J-S34016-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

BAYVIEW LOAN SERVICING, LLC                       IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                          Appellee

                     v.

ALLISON WHITTENBERG

                          Appellant                   No. 3577 EDA 2016


                 Appeal from the Order Entered October 14, 2016
              In the Court of Common Pleas of Philadelphia County
           Civil Division at No(s): September Term, 2013, No. 00698

BEFORE: BOWES, J., SOLANO, J., and PLATT, J.*

MEMORANDUM BY SOLANO, J.:                         FILED DECEMBER 29, 2017

        Appellant Allison Whittenberg appeals from the order denying her

motion to set aside the sheriff’s sale of her home. Appellee Bayview Loan

Servicing, LLC, has also filed a motion to dismiss this appeal.       We deny

Bayview’s motion to dismiss and affirm the trial court’s order denying

Whittenberg’s motion to set aside the sheriff’s sale.1

        JP Morgan Chase Bank filed this mortgage foreclosure action against

Whittenberg on September 5, 2013.             The mortgage was originated on

January 19, 2006, and secured by property at 1737 Naudain Street in

Philadelphia. Trial Ct. Op., 1/20/17, at 1.

*   Retired Senior Judge assigned to the Superior Court.
1  As set forth below, we initially issued a memorandum decision on
November 20, 2017, denying Bayview’s motion to dismiss and affirming the
trial court’s order denying Whittenberg’s motion to set aside the sheriff’s
sale.    On December 4, 2017, Whittenberg filed an Application for
Reconsideration, which we granted.
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        On September 6, 2013, the trial court entered a case management

order that required Whittenberg to appear at a conciliation conference on

December      19,   2013,     pursuant   to   the   court’s   Residential   Mortgage

Foreclosure Diversion Program. On that date, the trial court cancelled the

conciliation conference, after having determined that Whittenberg had not

been served with the complaint and case management order.

        On March 17, 2014, JP Morgan Chase transferred the mortgage to

Bayview by an assignment of mortgage recorded in the Office of the

Philadelphia Recorder of Deeds.          On October 16, 2014, a praecipe for

voluntary substitution pursuant to Pa.R.C.P. 2352 was filed by JP Morgan

and Bayview.

        On November 4, 2014, JP Morgan filed a praecipe to schedule another

conciliation conference.2 The docket reflects that on November 10, 2014, at

11:33 a.m., the court scheduled a conciliation conference, but the record

reflects no order.    The next entry on the docket is dated November 12,

2014,    at   12:31   a.m.,    and   states   “NOTICE    GIVEN.”      There   is   no

corresponding filing in the record, and thus this Court has no additional

details about what took place regarding notice of scheduling of the

conference.    As discussed below, Whittenberg has disputed whether she

received notice of the conciliation conference. Pet. to Set Aside the Aug. 2,


2 Although the praecipe for voluntary substitution had already been filed, the
praecipe to schedule another conciliation conference still listed JP Morgan as
the plaintiff and merely stated that it had been filed by the “plaintiff.”

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2016 Sheriff’s Sale, 8/22/16, at 3 n.1. The parties, however, do not dispute

that   a   conciliation   conference   was scheduled   for   January   8,   2015.

Whittenberg’s Brief at 2, 4; Pet. to Set Aside the Aug. 2, 2016 Sheriff’s Sale,

8/22/16, at 3 ¶ 8; Bayview’s Brief at 4; Pl.’s Resp. to Def.’s Pet. to Set Aside

Sheriff’s Sale, 9/12/16, at ¶ 8.        Whittenberg failed to appear at that

conference.

       On January 8, 2015, the trial court entered an order stating,

“[Whittenberg] having failed to appear for the First Conciliation Conference,

[Bayview] is free to enter a default judgment against [Whittenberg] to the

extent permitted by the applicable [R]ules of Civil Procedure.”              First

Conciliation Conference Listing Order, 1/8/15. According to the trial court,

“Whittenberg never filed an Answer and [Bayview] entered a default

judgment on January 12, 2015. On January 27, 2015, [Bayview] entered a

Praecipe for Writ of Execution.” Trial Ct. Op., 1/20/17, at 1.

       On April 21, 2015, Whittenberg filed a motion to postpone the sheriff’s

sale by completing a form petition on which, in the section asking that she

“state the reason for postponement,” she stated:

       I am a veteran of the U.S. Army.
       I was not served with papers regarding trail [sic] date.
       Lawyers for Bayside Loan Services repeatedly lied.
       Notification was entered into to but money was refused.
       Paid 80% of home’s worth.

Whittenberg’s Pet. to Postpone Sheriff’s Sale of Real Prop., 4/21/15, at 2

(unpaginated and emphasis added). She wrote that if she were granted a

postponement, she would recoup her loss and would not be homeless, and
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asserted that she and her son would have a home and security. Id. The

court scheduled a hearing for April 23, 2015.

