J-A02007-15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37




THE BANK OF NEW YORK MELLON FKA                 IN THE SUPERIOR COURT OF
THE BANK OF NEW YORK, AS TRUSTEE                      PENNSYLVANIA
FOR THE CERTIFICATE HOLDERS OF THE
CWMBS INC., CHL MORTGAGE PASS-
THROUGH TRUST 2007-17, MORTGAGE
PASS-THROUGH CERTIFICATES, SERIES
2007-17

                         Appellee

                    v.

SAYEEDA CHUGHTAI

                         Appellant                   No. 1376 EDA 2014


                    Appeal from the Order of April 7, 2014
               In the Court of Common Pleas of Bucks County
                      Civil Division at No.: 2011-10305


BEFORE: PANELLA, J., LAZARUS, J., and WECHT, J.

CONCURRING MEMORANDUM BY WECHT, J.:                 FILED MARCH 20, 2015

      I agree with the learned majority that the trial court’s order must be

affirmed pursuant to this Court’s decision in U.S. Bank, N.A. v. Mallory,

982 A.2d 986 (Pa. Super. 2009). I write separately to address this Court’s

more recent decision in J.P. Morgan Chase Bank, N.A., v. Murray, 63

A.3d 1258 (Pa. Super. 2013), which Appellant Sayeeda Chughtai cites, but

which the majority does not discuss.

      Pennsylvania Rule of Civil Procedure 3132 provides as follows

regarding the requirements for setting aside a sheriff’s sale:
J-A02007-15


                       Rule 3132. Setting Aside Sale

      Upon petition of any party in interest before delivery 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 (emphasis added). It is well-settled that, once the sheriff’s

deed has been delivered to the sheriff’s sale purchaser, the sale may be set

aside only for “fraud or [the sheriff’s] lack of authority to make the sale.”

Mortgage     Elec.    Reg.   Sys.,   Inc.   v.   Ralich,   982   A.2d      77,   80

(Pa. Super. 2009). In this case, the sheriff’s deed was acknowledged by the

Bank of New York Mellon (“BNY”) approximately one week before Chughtai

filed his petition.   See Deed Poll, CPN #06-009-032, 9/18/2013, at 3.

Chughtai does not assert fraud, leaving his right to relief contingent upon his

ability to establish that the sheriff lacked authority to make the sale.

      In his petition to set aside the sheriff’s sale, Chughtai made only the

following bald allegation regarding the sheriff’s authority: “As of the date of

[default] judgment, [BNY] was not the record assigned mortgagee nor

recipient of the subject note such as to allow it to have taken judgment.”

Defendant Chughtai’s Motion to Set Aside Plaintiff’s Sheriff’s Foreclosure Sale

at 1 ¶ 4 (citing Mallory, supra).        The difficulty here is that, despite

undisputedly having received personal service of BNY’s foreclosure complaint

on the subject property, Chughtai did not contest BNY’s complaint, which led

to the entry of a default judgment. Chughtai also did not later seek to open

or strike that default judgment in a timely matter, effectively acquiescing to


                                      -2-
J-A02007-15



the judgment.      Because the sheriff’s authority lay in the writ of execution

entered upon the default judgment, which Chughtai also did not challenge,

only by establishing that the default judgment was void ab initio might

Chughtai prevail in his challenge to the sheriff’s sale.

       As noted, Chughtai never filed a petition to open or strike the default

judgment.     Because “[a] petition to open a judgment is addressed to the

equitable powers of the court and is a matter of judicial discretion,” and

because a petition to open must be filed “promptly” 1 and provide an excuse

for the failure to appear to defend the complaint in the first instance, see

Schultz v. Erie Ins. Exch., 477 A.2d 471, 472 (Pa. 1984), it seems clear to

me that this is relief to which Chughtai cannot credibly seek by whatever

means. A petition to open implicates a trial court’s discretion; it does not

concern jurisdictional matters or other wants of authority to enter judgment

that are the proper subject of a petition to strike.

