J-S40044-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

FEDERAL NATIONAL MORTGAGE                       :        IN THE SUPERIOR COURT OF
ASSOCIATION                                     :              PENNSYLVANIA
                                                :
                 v.                             :
                                                :
JEBEH KAWAH,                                    :
                                                :
                      Appellant                 :             No. 2704 EDA 2015

                Appeal from the Order entered on August 12, 2015
              in the Court of Common Pleas of Philadelphia County,
          Civil Division, No(s): September Term 2014 No. 140902577

BEFORE: BOWES, MUNDY and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                                   FILED JULY 22, 2016

        Jebeh Kawah (“Kawah”), pro se, appeals from the Order granting the

Motion     for    Summary    Judgment   filed       by   Federal   National   Mortgage

Association (“Fannie Mae”).1 We affirm.

        On January 3, 2005, Kawah executed a mortgage on property located

at 12135 Academy Road #25, in Philadelphia, Pennsylvania (“the Property”),

which was duly recorded.          On May 19, 2009, PHH Mortgage Corporation

(“PHH”)2 commenced mortgage foreclosure proceedings against Kawah. The



1
 We note that the United States Bankruptcy Court for the Eastern District of
Pennsylvania has ordered that “Relief from the Automatic stay of all
proceedings, as provided under 11 U.S.C. § 362 is granted with respect to[]
12135 Academy Road # 26, Philadelphia, PA, 19154-2942 … as to allow
Movant [Fannie Mae] … to proceed with its rights under the terms of said
Mortgage[.]” In re: Jebeh Brown, BK. No. 16-10290 AMC (Bankr. E.D.
Pa. 7/15/16) (order). Accordingly, as it relates to the instant appeal
docketed in this Court, any stay with regard thereto has been lifted.
2
    PHH is not a party to the instant proceedings.
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Complaint in Foreclosure (“the Foreclosure Complaint”) averred that Kawah

had failed to make a payment of principal and interest due on June 1, 2008,

and every payment due thereafter. Foreclosure Compliant, 5/19/09, at ¶ 5.

The Foreclosure Complaint sought an in rem judgment against Kawah in the

amount of $112,549.99. Id. at ¶ 6. On April 16, 2010, a default judgment

was entered against Kawah, based upon her failure to file an answer to the

Foreclosure Complaint. Judgment, 4/16/10. Kawah filed no appeal of the

default judgment.

      Pursuant to a Writ of Execution, the Property was sold to PHH, at a

sheriff’s sale, on October 5, 2010.       Subsequent to the sheriff’s sale,

however, PHH was advised of Kawah’s participation in the Home Affordable

Modification Program (“HAMP”).3 On March 2, 2011, Kawah filed a Motion to

set aside the sheriff’s sale and strike the deed, which the trial court granted

on April 18, 2011.

      In October 2011, upon being informed that Kawah had missed

payments under HAMP, PHH filed a Writ of execution to enforce the April 16,

2010 default judgment.     As a result, the Property was sold to PHH at a

sheriff’s sale held on October 2, 2012. The Sheriff of Philadelphia executed

a deed to PHH, which was duly recorded.                However, because of

3
  HAMP is a program of the United States Departments of the Treasury &
Housing and Urban Development. HAMP was created pursuant to the
Emergency Economic Stabilization Act, 12 U.S.C.A. § 5201, for the purpose
of assisting homeowners who defaulted on their mortgages, or are in
imminent risk of default, by reducing their monthly payments to sustainable
levels.


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discrepancies in the correspondence and documents given to Kawah

regarding loss mitigation, PHH moved to set aside the October 2, 2012

sheriff’s sale and to rescind the deed. The trial court granted PHH’s Motion

on December 26, 2013.         Subsequently, on July 1, 2014, Fannie Mae

purchased the Property at a sheriff’s sale.

      In its Opinion, the trial court aptly summarized what next transpired

as follows:

      [The instant] case commenced with the filing of [Fannie Mae’s]
      Complaint in Possession. The Complaint averred that [Fannie
      Mae] had purchased the Property … at [a] [s]heriff’s [s]ale[,]
      and was thus entitled to immediate possession of the Property.
      [Fannie Mae] averred that [Kawah] was occupying the Property
      without right and without claim of title, and that [Fannie Mae]
      had demanded possession of the property from [Kawah], who
      had refused to deliver it.

