J-A10023-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 WELLS FARGO BANK, N.A.                   :   IN THE SUPERIOR COURT OF
 SUCCESSOR BY MERGER TO                   :        PENNSYLVANIA
 WACHOVIA BANK, N.A.                      :
                                          :
                                          :
              v.                          :
                                          :
                                          :
 MARZAILE SCICCHITANO                     :   No. 3056 EDA 2017
                                          :
                    Appellant             :

              Appeal from the Order Entered August 25, 2017
     In the Court of Common Pleas of Delaware County Civil Division at
                           No(s): 2014-11559


BEFORE:    GANTMAN, P.J., McLAUGHLIN, J., and RANSOM*, J.

MEMORANDUM BY McLAUGHLIN, J.:                         FILED JUNE 22, 2018

      In this mortgage foreclosure action, Marzaile Scicchitano has appealed

from an order that denied his Petition to Set Aside Sheriff’s Sale. He sought

to undo the sheriff’s sale because of alleged misrepresentations in

communications from Appellee, Wells Fargo Bank, N.A. Successor by Merger

to Wachovia Bank, N.A. (“Bank”), allegedly causing him to believe that the

sale would not proceed. He also contended that the sale price at the sheriff’s

sale was too low. The Court of Common Pleas, the Honorable Chad F. Kenney,

denied the petition. Judge Kenney concluded that Scicchitano reasonably

should have known that the sheriff’s sale would proceed. He also rejected

Scicchitano’s price challenge. We affirm based on Judge Kenney’s opinion.

      We adopt Judge Kenney’s recitation of the factual and procedural

history. See Trial Court Opinion, filed 10/24/17, at 1-3.

____________________________________
* Retired Senior Judge assigned to the Superior Court.
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     Scicchitano raises four issues on appeal:

     1.    Did the Court abuse its discretion or otherwise err in denying
           [Scicchitano’s] Petition to Set Aside Sheriff’s Sale where,
           after a hearing, it was undisputed that (a) [Bank] last direct
           communication (in contrast to ongoing communications
           from [Bank’s] third party attorney which [Bank] instructed
           [Scicchitano] would occur) misrepresented that [Bank] (i)
           “received the documentation you sent us supporting your
           request for mortgage assistance...;” (ii) “as part of the
           foreclosure process, you may receive notices from a third
           party attorney delivered by mail or see steps being taken to
           proceed with foreclosure...;” and (iii) “if your loan has been
           referred to foreclosure and you have submitted all required
           documentation, we will not conduct a foreclosure sale while
           your documents are being reviewed” ((i), (ii) and (iii) being
           hereinafter referred to as the “Final Communication
           Misrepresentations”); and (b) despite those Final
           Communication Misrepresentations, Appellant [sic], without
           any further direct communication, proceeded with a sheriff’s
           sale and sold [Scicchitano’s] property at 61.8% of it’s [sic]
           appraised Fair Market Value of $100,000, approximately
           49% of [Bank’s] internal value and 30% of the total debt
           alleged to be due from [Scicchitano] to [Bank]?

     2.    Did the Court abuse its discretion or otherwise err in not
           finding that the combination of (a) the grossly inadequate
           or inadequate price; and (b) the irregularities in the notice
           process, consisting of (i) the Final Communication
           Misrepresentation, and (ii) two prior continuances of the
           ultimate sale unilaterally effectuated by [Bank] (which
           created a false sense of security in [Scicchitano] that the
           ultimate sale would also be continued based on the Final
           Communication Misrepresentation); created an irregularity
           in the notice procedure and denied [Scicchitano] of due
           process rights, and was sufficient cause to set aside the
           sale?

     3.    Did the Court abuse its discretion or otherwise err in not
           granting [Scicchitano’s] Petition to Set Aside Sheriff’s Sale
           by in effect inequitably and unfairly shifting the burden to
           [Scicchitano] to (a) have understood the Final
           Communication Misrepresentation was a misrepresentation,


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            and    (b)   correct      [Bank’s]     Final   Communication
            Misrepresentation?

      4.    Did the Court err by allowing undue bias against other
            alleged misbehaviors of [Scicchitano] that are not relevant
            to the due process question to unduly influence the
            determination of whether the substantially below value sale
            and the irregularities and defect in notice created by the
            Final Communication Misrepresentation and prior unilateral
            continuances establish sufficient cause to set aside the sale
            and violate [Scicchitano’s] due process rights?

Appellant’s Br. at 4-6.

