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NON-PRECEDENTIAL DECISION             - SEE SUPERIOR COURT I.O.P.         65.37
KHADIJA SINES,                                IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA
                         Appellant

                    v.                              No. 309 EDA 2018

OCWEN LOAN SERVICING, LLC


              Appeal from the Order Entered December 11, 2017,
              inthe Court of Common Pleas of Philadelphia County
                 Civil Division at No. 02775 August Term, 2016


BEFORE:     BENDER, P.J.E., LAZARUS, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                FILED AUGUST 07, 2019

        Khadija Sines appeals from the December 11, 2017 order entered in the

Court of Common Pleas of Philadelphia County sustaining Ocwen Loan

Servicing, LLC's ("Ocwen") preliminary objections and dismissing appellant's

amended complaint with prejudice. We affirm.

       The factual and procedural posture of this case, as gleaned from the

record, is as follows: Appellant defaulted on her mortgage and her home was

sold to U.S. Bank National Association ("U.S. Bank") at sheriff's sale. Ocwen

purchased the mortgage servicing rights to the mortgage and was an agent

for U.S. Bank acting on its behalf.    Appellant filed   a   two -count complaint

against Ocwen alleging violations of the Fair Credit Extension Uniformity Act

and Unfair Trade Practices and Consumer Protection Law and for conversion

of appellant's personal property. (Appellant's amended complaint, 8/24/17.)
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Appellant's conversion claim stemmed from Ocwen's alleged removal of

appellant's personal property from the foreclosed -upon property. Ocwen filed

preliminary objections in the nature of a demurrer to both counts of appellant's

amended complaint. The trial court sustained Ocwen's preliminary objections

and dismissed appellant's amended complaint with prejudice.

       Appellant filed   a   timely notice of appeal. The trial court did not order

appellant to file   a    concise statement of errors complained of on appeal

pursuant to Pa.R.A.P. 1925(b). However, the trial court did file    a   Rule 1925(a)

opinion.

       Appellant raises the following issue for our review:

             Whether the trial court erred in dismissing
             [appellant's] claim for conversion, with prejudice, for
             failure to "demand" the return of her property, where
             the Amended Complaint alleges that during the
             pendency of an ejectment action, [Ocwen] conducted
             a 'selfhelp' eviction and dispossessed her, she then
             entered into an agreement with [Ocwen], entered on
             record the ejectment action to return possession to
             her but five days later [Ocwen] breached the
             agreement and removed her possessions from the
             home?

Appellant's brief at 4.1

             Our standard of review of an order of the trial court
             overruling or granting preliminary objections is to
             determine whether the trial court committed an error
             of law. When considering the appropriateness of a
             ruling on preliminary objections, the appellate court
             must apply the same standard as the trial court.

1 We note that appellant does not challenge the dismissal of her claim for
violations of the Fair Credit Extension Uniformity Act and Unfair Trade
Practices and Consumer Protection Law.

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             Preliminary objections in the nature of a demurrer test
             the legal sufficiency of the complaint.             When
             considering preliminary objections, all material facts
             set forth in the challenged pleadings are admitted as
             true, as well as all inferences reasonably deducible
             therefrom. Preliminary objections which seek the
             dismissal of a cause of action should be sustained only
             in cases in which it is clear and free from doubt that
             the pleader will be unable to prove facts legally
             sufficient to establish the right to relief. If any doubt
             exists as to whether a demurrer should be sustained,
             it should be resolved in favor of overruling the
             preliminary objections.

Gross v. Nova Chemical Services, Inc., 161 A.3d 257, 262 (Pa.Super.

2017) (citations and brackets omitted).

        Here, appellant argues that the trial court erred in sustaining the

preliminary objections when it held that Ocwen's "demurrer was free of

doubt." (Appellant's brief at 10.) Specifically, appellant claims that the trial

court incorrectly held that appellant was required to plead the demand and

refusal requirement for an action of conversion under the theory that Ocwen

unreasonably withheld appellant's property.              (Id. at 12-13.)          Appellant

contends Ocwen wrongfully came into possession of her property in violation

of an agreement the parties had and, therefore, the demand and refusal

requirement   is   not required.   (Id.)
       This court has long held that:           "[a] conversion   is   the deprivation of

another's right of property in, or use or possession of,               a   chattel, or other

