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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

SUN WEST MORTGAGE COMPANY,                         IN THE SUPERIOR COURT
                                                             OF
                                                        PENNSYLVANIA
                             Appellee

                        v.

ANTIWONE M. SANDERS,

                             Appellant                No. 3504 EDA 2017


               Appeal from the Order Entered October 3, 2017
            In the Court of Common Pleas of Philadelphia County
                  Civil Division at No(s): Case# 150301423


BEFORE: BENDER, P.J.E., BOWES, J., and NICHOLS, J.

MEMORANDUM BY BENDER, P.J.E.:                        FILED MARCH 28, 2019

      Appellant, Antiwone M. Sanders, appeals pro se from the trial court’s

October 3, 2017 order denying his petition to set aside the sheriff’s sale of his

property at 177 South 55th Street, Philadelphia, Pennsylvania (referred to

herein as “the Property”). We affirm.

      The trial court summarized the factual and procedural background of

this case as follows:
      On March 10, 2015, … Sun West Mortgage Company, Inc. (“Sun
      West”)[,] commenced a mortgage foreclosure action against Mr.
      Sanders for nonpayment of a mortgage on the Property. Shortly
      after commencing the action, Sun West assigned the mortgage to
      Lakeview Loan Servicing, LLC (“Lakeview”).1 After failing to locate
      Mr. Sanders to affect original service of the complaint, Sun West
      moved for alternative service. The [c]ourt granted the motion,
      ordering that the complaint be posted at the Property and mailed
      to Mr. Sanders at his last-known address by regular and certified
      mail, return receipt requested.2       Sun West reinstated the
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       complaint and promptly affected original service in compliance
       with the order. Mr. Sanders did not respond to the complaint.
          1 Sun West assigned the mortgage to Lakeview on April 24,
          2015. Lakeview recorded the assignment on May 6, 2015.
          On August 5, 2016, Sun West filed a praecipe with the
          [c]ourt to substitute Lakeview as plaintiff.[1]
          2  Sun West performed a good faith investigation to
          determine the whereabouts of Mr. Sanders. Mr. Sanders’s
          last known address as of April 21, 2015 was 255 Scottdale
          Road, Unit A109, Lansdowne, Pennsylvania 19050.

       Sun West did not initially seek a default judgment. Sun West
       instead reinstated the complaint and, on November 18, 2015,
       through its process server, attempted and failed to personally
       serve the complaint on Mr. Sanders at the Property. A Delaware
       County deputy sheriff finally personally served the complaint on
       Mr. Sanders on November 22, 2015[,] at his last-known address.
       Mr. Sanders again failed to respond to the complaint.

       Mr. Sanders made his first filing in this matter to preliminarily
       object to the complaint on January 14, 2016 — more than six
       months after Sun West affected original service pursuant to the
       [c]ourt’s May 26, 2015 order. The [c]ourt overruled Mr. Sanders’s
       preliminary objections and ordered him to answer the complaint.
       Mr. Sanders answered as ordered and the [c]ourt scheduled the
       matter for trial before the Honorable Gene D. Cohen on October
       24, 2016. Despite ample notice, Mr. Sanders failed to appear at
       trial. Judge Cohen entered default judgment against Mr. Sanders
       for $116,941[,] and the [c]ourt, on praecipe, issued a writ of
       execution directing the Philadelphia County Sheriff to sell the
       Property to satisfy the judgment, costs and interest.

       Mr. Sanders appealed to the Superior Court without first
       petitioning the [c]ourt to open or strike the default judgment.
       Judge Cohen ordered[,] and Mr. Sanders filed[,] a statement of
       errors complained of on appeal. Judge Cohen, in support of his
       decision to enter default judgment post trial, explained that the
       appeal should be quashed because: (1) Mr. Sanders did not file a
       petition to open or strike the default judgment before filing his
       appeal, as required by Pennsylvania Rule of Civil Procedure 206.1;
____________________________________________


1 Although Sun West filed a praecipe to substitute Lakeview as the plaintiff, it
did not seek to have the caption amended.

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     and (2) Mr. Sanders’s statement of errors was “rambling and
     incoherent, making it impossible for the [c]ourt to properly
     address whatever issues he wished to raise.” The Superior Court
     quashed Mr. Sanders’s appeal as interlocutory, noting that an
     appeal may be taken from a petition to strike or open default
     judgment.

