J-A06019-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

DORCHESTER ACQUISITIONS, LLC                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA


                    v.

FREDRIC R. MANN II AND SANDRA
MANN (DECEASED)

APPEAL OF: FREDRIC R. MANN II

                                                    No. 1445 EDA 2014


                 Appeal from the Order Entered April 1, 2014
            In the Court of Common Pleas of Philadelphia County
             Civil Division at No(s): August Term, 2012 No. 346


BEFORE: PANELLA, J., OTT, J., and JENKINS, J.

MEMORANDUM BY OTT, J.:                              FILED APRIL 02, 2015

      Fredric R. Mann II appeals from the order entered April 1, 2014, in the

Philadelphia County Court of Common Pleas denying his motion to strike the

default judgment entered against him by Dorchester Acquisitions, LLC

(“Dorchester”) in this mortgage foreclosure action, vacate the subsequent

sheriff’s sale, and dismiss the mortgage foreclosure action. On appeal, Mann

argues the trial court erred in (1) denying his motion to strike the default

judgment because the record conclusively established that Dorchester had

no standing to bring the action, and (2) declining to void the subsequent

sheriff’s sale. For the reasons below, we affirm.
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       The record reveals the following facts.          Mann and his wife1 owned

three units (Units 3006, 3007, and 3008), and resided in one, in the

Dorchester Condominium on West Rittenhouse Square in Philadelphia,

Pennsylvania.      On January 20, 2006, Mann executed two mortgages, on

Units 3006 and 3007, in favor of The Bancorp Bank (“Bancorp”), in the

amount of $405,000.00.          Thereafter, on July 28, 2006, Mann executed a

third mortgage in favor of Bancorp on Unit 3008 in the amount of

$306,000.00.        On September 30, 2010, Bancorp assigned all three

mortgages to Long Drive Acquisitions, LLC (“Long Drive”), and, on October

4, 2011, Long Drive assigned all three mortgages to Dorchester.

       The same day, October 4, 2011, Mann entered into a Forbearance

Agreement with Dorchester, whereby Dorchester advanced to Mann the sum

of $118,566.23 to postpone a sheriff’s sale by another bank on Unit 3006,

and the sum of $5,000.00 to postpone a sheriff’s sale on all three units by

the   Dorchester     Condominium        Unit   Owners   Association   for   past   due

condominium fees.        See Forbearance Agreement, 10/4/2011, at 3.               The

Agreement was contingent upon Mann executing in favor of Dorchester a

fourth “open-end” mortgage in the amount of the obligations owed on all

three units. Id. at 5-6. Pursuant to the Agreement, on October 4, 2011,


____________________________________________


1
  Sandra Mann passed away on September 5, 2012, during the pendency of
the underlying mortgage foreclosure action.




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Mann executed another mortgage (“4th Mortgage”) in the amount of

$1,054,670.82, secured by all three units, in favor of Dorchester. The 4 th

Mortgage was recorded on October 12, 2011, in Philadelphia County

(Document ID 52399651).

       On October 5, 2011, Dorchester assigned the first three mortgages to

Bancorp.       These assignments were recorded on October 31, 2011.

Dorchester did not assign the 4th Mortgage.

       On August 7, 2012, Dorchester filed a complaint in mortgage

foreclosure asserting that Mann defaulted under the 4th Mortgage and

Forbearance Agreement.          After Mann failed to respond to the complaint,

Dorchester entered a default judgment, on January 24, 2013, in the amount

of $899,877.45, plus interest. Dorchester subsequently filed a praecipe for a

writ of execution, which was granted, and the units were sold at a sheriff’s

sale on August 6, 2013.2

       On February 18, 2014, Mann filed an Emergency Motion to Vacate

Sheriff’s Sale, Strike the Default Judgment, and Dismiss the Mortgage

Foreclosure Action.        Mann asserted (1) that the mortgage foreclosure

complaint failed to set forth the subsequent assignments of the underlying

mortgages, (2) that Dorchester was not the real party in interest, and
____________________________________________


2
  Dorchester was the successful bidder on the property. See Trial Court
Opinion, 8/6/2014, at 2. Dorchester then leased the property to Mann to
avoid his eviction. Id. However, Dorchester subsequently filed an eviction
action when Mann did not pay his rent. Id.



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therefore, the court had no jurisdiction, and (3) that Dorchester failed to

serve him with the mortgage foreclosure complaint.              Mann also filed a

petition for a temporary restraining order that same day, seeking to enjoin

Dorchester from evicting him from the properties.         Following oral argument,

on April 1, 2014, the trial court entered an order denying Mann’s emergency

motion.3     The same day, Mann withdrew his petition for a temporary

restraining order. Mann filed a motion for reconsideration on April 9, 2014,

which the trial court did not address during the 30-day appeal period.

