J-A21026-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 CITIZENS BANK, N.A. F/K/A RBS           :   IN THE SUPERIOR COURT OF
 CITIZENS, N.A.                          :        PENNSYLVANIA
                                         :
                    Appellant            :
                                         :
                                         :
              v.                         :
                                         :
                                         :   No. 1161 EDA 2018
 PIERRE A. MYRTHIL                       :

               Appeal from the Order Entered March 12, 2018
    In the Court of Common Pleas of Philadelphia County Civil Division at
                            No(s): 151103229


BEFORE: BOWES, J., OLSON, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY OLSON, J.:                         FILED OCTOBER 22, 2019

      Appellant, Citizens Bank, N.A., appeals from the order entered March

12, 2018, granting Pierre Myrthil’s (“Myrthil”) motion for reconsideration to

set aside a sheriff’s sale. We affirm.

      The trial court set forth the relevant factual and procedural background

of this matter as follows:

      On November 20, 2015, [Appellant] commenced a mortgage
      foreclosure action against [Myrthil] to recover delinquent
      payments due under a note and mortgage secured [by a property
      located along Crystal Street in Philadelphia, Pennsylvania
      (“Property”)].

      On December 4, 2015, Thomas Kenny, a process server for
      [Appellant], attempted to serve [Myrthil] by handing the
      complaint to an unidentified adult at the Property who refused to
      provide his name or details of any relationship with [Myrthil]. No
      further attempts were made to serve [Myrthil] the mortgage
      foreclosure complaint and [Appellant] did not move for a special
      order directing alternative service.
J-A21026-19


      On November 20, 2015, the [trial court] entered a case
      management order scheduling a case conciliation conference for
      March 31, 2016. [Myrthil] did not appear at the conference and,
      on April 1, 2016, the Honorable Rosalyn K. Robinson entered an
      order allowing [Appellant] to seek a default judgment. [On April
      11, 2016,] [t]he Office of Judicial Records entered a default
      judgment against [Myrthil] upon the praecipe of [Appellant].

      On October 13, 2016, the Office of Judicial Records, on
      [Appellant’s] praecipe, issued a writ of execution directing the
      Philadelphia Sheriff to sell the Property to satisfy the judgment.
      The sale was continued and/or stayed several times pending the
      outcome of a bankruptcy action filed by [Myrthil] in the United
      States District Court for the Eastern District of Pennsylvania.

      [Myrthil] named his wife as a non-filing debtor in his bankruptcy
      petition. She lived at the Property with [Myrthil] and their three
      children since 2010. [Appellant] appeared in the bankruptcy
      action to file a proof of claim.

      On June 23, 2017, the United States District Court dismissed
      [Myrthil’s] bankruptcy petition. [On July 19, 2017] [t]he Office of
      Judicial Records, on [Appellant’s] praecipe, issued another writ of
      execution directing the sale of the Property.

      Gregory Javardian, a lawyer for [Appellant,] filed a Rule 3129.1
      affidavit in which he stated that notice of the sheriff’s sale was
      mailed to all parties with an interest in the Property. [Myrthil’s
      wife] was not listed [by name] in the affidavit. [Appellant]
      admitted that it made no effort to [personally] serve [her] with
      notice of the sheriff’s sale. [Myrthil] received notice of the sale on
      August 5, 2017.

Trial Court Opinion, 11/30/18, at 1-3 (internal citations and footnote omitted).

      The Property was sold by the Philadelphia Sheriff back to Appellant on

November 7, 2017. Id. On November 20, 2017, Myrthil moved to set aside

the sheriff’s sale, claiming that Appellant failed to provide adequate notice to




                                      -2-
J-A21026-19



him and his wife, who had an unrecorded interest in the property.1 Myrthil’s

Motion to Set Aside Sheriff’s Sale, 11/20/17, at 1-4. The trial court denied

Myrthil’s motion on January 22, 2018. Trial Court’s Order, 1/22/18, at 1. In

the interim, on January 8, 2018, Appellant recorded the sheriff’s deed in the

Philadelphia Recorder of Deeds Office. Appellant’s Brief at 6. Subsequently,

Myrthil filed a motion for reconsideration on February 2, 2018.            Myrthil’s

Motion for Reconsideration, 2/2/18, at 1-3. On February 7, 2018, the trial

court granted Myrthil’s motion and vacated its January 22, 2018 order. Trial

Court Order, 2/7/18, at 1. The trial court held a hearing on March 12, 2018,

and ultimately set aside the sheriff’s sale of the Property. Trial Court Order,

3/12/18, at 1. This timely appeal followed.2

       Appellant raises the following issues on appeal:

        I.    Whether the trial court [] had jurisdiction to grant [Myrthil’s]
              motion for reconsideration after [the] sheriff’s deed was
              already recorded?

       II.    In the alternative, whether the trial court committed an
              error of law or abused its discretion in granting a petition to
              set aside [the] sheriff’s sale when [Myrthil] has not proven
              grounds to do so?