     On February 13, 2017, Mr. Sanders [filed] a Suggestion of
     Bankruptcy seeking an automatic stay of the sheriff’s sale.3
     Lakeview postponed the sheriff[’]s sale during the pendency of
     the bankruptcy proceeding, which the U.S. Bankruptcy Court
     ultimately dismissed on April 17, 2018. (Dismissal Order, U.S.
     Bankruptcy Court (EDPA) Dkt. 17-18216AMC at 04/17/18). In its
     order, the U.S. Bankruptcy Court noted that Victor A. Milbourne,
     the purported owner of the Property, had filed three prior
     bankruptcy cases, all of which had been dismissed.            The
     bankruptcy court barred Mr. Milbourne from filing any future
     bankruptcy cases for a period of 365 days without first seeking
     court approval. Lakeview then affected service of the notice of
     the sale of the Property on Mr. Sanders in accordance with this
     [c]ourt’s service order. Mr. Sanders made no attempt to stay the
     sale again. On July 11, 2017, the Philadelphia County Sheriff sold
     the Property to McCabe, Weisberg, and Conway, P.C. for $79,100.
        3 The bankruptcy petition attached to the Suggestion of
        Bankruptcy was filed by Victor Allen Milbourne “Ex Rel
        ‘Antiwone M. Sanders.’”      Mr. Sanders stated that Mr.
        Milbourne was the “real owner” of the Property, and that
        consequently, “an automatic stay is now in effect.” Mr.
        Sanders did not attach a deed conveying the Property to Mr.
        Milbourne. The chain of title instead shows that Victor A.
        Milbourne and Cynthia Milbourne-Cassett conveyed the
        Property to Mr. Sanders on January 24, 2013. Nothing on
        the record suggests that Mr. Sanders then conveyed the
        Property back to Mr. Milbourne or that his Suggestion of
        Bankruptcy was anything more than a ploy to
        administratively stay the sale.

     On August 10, 2017, Mr. Sanders petitioned the [c]ourt to set
     aside the sheriff’s sale.4 The [c]ourt denied Mr. Sanders’s petition,
     which he timely appealed to the Superior Court.
        4 Lakeview concedes that Mr. Sanders filed his petition
        before the deed to the Property was delivered.



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Trial Court Opinion (TCO), 7/20/2018, at 1-4 (most internal citations omitted).

      The trial court did not order Mr. Sanders to file a Pa.R.A.P. 1925(b)

concise statement of errors complained of on appeal. On July 20, 2018, the

trial court issued its Rule 1925(a) opinion.

      On appeal, Mr. Sanders raises the following issues for our review:
      1. Did the [t]rial [c]ourt err by refusing to vacate or set aside the
      illegal default judgment especially where the [a]nswer of [Mr.
      Sanders] was plainly entered on time and even replied to by [Sun
      West]?

      2. Is it a fundamental [e]rror of law that Pennsylvania [c]ourts do
      not issue a decree granting or denying the inherently discretionary
      relief in the “foreclosure of a mortgage” and “sale of the property
      by the [s]heriff” under Pa.R.C.P. 1037(d) and only [do so] after
      proper petition?

      3. Was the trial [c]ourt required as a matter of law to vacate the
      underlying “mortgage judgment” obtained by summary judgment
      where the complaint itself failed to conform with a substantive rule
      of court at Pa.R.C.P. 1024(a) [and] (c) in the verification of the
      pleadings, and did this in effect allow a champertous suit to
      proceed in the name of an unverified [p]laintiff while actually
      underwritten by the nonparty debt collector?

      4. Was the [s]heriff[’s] [s]ale illegal or unlawful by “shorting” the
      [w]rit of [e]xecution and selling the [P]roperty for less than the
      total of “the judgment, interests and costs” as established in Kaib
      v. Smith, 684 A.2d 630, 632 (Pa. Super. 1996), and did this
      “short sale” therefore fail to divest the mortgagor of his title as an
      “incomplete payment[?”]

      5. Does the failure of Pennsylvania law to require “adequate
      compensation” at “fair price” for the “public taking” by a “[p]ublic
      [o]fficer” in a “[s]heriff[’s] [s]ale” make an unconstitutional
      breach of substantive property and due process rights?

      6. Was [Lakeview’s] [m]ortgage [j]udgment a clog on the [e]quity
      of [r]edemption for being twice the [s]ale [p]rice and the [c]ourt
      must therefore set aside the [s]heriff[’s] [s]ale and that the failure
      to do so was a manifest abuse of discretion?