             On October 23, 2014, [Kawah] filed a[ pro se] Answer to
      [Fannie Mae’s] Complaint. [Kawah] argued that in December,
      2013, [PHH] had set aside the [s]heriff’s [s]ale of the [P]roperty,
      and that the “present [N]otice of [s]heriff’s sale[,] which resulted
      in [Fannie Mae’s] acquiring of deeds on the Property[,] comes
      without any subsequent foreclosure action against [Kawah]
      following PHH’s prior action to set aside [s]heriff’s sale, thereby
      disallowing [Kawah] any opportunity through due process to
      defend against PHH’s [s]heriff’s sale of the Property.”

            On June 16, 2015, [Fannie Mae] filed a Motion for
      Summary Judgment. The Motion averred that [Fannie Mae] was
      the successful bidder at a [s]heriff’s [s]ale held [on] July 1,
      2014, and that through that sale[, Fannie Mae] became the
      owner of the Property. The [d]eed was recorded on September
      3, 2014[,] at Document No. 52823582. The Motion averred that
      [Fannie Mae] had notified [Kawah] of its ownership on
      September 9, 2014, and advised her to vacate the premises.
      The Motion further averred that [Kawah] had not pled any
      defense to an action in ejectment, and that she had admitted
      paragraph (3) of the Complaint, which averred that a true and


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      correct copy of the [s]heriff’s [d]eed[,] reflecting [Fannie Mae’s]
      ownership of the Property[,] was attached to the Complaint as
      Exhibit A.    The Motion further averred that [Kawah] had
      admitted [that] there was no lease agreement to the Property;
      that she had received the [N]otice to vacate; and still resides at
      the Property.

           On August 10, 2015, [Kawah]             filed an Answer in
      Opposition to [Fannie Mae’s] Motion for       Summary Judgment.
      [Kawah] did not address any defenses or      arguments in relation
      to an action in ejectment[,] but instead      put forth arguments
      based on her foreclosure action.

           On August 13, 2015, [the trial court] granted [Fannie
      Mae’s] Motion for Summary Judgment.

Trial Court Opinion, 10/14/14, at 1-2 (some capitalization omitted). Kawah

filed the instant, timely appeal of the trial court’s Order, followed by a court-

ordered Pa.R.A.P. 1925(b) Concise Statement of matters complained of on

appeal.

      Kawah now presents the following claim for our review:           “Did the

[t]rial [c]ourt err as a matter of law in granting [Fannie Mae’s] Motion for

summary judgment?” Brief for Appellant at 3 (unnumbered).

      Although Kawah does not claim lack of actual notice of the foreclosure

action, she asserts that the Notice of the foreclosure proceedings did not

comply with 41 Pa.C.S.A. § 403 (requiring 30 days’ notice before

commencing foreclosure), and the Rules of Civil Procedure requiring service.

Brief for Appellant at 13. Kawah additionally challenges the notice provided

to her of the sheriff’s sale.    Id.   Kawah argues that because two prior

sheriff’s sales had been set aside, she should have been given new notice of



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the sheriff’s sale.   Id.   Without any reference to legal authority, Kawah

contends “if the basis for which a sale was set aside fails, the procedure in

foreclosure should begin afresh to give opportunity for the borrower to

defend against the renewed foreclosure action.” Id. at 14.

      Kawah further argues that the original mortgagor, PHH, improperly

failed to follow up with the loan modification process it had promised. Id. at

15-16.    Basically, in challenging this ejectment action, Kawah’s claims

challenge the underlying foreclosure proceedings. Id. at 16.

      As this Court has recognized,

      [o]ur scope of review of an order granting summary judgment is
      plenary. [W]e apply the same standard as the trial court,
      reviewing all the evidence of record to determine whether there
      exists a genuine issue of material fact. We view the record in
      the light most favorable to the non-moving party, and all doubts
      as to the existence of a genuine issue of material fact must be
      resolved against the moving party. Only where there is no
      genuine issue as to any material fact and it is clear that the
      moving party is entitled to a judgment as a matter of law will
      summary judgment be entered.

