivener’s error.           See Zurich Am. Ins. Co. v.

O’Hanlon, 968 A.2d 765, 773 (Pa. Super. 2009) (affirming trial court’s
____________________________________________


8
   We find Appellant’s reliance on Regions Mortgage, supra to be
misplaced. (See Appellant’s Brief, at 53-54). In Regions Mortgage, a
mortgage on entireties property named the husband as the sole mortgagor.
The successor to the original mortgage sought reformation on the grounds of
mutual mistake. See Regions Mortg., supra at 40. However, this Court
found that the predecessor had deliberately requested that wife’s name be
removed prior to closing. See id. at 40-42. Thus, we held that the
appellant was not entitled to reformation because “bad decisions are not
mistakes that entitle one to reform legal obligations.” Id. at 42. There is
simply no evidence in the instant matter that the switch in names from Fox
Funding to Fox Funding PA was a unilateral decision from the Bank. (See
N.T. Trial, 3/07/14, at 27-31, 47).



                                          - 24 -
J-A16006-15


grant of reformation of insurance policy to correct scrivener’s error); DiMaio

v. Musso, 762 A.2d 363, 366 (Pa. Super. 2000), appeal denied, 785 A.2d

89 (Pa. 2001) (trial court erred in failing to reform deed to correct

scrivener’s error that depicted wrong parcel of land); Armstrong Cnty.

Bldg. & Loan Ass’n of Ford City v. Guffey, 200 A. 160, 163 (Pa. Super.

1938) (granting reformation of deed to correct scrivener’s error in lot

numbers of certain lots intended to be conveyed).        Here, the trial court’s

decision that there was a mutual mistake was supported by competent

evidence, and it did not make an error of law in granting reformation. See

Voracek, supra at 1109; Zurich, supra at 773.            Appellant’s fifth issue

lacks merit.

      In its sixth issue, Appellant claims that the trial court erred in vacating

the quit-claim deed accepted by the Bank in lieu of foreclosure.           (See

Appellant’s Brief, at 61-65).   Specifically, Appellant appears to allege that

the reformation of the mortgage resulted in a situation where Appellee owns

the mortgage as a result of the Bank’s assignment and is also the title owner

of the Property because of Fox Funding’s quit-claim deed. (See id. at 61-

62). Appellant claims that this will result in the merger of the mortgage lien

into Appellee’s fee. (See id.). Appellant has waived this issue.

      As discussed above, we review the decision of a trial court after a non-

jury trial to see if its findings are supported by competent evidence and

whether it committed an error of law.         See Voracek, supra at 1107.


                                     - 25 -
J-A16006-15


Further, “[d]ischarge of a mortgage obligation by merger of the legal and

equitable titles depends upon the intention of the mortgagor and mortgagee

at the time of the alleged merger.” PNC Bank, Nat’l Assn. v. Balsamo,

634 A.2d 645, 656 (Pa. Super. 1993), appeal denied, 648 A.2d 790 (Pa.

1994) (citations omitted).

      Here, Appellant’s argument is undeveloped.        Its merger argument

consists of a single cite to boilerplate law.   (See Appellant’s Brief, at 62).

Further Appellant’s argument contains no citations to the record that would

support its contention that the intent of the parties at the time they entered

into the quit-claim deed was to merge the mortgage into the deed. (See id.

at 61-65).

      Appellant’s argument that the quit-claim deed is, in reality, a deed in

lieu of foreclosure is equally underdeveloped.      The deed is plainly titled

“Quit-Claim Deed” and does not contain any language that would indicate

that the parties intended it to be a deed in lieu of foreclosure. (See Quit-

Claim Deed, 11/29/10, at 1-6). Appellant does not point to any evidence of

record to support its speculation that the quit-claim deed is really a deed in

lieu of foreclosure.

