J-S14004-15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

HOUSING OPPORTUNITY PARTNERS             : IN THE SUPERIOR COURT OF
REO, LLC,                                :      PENNSYLVANIA
                                         :
           v.                            :
                                         :
MARIANNE MEHALSHICK AND                  :
MICHAEL MEHALSHICK,                      :
                                         :
APPEAL OF: MARIANNE MEHALSHICK           : No. 2106 EDA 2013

                Appeal from the Order entered June 26, 2013,
                Court of Common Pleas, Northampton County,
                  Civil Division at No. C-48-CV-2006-6855I


HOUSING OPPORTUNITY PARTNERS             : IN THE SUPERIOR COURT OF
REO, LLC,                                :      PENNSYLVANIA
                                         :
           v.                            :
                                         :
MARIANNE MEHALSHICK AND                  :
MICHAEL MEHALSHICK,                      :
                                         :
APPEAL OF: MARIANNE MEHALSHICK           : No. 624 EDA 2014

                Appeal from the Order dated January 22, 2014,
                Court of Common Pleas, Northampton County,
                  Civil Division at No. C-48-CV-2006-6855I

BEFORE: DONOHUE, OLSON and MUSMANNO, JJ.

MEMORANDUM BY DONOHUE, J.:                        FILED MARCH 11, 2015

     Marianne Mehalshick (“Home Owner”) appeals pro se from two orders

entered by the Northampton County Court of Common Pleas. The first is the

June 26, 2013 order denying Home Owner’s petition to open or strike the

February 26, 2007 default judgment, which granted foreclosure of 234

James   Avenue,    Northampton,    Pennsylvania   18067   (“the   Property”).
J-S14004-15


Wachovia Bank National Association (“Wachovia”), predecessor in interest to

Housing Opportunity Partners REO, LLC (“HOP”), filed the complaint seeking

foreclosure. The second order appealed from is the January 22, 2014 order

denying Home Owner’s petition to set aside the sheriff’s sale of the Property.

After careful review, we affirm.

      The trial court1 provided the following summary of the factual and

procedural histories of this case:

               This matter stems from a [c]omplaint in mortgage
            foreclosure filed on August 31, 2006. The
            [c]omplaint was filed by Wachovia [] as Trustee of
            the Secretary National Mortgage Loan Trust 2004-1
            against [Home Owner] and Michael A. Mehalshick[FN]1
            for failure to make payment on the mortgage on the
            [P]roperty …. A [p]raecipe for [j]udgment was
            entered on December 15, 2006 in the amount of …
            $87,624.89. This was later vacated as [Home
            Owner] filed a petition in [b]ankruptcy on November
            21, 2006. On February 26, 2007, judgment in
            mortgage foreclosure was entered against [Home
            Owner] in the amount of … $87,624.89. On July 3,
            2007, the [trial c]ourt granted Wachovia[’s] []
            [p]etition to [a]mend [j]udgment to the amount of …
            $110,111.68. [Home Owner] avers she paid …
            $2,500 prior to [the] [s]heriff’s [s]ale, which stayed
            the [s]heriff[’s] [s]ale. On December 3, 2009,
            Wachovia [] filed a [p]raecipe for [w]rit of
            [e]xecution in the amount of … $110,111.68. The
            Property was listed for [s]heriff’s [s]ale on March 5,
            2010. The [trial c]ourt ultimately continued the sale


1
   Two different judges of the Northampton County Court of Common Pleas
entered the orders in question. The Honorable Michael J. Koury, Jr., decided
Home Owner’s motion to open or strike the judgment and the Honorable
Emil Giordano decided Home Owner’s motion to set aside the sheriff’s sale.
For ease of reference, we will refer to them both collectively and individually
as the trial court.


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          in order to allow [Home Owner] to participate in the
          Northampton       County    Mortgage     Foreclosure
                                           [FN]2
          Conciliation Conference program.       The [s]heriff’s
          [s]ale was further continued by several [trial c]ourt
          [o]rders.

            Subsequently,    Wachovia    []   assigned    the
          mortgage to U.S. Bank National Association [“U.S.
          Bank”] on November 21, 2011. Then, on May 1,
          2012, U.S. Bank assigned the mortgage to [HOP].