Appellant’s Brief at 4.
____________________________________________


1Because Myrthil raised the issue of his wife’s lack of notice in his motion to
set aside the sheriff’s sale, we reject Appellant’s argument that this issue was
waived. See Myrthil’s Motion to Set Aside Sheriff’s Sale, 11/20/17, at 1-4;
see also Appellant’s Brief at 10.

2Appellant filed a notice of appeal on April 6, 2018. The trial court issued an
opinion pursuant to Pa.R.A.P. 1925(a) on November 30, 2018.


                                           -3-
J-A21026-19



      In its first issue, Appellant contends that the trial court lacked

“jurisdiction to reconsider [Myrthil’s] petition to set aside the sheriff sale

pursuant to Pa.R.C.P. 3132.”     Id. at 10.    Per Appellant, the fact that the

sheriff’s deed was recorded before the trial court granted Myrthil’s motion for

reconsideration deprived it of jurisdiction. Id. at 11.   We reject this claim.

      At the outset, we note that the case law utilized by Appellant does not

support its conclusion that a trial court lacks jurisdiction to grant a motion for

reconsideration after the original motion to set aside a sheriff’s sale was timely

filed. See Pa.R.C.P. 3132, 3135(a) (explaining that a challenge to a sheriff’s

sale must be made prior to delivery of the deed). In fact, all of the cases cited

by Appellant simply state that a motion to set aside a sheriff’s sale must be

filed before the deed is recorded.     See Concord Liberty Sav. and Loan

Ass’n v. NTC Properties, 312 A.2d 4 (Pa. 1973); Mortg. Elec. Registration

Sys. v. Ralich, 982 A.2d 77 (Pa. Super. 2009); Workingmen’s Sav. and

Loan Ass’n of Dellwood Corp. v. Kestner, 652 A.2d 327 (Pa. Super. 1994).

Herein, Myrthil complied with both Rule 3132 and 3135. Indeed, Myrthil filed

a timely motion to set aside the sheriff’s sale on November 20, 2017. Myrthil’s

Motion to Set Aside Sheriff’s Sale, 11/20/17, at 1-4. The sheriff’s deed was

not recorded until January 8, 2018.       Appellant’s Brief at 6.    Accordingly,

Appellant’s reliance on the above-mentioned case law is erroneous.

      Moreover, Myrthil’s motion for reconsideration was timely under Section

5505 of the Judicial Code. See 42 Pa.C.S. § 5505 (“a court upon notice to

the parties may modify or rescind any order within 30 days after its entry,

                                      -4-
J-A21026-19



notwithstanding the prior termination of any terms of court, if no appeal from

such order has been taken or allowed”). Here, the trial court granted Myrthil’s

motion for reconsideration within 30 days of its original order. Specifically,

Myrthil moved to reconsider the January 22, 2018 order on February 2, 2018,

and the trial court granted Myrthil’s motion on February 7, 2018. Accordingly,

Appellant’s argument that the recording of the sheriff’s deed deprived the trial

court of jurisdiction is contrary to the recognized “inherent power” a court has

“to reconsider its own rulings.” Hutchison by Hutchison v. Luddy, 611 A.2d

1280 (Pa. Super. 1992). As such, Appellant’s claim that the trial court lacked

jurisdiction is meritless.

      Next, Appellant argues that the trial court abused its discretion by

setting aside the sheriff sale for Myrthil’s Property. Appellant’s Brief at 12.

Specifically, Appellant contends that Myrthil failed to prove that his wife

possessed an unrecorded interest in the Property and that Appellant had

knowledge of such interest. Id. at 20-22. In addition, Appellant argues that

it provided adequate notice to Myrthil’s wife by sending “a [Rule] 3129 notice

addressed to [the] tenant/occupants at the [P]roperty address.” Id. at 21.

We disagree.

      “The decision to set aside a sheriff's sale is within the sound discretion

of the trial court, and the court's decision will not be reversed on appeal unless

there is a clear abuse of such discretion.” Merrill Lynch Mortg. Capital v.

Steele, 859 A.2d 788, 791 (Pa. 2004).




                                      -5-
J-A21026-19



      Pursuant to Rule 3132, a court may set aside a sheriff’s sale “upon

proper cause.”    Pa.R.C.P. 3132.    Thus, the “relevant inquiry” is “whether

proper cause has been shown.” Irwin Union Nat’l Bank & Trust Co. v.

Famous, 4 A.3d 1099, 1022 (Pa. Super. 2010). “Sheriff’s sales have been

set aside where the validity of the sale proceeding is challenged, a deficiency

pertaining to the notice of the sale exists, or where misconduct occurs in the

bidding process.” Id. Thus, failure to give adequate notice constitutes proper

cause for setting aside a sheriff sale.

      Under Rule 3129.1, before a sale may occur, a plaintiff must file an

affidavit listing all parties with an interest in the property.      Pa.R.C.P.