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        7. Does the failure of Pennsylvania law to guarantee sale price
        redemption make an unconstitutional breach of substantive
        property and due process rights, and that the [c]ourt must
        therefore [o]rder [s]ale [p]rice [r]edemption as a matter of law
        analog to the procedure for “[j]udicial [t]ax [s]ales” in this
        [s]tate?

        8. Did the [c]ourt err as a matter of [l]aw in refusing to vacate
        the mortgage judgment where the underlying [c]omplaint failed
        to state any “grounds” for a mortgage foreclosure remedy as
        under Pa.R.C.P. 1146?

        9. Was [Sun West’s] failure to first present the mortgage note for
        exchange at the “place of payment” pursuant to the [Pennsylvania
        Uniform Commercial Code (PUCC)2] § 3-501 or to obtain a
        discharge as under Gerber v. Piergrossi[, 142 A.3d 854 (Pa.
        Super. 2016),] a prima facie fatal defect in the underlying
        complaint where negotiable instruments are personal claims
        barred in foreclosure cases under [R]ules 1141, 1146 [and] 1148?

        10. “Mortgage foreclosure” being the wrong form of action for
        “negotiable instruments” (“in rem vs. in personam”), did the
        [c]ourt err as a matter of law by refusing to strike the “in rem”
        mortgage judgment that [was] obtained on a fictitious and illegal
        personal obligation instead of setting forth the “assignments of
        mortgage debt” as the “real interested party” as under Pa.R.C.P.
        1147?

        11. Is it an [e]rror of [l]aw where real estate is inherently excluded
        from negotiable collateral by definition and therefore impossible
        to state a claim for which relief could be granted, relating to both
        the “Uniform Commercial Code” in the same cause of action as for
        “[i]n [r]em [m]ortgage [f]oreclosure [a]gainst [l]and [p]arcels”
        especially where land is an immovable thing and negotiable
        instruments relate to tokens of exchange for things which are
        actually movable?

        12. Is a Pennsylvania trial court bound by the Supremacy Clause
        of the United States Constitution to “make nothing but gold or
        silver tender for debt” as under Article I[,] Section 10 [of the]
        United States Constitution, and therefore all banking debts based
        on the expansion of credit-entries are fictitious claims that cannot
        be given the substance of law unless the [c]ourts will render
____________________________________________


2   13 Pa.C.S. §§ 1101-9809.

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      judgment in the value of lawful United States gold or silver
      money?

      13. Was it therefore[,] in light of the total circumstance[s,] more
      efficient and reasonable to exercise the power of sound discretion
      and impose a “constructive trust” or to recognize that the modern
      banking relationship is a ‘resulting trust’ where the mortgagor is
      actually a securitization trustor with the right or equity to see a
      continuation of the underlying FDIC “fair value” guarantee, along
      with a substantial vicarious interest in the benefits of the FDIC
      “80% Loss Sharing” arrangement as pl[ed] within the underlying
      [m]otion?

      14. Did [Sun West] even have standing to sue at the beginning of
      this case where at best [it] held an open endorsed circulating
      instrument with no relation or bearing on the right to enforce
      payments under the mortgage?

Mr. Sanders’s Brief at 11-15 (unnecessary emphasis omitted).

      At the outset, we agree with the trial court and Lakeview that Mr.

Sanders’s arguments are rambling and unclear. See TCO at 6 n.5 (noting that

Mr. Sanders “raised several rambling and incoherent arguments challenging

the judgment”); Lakeview’s Brief at 7 (assessing that Mr. Sanders’s

arguments are “nonsensical and find no support in the law”). While we are

“willing to liberally construe materials filed by a pro se litigant, pro se status

confers no special benefit upon the appellant. To the contrary, any person

choosing to represent himself in a legal proceeding must, to a reasonable

extent, assume that his lack of expertise and legal training will be his

undoing.”    In re Ullman, 995 A.2d 1207, 1211-12 (Pa. Super. 2010)

(citations omitted). Here, Mr. Sanders’s arguments either contain no citation

to relevant supporting authority or the record, see Mr. Sanders’s Brief at 33,

50-56, 57-59, 82-83, propose new law and policy, see id. at 38, 45-46, 48-


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50, 83-89, 89-91, and/or consist of underdeveloped, unintelligible assertions,

see id. at 46-47, 60-68, 68-76. Accordingly, we deem all of his arguments

waived.    See Commonwealth v. Hardy, 918 A.2d 766, 771 (Pa. Super.