              On November [21], 2012, [plaintiff’s counsel]
          filed a [p]raecipe for [w]rit of [e]xecution. The
          [s]heriff’s [s]ale was continued pending [Home
          Owner]’s [p]etition to [o]pen/[s]trike [j]udgment
          filed on March 14, 2013. The [p]etition was
          subsequently denied on June 26, 2013. [On July 24,
          2013, Home Owner] appealed the [o]rder denying
          the [p]etition to [o]pen/[s]trike [j]udgment to the
          Superior Court and further [trial c]ourt [o]rders were
          entered granting [Home Owner]’s continuance of the
          [s]heriff’s [s]ale.[FN]3 On August 5, 2013, [Home
          Owner] filed a [p]etition of [s]upersedeas and [s]tay
          of the [o]rder of [the trial c]ourt dated June 26,
          2013. The [p]etition was denied the following day by
          the [trial court]. On August 7, 2013, [Home Owner]
          filed an [e]mergency [a]pplication for [s]upersedeas
          [p]ending [a]ppeal with the Superior Court. The
          Superior Court entered an Order denying the
          application the following day. On August 9, 2013, the
          [p]roperty was sold at [s]heriff’s [s]ale to [HOP] for
          costs of … $8,615.61. Th[e] [p]etition to [s]et
          [a]side the [s]heriff’s [s]ale was filed on September
          9, 2013. This matter was listed on the December 17,
          2013 [n]on-[j]ury [l]ist and in an [o]pinion and
          [o]rder dated January 22, 2014, [the trial c]ourt
          denied [Home Owner]’s [p]etition.
          ____________________
          [FN]1
                  [Home Owner] and Michael A. Mehalshick
          obtained the mortgage and purchased the Property
          in 1987. Pursuant to their divorce settlement, [Home
          Owner] became the sole owner of the Property ….
          Michael A. Mehalshick, though, was never removed



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J-S14004-15


            from the mortgage. At this juncture of the
            proceeding, Michael A. Mehalshick has never entered
            an appearance.
            [FN]2
                 [Home Owner] was unable to participate in this
            program because Michael Mehalshick was still listed
            as a mortgagor and was not present.
            [FN]3
                  Sherriff’s [s]ales were scheduled but ultimately
            continued on the following dates: May 10, June 7,
            July 6, and August 9, 2013.

Trial Court Opinion, 4/22/14, at 1-3 (footnotes in the original; record citation

omitted).

      Based upon Home Owner’s failure to file the required docketing, this

Court dismissed the appeal from the June 26, 2013 order on September 20,

2013. See Order, 9/20/13; Pa.R.A.P. 3517. On February 21, 2014, Home

Owner filed a notice of appeal from the trial court’s January 22, 2014 order.

On February 27, 2014, Home Owner filed an application to reinstate the

appeal from the June 26, 2013 order, which we granted on March 17, 2014.

On March 18, 2014, this Court sua sponte consolidated the appeals.

      Home Owner raises the following three issues for our review:

         1. Is the mortgage foreclosure complaint defective by
            virtue of the fact that it does not identify the various
            assignments of the mortgage and does not allege
            that Wachovia is the “legal owner” of the mortgage?

         2. Were any of the parties that appeared as plaintiffs
            after the entry of the default judgment properly
            substituted for the original plaintiff or otherwise
            entitled to execute?




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          3. Should the lower court have ordered an evidentiary
             hearing to determine the fair market value of the
             property sold at sheriff’s sale and to consider [Home
             Owner]’s allegation that the judgment amount was
             incorrect?

Home Owner’s Brief at 6.

      The first issue raised on appeal challenges the trial court’s denial of

Home Owner’s request to strike the default judgment. See id. at 19-20.

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

            A petition to strike a judgment is a common law
            proceeding which operates as a demurrer to the
            record. 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.

Wells Fargo Bank, N.A. v. Lupori, 8 A.3d 919, 920-21 (Pa. Super. 2010)

(internal citations and quotation marks omitted).

      Home Owner raises two arguments in support of her first issue on

appeal.    First, Home Owner asserts that the complaint violated Rule

1147(a)(1) of the Pennsylvania Rules of Civil Procedure 2 because “it did not


2
  Rule 1147(a)(1) states: “The plaintiff shall set forth in the complaint: (1)
the parties to and the date of the mortgage, and of any assignments, and a


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J-S14004-15


identify the various assignments of the mortgage,” instead identifying only

the bank that originally held the mortgage (Keystone Savings Association)

and indicating that the mortgage was subsequently assigned to Wachovia.

Home Owner’s Brief at 21-23. Second, Home Owner claims that Wachovia

failed to identify itself as the “legal owner” of the mortgage in the complaint,

rendering the complaint defective.     Id. at 21, 23-24.    Our review of the

record reveals that Home Owner failed to raise these arguments before the

trial court below.3 The law is clear: “Issues not raised in the lower court are

waived and cannot be raised for the first time on appeal.” Pa.R.A.P. 302(a).

