J-S19016-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 CITIZENS BANK                           :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                                         :
              v.                         :
                                         :
                                         :
 GLORIA A. GUTIERREZ,                    :
                                         :
                     Appellant.          :   No. 1100 EDA 2018


                 Appeal from the Order Dated, April 13, 2018,
            in the Court of Common Pleas of Philadelphia County,
                     Civil Division at No(s): 130401613.


BEFORE:     LAZARUS, J., KUNSELMAN, J., and STRASSBURGER*, J.

MEMORANDUM BY KUNSELMAN, J.:                          FILED JUNE 25, 2019

       Gloria A. Gutierrez appeals from the order denying her motion to set

aside the sheriff’s sale of her property based upon allegations of fraud. Upon

review, we affirm.

       In 2005, Gutierrez executed a promissory note with Citizens Bank of

Pennsylvania in the amount of $150,500.00.        The promissory note was

secured by a mortgage on the property located at 1010-12 Ashburner Street,

Philadelphia, Pennsylvania.

       In September 2012, Gutierrez defaulted on the promissory note and

mortgage. Citizens Bank filed a complaint in mortgage foreclosure against

her.

       In 2015, upon Citizens Bank’s motion and Gutierrez’s failure to file a

response, the trial court granted summary judgment in favor of Citizens Bank,


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* Retired Senior Judge assigned to the Superior Court.
J-S19016-19



and entered an in rem judgment against the property in mortgage foreclosure.

Gutierrez did not appeal.

        In April 2016, Gutierrez endeavored to satisfy the judgment. Gutierrez

gave a note to Citizens Bank from WeRe Bank promising to pay $185,598.06

to Citizens Bank. Shortly thereafter, on May 23, 2016, Citizens Bank advised

Gutierrez that the note was not honored by WeRe Bank, and that she needed

an alternative payment method; Gutierrez made no other payment.

Subsequently, on June 2, 2016, Citizens Bank informed Gutierrez that the loan

had been paid off.1 The judgment, however, was not marked satisfied on the

docket. In fact, no payment had actually been made.

        In 2017, upon Citizens Bank’s praecipe, a writ for sale of the property

was issued.     Notice of the sale was served upon Gutierrez.     After several

postponements, the property was ultimately scheduled for sale on March 6,

2018.

        The day before the sheriff’s sale was to take place, Gutierrez presented

a motion to continue the sale; a hearing was scheduled for the morning of

sale.    Gutierrez also filed a motion to set aside/request to vacate the


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1We note that neither the trial court nor counsel for Citizens Bank addressed
why Citizens Bank sent this letter to Gutierrez. However, after this letter was
sent, counsel for Citizens Bank, by correspondence dated June 6, 2016,
addressed the validity of the payment Gutierrez sent, thereby evidently
negating this letter, as Citizens Bank continued to move forward with the sale
process. Although this letter may have created confusion, the fact remains,
as discussed below, that the loan was not paid off.



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judgment.     Her motion to continue was denied for lack of prosecution; no

decision was rendered on her motion to vacate/set aside the judgment.

        On March 6, 2018, the Philadelphia Sheriff’s Office sold the property.

Shortly thereafter, Gutierrez petitioned the trial court to set aside the sheriff’s

sale for fraud. The trial court denied her motion.2 Gutierrez timely appealed.

       On appeal, Gutierrez raises ten issues. We observe, however, that the

essence of her appeal is whether the trial court abused its discretion in denying

her motion to set aside the sheriff’s sale on the basis of fraud.3

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2  As is evident from the record, this case has been ongoing for many years.
Gutierrez has taken every opportunity to avoid the sale of her property due to
her failure to pay her mortgage. We further note that, over the course of this
litigation, the trial court gave Guiterrez multiple opportunities to make her
case through her many motions and requests.

3 Initially, we note that Gutierrez, who is, albeit, pro se in this matter, has
failed to conform to several rules governing appeals to this Court. First,
Gutierrez did not concisely set forth her statement of questions involved
contrary to Pa.R.A.P. 2116. Instead, Gutierrez rambles at length to the point
that this Court cannot understand what she is asking us to address.
       Additionally, Gutierrez has not complied with the briefing requirements
under Pa.R.A.P. 2119. Gutierrez failed to set forth a meaningful and
developed argument or analysis in her brief. Commonwealth v. Kane, 10
A.3d 327, 331-32 (Pa. Super. 2010), appeal denied, 29 A.3d 796 (Pa. 2011).
Additionally, she did not provide citation to applicable law. Finally, her
argument is not divided into parts. For these reasons, we could dismiss
Gutierrez’s appeal pursuant to Pa.R.A.P. 2101. However, we decline to do so.
       We also note that in issue number two, Gutierrez references an order
from January 2018 rendering her motion to stay moot. She also makes
arguments regarding the summary judgment order in her brief. However,
because she did not appeal from these orders, any matters pertaining thereto
are waived.
       Finally, we note that Gutierrez attempted to hire counsel to assist with
this appeal after Citizens Bank had filed its brief. As a courtesy, we granted



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       Gutierrez first argues that she made payment in full to satisfy the

judgment prior to the sheriff’s sale, rendering the need for the sale moot.4

Despite this, Citizens Bank refused to accept her payment and proceeded to

execute upon her property at a sheriff’s sale. By doing so, she claims Citizens

Bank committed fraud. See Gutierrez’s Brief at 7.

       Gutierrez further argues that Citizens Bank mishandled her payment

and made misrepresentations to the trial court regarding the validity of her

payment.      Thus, she alleges Citizens Bank committed fraud, and, the trial

court erred in failing to set aside the sheriff’s sale of her property. Id. at 7-

8. We disagree.

       “A petition to set aside a sheriff’s sale is grounded in equitable

principles[.]” GMAC Mortg. Corp. of Pa. v. Buchanan, 929 A.2d 1164, 1167

(Pa. Super. 2007). The burden of establishing grounds for relief rests with

the petitioner. Id.