      It is long-settled that failure to argue and to cite any authority

supporting the argument constitutes a waiver of the issue on appeal. See

Jones v. Jones, 878 A.2d 86, 90 (Pa. Super. 2005). This Court will not act

as counsel and will not develop arguments on behalf of an appellant. See


                                    - 26 -
J-A16006-15


Bombar v. West Am. Ins. Co., 932 A.2d 78, 94 (Pa. Super. 2007). When

deficiencies in a brief hinder our ability to conduct meaningful appellate

review, we can dismiss the appeal entirely or find certain issues to be

waived.   See Pa.R.A.P. 2101.   Because Appellant has failed to develop its

sixth issue, it waived it. See id.; see also Bombar, supra at 94; Jones,

supra at 90.

     For the reasons discussed above, we hold that the issues raised by

Appellant are either waived or have no merit. Accordingly, we affirm.

     Judgment affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/12/2015




                                   - 27 -
                                                                                                  Circulated 07/22/2015 11:07 AM
'


    IN THE COURT OF COMMON PLEAS OF CARBON COUNTY,                                             PENNSYLVANIA
                                          CIVIL ACTION

TWO RIVER COMMUNITY BANK, Successor
by merger to THE TOWN BANK,
             Plaintiff
             vs.                                                              NO. 09-0006
FOX FUNDING PA, LLC,
             Defendant
FOX FUNDING, LLC;
DENNIS AND   ELSIE       WASELUS;
JOSEPH F. SINISI;
MELO ENTERPRISES, LLC; AND
AND 1400 MARKET STREET, LLC,
             Respondents

Scott M. Rothman, Esquire                            Counsel for Two River Community Bank
                                                     and 1400 Market Street, LLC
Anthony Roberti, Esquire                             Counsel for Melo Enterprises, LLC
Fox Funding PA, LLC                           '.
                                                     Rro' . se
                                                      ",

Fox Funding, LLC                                   . ·,i?"ro'   '·se.
Dennis and Elsie Waselus                             P,ro. se
Joseph F. Sinisi                                     Prose

                                    MEMORANDUM OPINION

Nanovic, P.J. - September 10, 2013

     Melo    Enterprises,               LLC          (~Melo")                has     appealed      two    orders

entered by us on July 9,                  2013:                   one set ting aside a sheriff's

sale which     occurred            on    November                       6,   2009,       the   other denying

Melo's request to satisfy the underlying judgment upon which the

sale was based.

     This opinion is filed in accordance with Pa.R.A.P. 1925(a).
                         PROCEDURAL· ANo-;:;:r~·c.;·tiAL                     BACKGROUND
                                         . ::r·.~ ....
     This     is     a     mortgage           foreclosure                      action.          The   mortgage

foreclosed     upon         (the    "Bank                  Mortgage")              was    executed by          Fox

Funding PA, LLC           ("Mortgagor") , a Pennsylvania limited liability

                                          Appendix "B"
                                                            1
                                                                                                                Circulated 07/22/2015 11:07 AM




company,              on   October        21,     2005,                          in        favor   of     The     Town       Bank

    ( '1   Bank") ,   which       later merged                       with                 Two   River    Conununi ty        Bank.

Upon           default      in     payment       of              the                indebtedness          secured by          the

mortgage,             an action in mortgage foreclosure was                                                   commenced by
                                            .
                                                           ··'
                                                  .i : .,: .. 1~· ......   ~.,j, i : '.
Bank            against     Mortgagor''         on· . ·J~n-ua·ry                           2,    2009.          Pursuant       to

Pa.R.C.P.             2352(a),         Two River Community Bank,                                         as   successor        by

merger to The Town Bank, was substituted as plaintiff on April

13, 2009.1

              On August          31,    2009,     Bank's                            motion       for     judgment      on    the

pleadings was granted and a judgment in rem was entered in favor

of Bank and against Mortgagor in the amount of $1, 126, 126. 55,

plus interest, costs of suit, and reasonable attorney fees in an

amount to be determined by the court.                                                       Upon praecipe, a writ of

execution to satisfy this judgment was issued on September 10,

2009,           against Mortgagor with                    'ii'sti~·1t                     to the property listed as

the collateral in the Bank Mortgage (the "Mortgaged Property").