     As recounted by the trial court —

     On April 23, 2015, following the hearing, th[e trial c]ourt
     docketed an Order granting Whittenberg’s Motion to Postpone
     Sheriff’s Sale and further postponing the sale until June 2,
     2015.[3]

     On September 18, 2015, [Bayview] entered a second Praecipe
     for Writ of Execution. On October 21, 2015, Whittenberg filed a
     Petition to Open/Strike Judgment, to which [Bayview] filed its
     opposition on November 10, 2015.

Trial Ct. Op., 1/20/17, at 1-2.4   In her one-page, handwritten motion to

open or strike the judgment, Whittenberg wrote: “Never served with notice

fraud documentation.” Mot. to Open/Strike J., 10/21/15, at 4 (unpaginated).

Whittenberg repeated the identical language in her accompanying one-page,

handwritten memorandum of law. Id. at 5 (unpaginated).

     The trial court considered Whittenberg’s motion to open the judgment,

despite Whittenberg’s ten-month delay in filing it,5 and denied the motion on

December 17, 2015, “because [Whittenberg] has failed to provide this Court


3There are no notes of testimony in the certified record for the hearing on
April 23, 2015.
4 The handwritten date on the motion to open default judgment was
October 16, 2015.
5 Typically, pursuant to Pa.R.C.P. 237.3(b)(2), a petition to open a default
judgment should be “filed within ten days after the entry of a default
judgment on the docket.”        Here, the default judgment was filed on
January 12, 2015.      Whittenberg filed her pro se motion to open the
judgment on October 21, 2015, more than ten months after the entry of the
default judgment.

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with any legal bases to either Strike or Open the January 12, 2015, Default

Judgment.” Order, 12/17/15. Whittenberg did not appeal the court’s denial

of her motion to open the judgment.

      The trial court’s procedural summary continues:

      On November 13, 2015, Whittenberg filed a second Motion to
      Postpone Sheriff’s Sale and a Rule before the Hon. Nina Wright
      Padilla was issued for November 24, 2015.         Following the
      hearing, the Hon. Nina Wright Padilla entered an Order granting
      Whittenberg’s Motion to Postpone Sheriff’s Sale and further
      postponing the sale until December 1, 2015. . . .

      On February 11, 2016, Whittenberg filed a third Motion to
      Postpone Sheriff’s Sale and a Rule before th[e trial c]ourt was
      issued for February 25, 2016. Following the hearing, th[e trial
      c]ourt docketed an Order on February 26, 2016 denying
      Whittenberg’s Motion to Postpone Sheriff’s Sale, citing the two
      previous postponements.

Trial Ct. Op., 1/20/17, at 2.6

      The same day the trial court docketed its order, February 26, 2016,

Whittenberg filed a Chapter 13 bankruptcy petition in the Eastern District of

Pennsylvania.   Pet. to Set Aside the Aug. 2, 2016 Sheriff’s Sale, 8/22/16,

Ex. B, Docket for Bankruptcy Petition Number 16-11265. That petition was

dismissed on March 15, 2016. Id. In the interim, Whittenberg filed a fourth

motion to postpone the sheriff’s sale.    Following a hearing, Judge Wright

Padilla dismissed Whittenberg’s motion without prejudice on April 1, 2016.

Trial Ct. Op., 1/20/17, at 2.

6 On March 9, 2016, Whittenberg appealed the trial court’s order denying her
motion to postpone the sheriff’s sale to the Commonwealth Court, which
transferred the appeal to this Court (No. 1761 EDA 2016). We quashed
Whittenberg’s appeal on July 11, 2016.

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      On April 4, 2016, after Whittenberg filed a second Chapter 13

bankruptcy petition in the Eastern District of Pennsylvania, Bayview moved

to postpone the sheriff’s sale in light of the automatic stay under the

Bankruptcy Code. Judge Wright Padilla granted Bayview’s motion. Trial Ct.

Op., 1/20/17, at 2-3. On April 22, 2016, the Bankruptcy Court dismissed

Whittenberg’s second bankruptcy petition.     Pet. to Set Aside the Aug. 2,

2016 Sheriff’s Sale, 8/22/16, Ex. B, Docket for Bankruptcy Petition Number

16-11265. Nevertheless, on May 31, 2016, Bayview filed another motion to

postpone the sheriff’s sale, stating that “[t]here is pending litigation that

must be resolved before the Sheriff can offer the property for Sheriffs Sale.”

Mot. for Postponement of Sheriff’s Sale, 5/31/16, at ¶ 2.7     The trial court

granted Bayview’s motion on June 2, 2016.

      On July 29, 2016, Whittenberg filed her fifth motion to postpone the

sheriff’s sale.   Following a hearing, the trial court docketed an order on

August 2, 2016 that denied Whittenberg’s motion. On August 2, 2016, the

property was sold at a sheriff’s sale to a third party purchaser for $350,000.

