J-A02007-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

THE BANK OF NEW YORK MELLON FKA             IN THE SUPERIOR COURT OF
THE BANK OF NEW YORK, AS TRUSTEE                  PENNSYLVANIA
FOR THE CERTIFICATE HOLDERS OF THE
CWMBS INC., CHL MORTGAGE PASS-
THROUGH TRUST 2007-17, MORTGAGE
PASS-THROUGH CERTIFICATES, SERIES
2007-17

                        Appellee

                   v.

SAYEEDA CHUGHTAI

                        Appellant                No. 1376 EDA 2014


                    Appeal from the Order April 7, 2014
              In the Court of Common Pleas of Bucks County
                    Civil Division at No(s): 2011-10305


BEFORE: PANELLA, J., LAZARUS, J., and WECHT, J.

MEMORANDUM BY LAZARUS, J.:                      FILED MARCH 20, 2015

     Sayeeda Chughtai appeals from the order entered in the Court of

Common Pleas of Bucks County denying her motion to set aside a sheriff’s

sale. Upon review, we affirm.

     On August 1, 2007, Chughtai executed a mortgage, in the amount of

$620,000.00, upon real property located at 2285 Staffordshire Road in

Bucks County with Mortgage Electronic Registration System, Inc. (“MERS”),

the nominee for Assured Lending Corporation.    On July 27, 2011, MERS

assigned the mortgage to Bank of New York Mellon (“BNY”).
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      On December 8, 2011, BNY served a complaint in foreclosure on

Chughtai, asserting that the mortgage was in default because monthly

payments of principal and interest were unpaid since February 1, 2011.

Chughtai failed to file an answer to the complaint and the trial court entered

a default judgment against her on January 26, 2012.         On March 8, 2013,

BNY filed a writ of execution upon the default judgment.       Thereafter, BNY

scheduled the property for sheriff’s sale. BNY purchased the property at the

sheriff’s sale on August 9, 2013.

      On September 25, 2013, approximately six weeks after the property

was sold, Chughtai filed a motion to set aside a sheriff’s sale, which the

court denied on April 8, 2014. This timely appeal followed.

      On appeal, Chughtai challenges the trial court’s denial of her motion to

set aside a sheriff’s sale. Initially, we note our standard of review:

      Pursuant to Rule 3132 of the Pennsylvania Rules of Civil
      Procedure, a sheriff’s sale may be set aside upon petition of an
      interested party “upon proper cause shown” and where the trial
      court deems it “just and proper under the circumstances.” The
      burden of proving circumstances warranting the exercise of the
      court’s equitable powers is on the petitioner.           Equitable
      considerations govern the trial court’s decision to set aside a
      sheriff’s sale, and this Court will not reverse the trial court’s
      decision absent an abuse of discretion. An abuse of discretion
      occurs where, for example, the trial court misapplies the law.

Nationstar Mortg., LLC v. Lark, 73 A.3d 1265, 1267 (Pa. Super. 2013)

(citations omitted).

      In support of her assertion that the trial court erred, Chughtai first

argues that, at the time of judgment, BNY did not possess a pre-judgment


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assigned mortgage or the note.            Therefore, BNY lacked the authority to

accept judgment in its favor and subsequently execute a foreclosure on the

property. We disagree.

       The record establishes that the assignment of the mortgage to BNY

from MERS, as a nominee for Assured Lending Corporation, was recorded on

July 27, 2011 in Assignment of Mortgage Book No. 6772, Page 2192 in the

Office of the Recorder of Bucks County. The assignment was recorded more

than four months prior to the initiation of the instant foreclosure action.

Even if BNY did not yet have physical possession of the note when it

commenced the foreclosure proceedings, this Court has held that a party is

not required to have a recorded assignment as a prerequisite to filing a

complaint in mortgage foreclosure.             See US Bank N.A. v. Mallory, 982

A.2d 986, 993 (Pa. Super. 2009).               Accordingly, BNY had the authority to

accept judgment in its favor.1

       Chughtai further argues that the assignment of the mortgage to BNY is

invalid because it was executed by MERS, not the original lender, Assured

Lending Corporation. In other words, Chughtai argues that MERS is legally



____________________________________________


1
  We acknowledge Chughtai’s reliance on this Court’s decision in J.P.
Morgan Chase Bank, N.A., v. Murray, 63 A.3d 1258 (Pa. Super. 2013) (to
have standing to bring foreclosure action on property used to secure note,
party need only establish actual possession of note). However, we decline to
address Murray because, due to its distinct facts, it does not contribute to
our legal analysis in this case.



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incapable of effecting any mortgage assignment as a matter of law.         The

case law of the Commonwealth directly contradicts this contention.

      In Mortgage Elect. Registration Systems Inc. v. Ralich, 982 A.2d

77 (Pa. Super. 2009), this Court upheld MERS’ right to assign a mortgage

under similar facts. There, we held that the mortgage in that case vested

MERS with the authority, as nominee, to enforce the loan, which includes

assigning its interests. This Court also noted that by signing the mortgage,

the mortgagor explicitly acknowledged that MERS would have the authority,

as mortgagee, to enforce the mortgage, including assigning its interests and

foreclosing upon the property.

      Presently, the trial court aptly summarized how the record indicates

that BNY is the valid assignee of the mortgage.

      In August 2007, [Chughtai] executed and delivered to MERS, as
      nominee of Assured Lending Corp., a mortgage upon the
      premises at 2285 Staffordshire Road, Furlong, Bucks County,
      Pennsylvania. This mortgage was recorded in the Bucks County
      Office of the Recorder of Deeds in Book 5711, Page 1199. The
      Mortgage states that “Borrower does hereby mortgage, grant
      and convey to MERS . . . and to the successors and assigns
      of MERS” the property in question. The Mortgage also states
      “MERS is the mortgagee under this security instrument.”

      Chughtai signed and initialed all pages of the Mortgage, thereby
      explicitly agreeing to the terms of the mortgage, including any
      designation of MERS as the mortgagee under the security
      instrument as well as its authority to assign the mortgage in
      question.

Trial Court Opinion, 5/30/14, at 7 (citations omitted) (emphasis in original).

      Based on the foregoing, Chughtai failed to meet her burden of proving

circumstances warranting the exercise of the court’s equitable powers.

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Lark, supra.      Additionally, we agree with the trial court’s reasoning and

application of pertinent law, and discern no abuse of discretion by the trial

court.

         Order affirmed.

         PANELLA, J., joins the Memorandum.

         WECHT, J., files a Concurring Memorandum.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/20/2015




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