A sheriff's sale of this property was held on November 6, 2009.

The purchaser was 1400 Market Street, LLC, to whose use Bank's

judgment, and its rights under the Bank Mortgage and underlying

note, were assigned immediately' prior to the sheriff's sale.                                                                  On

November 30,               2009, a sheriff's deed for the Mortgaged Property

issued to 1400 Market Street and was duly recorded in the Carbon

1 Because Two River Community Bank's interest in the mortgage is the same as
that previously held by The Town Bank, for ease of reference the term Bank as
used in this opinion also includes The Town Bank's successor, Two River
Community Bank.
                                                          •)/;i ;.:i\ :~·.:'
                                                Appendix "B"
                                                                    2
                                                                                                                                    Circulated 07/22/2015 11:07 AM

                                                                        ~.:   l      ••   ''




                                                                  ~·1·r····:.Y.:.,

County Recorder                     of      Deeds Off ice                          on December 7,                       2009,            in     Carbon

County Document Book 1810,                                 page 652.

         It        is undisputed                  that       Mortgagor                           never          held        title        to     or an

ownership               interest            in the         Mortgaged                           Property,          either            at    the     time

the     Bank            Mortgage            was       executed                       or         later.            Instead,               the      real

owner         of        the     property              was        Fox               Funding,               LLC          ("Owner"),               a New

Jersey            limited           liability              company,                            separate           and        distinct             from

Mortgagor,               al though             both        are        allegedly                          owned or            controlled              by

the     same person,                     James       Harrison,
                                                      P.            who is also                                                the        managing
                                                        . ~.          ';.


member for               both.           In separate   pr6t::e'edings docketed                                                in this           court

at     No.        12-0788,           1400 Market                 Street                        seeks      to     rescind              and reform

the     Bank Mortgage                    and the           note               it          secures,          both        executed              by Mr.

Harrison            as        the      managing            member of                            Mortgagor              at      a      settlement

held         on     October              21,      2005,          to                reflect                the     averred                true      and

intended                borrower,              Owner,            to                whom           title           to        the          Mortgaged

Property           was transferred                    at    the same time.

         At        the        settlement               held           on                  October          21~         2005,          two       deeds

conveying               title          to      the       Mortgaged                             Property          were          delivered             to

Owner:             one        from       Harry,          Catherine,                            John,       and        Linda         Roscoe         for

thirty-six               acres         ( the      "Roscoe             Iia.Fcels'')                     and one from Dennis                        and

Elsie         Waselus            for        one       hundred                     thirty-two                   acres          ( the       "Was   el us

Parcels")          .2         As part           of    the        purchase                        price          for     their            property,


2
   This was in accordance with a $1, 300, 000. 00 loan commitment from Bank to
Owner dated October 13, 2005, pursuant to which Owner was to acquire title ~o
the Roscoe and Waselus Parcels   which in turn were to be used by Owner as

                                                           Appendix "B"
                                                                3
                                                                         Circulated 07/22/2015 11:07 AM




the Waseluses     took back a mortgage           from Owner in the face amount

of $372,000.00.       This mortgage            (the "Waselus Mortgage"), which

correctly identified Owner as the borrower, and was executed by

Mr.   Harrison in his capacity as the managing member of owner,

expressly stated that it was
                                          -,


             UNDER AND SUBJECTI iri' both lien and payment, to a
             construction and purchase loan mortgage to secure
             the payment of the principle sum of ONE MILLION
             SEVENTY-FIVE   THOUSAND           AND   00/100    ($1, 075, 000. 00)
             DOLLARS given by          [Owner] to Town Bank dated
             October 21, 2005,         and intended to be recorded
             forthwith. 3

Nevertheless, because the Bank Mortgage named and was executed

by Mortgagor, as the mortgagor therein, rather than by Owner, to

whom title to both the Roscoe and Waselus Parc~ls (the mortga~ed

premises described in the Bank Mortgage) had been conveyed, the

mortgage was in fact executed by a party which had no record or

real interest in the Morti~ged ~~~~ises.