2007) (“This Court will not act as counsel and will not develop arguments on

behalf of an appellant. Moreover, when defects in a brief impede our ability

to conduct meaningful appellate review, we may dismiss the appeal entirely

or find certain issues to be waived.”) (citations omitted).3

       Furthermore, even if Mr. Sanders’s arguments were properly developed,

we observe that many of his issues appear not to pertain to the trial court’s

order denying his petition to set aside the sheriff’s sale. Instead, most of Mr.

Sanders’s issues contest matters relating to the judgment in mortgage

foreclosure, rather than the propriety of the sheriff’s sale. With respect to


____________________________________________


3We also note that Mr. Sanders’s brief — which has a nearly 20-page summary
of argument section, almost 60-page argument section, and roughly 10-page
“Addendum” section advancing additional arguments —does not comply with
our length requirements. See Pa.R.A.P. 2135(a) (stating that a principal brief
shall not exceed 14,000 words). Although he includes a certificate of word
count compliance in his brief, Mr. Sanders acknowledges his lack of compliance
with Rule 2135(a), asking us to relieve him from having to abide by its
requirements. Mr. Sanders’s Brief at 102. Thus, he was aware of the rule,
chose not to follow it, and failed to request prior approval from this Court to
exceed our length limitations. We admonish him for doing so. See Pa.R.A.P.
2101 (“Briefs and reproduced records shall conform in all material respects
with the requirements of these rules as nearly as the circumstances of the
particular case will admit, otherwise they may be suppressed, and, if the
defects are in the brief or reproduced record of the appellant and are
substantial, the appeal or other matter may be quashed or dismissed.”);
Commonwealth v. Vurimindi, -- A.3d --, 2018 WL 6581497, at *7 n.19 (Pa.
Super. filed Dec. 14, 2018) (relying on Pa.R.A.P. 2101 and noting that this
Court could dismiss the pro se appellant’s appeal “for his lengthy brief alone”).

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such issues, the trial court discerned, “[n]one of these argument[s] was timely

and none was preceded by a petition to strike or open as required by the

Superior Court.” TCO at 6 n.5 (citation omitted). See also Lakeview’s Brief

at 7 (arguing that “a final judgment in foreclosure may not be collaterally

attacked by the foreclosure defendant in an appeal of a trial court order

refusing to set aside a subsequent sheriff’s sale”).        We would agree.

Specifically, we reiterate that the trial court entered default judgment in

mortgage foreclosure in favor of Lakeview after Mr. Sanders failed to appear

at trial.   Although Mr. Sanders subsequently filed an appeal, this Court

quashed it because an appeal taken from an order “entering a default

judgment is interlocutory and unappealable.” Order, 1/17/2017 (single page).

Therein, we explained that “an appeal may be taken from an order denying a

petition to strike a judgment.” Id. (citations omitted). Nevertheless, after

this Court quashed his appeal, Mr. Sanders took no further action against the

foreclosure judgment. It is not appropriate for him to challenge it now, and

he cites no pertinent authority to convince us otherwise.

      As for the issues numbered 4, 5, and 7, supra, which pertain to the

sheriff’s sale, we would consider them waived because of Mr. Sanders’s failure

to clearly raise them in his August 10, 2017 petition to set aside the sheriff’s

sale. See also TCO at 5-6 (construing Mr. Sanders’s petition as “attacking

the adequacy of the sale price”); Lakeview’s Brief at 11-12, 14-16 (discerning

that Mr. Sanders did not raise the same arguments below and insisting that

Mr. Sanders’s “arguments, though sharing certain common words or phrases

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with [his] arguments below, are substantially different and raised for the first

time on appeal”). It is well-established that “[i]ssues not raised in the lower

court are waived and cannot be raised for the first time on appeal.” Pa.R.A.P.

302(a).

      With respect to the issue numbered 6 above, Mr. Sanders appears to

argue that Lakeview’s mortgage was a clog on the equity of redemption, and

if his property sold for $79,100, he “was entitled to pay the mortgage claim

at that number as well.” Mr. Sanders’s Brief at 51. Even if this argument had

not been waived, we would reject it. As Lakeview points out, “there is no logic

in the argument that a sale that leaves the judgment creditor only partially

satisfied should somehow inure to the debtor’s benefit or otherwise reduce the

amount he must pay his creditor in his obligation.” Lakeview’s Brief at 16

(footnote omitted). It persuasively discerns that “such a rule would give rise

to an obvious moral hazard inviting borrowers to default on their secured loans

whenever the value of the security collateral falls below the payoff, thus

permitting a crafty borrower to foist a short payoff on his lender.” Id. at 17.