Accordingly, Mann filed a notice of appeal on May 2, 2014.4

       In his first issue on appeal, Mann challenges the validity of the default

judgment entered against him.5            Specifically, he contends the trial court
____________________________________________


3
 Although the trial court cites to the transcript from the oral argument in its
opinion, the transcript is not included in the certified record. Indeed, it does
not appear that Mann requested the transcript or paid the transcription fee
when he filed his notice of appeal. See Notice of Appeal, 5/2/2014. See
also Pa.R.A.P. 904(c) (request for transcript “shall accompany the notice of
appeal”); 1911(a) (“The appellant shall request any transcript required …
and make any necessary payment or deposit therfor[.]”).
4
  Because notice of the order denying Mann’s emergency motion was sent to
the parties on April 2, 2014, Mann’s notice of appeal filed on May 2, 2014,
was timely.

      On May 22, 2014, the trial court ordered Mann to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b)
Mann complied with the court’s directive, and filed a concise statement on
June 11, 2014.
5
   Although Mann raises three issues in his brief, we have consolidated the
first two for disposition.




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erred in denying his motion to strike because Dorchester held no legal

ownership interest in the property, and, therefore, had no standing to file a

mortgage foreclosure action against him. He further claims that Dorchester

failed to plead the subsequent assignments of the mortgages in the

complaint, which was in violation of Pennsylvania Rule of Civil Procedure

1147(a). Mann also contends that the verification attached to Dorchester’s

complaint, signed by an agent of Bancorp, supports his claim that

Dorchester is not the real party in interest.

       Preliminarily, we note that Mann sought only to strike the default

judgment, not to open it.6            Accordingly, our review is guided by the

following:

          With regard to a motion to strike a default judgment, [a]
          court may only look at the facts of record at the time
          judgment was entered to decide if the record supports the
          judgment.      A petition to strike does not involve the
          discretion of the court. A petition to strike a judgment will
          not be granted unless a fatal defect in the judgment
          appears on the face of the record. Matters outside of the

____________________________________________


6
  In its opinion, the trial court limited its discussion to whether the default
judgment should be opened. See Trial Court Opinion, 8/6/2014, at 4-6. As
noted above, however, Mann did not seek to open the judgment.
Nevertheless, because “a litigant may seek to strike a void judgment at any
time[,]” and our standard of review of an order denying a petition to strike I,
in any event, de novo, we may proceed to consider the merits of Mann’s
claim without the benefit of a trial court opinion. Oswald v. WB Pub.
Square Associates, LLC, 80 A.3d 790, 793 n.2 (2013). See also Louis
Dreyfus Commodities Suisse SA v. Fin. Software Sys., Inc., 99 A.3d
79, 82 (Pa. Super. 2014) (noting Superior Court “may affirm the decision of
the trial court on any valid basis appearing of record. “) (citation omitted).



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            record will not be considered, and if the record is self-
            sustaining, the judgment will not be stricken.

         Aquilino v. Phila. Catholic Archdiocese, 884 A.2d 1269, 1280
         (Pa. Super. 2005). “A petition to strike a judgment is a common
         law proceeding which operates as a demurrer to the record.”
         U.S. Bank, N.A. v. Mallory, 982 A.2d 986, 991 (Pa. Super.
         2009) (quoting Cintas Corp. v. Lee's Cleaning Servs., 549 Pa.
         84, 89–90, 700 A.2d 915, 917 (1997)). “Where a fatal defect or
         irregularity is apparent from the face of the record, the
         prothonotary will be held to have lacked the authority to enter
         [a] default judgment and the default judgment will be
         considered void.” Id.

Wells Fargo Bank, N.A. v. Lupori, 8 A.3d 919, 920-921 (Pa. Super.

2010).

         Pennsylvania Rule of Civil Procedure 1147 details the requirements for

a complaint in mortgage foreclosure.           Specifically, the complaint must set

forth:

         (1) the parties to and the date of the mortgage, and of any
         assignments, and a statement of the place of record of the
         mortgage and assignments;

         (2) a description of the land subject to the mortgage;

         (3) the names, addresses and interest of the defendants in the
         action and that the present real owner is unknown if the real
         owner is not made a party;

         (4) a specific averment of default;

         (5) an itemized statement of the amount due; and

         (6) a demand for judgment for the amount due.

Pa.R.C.P. 1147 (a).

         A review of the mortgage foreclosure complaint in the present case

reveals Dorchester complied with the requirements of Rule 1147.                See



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Complaint, 8/7/2012, at ¶¶ 1-3 (describing mortgage and forbearance

agreement recorded on October 12, 2011); 8 (describing Units 3006, 3007,

and 3008); 9-10 (averring mortgaged property is in Mann’s name and

providing Mann’s address); 4-7, 11 (averring Mann defaulted under term of

mortgage and forbearance agreement); and 13-14 (providing itemized list of

amount due). See id. at 7 (demanding judgment). Thus, there does not

appear to be a fatal defect on the face of the record. See Lupori, supra, 8

A.3d at 922 (striking default judgment when mortgage foreclosure complaint

did not allege plaintiff bank had ever been assigned the mortgage in

question).