      On November 8, 2010,     Melo purchased the              Waselus Mortgage for

$1,000.00.     At the time, the unpaid principal balance owed was in

excess of $360,000.00.        Not     only did          Melo   know at   the   time of

collateral for a first lien mortgage to Bank to secure payment of the loan.
Between the date of execution of the loan commitment and the date of closing,
it was agreed to break the loan int9 two separate amounts: $1,075,000.00 to
be secured by the first lien mortgage, and $225, 000. 00 to be secured by a
second mortgage existing as a second lien on the Roscoe Parcels and a third
lien on the Waselus Parcels.
3
  Joseph Sinisi, whose name appears in the caption of this case, is a junior
mortgage holder to whom Owner granted a mortgage on or about December 30,
2008.   Mr. Sinisi's mortgage describes multiple parcels, in addition to those
identified in the Bank Mortgage, as securing the debt owed to him.         The
Sinisi Mortgage expressly references the Bank and Waselus Mortgages, and
ostensibly constitutes a fourth lien mortgage on the Waselus parcels.      See
Petition to Set Aside Sheriff's Sale, paragraphs 19-22,   The existence of the
Sinisi mortgage does not affect our analysis of the issues under appeal .
                            . '··:;. 'App~J~;i~H.\_B"
                                       .. '4
                                                                                                    Circulated 07/22/2015 11:07 AM




purchase      that    the     Waselus         Mortgage           was     intended             to be        a    second

mortgage       to     the        Bank's        first        mortgage                  in     the        amount        of

$1, 075, 000. 00,      Melo       also      knew that            the title             1400       Market        Street

acquired to the Mortgaged                     Premises by virtue of the November 30,

2009,     sheriff's       deed       was       subject           to    challenge             since        the       Bank

Mortgage was not executed by the true property owner.4

        On    December      3,      2010,      Melo       commenced               a    foreclosure              action

against      Owner    docketed        to No.         10-3538            in this             court       seeking to

foreclose       on    the     Waselus          Mortgage.                 1400          Market        Street          was
                                                          ,,.:
permitted       to    intervene.              In· }esponse              to        1400       Market           Street's

contention       that       the      Waselus         Mortgage               was       discharged               in    the

foreclosure         proceedings          on    the    Bank            Mortgage,            Melo     argued          that

Mortgagor,      as a stranger to title,                      had neither the power nor the

authority to grant a mortgage on the Waselus Parcels,                                               and that the

sheriff's deed which issued upo_n execution could convey no better

title to this property               than that held by Mortgagor.                                    We       accepted

Melo's       argument       and     held       that       the         Waselus              Mortgage        was      not

extinguished         by   the      sheriff's          sale,           but     remained             as     a     valid,

enforceable lien.             See    Melo Enterprises v. Fox Funding,                                     18 Carbon

Co.L.J. 595 (Memorandum Opinion. of          February 15, 2012) .
                                 . )... ~ '. :.. :




4
   In this  context,   it   is worth noting    that "[a]  petition      to set aside     a
sheriff's  sale invokes    the equitable   powers of the trial      court."    Jefferson
Bank v. Newton Associates,     686 A.2d 834, 838 (Pa.Super.       1996),    Though Bank
repeatedly  raises   whether Melo should be barred by the doctrine           of unclean
hands from opposing its petition,      we found it unnecessary     to reach this issue
in our resolution    of the petition     and Melo' s request    to have the mortgage
judgment marked satisfied.