interference therewith, without the owner's consent and without lawful

justification." Gottesfeld v. Mechanics & Traders Ins. Co., 173 A.2d 763,

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766 (Pa.Super. 1961), citing Pearl Assur. Co., Ltd. v.           Nat'l Ins. Agency,
Inc.,   30 A.2d 333 (Pa. 1943). Conversion can be committed by: (1) acquiring

possession of the goods with the intent to exercise dominion and control over

the goods adverse to the owner's rights and for the offender's own personal

use; (2) transferring possession of the goods to another with serious

interference of the owner's right of control; (3) unreasonably withholding

possession of the goods from one who has rights to the goods; or

(4) destroying or seriously damaging the goods in defiance of the owner's

rights. See Norriton East Realty Corp. v. Central -Penn             Nat'l Bank,   254

A.2d 637, 638 (Pa. 1969); see also W. Page Keeton            et al., Prosser & Keeton
on the Law      of Torts   §   15, p. 95-102 (5th ed. 1984).    For possession to be

unreasonably withheld, there must be         a   demand for and refusal of the return

of the property.       Norriton, 254 A.2d at 638-639. However, demand             and

refusal is not required for an action of conversion when possession is initially

obtained unlawfully.       Id. at 639.
        Here,   a   review of the allegations contained in appellant's amended

complaint supports the trial court's conclusion that "[t]he amended complaint

itself reflects that [Ocwen] possessed legal title to the Property and was

attempting to enforce its right to possession of the Property." (Trial court

opinion, 11/9/18 at 1, citing appellant's amended complaint 8/24/17 at

III 6-8.).   As Ocwen had legal     title to the property and had the right to remove

appellant's items "left in the property," an allegation of demand by appellant



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for the return of the personal property and            a   refusal by Ocwen is necessary to

sufficiently plead            an   action   of conversion     on   the basis that Ocwen

unreasonably withheld possession of the property.

          In her amended complaint, appellant admits that her former house was

sold at       a   sheriff's sale; that Ocwen locked appellant out of the house by

changing the locks; that Ocwen then agreed to "return possession" of the

house to appellant; that appellant packed some of her belongings and needed

to find   a   new home; and that "five days later" Ocwen "returned and broke into

the home" and "cleaned out all of the remaining possessions that [appellant

had]   left       in the   property." (Appellant's amended complaint, 8/24/17 at 1118,

13, 15, 17-19 (emphasis added).) In her conversion claim, appellant alleges:

                    30.     Ocwen deprived [appellant] and her children of
                            their rights in their personal property, without
                            their lawful consent and without justification.

                    31.     Ocwen's outrageous and egregious conduct was
                            undertaken with reckless disregard to the rights
                            of [appellant] and her children, and warrants
                            the imposition of punitive damages.

Appellant's amended complaint, 8/24/17 at 111130-31. Appellant incorporates

into her conversion claim,            inter alia,   paragraphs 17 to 19 of her amended

complaint which allege:

                    17.     After possession of the home was returned to
                            [appellant], she began packing her belongings
                            and trying to find a new home for her family.

                    18.     Just five days later, Ocwen returned and broke
                            into the home.



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              19.     This time, agents from Ocwen cleaned out all of
                      the remaining possessions that [appellant] has
                      left in the property
                                         .   .   .       .




Id. at III 17-19 (emphasis omitted).
        Appellant's   amended complaint              reveals she failed          to   plead   any

allegations that she demanded the return of the items and Ocwen refused as

is   required for an action of conversion under the theory Ocwen unreasonably

withheld appellant's property. Moreover, appellant failed to allege that Ocwen

exercised dominion and control over the property for its own personal use;

that Ocwen transferred the property to another that deprived appellant of

control over the property; or that the property was destroyed or seriously

damaged in defiance of appellant's rights. Therefore, appellant's allegations

do not allow appellant to bring an action for conversation under any other

theory.

        Appellant does not cite any legal precedent or law of this Commonwealth

that permits an action for conversion when an agent for the legal owner of the

foreclosed -upon property "cleans out" the personal property "left" at the

property after affording the foreclosed -upon party five days to pack and

remove all personal property. Consequently, appellant's amended complaint

clearly and without doubt failed to state            a       cause of action for conversion, and

the trial court properly sustained Ocwen's preliminary objections and

dismissed appellant's amended complaint with prejudice.

        Order affirmed.



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Judgment Entered.




Joseph D. Seletyn,
Prothonotary




Date: 8/7/19




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