      Scicchitano waived his second and fourth issues by not raising them

below. See Pa.R.A.P. 302. They are meritless in any event. As to the second

issue, Judge Kenney did not err in not considering the combined effect of

Scicchitano’s sale price and misrepresentation arguments. The issues are not

logically related – that is, any misunderstanding on Scicchitano’s part about

whether the sale would proceed had nothing to do with the price obtained at

the sale, and vice-versa – and to the extent either argument would carry any

weight, it would not reinforce the other. Regarding the fourth issue, as we

explain below, Judge Kenney only mentioned Scicchitano’s failure to make

payments as one of the reasons that Scicchitano reasonably should have

known that the foreclosure sale would occur.

      We affirm Scicchitano’s remaining issues based on Judge Kenney’s

opinion. A petition to set aside a sheriff’s sale is a request for equitable relief

addressed to the sound discretion of the Court of Common Pleas. Blue Ball

Nat’l Bank v. Balmer, 810 A.2d 164, 167 (Pa.Super. 2002); Greater

Pittsburgh Bus. Dev. Corp. v. Braunstein, 568 A.2d 1261, 1263 (Pa.Super.


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1989). The petitioner bears the burden of proving circumstances warranting

the Court of Common Pleas to exercise its equitable powers and set aside the

sale. Id. We will reverse the Court of Common Pleas’ decision not to set aside

a sheriff’s sale only for a clear abuse of discretion. Kaib v. Smith, 684 A.2d

630, 631-32 (Pa.Super. 1996).

      Scicchitano argues that the Bank’s alleged misrepresentations led him

to believe that the sheriff’s sale would not take place. Scicchitano had applied

to the Bank to participate in a loan assistance program. The Bank first advised

him by letter that “[b]ecause you have not provided us with all the required

documentation to complete the application, we are not able to offer you

assistance options.” Letter from Bank to Appellant of 12/16/16, at 1, R.191a.

The Bank sent a subsequent letter three days later, stating that “[i]f your loan

has been referred to foreclosure and you have submitted all required

documentation, we will not conduct a foreclosure sale on this loan while your

documents are being reviewed. . . .” Letter from Bank to Appellant of

12/19/16, at 1, R.58a. This letter also advised Scicchitano that “[a]s part of

the foreclosure process,” he might “receive notices from a third-party attorney

delivered by mail or see steps being taken to proceed with a foreclosure sale

of your home.” Id. Scicchitano argues that the second letter misled him and

caused him to incorrectly believe that the sheriff’s sale would not take place

as scheduled.

      Regarding the sale price, Scicchitano argues that the amount ($61,800)

was grossly inadequate because it was 61.8% of the Bank’s appraisal of the

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J-A10023-18



property’s value ($100,000), and 49% of the Bank’s internal valuation

($125,000).

      Scicchitano also contends that Judge Kenney improperly put the burden

on Scicchitano to learn that the alleged “misrepresentation that his loan was

still under review” was untrue. Appellant’s Br. at 22. He further argues that

he   reasonably   understood    the   statements    that   he   might   receive

communications from attorneys about the foreclosure process, and that the

sale would not happen while his loan assistance application was under review,

“as an instruction not to be concerned by attorney communications.” Id.

(emphasis in original).

      Judge Kenney’s Pa.R.A.P. 1925(a) opinion explains that Scicchitano

should have known that the sheriff’s sale would take place. Judge Kenney

points out that the second letter did not in fact suggest that a sheriff’s sale

would never occur. Rather, the letter simply let Scicchitano know that the

sheriff’s sale would not take place during the review period, which the previous

letter told him had already ended. Judge Kenney concluded that because of

the language of the letters, and the fact that Scicchitano did not make any

payments between the time of the letters and the day of the sheriff’s sale,

Scicchitano reasonably should have known that the sale would go forward.

      Regarding the sale price, Judge Kenney explained that the law presumes

that the price obtained at a sheriff’s sale is the highest and best obtainable

price. Trial Court Opinion at 5 (citing Blue Ball Nat’l Bank, 810 A.2d at 167).

Judge Kenney observed that cases in which Pennsylvania courts have set aside

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a sheriff’s sale for an inadequate sale price were cases where the sale price

was ten percent or less of the established market value. Id. at 6 (citing Bank

of America, N.A. v. Hood, 47 A.3d 1208, 1212 (Pa.Super. 2002)). Judge

Kenney concluded that because the only evidence Scicchitano produced on

this issue was an appraiser’s affidavit that the property was worth $100,000,

and the property sold for 61.8% of that figure, Scicchitano failed to rebut the

presumption.

      Finally, Judge Kenney properly put the burden on Scicchitano to

persuade the court that the alleged misrepresentations merited setting aside

the sheriff’s sale. See Blue Ball Nat’l Bank, 810 A.2d at 167. The court

concluded that Scicchitano failed to carry his burden to do so, and Scicchitano

has not established that Judge Kenney’s decision was a clear abuse of

discretion. Id. We affirm based on Judge Kenney’s Opinion.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/22/18




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