                                              Appendix "B"
                                                      5
                                                                                                               Circulated 07/22/2015 11:07 AM




        On    February           28,     2013,     Melo                        filed      its        petition         in        these

proceedings        to have Bank's                August                        31,     2009,     foreclosure           judgment

marked satisfied under the Deficiency Judgment Act,                                                         42 Pa.C.S.A.              §

8103.        On March       8,     2013,      Bank filed its petition                                       seeking        to set
                                                    1.:;.r
                                                       t·
                                                                     .!\',:/
                                                                         •


aside the November               6, 2009, sheriff's sale,                                      By order dated July 9,

2013, we set aside the sheriff's sale held on November 6, 2009, and

vacated      the     in     rem        judgment    taken                         on     August        31,     2009.             In    a

separate order of the same date,                             we also denied Melo's petition to

mark the judgment satisfied.                      Both orders are the subject of Melo's

appeal taken on August 7, 2013.


                                                 DISCUSSION

        In    resolving           both        appeals,5                         we      believe         the     controlling

question is whether               the real owner of property is an indispensable

party to a mortgage               foreclosu·
                                        .
                                            r~ \',,;. §.t6c:~eding.
                                                            ·.                                  An   action in mortgage
                                                                ,·
foreclosure is strictly an in rem proceeding based on the mortgage.

Newtown       Village           Partnership        v.                   Kimmel,            621        A. 2d     1036,           1037

(Pa.Super.      1993).           In consequence,                         the Pennsylvania Rules of Civil

Procedure      require           the     real     owner                        of     property,        as     well         as    the

mortgagor            unless            the     plaintiff                             releases        such     person            from

liability      for        the    debt        secured            by               the     mortgage             be     named           as

defendants.        Pa.R.C.P. No. 1144.



5  Melo filed   one Notice   of Appeal appealing        two separate  orders,   This
practice   is at best frowned upon, and, at worst, may result         in one or more
appeals   being quashed.    Sulkav:a v, G:l.a.!i.ton Finland  Oy, 54 A. 3d 884, 888
 (Pa.Super. 2012); M.R. Mikki'lifrehi' i·vJ.•Aniwest Surety Ins. Co.,  919 A.2d 306,
311 (Pa. Cmwlth. 2007).                      ·

                                               Appendix "B"
                                                            6
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       An indispensable                party is one whose rights                 are so connected

with the claims of the litigants that no decree can be made without

impairing those rights.                      Campanaro v.         Pennsylvania Elec.           Co.,    656

A.2d 491,      493 (Pa.Super. 1995)                  (quoting Sprague v. Casey,                550 A.2d

184,   189     (Pa.    1988)).           "Unless all indispensable parties are made

parties to an action,                  a court is powerless to grant relief.                       Thus,

the    absence        of     such       a    party       goes     absolutely     to      the     court's

jurisdiction."             Id.     nThe absence of an indispensable party renders

any decree or order in the matter void for lack of jurisdiction."

Hubert v. Greenwald, 743 A·;·.2d                9?I;>:,9·.s.6    (Pa.Super. 1999).

       As a matter of law,                   a real property owner cannot be deprived

of his property in an action of mortgage foreclosure in which he is

not a party.          Corranercial Banking Corp. v. Culp,                     443 A.2d 1154, 1156

(Pa.Super.      1982).            As    the real owner of the property                     subject to

this mortgage foreclosure, Owner                         (Fox    Funding LLC)     was a necessary

and indispensable party to this action.                                Biernacki v. Redevelopment

Authority of Wilkes-Barre,                    379 A.2d          1366    (Pa.Cmwlth.   1977)       (owner

of real       estate       is     an    indispensable           party to proceedings             seeking

transfer of title to the property to another) ;                                Hart v.      O'   Malley,

647    A.2d     542,        549                                         ("Appellate   courts          have

consistently held that property owners are indispensable parties in

lawsuits       concerning              the   owners'       property         rights.").           Without

Owner's joinder, no relief was possible since an action in mortgage

foreclosure is in                rem and binds only the mortgaged property.                             In

consequence,      Bank's failure to name Owner as a defendant, deprived

                                              Appendix "B"
                                                     7
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this court of jurisdiction              to act vis-a-vis the Mortgaged                                                         Premises

and     renders     the   judgment        entered                                          on   August     31,     2009,       a     legal

nullity.     This error was compounded when execution was attempted on
                                               .   i-·.                    .. ..       :   ..
                                                    ·.'   ,•.                 :,:.1·

the judgment.