3129.1(a). Specifically, in the affidavit, a plaintiff must, to the best of its

knowledge, list the names and addresses of following persons/entities:

      (1) the owner or reputed owner of the real property and of the
      defendant in the judgment; and

      (2) every other person who has any record lien on that property;
      and

      (3) every other person who has any record interest in that
      property which may be affected by the sale; and

      (4) every other person who has any interest in that property not
      of record which may be affected by the sale and of which the
      plaintiff has knowledge.

Pa.R.C.P. 3129.1(b)(1)-(4). Thereafter, each interested party listed by name

under Rule 3129.1(b) must be served with notice of the sale.         Pa.R.C.P.

3129.2. In relevant part, Rule 3129.2 specifies the required notice as follows:

      Rule 3129.2. Notice of Sale. Handbills. Written Notice.
      Publication

                                      -6-
J-A21026-19


     (a) Notice of the sale of real property shall be given by handbills
     as provided by subdivision (b), by written notice as provided by
     subdivision (c) to all persons whose names and addresses are set
     forth in the affidavit required by Rule 3129.1, and by publication
     as provided by subdivision (d).

     (b) The handbills shall be posted by the sheriff in the sheriff's
     office and upon the property at least thirty days before the sale,
     and shall include

        (1) a brief description of the property to be sold, its location,
        any improvements, the judgment of the court on which the
        sale is being held, the name of the owner or reputed owner,
        and the time and place of sale, and

        (2) a notice directed to all parties in interest and claimants
        that a schedule of distribution will be filed by the sheriff on
        a date specified by the sheriff not later than thirty days after
        the sale and that distribution will be made in accordance
        with the schedule unless exceptions are filed thereto within
        ten days after the filing of the schedule.

     (c) The written notice shall be prepared by the plaintiff, shall
     contain the same information as the handbills or may consist of
     the handbill and shall be served at least thirty days before the sale
     on all persons whose names and addresses are set forth in the
     affidavit required by Rule 3129.1.

        (1) Service of the notice shall be made

        (i) upon a defendant in the judgment who has not entered
        an appearance and upon the owner of the property.

        (A) by the sheriff or by a competent adult in the manner
        prescribed by Rule 402(a)[2] for the service of original
        process upon a defendant....

                                       ...

     (d) Notice containing the information required by subdivision (b)
     shall also be given by publication by the sheriff once a week for
     three successive weeks in one newspaper of general circulation in
     the county and in the legal publication, if any, designated by rule
     of court for publication of notices, the first publication to be made
     not less than twenty-one days before the date of sale. No
     additional publication shall be required.


                                      -7-
J-A21026-19



Pa.R.C.P. 3129.2.

        In this case, we conclude that the trial court did not abuse its discretion

in finding that Myrthil’s wife possessed an unrecorded interest in the Property

and that Appellant had knowledge of her interest. On March 12, 2018, the

trial court held a hearing to reconsider its January 22, 2018 order. Trial Court

Opinion, 11/30/18, at 1. At the hearing, Myrthil testified that his wife and

three children lived with him at the Property. N.T. Hearing, 3/12/18, at 16.

Thus, his wife possessed an unrecorded interest in the Property by virtue of

her occupancy.3 See In re Graves, 33 F.3d 242 (3d Cir. Ct. 1994).

        In addition, testimony revealed that within Myrthil’s bankruptcy petition,

he listed his wife as a non-filing debtor, and included “her income and her pay

stubs.” Id. at 29. Appellant, significantly, appeared in Myrthil’s bankruptcy

petition to file a proof of claim. Id. Based upon this testimony, the trial court

could reasonably infer that Appellant knew that the wife lived with Myrthil and

as such, had an unrecorded interest in the Property.            Id.   Accordingly,

Appellant was required to list the wife by name and address as an interested

party in its Rule 3129.1 affidavit and personally serve her with notice of the

sale.   See Pa.R.C.P. 3129.1(a) and Pa.R.C.P. 3129.2. Appellant, however,

failed to do so. Indeed, Appellant did not list the wife by name in its affidavit

____________________________________________


3 In its brief, Appellant argues that Myrthil failed to prove that his wife
possessed an unrecorded martial interest in the Property. See Appellant’s
Brief at 18-20. This is irrelevant. During the March 12, 2018 hearing, Myrthil
established that his wife’s interest was based upon her status as an occupant.
See N.T. Hearing, 3/12/18, at 16 and 38.

                                           -8-
J-A21026-19



of service. Affidavit of Service, 8/3/17, at 1-5. Furthermore, while Appellant

served a general notice to “all tenants/occupants of the Property,” it failed to

personally serve Myrthil’s wife.      See N.T. Hearing, 3/12/18, at 35-38.

Therefore, as Appellant did not comply with the affidavit and notice

requirements set forth in Rules 3129.1 and 3129.2, the trial court did not err

or abuse its discretion by setting aside the sheriff sale.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/22/19




                                      -9-
