J-S68036-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

HSBC BANK USA                                  IN THE SUPERIOR COURT OF
NATIONAL ASSOCIATION TRUSTEE                         PENNSYLVANIA
                   Appellee

                   v.

KEVIN A. KRONBERG

                        Appellant                   No. 3365 EDA 2014


                  Appeal from the Order October 21, 2014
           In the Court of Common Pleas of Montgomery County
                    Civil Division at No(s): 2010-08737


BEFORE: BENDER, P.J.E., DONOHUE, J., and MUNDY, J.

MEMORANDUM BY MUNDY, J.:                       FILED DECEMBER 28, 2015

      Appellant, Kevin A. Kroberg, appeals from the October 21, 2014 order

denying his “Motion to Set-Aside Sheriff’s Foreclosure Sale.”    After careful

consideration, we affirm on the basis expressed in the thorough and well-

supported opinion of the Honorable Thomas C. Branca.

      The trial court summarized the procedural and factual history of this

case in its April 27, 2015 opinion, and we need not repeat it here in full. We

highlight a few salient points for clarity. This matter commenced with the

filing of a mortgage foreclosure complaint by Appellee, HSBC Bank, NA

Trustee (HSBC Bank), on April 5, 2010.       HSBC Bank obtained a default

judgment on May 28, 2010, and the matter proceeded to a sheriff’s sale on

December 18, 2013.      Throughout this time, Appellant took no responsive

action in the case except to move to adjourn the sheriff’s sale on September
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23, 2013, which was withdrawn later that same day. The motion was refiled

on December 17, 2013 and denied the following day. The property was sold

at a sheriff’s sale on February 10, 2014. The sheriff’s deed was delivered

and recorded on February 20, 2014. Not until March 5, 2014, did Appellant

file the instant petition to set aside the sheriff’s sale.       After hearing

argument, and receiving briefs from the parties, the trial court denied

Appellant’s petition on October 23, 2014. Appellant filed a timely notice of

appeal on November 19, 2014.1

       On appeal, Appellant raises the following issues for our review.

              (1) Did the trial court commit an error of law in
              denying Kronberg’s Motion to Set-Aside Sheriff’s
              [F]oreclosure Sale when [HSBC Bank] (Plaintiff
              below),      foreclosing  lender    did   not    have
              “authority”/standing to execute on its foreclosure
              judgment for want of a pre-judgment record
              assigned mortgage and negotiated transferred note
              such as to allow foreclosing lender to have conducted
              its Sheriff’s Sale?

              (2) Did the trial court commit an error of law in
              denying a requested evidentiary hearing, or,
              alternatively, discovery towards oral argument?

Appellant’s Brief at 8.2
____________________________________________


1
  Appellant and the trial court have complied with Pennsylvania Rule of
Appellate Procedure 1925.
2
 Appellant failed to include his second issue in his Rule 1925(b) statement.
Therefore, we conclude this issue is waived. See Commonwealth v. Hill,
16 A.3d 484, 494 (Pa. 2011) (holding “any issues not raised in a Rule
1925(b) statement will be deemed waived”).



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      We note the following standards guiding our review of this appeal.

                  Pursuant to Rule 3132 of the Pennsylvania
            Rules of Civil Procedure, a sheriff’s sale may be set
            aside upon petition of an interested party “upon
            proper cause shown” and where the trial court
            deems it “just and proper under the circumstances.”
            Pa.R.C.P.   3132.        The    burden     of   proving
            circumstances warranting the exercise of the court’s
            equitable powers is on the petitioner.        Equitable
            considerations govern the trial court’s decision to set
            aside a sheriff’s sale, and this Court will not reverse
            the trial court’s decision absent an abuse of
            discretion. An abuse of discretion occurs where, for
            example, the trial court misapplies the law.

Nationstar Mortgage, LLC v. Lark, 73 A.3d 1265, 1267 (Pa. Super.

2013).

            [Pennsylvania] Rule [of Civil Procedure] 3135 makes
            it clear that a party has 20 days to take exceptions
            before the sheriff executes a sheriff’s deed.

                  Taken together, Rule 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.

Mortgage Elec. Registration Sys., Inc. v. Ralich, 982 A.2d 77, 80 (Pa.

Super. 2009), appeal denied, 992 A.2d 889 (Pa. 2010).             “There is an

exception to this time bar, however. 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).

      Instantly, Appellant’s petition was patently late.   However, Appellant

asserts that he has demonstrated lack of authority for the sheriff’s sale,

because “[t]he failure of a pre-judgment record assigned mortgage and

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negotiated transferred note through the chain of loan title precludes

foreclosing lender’s authority/standing to have executed thereupon its

default judgment ….” Appellant’s Brief at 14. Essentially, Appellant claims

the sheriff had no authority to sell the property because HSBC Bank

allegedly lacked standing at the time it brought the suit. Id.

      We agree with the trial court that Appellant’s claim is meritless.

Standing is a non-jurisdictional and waivable issue. In re Condemnation

by Urban Redev. Auth. of Pittsburgh, 913 A.2d 178, 181 n.6 (Pa. 2006).

Any challenges to a party’s capacity to sue must be raised in preliminary

objections or in an answer to the complaint. In re Estate of Alexander,

758 A.2d 182, 189 (Pa. Super. 2000); see also Pa.R.C.P., Rule 1028(a)(5).

The issue of standing to sue is waived unless specifically raised in a

preliminary objection or in the answer to the complaint. Erie Indem. Co. v.

Coal Operators Cas. Co., 272 A.2d 465, 467 (Pa. 1971). Appellant never

challenged HSBC Bank’s standing during the foreclosure proceedings, and

has waived the issue. We also agree with the trial court that HSBC Bank’s

various pleadings and averments were adequate on their face to indicate

HSBC Bank’s standing was proper. Trial Court Opinion, 4/27/15, at 6-7.

      Accordingly, we adopt the April 27, 2015 opinion of the Honorable

Thomas C. Branca as our own for the purposes of our disposition of this

appeal.   We conclude the trial court did not abuse its discretion when it

denied Appellant’s petition to set aside the sheriff’s sale in this case. See


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Lark, supra.    Accordingly, we affirm the trial court’s October 21, 2014

order.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/28/2015




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