Trial Ct. Op., 1/20/17, at 3.

      On August 22, 2016, Whittenberg filed a petition to set aside the

sheriff’s sale. In her petition, she acknowledged, “A conciliation conference

was schedule for January 8, 2015 and Ms. Whittenberg failed to appear.”


7 Although Bayview’s motion to postpone the sheriff’s sale did not specify the
“pending litigation,” it presumably was referring to the appeal then pending
in this Court, which was not quashed until July 11, 2016.

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Pet. to Set Aside the Aug. 2, 2016 Sheriff’s Sale, 8/22/16, at 3 ¶ 8 (citation

to the record omitted).     In a footnote, she added that there was “some

dispute as to whether or not Ms. Whittenberg received notice of this

conciliation conference.”     Id. at n.1.      In the memorandum of law

accompanying her petition, under the heading “Questions Presented,”

Whittenberg listed one issue:

      Should the August 2, 2016 Sheriff’s Sale of the property located
      at 1737 Naudain Street . . . be set aside pursuant to Pa. R. Civ.
      P. 3132 as the property sold at Sheriff’s Sale for significantly less
      than market value depriving Ms. Whittenberg of significant value
      in the home, and failing to allow her to pay off the loan entirely
      when she has the means to do so?

Mem. of Law in Supp. of Def. Allison Whittenberg’s Pet. to Set Aside the

Aug. 2, 2016 Sheriff’s Sale, 8/22/16, at 1-2. Whittenberg argued that the

“Sheriff’s sale should be set aside as the sale price was grossly inadequate.”

Pet. to Set Aside the Aug. 2, 2016 Sheriff’s Sale, 8/22/16, at 7 ¶ 44. She

maintained that the property is “in a highly desirable area in Philadelphia”

and has “two bedrooms, two bathrooms, approximately 1300 square feet,

and has a remodeled kitchen.”       Id. at 9 ¶ 57.     For these reasons, she

believed that the property “is worth far more than the Sheriff’s Sale price[.]”

Id. at 8 ¶ 50. She asserted that, although “[s]he does not currently have

an updated payoff amount,” “should the sale be set aside, she would ask for

that information and proceed with obtaining the necessary loan to pay what

is owed in full.” Id. at 10 ¶ 66. She also insisted that “los[ing] her home




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. . . will greatly disrupt” her life and the life of her “small child who is in third

grade this fall.” Id. at 11 ¶ 73.

      Despite the one footnote asserting “some dispute as to whether or not

Ms. Whittenberg received notice of this conciliation conference,” Pet. to Set

Aside the Aug. 2, 2016 Sheriff’s Sale, 8/22/16, at 3 n.1, at no point in her

petition to set aside the sheriff’s sale or supporting memorandum of law did

Whittenberg assert that the sale was improper because she did not receive

notice of the conciliation conference on January 8, 2015, which led to the

default judgment against her. See generally id.; Mem. of Law in Supp. of

Def. Allison Whittenberg’s Pet. to Set Aside the Aug. 2, 2016 Sheriff’s Sale,

8/22/16. On October 14, 2016, the trial court denied Whittenberg’s petition

to set aside the sheriff’s sale in an order that did not provide any reasoning. 8

      On November 14, 2016, Whittenberg filed an appeal from the order

denying her petition to set aside the sheriff’s sale.        The trial court never

ordered Whittenberg to file a concise statement of the errors complained of

on appeal pursuant to Pa.R.A.P. 1925(b), and Whittenberg never filed one.

      During the pendency of this appeal, the party who purchased the

property at the sheriff’s sale successfully filed an ejectment action against

Whittenberg.    On September 29, 2017, Bayview filed a motion with this

Court to dismiss Whittenberg’s appeal as moot because the third party

purchaser now owns the property; Bayview contends that the transfer of

8A copy of the order was sent to Whittenberg pursuant to Pa.R.C.P. 236(b)
on October 17, 2016.

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possession makes it impossible for this Court to issue an order in favor of

Whittenberg that would have any legal force or effect. Whittenberg filed a

response to this motion on October 27, 2017. In view of our disposition, we

do not reach the substance of Bayview’s motion and deny it as moot.

     On November 20, 2017, this Court entered a memorandum decision

denying Bayview’s motion to dismiss and affirming the trial court’s order

denying Whittenberg’s motion to set aside the sheriff’s sale. Bayview Loan

Servicing v. Whittenberg, No. 3577 EDA 2016 (Pa. Super., Nov. 20,

2017).    On December 4, 2017, Whittenberg filed an application for

reargument in which she claimed that the Court’s memorandum was

incorrect in stating that “at no time did Whittenberg ask the trial court to

have the default judgment set aside because she did not receive notice.”