     Mann contends, however, that the mortgage upon which Dorchester

seeks to foreclose was a “blanket mortgage” that was comprised of the three

prior mortgages on the units. Mann’s Brief at 9. Accordingly, Mann argues,

when Dorchester assigned the three prior mortgages to Bancorp on October

5, 2011, “there was nothing left under that blanket” to foreclose upon, so

that Dorchester had no standing to institute foreclosure proceedings.   Id.

Further, Mann asserts that Dorchester violated Rule 1147(a) by failing to

plead these assignments in his complaint, and requests that this Court take

judicial notice of them on appeal. Id. at 9-10. In its response, Dorchester

argues that Mann’s characterization of the 4th Mortgage as a “blanket

mortgage” is misplaced. We agree.

     Pursuant to the October 4, 2011, Forbearance Agreement, Mann

executed a separate, 4th Mortgage on all three units in favor of Dorchester.

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Although the Forbearance Agreement referenced the three prior mortgages,

the 4th Mortgage was a separate security executed between Mann and

Dorchester in the amount of $1,054,670.82.             See Open-End Mortgage,

10/4/2011, at 2. As the trial court explained in its opinion, “the complaint

[at issue] is regarding the default on the [4th M]ortgage recorded on October

12, 2011 at Document ID 52399651 in the Office of the Recorder of Deeds,

Philadelphia County[,]” and Mann “presented no testimony to establish that

the mortgage recorded at Document ID 52399651 had been assigned.” Trial

Court Opinion, 8/6/2014, at 7.             Moreover, the Forbearance Agreement

specifically permitted Dorchester, in the event of default, to “exercise all of

its rights and remedies under [that] Agreement, the Loan Documents,

Mortgage Nos. 1A, 1B, 2, 3 and 4 and/or under applicable law[.]”

Forbearance Agreement, 10/4/2011, at ¶ 14.            Therefore, Dorchester was

well within its rights to foreclose under the 4th Mortgage when Mann

defaulted on his obligations under the Forbearance Agreement.7


____________________________________________


7
  We reject Mann’s contention that the use of the conjunction “and,” rather
than “or,” in the Forbearance Agreement when referring to Dorchester’s
right to foreclose under “Mortgage 1A, 1B, 2, 3 and 4,” prevents Dorchester
from foreclosing on any one of the mortgages when, as here, the others
have been assigned.        Forbearance Agreement, 10/4/2011, at ¶ 14.
Nevertheless, even if we were to agree with Mann’s contention, he fails to
demonstrate how this claim constitues a fatal defect on the face of the
record. Clearly, on the face of the complaint, Dorchester averred it was
foreclosing on a mortgage executed by Mann in its favor, and recorded on
October 12, 2011.



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      Mann also contends the Verification statement attached to the

complaint further supports his claim that Dorchester “lacked legal standing

to commence foreclosure proceedings and that the real party in interest and

actual mortgagee was Bancorp Bank[.]”        Mann’s Brief at 12.    Indeed, the

Verification is signed by an “AVP of The Bancorp Bank” and states, in

relevant part:

      This verification is not being made by Dorchester Acquisition,
      LLC because it lacks sufficient knowledge or information. The
      Bancorp Bank is the servicer of [Mann’s] loans that are owned by
      Dorchester Acquisition, LLC and The Bankcorp Bank has
      knowledge of the allegations in the foregoing Complaint in
      Mortgage Foreclosure.

Complaint, 8/7/2012, at 8. Mann asserts that the Verification is proof that

the real party in interest is Bancorp Bank, who was assigned the three prior

mortgages on October 5, 2011.

      Mann’s argument is unavailing. Pursuant to Pa.R.C.P. 1024(a), every

pleading must be verified by a person with personal knowledge or

information of the facts set forth in the pleading.   The Rule further provides:

      (c) The verification shall be made by one or more of the parties
      filing the pleading unless all the parties (1) lack sufficient
      knowledge or information, or (2) are outside the jurisdiction
      of the court and the verification of none of them can be obtained
      within the time allowed for filing the pleading. In such cases,
      the verification may be made by any person having
      sufficient knowledge or information and belief and shall
      set forth the source of the person’s information as to
      matters not stated upon his or her own knowledge and
      the reason why the verification is not made by a party.




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Pa.R.C.P. 1024(c) (emphasis supplied).        Here, the Bancorp employee, who

signed the    statement, averred (1) that Dorchester         lacked sufficient

knowledge or information, (2) that Bancorp is the servicer of the loans

owned by Dorchester, and (3) that Bancorp has knowledge of the

information in the complaint. Accordingly, an employee of Bancorp properly

verified the complaint for Dorchester. The fact that he did so is not proof

that Bancorp is the real party in interest.

      Accordingly, we conclude the trial court properly denied Mann’s motion

to strike the default judgment. Although Mann also challenges the court’s

refusal to void the sheriff’s sale, he acknowledges that claim is derivative of

his first. See Mann’s Brief at 15 (“[I]f a Default Judgment is null and void,

then any consequent Sheriff’s Sale of the defendants’ property likewise is

null and void[.]”).   Therefore, because we conclude the default judgment

was properly entered, we need not address Mann’s second claim.

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/2/2015




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