Further, Lakeview argues that “in Pennsylvania, a mortgagor’s equity of

redemption is effectively cut off an hour before the sheriff’s sale, so tying the

redemption amount to a subsequent sale bid is a temporal impossibility even

if it did have some logical appeal.” Id. at 16 (citing Peoples Bank v. Dorsey,

683 A.2d 291, 296 (Pa. Super. 1996), and 41 P.S. § 404(a)).

      Finally, it is unclear to us whether Mr. Sanders continues to contest the

adequacy of the sale price on appeal.       See also Lakeview’s Brief at 13

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(observing that Mr. Sanders does not advance an argument relating to the

gross inadequacy of the sale price on appeal). Thus, on this basis, we would

deem this argument waived.        See Hardy, supra.       Even if not waived,

however, the trial court aptly explained:
      Whether to set aside a sheriff’s sale is within the sound discretion
      of the trial [c]ourt. Nat’l Penn Bank v. Shaffer, 672 A.2d 326,
      328 (Pa. Super. 1996). The Superior Court will not reverse a trial
      court’s decision to grant or deny a petition to set aside unless the
      lower court clearly abused its discretion. Id. An abuse of
      discretion is not just an error in judgment. Id. The trial court
      abuses its discretion when it overrides or misapplies the law or
      when the decision in question is manifestly unreasonable or the
      result of partiality, prejudice, bias or ill-will, as shown by the
      evidence of record. Id. Equitable principles govern whether to
      set aside a sheriff’s sale. Id. at 329. The party seeking [to] set
      aside bears that burden to prove circumstances warranting
      exercise of a trial court’s equitable powers. Id. Consequently,
      the trial court may deny a petition to set aside a sheriff’s sale
      [where] the petitioner fails to raise sufficient evidence to support
      his or her material allegations, which must be established by clear
      and convincing evidence. Id.

      The [c]ourt did not err by determining that the final bidding price
      was adequate and not a sufficient basis for setting aside the
      sheriff’s sale. A trial court, upon proper cause, may set aside a
      sheriff’s sale “[u]pon petition of any party in interest before
      delivery of the personal or of the sheriff’s deed….” Pa.R.C.P.
      3132…. Courts have entertained such petitions and granted relief
      in instances where the validity of the sale proceedings was
      challenged, a deficiency pertaining to the notice of sale existed or
      misconduct occurred in the bidding process. Blue Ball Nat’l
      Bank v. Balmer, 810 A.2d 164, 166 (Pa. Super. 2002) (citing
      Nat’l Penn Bank…, 672 A.2d at 329-31).

      There is proper cause to set aside a sheriff’s sale where the final
      sale price is a “gross inadequacy.” Blue Ball Nat’l Bank, 810
      A.2d at 167. The price received at a duly advertised public sale is
      presumed to be the highest and best price obtainable. First
      Federal Sav. & Loan Assoc. v. Swift, 321 A.2d 895, 897 n.4
      (Pa. 1974). The Superior Court has evaluated the adequacy of


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      the final selling price by comparing it to the Property’s market
      value. Compare Blue Ball Nat’l Bank, 810 A.2d at 168
      (affirming that a purchase price that was 72 to 75 percent of the
      Property’s appraisal was not grossly inadequate) with Bank of
      America, N.A. v. Estate of Hood, 47 A.3d 1208, 1212 (Pa.
      Super. 2012) (reversing a trial court’s decision that a sale for 44
      percent of what another purchaser would have paid was grossly
      inadequate).

      In this case, according to Mr. Sanders, the fair-market value of
      the Property at the time of the sheriff’s sale was $106,400. At the
      sheriff’s sale, the Property sold for $79,100. This purchase price
      amounts to 74 percent of the Property’s market value. This is
      within the range of prices the Superior Court accepted in Blue
      Ball and Hood. See Blue Ball Nat’l Bank, 810 A.2d at 168;
      Estate of Hood, 47 A.3d at 1212. Mr. Sanders therefore failed
      to meet his burden of proving proper cause to set aside the
      sheriff’s sale because the final sale price was not grossly
      inadequate.

TCO at 4-6 (headings, citations to the record, and footnote omitted; some

brackets added).    We see no abuse of discretion by the trial court in its

analysis. Accordingly, no relief would be due on this basis.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/28/19




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