Application for Reargument, at 1, citing Bayview, No. 3577 EDA 2016, at

5.9 This Court then granted reconsideration and withdrew its November 20,

2017 memorandum decision. This memorandum replaces the memorandum

that was withdrawn.

     Whittenberg raises the following issues on appeal to this Court:




9 In her Application for Reargument, at 2, Whittenberg also argued that this
Court’s memorandum decision “did not address the other of the thirteen
issues raised by Answer to Application to Dismiss filed October 27, 2017[.]”
However, “[n]o question will be considered unless it is stated in the
statement of questions involved [in the appellate brief to this Court] or is
fairly suggested thereby.” Pa.R.A.P. 2116(a). None of the other issues in
Whittenberg’s Answer were raised in her appellate brief. In any event, we
denied Bayview’s Application to Dismiss as moot.

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      1.    Whether [Whittenberg]’s lack of notice of the first
      scheduled January 8, 2015 conciliation conference through
      generation and service of a Case Management Order scheduling
      the same, thereby causing her failure to appear and termination
      from the Residential Mortgage Foreclosure Diversion Program,
      rendered a Sheriff sale defective or otherwise constituted proper
      cause to set aside the sale.

      2.    Whether the Sheriff sale price was grossly inadequate
      given the discount from the appraised value and [Whittenberg]’s
      lack of notice and opportunity to participate in the conciliation
      conference as part of the Residential Mortgage Foreclosure
      Diversion Program, which presented the possibility of retaining
      all equity, an outcome obtaining a higher and better value than
      the sale.

Whittenberg’s Brief at 2.

      We review Whittenberg’s issues for an abuse of discretion:

      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,
      as does the burden of showing inadequate notice resulting in
      prejudice, which is on the person who seeks to set aside the
      sale. 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.

GMAC Mortg. Corp. of PA v. Buchanan, 929 A.2d 1164, 1167 (Pa. Super.

2007) (citations omitted).

      Whittenberg first contends that she did not receive notice of the

mandatory conciliation conference scheduled for January 2015, which led to

entry of the default judgment and eventual sheriff’s sale.     Whittenberg’s

Brief at 11.   Whittenberg argues that because of the lack of notice, the

sheriff’s sale “was defective.” Id. Whittenberg, however, did not argue in

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her petition to set aside the sheriff’s sale that the sale was defective for lack

of notice. We agree that Whittenberg stated there was “some dispute as to

whether or not [she] received notice.” Pet. to Set Aside the Aug. 2, 2016

Sheriff’s Sale, 8/22/16, at 3 n.1.     But Whittenberg argued that the sale

should be set aside because the sale price was grossly inadequate — not

because of a lack of notice of the conciliation conference, which led to the

default judgment.    See id. at ¶ 8; Mem. of Law in Supp. of Def. Allison

Whittenberg’s Pet. to Set Aside the Aug. 2, 2016 Sheriff’s Sale, 8/22/16, at

1-2. Because “[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), and Whittenberg

failed to properly raise the notice issue before the trial court, she cannot

raise it for the first time in this Court.10 Accordingly, Whittenberg has not

demonstrated entitlement to relief.

      Next, Whittenberg urges this Court to find that:

      The sheriff sale price was grossly inadequate given the discount
      from its appraised value and [Whittenberg]’s lack of notice and
      opportunity to participate in the conciliation conference as part
      of the residential mortgage foreclosure diversion program, which
      presented the possibility of retaining all her equity. An equity
      loss of $279,587 cannot therefore be reasonably justified.




10In her October 21, 2015 application to open the January 12, 2015 default
judgment, Whittenberg included a cryptic statement that said, “Never served
with notice fraud documentation.” Mot. to Open/Strike J. at 4, 5
(unpaginated). The trial court denied Whittenberg’s motion to open the
default judgment on December 17, 2015, and Whittenberg did not appeal
that denial to this Court.

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Whittenberg’s Brief at 17. After a thorough review of the record, the briefs

of the parties, the applicable law, and the well-reasoned opinion of the trial

court, we conclude that there is no merit to the second issue Whittenberg

has raised on appeal.     The trial court opinion properly disposes of the

question presented. See Trial Ct. Op., 1/20/17, at 4-5 (finding that (1) the

record was devoid of any proper cause for the trial court to set aside the

sheriff’s sale, and (2) the sheriff’s sale price was “approximately 55% of the

2015 appraisal and 63% of the estimated $550,000 market value, which

does not rise to the level of gross inadequacy required by the courts of this

Commonwealth”).      Accordingly, we hold that the final challenge raised by

Whittenberg merits no relief and affirm this issue on the basis of the trial

court’s opinion.   The parties are instructed to attach a copy of the trial

court’s opinion dated January 20, 2017, to all future filings that reference

this Court’s decision.

      Order affirmed. Motion to dismiss denied.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/29/17




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