Home Owner likewise failed to include these arguments in her concise

statement of errors complained of on appeal, which also compels a finding of

waiver. See Concise Statement of Errors Complained of on Appeal, 8/19/13.

“Issues not included in the Statement and/or not raised in accordance with

the   provisions   of   this   paragraph   (b)(4)   are   waived.     Pa.R.A.P.

1925(b)(4)(vii). We are thus constrained to find these arguments waived.

      In her second issue raised on appeal, Home Owner argues that both

U.S. Bank and HOP lacked standing to enforce the judgment obtained by

statement of the place of record of the mortgage and assignments[.]”
Pa.R.C.P. 1147(a)(1).
3
     In her appellate brief, Home Owner states that she raised these
arguments in her petition to strike the judgment and in her proposed answer
to the complaint. Home Owner’s Brief at 16. We have thoroughly reviewed
both documents and observe that neither includes the arguments raised in
support of the first issue on appeal. See Defendant[’]s Petition to Open /
Strike Judgment, 3/14/13; Proposed Answer to Complaint & New Matter,
3/14/13.


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Wachovia or to execute that judgment. Home Owner’s Brief at 24-30. She

observes that Wachovia, and subsequently U.S. Bank, filed praecipes for

voluntary substitution pursuant to Rule 2352 of the Pennsylvania Rules of

Civil Procedure4 following the assignment of the mortgage from Wachovia to

U.S. Bank and then from U.S. Bank to HOP. Id. at 25. Wachovia filed its

praecipe on November 29, 2011, substituting U.S. Bank as plaintiff, and the

caption in the case changed to name U.S. Bank as the plaintiff. Id. U.S.

Bank filed its praecipe on November 21, 2012, substituting HOP as plaintiff,

but the caption remained the same, with U.S. Bank identified as the sole

named plaintiff in the case.   Id. at 25-26.   Home Owner asserts that this

was error, as “all actions must be prosecuted and in the name of the real

party in interest.” Id. at 29 (citing Pa.R.C.P. 2002(a)).

       The trial court found no error pursuant to Rule 2004 of the

Pennsylvania Rules of Civil procedure, which states:




4
    This Rule states:

             (a) The successor may become a party to a pending
             action by filing of record a statement of the material
             facts on which the right to substitution is based.

             (b) If the successor does not voluntarily become a
             party, the prothonotary, upon praecipe of an adverse
             party setting forth the material facts shall enter a
             rule upon the successor to show cause why the
             successor should not be substituted as a party.

Pa.R.C.P. No. 2352.


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           If a plaintiff has commenced an action in his or her
           own name and thereafter transfers the interest
           therein, in whole or in part, the action may continue
           in the name of the original plaintiff, or upon petition
           of the original plaintiff or of the transferee or of any
           other party in interest in the action, the court may
           direct the transferee to be substituted as plaintiff or
           joined with the original plaintiff.

Pa.R.C.P. 2004; see Trial Court Opinion, 5/20/14, at 28.       The trial court

concluded that, “[u]nder Rule 2004, [HOP] had standing to enforce the

default judgment and was entitled to prosecute the action in the name of

U.S. Bank. Thus, the fact that [HOP] was not named as the [p]laintiff in the

caption does not constitute a fatal defect on the face of the default

judgment.” Trial Court Opinion, 5/20/14, at 28.

     In response, Home Owner states that the trial court’s reasoning is

unsupportable under the facts of the case, as “no party petitioned the court

under [Rule 2004] to substitute parties.” Home Owner’s Brief at 27. Home

Owner does not include any citation in support of her claim that Rule 2004 is

a separate procedural mechanism for the substitution of a party. The plain

language of the rule does not support such a conclusion; rather, it simply

provides that in the event a party transfers his or her interest in a pending

action, it is not necessary to add the transferee to the case caption unless

the transferee or another party in interest requests that this occur.

Pa.R.C.P. 2004.   As stated by our Supreme Court, “Rule 2004 permits an

action to proceed in the name of the original plaintiff if the assignment of




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interest occurred after the plaintiff has commenced an action.”         Cole v.

Price, 788 A.2d 621, 623 (Pa. 2001) (quotation marks omitted).

