J-A24012-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN RE: STATE RESOURCES CORP.                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

SPIRIT AND TRUTH WORSHIP AND
TRAINING CHURCH, INC.

                            Appellant                  No. 2992 EDA 2013


                   Appeal from the Order September 18, 2013
              In the Court of Common Pleas of Philadelphia County
                         Civil Division at No(s): 002767


BEFORE: GANTMAN, P.J., BENDER, P.J.E., and PLATT, J.*

MEMORANDUM BY GANTMAN, P.J.:                        FILED OCTOBER 24, 2014

       Appellant, Spirit and Truth Worship and Training Church, Inc., appeals

from the order entered in the Philadelphia County Court of Common Pleas,

denying Appellant’s “motion” to set aside sheriff’s sale.1 We affirm.

       The relevant facts and procedural history of this appeal are as follows.

On August 27, 2012, State Resources Corp. (“Appellee”) filed a complaint in

mortgage foreclosure against Appellant.        Appellant did not respond to the
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1
  Although Appellant styled its filing as a “motion” to set aside sheriff’s sale,
our rules of civil procedure mandate the filing of a “petition” under such
circumstances. See Pa.R.C.P. 3132 (stating, “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”).


_____________________________

*Retired Senior Judge assigned to the Superior Court.
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complaint.     On October 22, 2012, Appellee filed a praecipe for entry of

default judgment in the amount of $132,565.48. That same day, the court

entered judgment against Appellant. Appellee filed a praecipe for a writ of

execution on December 3, 2012. On March 5, 2013, Appellee purchased the

property at a sheriff’s sale for $8,600.00. Appellee was the only bidder for

the property.

       Prior to the delivery and recording of the deed, Appellant filed a

“motion” to set aside sheriff’s sale on March 20, 2013.      In it, Appellant

argued Appellee’s winning bid was far less than the amount owed on the

mortgage and/or the fair market value of the property.2 Appellant concluded

the court should set aside the sheriff’s sale on this basis. Appellee filed a

response in opposition on April 24, 2013. On June 4, 2013, the court denied

Appellant’s “motion” to set aside sheriff’s sale.

       Appellant filed a motion for reconsideration on June 14, 2013. In it,

Appellant complained the court had denied relief “without providing

[Appellant] an opportunity to present a revised property appraisal and

additional evidence…proving the Premises’ fair market value as compared to

the…purchase price.” (Motion for Reconsideration, filed 6/14/13, at 2). On

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2
  Regarding the fair market value, Appellant claimed: “The most recent
formal appraisal of the Premises, completed in May 2004, set the current
approximate fair market value of the property within a range of $325,000.00
to $750,000.00.” (Motion to Set Aside Sheriff’s Sale, filed 3/20/13, at 2).
Appellant attached a summary of the appraisal as an exhibit to the filing.



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June 19, 2013, the court granted Appellant’s motion for reconsideration and

issued a stay on all proceedings.              The court conducted a hearing on

September 18, 2013.3         Immediately following the hearing, the court again

denied Appellant’s “motion” to set aside sheriff’s sale.

       Appellant timely filed a notice of appeal on October 15, 2013.        On

October 16, 2013, the court ordered Appellant to file a concise statement of

errors complained of on appeal, pursuant to Pa.R.A.P. 1925(b).         Appellant

timely filed a Rule 1925(b) statement on November 5, 2013.

       Appellant now raises three issues for our review:

          DID THE TRIAL COURT ERR AS A MATTER OF LAW WHEN
          IT FAILED TO SET ASIDE THE SHERIFF’S SALE, ALTHOUGH
          APPELLEE’S PURCHASE [PRICE FOR] THE PROPERTY WAS
          GROSSLY INADEQUATE PURSUANT TO THE LAWS OF THE
          COMMONWEALTH OF PENNSYLVANIA?

          DID THE TRIAL COURT ERR AS A MATTER OF LAW WHEN
          IT FAILED TO SET ASIDE THE SHERIFF’S SALE WHERE THE
          EVIDENCE ESTABLISHED THAT THE SHERIFF’S SALE WAS
          NOT EXECUTED PROPERLY AND APPELLANT DID NOT HAVE
          AN OPPORTUNITY TO BID ON THE SUBJECT PROPERTY?

          DID THE TRIAL COURT ERR WHEN IT MADE A FACTUAL
          DETERMINATION THAT APPELLANT RECEIVED PROPER
          NOTICE OF THE PENDING SHERIFF SALE WHERE THE
          EVIDENCE OF RECORD DEMONSTRATED THAT APPELLANT
          WAS   NEVER   SERVED   WITH  THE  FORECLOSURE
          COMPLAINT, WAS NEVER NOTIFIED THAT A DEFAULT
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3
 The certified record does not include a transcript from the September 18,
2013 hearing. Nevertheless, the record contains a copy of a June 2013
appraisal report, which Appellant presented at the hearing. The June 2013
appraisal report estimated the fair market value of the property was
$647,000.00.



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          JUDGMENT WAS ENTERED AGAINST IT IN THE
          FORECLOSURE ACTION AND DID NOT RECEIVE NOTICE OF
          THE PENDING SHERIFF SALE OF THE SUBJECT PROPERTY
          PRIOR TO THE SALE?