        In our February 15,         2012, Memorandum Opinion, we wrote:

                  In its simplest terms, the Bank mortgage was not
             executed by either the real or record owner of the
             property.     Further, the in rem judgment which the
             Bank sought to obtain in its mortgage foreclosure
             action against Fox Funding PA, LLC was against an
             entity which never held an interest in the property.
             It necessarily follows that the sheriff's deed which
             issued upon execution on this judgment and which
             purported to convey such title in the property as
             was held by Fox Funding PA, LLC to Buyer, in reality
             conveyed nothing.     A sheriff's deed can convey no
             better title than that held by the judgment debtor.
             Tonge v. Radford, 156 A. 814, 815 (Pa.Super. 1931)
             ("A purchaser of land at sheriff's sale buys at his
             own risk and acquires only the interest which the
             defendant in th~ e~~cution       had, and no more.u)
              ( construing Weidler {;. Farmer's Bank of Lancaster, I


             11 Serg. & Rawle 134 (Pa. 1823)).

Melo Enterprises v. Fox Funding,                                       18 Carbon Co.L.J.                         595,    599       (2012).

This is equally relevant to the present discussion.

        Because     the    judgment        upon                             which                 the     sheriff's           execution

emanated     was     a    nullity      and                because
                                                          :
                                                                                                 the     sheriff        was     without

authority     to    convey    any      interest                                        in       real    estate     in     an    in     rem
proceeding        in which    the defendant/debtor                                                 never    owned        or held an

interest,    our order setting aside the sheriff's                                                          sale and vacating

the     in   rem     judgment       was            appropriate.                                          Mortgage          Electronic

Registration       Systems,     Inc.      v.          ;Ralich,                                  982 A.2d    77,     80     (Pa.super.
                                                   •'i'   !   -,        1/ · ...
2009)     ("A sheriff's       sale may b~- -set; : aside after                                                   delivery of the


                                       Appendix "B"
                                                                   8
                                                                                                          Circulated 07/22/2015 11:07 AM




sheriff's         deed based on fraud                   and lack of authority                              to make      the

sale.   11};
                see also      Workingmen' s Sav. and Loan Ass' n v. Kestner,                                            652

A.2d     327,     328   (Pa.Super.         1994)       ("After delivery of a sheriff's deed

to a purchaser,             the only a t t acks, p9;sible                              on the sheriff's sale are

those based on fraud which vitiates                                             the transaction          or a lack of

authority to make the sale.").

         Our      order      denying        Melo's                petition               to     mark     the    judgment

satisfied         is    a    necessary        corollary                           of    the     foregoing.         Having

determined         that      this   court was                 without                  jurisdiction       to act     in a

mortgage foreclosure action in which the real owner of the property

was not joined,             that the judgment entered in that action was void

ab initio,          and      that    the     sheriff1 s deed                            which     thereafter       issued

conveyed nothing,              to argue, as Melo does, that the judgment should
                                            .· ~ :. . .
be     satisfied,           defies logfc .. , . . H.9w_, legally can a judgment be
                                                   .. "•, !. . ·~ ' .. ,'~ •.



satisfied which never validly existed and which was never paid?