____________________________________________


counsel’s request for additional time to file an amended brief on behalf of
Gutierrez and gave counsel thirty days to do so. Counsel, instead, requested
more time, which we denied. To date, counsel has not filed an amended brief.
Thus, our decision is based on Gutierrez’s pro se brief.

4 Gutierrez argues that she raised this issue in her motion to vacate the
judgment, but the trial court failed to address the matter prior to the sale.
Although this is true, Gutierrez filed it the day before the sale. Simultaneously
therewith, she filed a motion to continue the sale. However, she failed to
appear for the hearing scheduled the morning of the sale. Because she did
not appear, the court had no basis to continue the sale. The trial court
ultimately denied the motion, notwithstanding that Gutierrez had already filed
this appeal. Regardless, Gutierrez raises the same claims involving a payoff
prior to the sale which we will address in this appeal.

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

of the trial court, and we shall not reverse its decision on appeal absent a clear

abuse of discretion.” Merrill Lynch Mortg. Capital v. Steele, 859 A.2d 788,

791 (Pa. Super. 2004).         “An abuse of discretion is not merely an error of

judgment, but if in reaching a conclusion the law is overridden or misapplied,

or the judgment exercised is manifestly unreasonable, or [the judgment is]

the result of partiality, prejudice, bias or ill-will, as shown by the evidence of

record, discretion is abused.” National Penn Bank v. Shaffer, 672 A.2d

326, 328 (Pa. Super. 1996) (citation omitted).

       Generally, a court may only grant such a petition “when [it] is filed

before the sheriff’s delivery of the deed.” Mortgage Elec. Registration Sys.,

Inc. v. Ralich, 982 A.2d 77, 79 (Pa. Super. 2009) (citations omitted), appeal

denied, 992 A.2d 889 (Pa. 2010); Pa.R.C.P. 3132. Prior to the deed, a trial

court may, upon the petition of any interested party, set aside a sheriff’s sale

for proper cause. Pa.R.C.P. 3132. After a sheriff’s deed has been delivered,

however, a trial court may set aside a sheriff’s sale only if the sale was based

on fraud or the sheriff lacked the authority to make the sale. Ralich, 982

A.2d at 80.

       As the trial court observed, the record does not indicate whether the

sheriff’s deed was delivered before or after Gutierrez petitioned the trial court

to set aside the sale.5 Regardless, although she references in her motion the
____________________________________________


5In its brief, Citizens Bank indicates that the deed was recorded on April 18,
2018, which was after Gutierrez filed her petition.

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need to set aside the sale for just cause, Gutierrez argues that the basis for

setting aside the sheriff’s sale was fraud. Therefore, this Court may properly

consider this matter.    Nonetheless, we conclude that Gutierrez’s claims of

fraud lack merit.

      To set aside a sheriffs’ sale for fraud, a petition must aver that

representations made by the alleged defrauder were false and that fraud was

intended or achieved. Marine Bank v. Huhta, 420 A.2d 1066, 1070 (Pa.

Super. 1980). Allegations that a sheriff’s sale was based on fraud must be

set forth with particularity. Ralich, 982 A.2d at 80. Vague allegations of

fraud, alone, are insufficient to justify setting aside a sheriff’s sale. Id.

      Gutierrez did not set forth her allegations of fraud with the requisite

particularity.   Beyond general allegations, she does not state which

representations Citizens Bank made that form the basis of her claim or what

it falsely represented to her or the court. Her claims lack the requisite detail

of who said what to whom and when.

      Moreover, the trial court concluded, there was no allegation that the

fraud was intended or achieved in this matter. Trial Court Opinion, 8/23/18,

at 4. Gutierrez did not allege that any of the information given to her by

Citizens Bank was in fact false, or fraudulent, or that any fraud was intended

or achieved by its conduct. In concluding that there was no allegation that

fraud was intended or achieved, the trial court explained:

      In this case, [Gutierrez] contends that she tried to pay Citizens
      Bank but the bank refused to “[t]ender . . . ‘full payment.’” She
      contends that her efforts to pay Citizens Bank satisfied the

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       judgment in full before the sheriff’s sale. [Gutierrez], however,
       attempted to pay citizens Bank and satisfy the mortgage
       foreclosure judgment with a purported bank note [from WeRe
       Bank] that merely constituted a ‘promise to pay’. Citizens Bank
       refused to accept the bank note and informed [Gutierrez] that it
       was unable to process her payment . . . . The mortgage judgment
       was not satisfied and Citizens Bank was entitled to proceed with
       execution of the mortgage foreclosure judgment.

Id. at 4-5. For these reasons, contrary to Gutierrez’s argument, the need for

the sale was not moot, and Citizens Bank did not act fraudulently when it

executed on its judgment through the sheriff’s sale.6

       Likewise, Gutierrez’s claim that Citizens Bank made misrepresentations

to the trial court regarding the validity of her payment warrants no relief.

Again, as the trial court noted, Gutierrez made no payment, only a promise to

pay which Citizens Bank refused.

       We, therefore, conclude that the trial court did not abuse its discretion

in refusing to grant Gutierrez’s petition to set aside the sheriff's sale on the

basis of fraud.

       Order affirmed.




____________________________________________


6 We note that correspondence from WeRe Bank which Guitterrez relied upon
in support of her position appears spurious itself. It is signed by “Peter of
England” and claims that “WeRe Bank does NOT need to be regulated ‘What’s
good for the goose is good for the gander as they say!’” As noted, Citizens
Bank did not accept this questionable promise to pay as satisfaction of the
judgment.

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/25/19




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