      Motions for summary judgment necessarily and directly implicate
      the plaintiff’s proof of the elements of his cause of action. ...
      Thus, a record that supports summary judgment will either (1)
      show the material facts are undisputed or (2) contain insufficient
      evidence of facts to make out a prima facie cause of action or
      defense and, therefore, there is no issue to be submitted to the
      [fact-finder]. Upon appellate review, we are not bound by the
      trial court’s conclusions of law, but may reach our own
      conclusions. The appellate Court may disturb the trial court’s
      order only upon an error of law or an abuse of discretion.

DeArmitt v. New York Life Ins. Co., 73 A.3d 578, 585-86 (Pa. Super.

2013) (citations and quotation marks omitted).



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      Generally, an attack on a sheriff’s sale cannot be made in a collateral

proceeding. Dime Sav. Bank v. Greene, 813 A.2d 893, 895 (Pa. Super.

2002).   “However, in an ejectment action[,] it may be alleged that the

judgment is void.     A void decree can be attacked at any time.”      Id.   “A

judgment which is void cannot support an ejectment action[,] and may be

asserted as a defense in the ejectment proceeding.” Id.

      “The proper procedure to contest a sheriff’s sale is by petition, before

delivery of the sheriff’s deed, under Pa.R.C.P. 3132.      After delivery of a

sheriff’s deed to a purchaser, the only attacks possible on the sheriff’s sale

are those based on fraud[,] which vitiates the transaction[,] or a lack of

authority to make the sale.”         Workingmen’s Sav. & Loan Ass’n of

Dellwood Corp. v. Kestner, 652 A.2d 327, 328 (Pa. Super. 1994) (internal

citations omitted).   “Averments of fraud or mistake shall be averred with

particularity.” Pa.R.C.P. 1019(b).

      In its Opinion, the trial court addressed Kawah’s claim as follows:

      [Fannie Mae’s] Motion [for summary judgment] averred that
      [Fannie Mae] was the successful bidder at a [s]heriff’s [s]ale
      held [on] July 1, 2014, and that through that sale[, Fannie Mae]
      became the owner of the Property. The Deed was recorded on
      September 3, 2014 at Document No. 52823582. The Motion
      averred that [Fannie Mae] had notified [Kawah] of its ownership
      on September 9, 2014, and advised her to vacate the premises.
      The Motion further averred that [Kawah] had not pled any
      defenses to an action in ejectment, and that she had admitted
      paragraph (3) of the Complaint, which averred that a true and
      correct copy of the Sheriff’s Deed[,] reflecting [Fannie Mae’s]
      ownership of the Property[,] was attached to the Complaint as
      Exhibit A.    The Motion further averred that [Kawah] had
      admitted [that] there was no lease agreement to the Property;


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      that she had received the Notice to vacate; and still resides at
      the Property.

      …

      The issue of possession is a “jurisdictional prerequisite” to the
      trial court’s authority to entertain the merits of a complaint in
      ejectment. Siskos v. Britz, 567 Pa. 689, 699, 790 A.2d 1000,
      1006 (2002). A purchaser at [a s]heriff’s [s]ale gains the right
      to possession once the [s]heriff’s [d]eed is acknowledged and
      recorded. Wells Fargo Bank, N.A. v. Long, 2007 PA Super
      254, ¶¶ 6-8, 934 A.2d 76, 78-79 (2007). In the instant case,
      [Kawah] did not deny that [Fannie Mae] had the right to
      possession; that [Fannie Mae] had bought the Property at
      [s]heriff’s [s]ale; that the deed had been acknowledged and
      recorded; and that [Kawah] was still in possession of the
      Property. [Kawah] had the opportunity to litigate the validity of
      the foreclosure and cannot now collaterally attack the sale and
      subsequent possession action based solely upon issues related to
      the mortgage. See Fed. Nat. Mortgage Ass’n v. Citiano,
      2003 PA Super 381, ¶ 5, 834 A.2d 645, 647 (2003).

            Consequently, there was no issue of          material   fact
      precluding the grant of summary judgment ….

Trial Court Opinion, 10/15/14, at 1-2, 3-4.   We agree with and adopt the

sound reasoning of the trial court. See id.

      To the extent that Kawah claims that foreclosure proceedings should

begin anew when a sheriff’s sale is set aside, there is no legal authority

supporting her bald assertion.    Further, Kawah advances no basis upon

which to conclude that the judgment was void. We therefore cannot grant

her relief on her claim

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 7/22/2016




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