        To the extent Melo relies upon the Deficiency Judgment Act in

requesting         satisfaction,           Melo' s            reliance                 is misplaced.           That Act

conditions         the filing of a petition                                     for a deficiency          judgment,      as

well as a petition to satisfy a judgment after execution thereon,

upon the sale of the real property executed upon,                                                   either directly

or      indirectly,          to     the     judgment                            creditor.          42     Pa.C.S.A.       §

8103(a}, {d).           Here, as already stated,                                  neither Bank nor 1400 Market

Street acquired anything in the sheriff's sale held on November 6,

2009,      much    less      any    titl~, ,or         owr~fship                       interest    in the property
                                                   .     ,•


being      foreclosed upon.               Under these circumstances,                                    where no valid

                                             Appendix "B"
                                                              9
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in   rem judgment · existed            and nothing was                             conveyed upon execution,

the Deficiency Judgment Act has no applicability.

          To the extent         Melo    argues          Bank's                   petition        to set aside the

shez I f f" s sale        is barred by the six-month                                    statute     of limitations

applicable to an action or proceeding to set aside a judicial sale
                                                  ;) r-.-: ~ \ ~~.J ·:.·
of property,        42 Pa.C.S.A.         §   552~(h115),                         the issue has been waived.

This issue was never raised by Melo as a defense to Bank's petition

to set aside the sheriff's sale, nor was it                                             raised at the argument

held on July         9,    2013,      or at any time                             prior    to the entry of our

orders dated July 9, 2013.6                  Moreover,                      and perhaps more importantly,

it   is    intellectually          dishonest . to                    argue         that     a    legal        proceeding

which      is   void       at   its     inception                          for     lack     of     subject        matter

jurisdiction        can somehow be magically                                 transformed           from one having

no effect to an effect which is decisive simply by the passage of

time and the failure to make an earlier challenge to its validity.

Biernacki,      379 at 1368.           ( "No c,qfri'.t: :,may grant relief in the absence
                                                / .' ~ (].:. :·:· ~ ;

of an indispensable             party.") .            ' Perhaps                   the     easier       answer,    is    to

simply      state    that       because      no        valid                 judicial           sale     of     property



6
  To the extent Melo argued ~he petition to set aside the sheriff's sale was
untimely, it did so on the basis of Pa.R.C.P. No. 3132 which provides:
         Upon petition of any party in interest before delivery of the
    personal property or of the sheriff's deed to real property, the court
    may, upon proper cause shown, set aside the sale and order a resale or
    enter any other order which may be just and proper under the
    circumstances.
(emphasis added). See Melo's Memorandum of Law Opposing Plaintiff's Petition
to Set Aside Sheriff's Sale filed on April 5, 2013.     While it is true that
the delivery of a sheriff's deed generally divests the court of the authority
to set aside a sheriff's sale, as noted in the Ralich and Kestner cases cited
in the body of this opinion, an exception to this limitation is where the
sheriff was without the authority to make the sale.

                                       .: ;Appj;J\qi:?< ,NB"
                                              · <to                  · ··
                                                                                                   Circulated 07/22/2015 11:07 AM




                                           . : -~t·f{~i . ··.:~ ~
                                               •   i- ·~      • 'I   '


occurred on November 6, 2009, the·period                                       of limitations provided in

42 Pa.C.S.A.       §   5522(b) (5} is inapplicable to these proceedings.


                                           CONCLUSION
      It is often said that bad facts make bad law.                                              Equally true is

that unusual facts often make t~1e application of general principles

of law flawed.           In this case, what simple common sense and fairness

dictate     has    been       unduly   complicated                        by    a    multitude        of    errors,

beginning with the preparation and execution                                         of the Bank Mortgag~,

and   exacerbated         by    the    opportunistic                       efforts          of    Melo     to    take

advantage     of       what    appears,     att·i1.· •i'ts               most       basic    level,        to   be     a
                                                       I..•
                                                   ~ ._'             r


scrivener's error.             In the end, ·~e believe the rulings we have made

comport with the law and fairly adjust the rights of the parties.


                                                   BY THE COURT:

                                                                         Ch-(\_:_
                                                                                                                P.J.




                                          Appendix "B"
                                                   . 11