(Appellant’s Brief at 4).4

       “The purpose of a sheriff’s sale in mortgage foreclosure proceedings is

to realize out of the land, the debt, interest, and costs which are due, or

have accrued to, the judgment creditor.”         GMAC Mortg. Corp. of PA v.

Buchanan, 929 A.2d 1164, 1167 (Pa.Super. 2007) (quoting Kaib v. Smith,

684 A.2d 630, 632 (Pa.Super. 1996)).

          A petition to set aside a sheriff’s sale is grounded in
          equitable principles and is addressed to the sound
          discretion of the hearing court. The burden of proving
          circumstances warranting the exercise of the court’s
          equitable powers rests on the petitioner….              When
          reviewing a trial court’s ruling on a petition to set aside a
          sheriff’s sale, we recognize that the court’s ruling is a
          discretionary one, and it will not be reversed on appeal
          unless there is a clear abuse of that discretion.

Buchanan, supra at 1167 (internal citations omitted).

       In its first issue, Appellant relies on Bank of America, N.A. v. Estate

of Hood, 47 A.3d 1208, 1212 (Pa.Super. 2012), appeal denied, 619 Pa.

670, 60 A.3d 534 (2012), for the proposition that a sheriff’s sale price is

“grossly inadequate where [the] sale price was a small percentage―roughly
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4
  Appellant’s statement of questions involved raises additional issues, which
do not correspond to the argument section of its brief. Specifically, the
argument section is divided into two parts, which overlap with the issues
included in the statement of questions involved. Consequently, we address
the issues set forth in the argument section of the brief.



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ten percent or less―of the established market value.” (Appellant’s Brief at

10). Appellant insists the $8,600.00 purchase price of the property was far

less than ten percent of the amount Appellant owed on the mortgage and/or

the fair market value of the property. Appellant concludes the court should

have set aside the sheriff’s sale. We disagree.

      The following principles govern our examination of the adequacy of the

price obtained for a property at a sheriff’s sale:

         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.

Estate of Hood, supra at 1211 (quoting Blue Ball Nat’l Bank v. Balmer,

810 A.2d 164, 166-67 (Pa.Super. 2002), appeal denied, 573 Pa. 662, 820

A.2d 702 (2003)) (emphasis added).

      Instantly, the trial court concluded:

         Here, Appellant twice has failed to rebut the presumption
         that the price paid at the sheriff’s sale was the best
         obtainable. In its initial Motion to Set Aside the Sheriff’s
         Sale, Appellant did not provide competent evidence of the
         current fair market value of the subject property.
         Appellant relied on an appraisal report from May 2004,
         which valued the subject property between $325,000.00
         and $750,000.00, to allege that the current market value

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         was between $450,000.00 and $850,000.00 without
         explanation of how Appellant calculated the new figures.

         When the court granted Appellant a second bite at the
         apple, Appellant offered an Appraisal Report dated June
         19, 2013, that valued the subject property at
         $647,000.00. However, assuming arguendo that the June
         19, 2013 Appraisal Report is accurate, it alone does not
         show that Appellee paid any amount less than the best
         obtainable price.     Appellant did not properly raise or
         present evidence to establish that Appellant was not
         notified of the sale, that the sale was not duly advertised,
         or that there was misinformation or confusion about the
         terms of the sale. Appellee, the judgment creditor, was
         the only bidder on the subject property at a duly
         advertised and lawfully conducted sheriff’s sale. Although
         there was no competitive bidding here, a factor upon which
         the Hood court relied, there were not any impediments to
         competitive bidding. Presumably, no one else bid on the
         subject property because no one else wanted it.

(See Trial Court Opinion, filed December 12, 2013, at 7-8) (internal citations

omitted).    We agree and emphasize that the record does not reveal any

procedural irregularities in the sheriff’s sale process. See Estate of Hood,

supra (indicating procedural irregularities can hamper competitive bidding

process and contribute to grossly inadequate sale price).      Therefore, the

court properly denied Appellant’s motion to set aside sheriff’s sale.     See

Buchanan, supra.

      Next, despite the wording in its statement of questions involved,

Appellant baldly asserts only that Appellee did not properly serve the

complaint.   Appellant, however, failed to raise this issue in the trial court.

Therefore, the issue is waived. See Pa.R.A.P. 302(a) (stating, “Issues not

raised in the [trial] court are waived and cannot be raised for the first time

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on appeal”). See also Manack v. Sandlin, 812 A.2d 676, 683 (Pa.Super.

2002), appeal denied, 572 Pa. 766, 819 A.2d 548 (2003) (holding

appellant’s failure to raise any objections in trial court regarding improper

service constituted waiver of issue on appeal).5 Accordingly, we affirm.

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/24/2014




____________________________________________


5
  Moreover, the certified record contains an affidavit of service, indicating a
process server served Appellant with the complaint, at the property, on
September 7, 2012. The affidavit stated that the process server handed the
complaint to Arande Freeman, an individual “who is authorized to accept
service” on Appellant’s behalf. (See Affidavit of Service, filed 9/12/12, at
1.) Absent more, the certified record does not reveal a defect in service of
the complaint. See Pa.R.C.P. 424(3) (explaining service of original process
upon corporation shall be made by handing copy to, inter alia, agent
authorized by corporation in writing to receive service of process for it).



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