      In the case at bar, HOP elected to continue prosecuting the foreclosure

action in U.S. Bank’s name after U.S. Bank executed its praecipe to

substitute HOP as plaintiff following the assignment of Home Owner’s

mortgage to HOP.      Neither Home Owner nor any other interested party

requested the removal of U.S. Bank or the addition of HOP to the caption in

the case. As such, we find no error in the trial court’s conclusion.5

      As her third and final issue on appeal, Home Owner argues that the

trial court “erroneously refused to order an evidentiary hearing” regarding

the fair market value of the Property, as the valuation given by the trial

court “was much too low.” Home Owner’s Brief at 31-32. Our review of the

record reveals that the trial court did hold a hearing on Home Owner’s

petition to set aside the sheriff’s sale, and at that hearing, Home Owner

presented no evidence of the value of the Property.6 See generally N.T.,

12/17/13.


5
  Home Owner goes on to argue that U.S. Bank and HOP lacked standing to
participate in the action because they did not qualify as “successors” as
defined by Pa.R.C.P. 2351, and thus, their substitutions pursuant Pa.R.C.P.
2352 should not have been permitted. Home Owner’s Brief at 28-29. Once
again, as Home Owner failed to raise this argument before the trial court or
in her 1925(b) statement, it is waived.            See Pa.R.A.P. 302(a),
1925(b)(4)(vii).
6
  “As a general rule, the burden of proving circumstances warranting the
exercise of the court’s equitable powers is on the applicant, and the
application to set aside a sheriff’s sale may be refused because of the


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      The trial court relied upon the tax and property assessment valuation

attached to Home Owner’s petition to set aside the sheriff’s sale, which

valued the land and building of the Property to be $151,600, and also

considered her unsupported claim in her petition that the Property was worth

“in excess of $202,653,” in deciding the appropriate valuation. Trial Court

Opinion, 4/22/14, at 5-7; see also Petition to Set Aside Sheriff’s Sale of

Real Property, 9/13/13, ¶ 22(d) & Exhibits A & F. Considering the amount

paid in costs by HOP at the sheriff’s sale ($8615.61); the outstanding

amount owed by Home Owner on the mortgage, according to the judgment

entered ($110,111.68);7 and accrued interest since the entry of judgment

($42,607.40), the trial court found the sale price was $161,334.69.         Trial

Court Opinion, 4/22/14, at 6-7.     As this amount was between 79 percent


insufficiency of proof to support the material allegations of the application,
which are generally required to be established by clear evidence.” Bank of
Am., N.A. v. Estate of Hood, 47 A.3d 1208, 1211 (Pa. Super. 2012)
(internal citations omitted), appeal denied, 60 A.3d 534 (Pa. 2012).

Home Owner states that she “produced a homeowner’s insurance policy
indicating that the dwelling was insured for $280,000 and other structures
for $28,000, for a total of $308,000.” Home Owner’s Brief at 32. The
record reflects that she presented this evidence for the first time in support
of her motion to reconsider the denial of her petition to set aside the sheriff’s
sale. See Defendant’s Motion for Reconsideration, 2/20/14, at Exhibit 2. As
we have previously stated, the trial court properly refuses to consider new
arguments and evidence presented for the first time in a motion for
reconsideration. Kelly v. Siuma, 34 A.3d 86, 94 n.8 (Pa. Super. 2011),
appeal denied, 42 A.3d 294 (Pa. 2012).
7
   “This Court has held that the outstanding mortgage balance must be
considered in determining the adequacy of the sale price.” Bank of Am., 47
A.3d at 1211 (citation and quotation marks omitted).


                                     - 10 -
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and 106 percent of the purported value of the Property, the trial court

concluded it was not grossly inadequate8 and did not grant Home Owner’s

petition to set aside the sheriff’s sale on that basis. Id. at 7.

      “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.

“Equitable considerations govern the trial court’s decision to set aside a

sheriff’s sale. This Court will not reverse the trial court’s decision absent an

abuse of discretion.” Bank of Am., N.A. v. Estate of Hood, 47 A.3d 1208,

1211 (Pa. Super. 2012) (internal citations omitted), appeal denied, 60 A.3d

534 (Pa. 2012). Finding no abuse of discretion in the trial court’s decision,

we affirm.

      Orders affirmed.




8
   “Where a sale is challenged based upon the adequacy of the price our
courts have frequently said that mere inadequacy of price standing alone is
not a sufficient basis for setting aside a sheriff’s sale. However where a
‘gross inadequacy’ in the price is established courts have found proper
grounds exist to set aside a sheriff’s sale. The courts have traditionally
looked at each case on its own facts. It is for this reason that the term
‘grossly inadequate price’ has never been fixed by any court at any given
amount or any percentage amount of the sale. Further, it is presumed that
the price received at a duly advertised public sale is the highest and best
obtainable.” Id.


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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/11/2015




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