J-S66003-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

BANK OF NEW YORK MELLON FKA THE                 IN THE SUPERIOR COURT OF
BANK OF NEW YORK AS TRUSTEE FOR                       PENNSYLVANIA
THE CERTIFICATE HOLDERS CWABS,
INC. ASSET BACKED CERTIFICATES
SERIES 6006-19

                        Appellee

                   v.

MICHELLE L. & WALTER T. JORDAN,

                        Appellants                   No. 680 MDA 2014


              Appeal from the Order Entered March 12, 2014
           In the Court of Common Pleas of Lackawanna County
                    Civil Division at No(s): 13 CV 1323


BEFORE: BENDER, P.J.E., SHOGAN, J., and MUSMANNO, J.

MEMORANDUM BY BENDER, P.J.E.:                  FILED NOVEMBER 12, 2014

     Appellants, Michelle L. and Walter T. Jordan, appeal from the March

12, 2014 order denying their petition to open default judgment entered

against them and in favor of Appellee, Bank of New York Mellon, et al (“the

Bank”). After careful review, we affirm.

      The trial court provided the following brief procedural history:

            The Complaint in Mortgage Foreclosure was filed in the
     instant action on March 21, 2013. On July 2, 2013, after
     [Appellants] failed to file a responsive pleading, judgment was
     entered in the amount of $305,592.02 in favor of the [Bank].
     On July 11, 2013, [Appellants] filed a petition to open the
     judgment pursuant to Pa.R.C.P. 237.3. Oral argument was
     heard on March 12, 2014, and an order denying the petition was
     filed [on] that date.
J-S66003-14



Trial Court Opinion (TCO), 7/20/14, at 1-2.

     Appellants filed a timely notice of appeal.   Herein, they present one

question for our review: “Did the Lower Court err in failing to open the

judgment against [] Appellants when the Petition to Open was filed within 10

days after the entry of judgment and [] Appellants pled a meritorious

defense?” Appellants’ Brief at 4. We review this claim under the following

standard:

     Generally, a petition to open a default judgment is addressed to
     the equitable powers of the court and is a matter of judicial
     discretion. Aquilino [v. Philadelphia Catholic Archdiocese,]
     884 A.2d [1269,] 1283 [(Pa. Super. 2005)]. “A lower court's
     ruling refusing to open a default judgment will not be reversed
     unless there has been an error of law or a clear, manifest abuse
     of discretion.” Schultz v. Erie Insurance Exchange, [] 477
     A.2d 471, 472 ([Pa.] 1984) (citation omitted).

Boatin v. Miller, 955 A.2d 424, 427 (Pa. Super. 2008).

     In the present case, the trial court denied Appellants’ petition to open

after determining that they failed to prove two of the three requisites for

opening a default judgment.     Specifically, the court stated: “It is well[-]

settled that in Pennsylvania a default judgment may be opened if the moving

party satisfie[s] three requirements: (1) act promptly, (2) allege a

meritorious defense, and (3) explain the reasonable excuse for the delay

that brought about the default judgment.” TCO at 3 (citing Seeger v. First

Union National Bank, 836 A.2d 163, 165 (Pa. Super. 2003)). The court

then concluded that Appellants “did respond promptly; however, they




                                    -2-
J-S66003-14



neither provided a meritorious defense nor did they explain the delay that

led to the default judgment being entered.” Id. at 4.

     In challenging the court’s ruling on appeal, Appellants first contend

that the trial court erred by requiring them to provide an explanation for

their delay in responding to the Bank’s complaint.        Appellants rely on

Pennsylvania Rule of Civil Procedure 237.3(b), which states: “If the petition

is filed within ten days after the entry of the judgment on the docket, the

court shall open the judgment if the proposed complaint or answer states a

meritorious cause of action or defense.”     Pa.R.C.P. 237.3(b).    Appellants

argue that because here, their petition to open was filed within 10 days of

the entry of default judgment, under Rule 237.3(b) they were only required

to present a meritorious defense; they were not also required to provide a

reasonable excuse for their delay.

     We are compelled to agree that the court erred in this regard.