       Turning to whether a duly presented petition to strike the judgment

could have prevailed, we have held that such a petition “operates as a

____________________________________________


1
       Pennsylvania courts seldom will review a petition to open that is not
filed within a few weeks of the entry of judgment. See Flynn v. Amer. W.
Airlines, 742 A.2d 695, 698 (Pa. Super. 1999) (noting that delays of fewer
than three weeks may be deemed insufficiently prompt, and deeming
“generous” the trial court’s determination in that case that twenty-four days
satisfied the promptness prong); Carducci v. Albright Galleries, Inc., 366
A.2d 577, 579 (Pa. Super. 1976) (finding delay of fifty-four days
insufficiently prompt, and citing cases finding fifty-five-day, twenty-seven-
day, and three-week delays insufficiently prompt).



                                           -3-
J-A02007-15



demurrer to the record. As such, it is not a matter calling for the exercise of

discretion.   A petition to strike a judgment may be granted only where a

fatal defect in the judgment appears on the face of the record.”             U.K.

LaSalle, Inc. v. Lawless, 618 A.2d 447, 449 (Pa. Super. 1992). Unlike a

petition to open a judgment, which is always subject to the promptness

requirement, only under certain circumstances does timeliness matter in the

context of a petition to strike. The determination of whether a petition to

strike must be filed within a “reasonable period following the entry of [a]

default judgment” depends upon “whether the facial defect rendered the

default judgment void or voidable.”            Erie Ins. Co. v. Bullard, 839 A.2d

383, 388 (Pa. Super. 2003).           A voidable judgment may be stricken only

when the petition is filed “within a reasonable period following the entry of

the judgment.”         Id.     Conversely, timeliness is immaterial when the

underlying judgment is void ab initio.            Id.   “[W]here 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 default judgment and the default

judgment will be considered void.” Mallory, 982 A.2d at 991.2

____________________________________________


2
       Although I have found no authority suggesting that, even in case of a
fatal defect, relief may be sought procedurally through a pleading other than
a petition to strike an unauthorized judgment, it seems at least colorable
that such would be the case. That such a circumstance eliminates the
promptness requirement on a petition to strike suggests the corollary that
the want of proper authority is so grave as to trump the precise method by
which the lack of authority is pleaded. For the reasons set forth herein and
(Footnote Continued Next Page)


                                           -4-
J-A02007-15



      In Mallory, upon which the majority relies, we found the face of the

record sufficient where the foreclosing party pleaded the existence and date

of the mortgage, the fact that the foreclosing party was the legal assignee of

the mortgage, and that the foreclosing party was in the process of

formalizing the assignment by recordation. That the assignment had not in

fact been recorded at the time that the complaint was filed did not render

the record deficient on its face such that the judgment was void; at most it

merely was voidable. Id. at 992-93.

      In the instant case, the foreclosure complaint in fact was more

informative than the complaint in Mallory, which we found adequate to

avoid a finding that the judgment was void ab initio. As in Mallory, BNY in

this case pleaded that it was the holder of the underlying mortgage, satisfied

all other pleading requirements for such a complaint, and attached the

mortgage to the complaint.3 Compare Complaint at ¶ 3 with Mallory, 982

A.2d at 992. Indeed, in this case, unlike in Mallory, BNY averred that the

assignment of the mortgage had been recorded; in Mallory, the plaintiff

only asserted that an assignment had occurred and that the plaintiff was in

the process of recording the assignment.          This Court held that the

substantive requirement of such an averment was to ensure that the
                       _______________________
(Footnote Continued)

in the majority’s memorandum, this case does not require us to address the
question.
3
      See Pa.R.C.P. 1147 (specifying pleading requirements for complaint in
foreclosure).



                                            -5-
J-A02007-15



plaintiff’s complaint “sufficiently put [the mortgagor] on notice of [the

plaintiff’s] claim of interest with regard to the subject mortgage.” 982 A.2d

at 993. It is clear that, in this case, Chughtai received ample notice of BNY’s

claim of interest via personal service of the foreclosure complaint.

