J-S54018-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

EVERBANK F/K/A EVERHOME MORTGAGE                  IN THE SUPERIOR COURT OF
F/K/A ALLIANCE MORTGAGE COMPANY                         PENNSYLVANIA

                           Appellee

                      v.

FRANCES A. MCKNIGHT

                           Appellant                  No. 3131 EDA 2014


                 Appeal from the Order Entered October 6, 2014
              In the Court of Common Pleas of Philadelphia County
                       Civil Division at No(s): 1209-00491

BEFORE: BOWES, J., PANELLA, J., and FITZGERALD, J.*

MEMORANDUM BY PANELLA, J.                          FILED OCTOBER 14, 2015

        Appellant, Frances A. McKnight, appeals from the order entered by the

Honorable Nina N. Wright Padilla, Court of Common Pleas of Philadelphia

County, which denied McKnight’s Motion to Set Aside Sheriff’s Sale of her

foreclosed property. We affirm.

        Appellee, EverBank,1 filed a complaint in mortgage foreclosure on

September 5, 2012.         On June 19, 2013, the trial court entered default

judgment against McKnight due to her failure to file an answer to the

complaint.     On February 24, 2014, McKnight filed a Petition to Postpone

*
    Former Justice specially assigned to the Superior Court.
1
  On August 26, 1994, McKnight mortgaged the subject property to
Columbia National, Inc. (“Columbia”) and concurrently executed a
promissory note in favor of Columbia. Columbia subsequently assigned the
mortgage to Alliance Mortgage Co., which later became EverBank, f/k/a
EverHome Mortgage Company due to an entity name change.
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Sheriff’s Sale. The trial court denied McKnight’s petition after she failed to

appear at the hearing. McKnight filed a second Petition to Postpone Sheriff’s

Sale on March 27, 2014. The trial court denied McKnight’s second petition.

      On April 1, 2014, McKnight’s property was sold at a sheriff’s sale.

McKnight filed a Motion to Set Aside Sheriff’s Sale, the subject of the instant

appeal, on August 14, 2014. McKnight admitted that she filed this motion

after the sheriff’s deed to the property was recorded.        See McKnight’s

Motion to Set Aside Sheriff’s Sale, 8/14/14, at ¶ 5. On September 29, 2014,

the trial court ruled that McKnight’s Motion to Set Aside Sheriff’s Sale was

untimely pursuant to Rule 3132 of the Pennsylvania Rules of Civil Procedure.

In addition, the trial court determined that McKnight’s allegations of fraud

and lack of authority were not pled with particularity. Accordingly, the trial

court dismissed McKnight’s motion. This timely appeal followed.

      On appeal, McKnight argues that the trial court erred in denying her

Motion to Set Aside Sheriff’s Sale on the grounds of fraud and lack of

authority. We review the denial of a motion to set aside a sheriff’s sale for

an abuse of discretion. See Irwin Union National Bank and Trust Co. v.

Famous, 4 A.3d 1099, 1102 (Pa. Super. 2010). “[T]he relevant inquiry is

whether proper cause has been shown to set aside the sheriff’s sale.” Id.

(citation omitted).   The burden of establishing proper cause lies with the

petitioner. See id. “Sheriff’s sales have been set aside where the validity of

the sale proceedings is challenged, a deficiency pertaining to the notice of

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the sale exists, or where misconduct occurs in the bidding process.”       Id.

(citation omitted).

      “[A] petition to set aside a sheriff’s sale may only be granted when the

petition is filed before the sheriff’s delivery of the deed.”       Mortgage

Electro. Registration Systems, Inc. v. Ralich, 982 A.2d 77, 79 (Pa.

Super. 2009) (citation omitted). There is, however, an exception to the time

bar. See id. Under this exception, a trial court may set aside a sheriff’s

sale after delivery of the sheriff’s deed based upon fraud or lack of authority

to make the sale. See id. Averments of fraud or mistake must be averred

with particularity. See Pa.R.C.P. 1019(b).

      In the instant case, McKnight failed to file her Motion to Set Aside

Sheriff’s Sale before the sheriff’s deed was recorded. Therefore, McKnight’s

motion was untimely.    Thus, in order to overcome the time bar, McKnight

must have pled her allegations of fraud and lack of authority with

particularity.

      In McKnight’s motion, she alleged that EverBank committed fraud or

did not have the authority to make the sale; however, she failed to plead

either averment with particularity. Instead, McKnight merely presented bare

accusations that EverBank did not have a pre-judgment negotiated note or

mortgage record assigned through the chain of loan title.         In addition,

McKnight alleged that fraud took place in the transaction of the sheriff’s sale

because the proceeds of her late husband’s mortgage life insurance should

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have paid off the subject mortgage debt. McKnight failed to provide a single

piece of evidence to support this assertion. See Pa.R.C.P. 1019(h-i).

      Accordingly, we find that the trial court properly denied McKnight’s

untimely motion to set aside and did not abuse its discretion. In order to

overcome the time bar, McKnight was required to plead fraud or lack of

authority with particularity, not merely allege fraud or lack of authority

generally, and we agree with the trial court that McKnight failed to do so. 2

In addition, it is clear from the record that EverBank was the pre-judgment

holder of the subject promissory note and mortgage.3 Thus, EverBank acted

with authority to commence the sale of the property. Because McKnight’s

Motion to Set Aside Sheriff’s Sale was not timely filed, and its untimeliness

was not excused by an exception, we affirm the trial court’s ruling.

      Order affirmed.




2
  McKnight raised several other issues on appeal unrelated to her allegations
of fraud and lack of authority. We need not discuss these issues, however,
because McKnight’s Motion to Set Aside Sheriff’s Sale was untimely and no
exception to the time bar applies. Thus, these issues are moot.
3
  According to EverBank’s Complaint, the promissory note and mortgage
were assigned to Alliance Mortgage Company, now EverBank, and recorded
with the Philadelphia Recorder of Deeds on February 28, 2003.           See
EverBank Complaint, filed September 5, 2012, at ¶ 1(d). Because McKnight
failed to file an answer to EverBank’s Complaint, these averments constitute
admissions. See P.R.C.P. 1029(b).

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/14/2015




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