     [I]n Attix v. Lehman, 925 A.2d 864 (Pa. Super. 2007), we
     interpreted Rule 237.3(b) based on [the] principles of rule
     construction. We concluded that a petitioner does not need
     to satisfy the common law requirement that he provide a
     reasonable excuse for the failure that led to the judgment
     by default, if his petition to open is filed within 10 days of
     the judgment and states a meritorious defense. Id. at 866.
     In doing so, we recognized that Rule 237.3(b) presupposes that
     a petition filed within ten days of the default judgment is
     promptly filed and sets forth a reasonable explanation or
     legitimate excuse for the inactivity or delay resulting in the entry
     of the judgment. Id. Thus, we held that under Rule
     237.3(b), a trial court must open a default judgment, if
     the petitioner files a petition to open within ten days of its
     entry and states a meritorious defense. Id. at 867.



                                     -3-
J-S66003-14



Boatin, 955 A.2d at 427 (emphasis added). Based on our holding in Attix,

we conclude that because Appellants filed their petition to open within 10

days of the entry of default judgment, they were only required to assert a

meritorious defense to warrant their petition being granted.       See also

Penn-Delco School Dist. v. Bell Atlantic-Pa, Inc., 745 A.2d 14, 19 (Pa.

Super. 1999) (“[W]here the petitioner files a petition to open the judgment

within ten days, … the petitioner need demonstrate only that the verified

pleading attached to the petition states a meritorious defense.”). Thus, the

trial court misapplied the law in this regard.

      Nevertheless, the trial court also concluded that Appellants failed to

present a meritorious defense, and Appellants have not convinced us that

the court’s decision was an abuse of its discretion.

      The requirement of a meritorious defense is only that a defense
      must be pleaded that if proved at trial would justify relief. The
      defense does not have to prove every element of its defense[;]
      however, it must set forth the defense in precise, specific
      and clear terms.

Seeger, 836 A.2d at 166 (emphasis added) (quoting Penn-Delco School v.

Bell Atlantic-Pa, Inc., 745 A.2d 14, 19 (Pa. Super. 1999) (citations

omitted)).

      Here, in the Bank’s March 21, 2013 complaint in mortgage foreclosure,

it stated that Appellants executed the at-issue mortgage in August of 2006,

and that “[t]he mortgage is in default because monthly payments of

principal and interest upon said mortgage due 01/01/2010 and each month

thereafter are due and unpaid….” Complaint, 3/21/13, at 4 ¶ 5. The Bank

                                      -4-
J-S66003-14



then listed the amounts of principal, interest, and certain fees owed by

Appellants, and concluded that Appellants owed a total of $305,592.02. Id.

at 4 ¶ 6.

      In Appellants’ answer attached to their petition to open, they

responded to the Bank’s assertion that they failed to make mortgage

payments as follows:

      Denied. It is specifically denied that [Appellants] failed to make
      payments as indicated in the Complaint, by way of further
      response, the Complaint fails to provide any evidence that
      [Appellants] are in violation of the Mortgage Contract.

Answer, 7/11/13, at 2 ¶ 5. In response to the Bank’s statement of the total

amount owed by Appellants, Appellants again stated:

      Denied. It is specifically denied that [Appellants] failed to make
      payments of principal and interest, by way of further response,
      the Complaint fails to provide any evidence that [Appellants] are
      in violation of the Mortgage Contract.

Id. at 2 ¶ 6.

      These answers are not sufficiently specific to constitute a meritorious

defense. Despite the Bank’s alleging over 36 months of non-payment, and

providing a specific amount owed by Appellants, Appellants failed to specify

any month(s) in which they did, in fact, pay their mortgage, or provide the

specific amount that they believe they currently owe.        Clearly, Appellants

had access to this type of information, yet failed to include it in their answer.

Additionally, Appellants’ claim that “the Complaint fails to provide any

evidence that [Appellants] are in violation of the Mortgage Contract” does

not amount to a meritorious defense; instead, this assertion is merely a

                                      -5-
J-S66003-14



claim that the Bank’s complaint was inadequate.       Even more notably,

Appellants again fail to specify what evidence the Bank was required to

include in the complaint, or how that omission defeated the Bank’s claim

against them.

      Accordingly, we ascertain no abuse of discretion in the trial court’s

decision to deny Appellants’ petition to open.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/12/2014




                                     -6-