      Chughtai contends that, in Murray, supra, this Court held that “[i]n

order to have ‘authority’ to foreclose upon a mortgage, the foreclosing

[party] must have a pre-judgment assigned mortgage and [a] negotiated

transferred note.”   Brief for Chughtai at 12.   In effect, Chughtai does not

dispute that, per Mallory, BNY duly pleaded that it was the assignee of the

mortgage, but implies that Murray limited Mallory by holding that a

foreclosing party may not seek judgment, by default or otherwise, unless it

establishes possession of the note, as distinct from the mortgage. Chughtai

contends that, because BNY did not plead possession of the note or attach it

to its complaint in foreclosure, the record was defective on its face, the

prothonotary lacked authority to enter default judgment, BNY was not

entitled to a writ of execution, and the sheriff therefore lacked authority to

conduct a sale of the property.

      Even if this all were true, and even if the trial court was permitted (or

required) to treat Chughtai’s petition to set aside the sheriff’s sale like a

motion to strike for want of authority, see n.2, supra, in this case the

petition, treated as a petition to strike, would be untimely unless the

judgment was void ab initio rather than merely voidable.       See Oswald v.

WB Public Square Assocs., LLC, 80 A.3d 790, 797 (Pa. Super. 2013)

                                     -6-
J-A02007-15



(“The general rule is that “judgments which are void ab initio are those

which the prothonotary was without authority to enter in the first place,”

i.e., those in which a fatal defect appeared on the face of the pleadings.

(internal quotation marks omitted)) (citing Erie Ins. Co. v. Bullard, 839

A.2d 383 (Pa. Super. 2003)).    Because Mallory authorized the entry of a

default judgment despite the fact that the mortgage assignment had merely

been pleaded but was not memorialized by recordation, it is clear that, at

least in the context of a default judgment, merely pleading possession of the

mortgage rendered the pleadings facially adequate to support the entry of

the default judgment.      Consequently, any other defect, such as the

purported lack of proof of possession of the note, implicated the judgment’s

voidability, not voidness ab initio.    Thus, only if Chughtai had sought to

strike the judgment promptly would he be entitled to relief. There can be

no reasonable dispute that Chughtai’s delay of over twenty months after the

entry of the default judgment before appearing in any fashion was not

sufficiently prompt.    Consequently, the sheriff’s authority cannot be

questioned.

      Nonetheless, a word is due concerning this Court’s decision in Murray.

In that case, this Court recognized and did not undermine Mallory’s holding

that, to sustain a default judgment, the foreclosing party need only aver that

it is the assignee of the relevant mortgage, not that the assignment has

been recorded. Id. However, we held in Murray that the documents upon

which the foreclosure is based, including the note, must be produced when

                                       -7-
J-A02007-15



properly challenged. In that case, we reversed the trial court’s entry of

summary judgment because the mortgagor, in its duly and timely pleaded

answer and response to the foreclosing party’s motion for summary

judgment, created a question of fact regarding the mortgagee’s actual

possession of the note underlying the mortgage.        We held that actual

possession was essential to establishing the right to foreclosure because the

creditor’s possession of the note, as a negotiable instrument under the

Uniform Commercial Code, was essential to the right to foreclose upon the

mortgage securing the debt.    See id. at 1267-1268.     Thus, per Mallory,

while merely pleading that the mortgagee possesses the relevant mortgage

may sustain a default judgment, per Murray, a mortgagor’s duly and timely

pleaded challenge to the mortgagee’s possession of the relevant note

creates an issue of fact such that the foreclosing party must establish

possession of the note before a contested judgment in foreclosure may be

entered.

     The majority’s decision not to cite or discuss Murray, despite

Chughtai’s reliance upon that case, is not by itself problematic.   Mallory

plainly is applicable to the instant case, whereas Murray addresses a

distinct circumstance in which the foreclosure defendant did not effectively

waive his opportunity to defend the action. I simply wish to emphasize that

Murray has added to the Mallory analysis by introducing the requirement

that foreclosing mortgagees produce the note memorializing the debt

secured by the mortgage when a mortgagor duly challenges the foreclosing

                                    -8-
J-A02007-15



party to do so. The law continues to evolve in this area. See, e.g., PHH

Mortgage Corp. v. Powell, 100 A.3d 611 (Pa. Super. 2014); U.S. Bank,

Nat’l Ass’n v. Zimmer, No. 3:12-CV-644, 2015 WL 412389 (M.D.Pa. Jan.

30, 2015).




                                 -9-
