J-S32031-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

CF SBC UST 3, LLC                                 IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                      v.

JOSE CEDENO AND ALI S. SHAMAN
J.A.C.C. EL BEY

APPEAL OF JOSE CEDENO

                                                 No. 3054 EDA 2016


                     Appeal from the Order August 25, 2016
       in the Court of Common Pleas of Philadelphia County Civil Division
                     at No(s): March Term, 2012 No. 02454

BEFORE: GANTMAN, P.J., STABILE and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                            FILED MAY 24, 2017

        Appellant Jose Cedeno appeals from an order entered in the

Philadelphia Court of Common Pleas denying his motion to strike the

judgment entered in this mortgage foreclosure action. We affirm.

        The history of this case is as follows. Appellant was the owner of real

property at 3101-03 Frankford Avenue, Philadelphia, Pennsylvania.           The

property was mortgaged to Goldman Sachs Mortgage Company. On March

21, 2012, Goldman Sachs filed an in rem mortgage foreclosure action

against Appellant in the Court of Common Pleas of Philadelphia County.

Appellant filed preliminary objections to the complaint, which were denied,

and a motion for reconsideration, which was denied on July 10, 2012.

*
    Former Justice specially assigned to the Superior Court.
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Appellant appealed the denial of the motion for reconsideration to this Court,

which quashed the appeal.

       Appellant filed an answer to the complaint with new matter. Goldman

Sachs first moved for judgment on the pleadings and then for summary

judgment, but the trial court denied both motions.      During these motion

proceedings, Goldman Sachs assigned the mortgage to Appellee, CF SBC

UST 3, LLC, and Appellee substituted itself for Goldman Sachs as the

plaintiff.

       The case proceeded to a two-day non-jury trial. Appellee introduced

into evidence, inter alia, certified copies of the assignment of the subject

mortgage from Goldman Sachs to Appellee.       On March 11, 2014, the trial

court entered a verdict in favor of Appellee in the amount of $95,191.84.

On March 25, 2014, Appellee filed a praecipe for entry of judgment on the

verdict. On April 7, 2014, Appellant filed a motion for reconsideration, which

the court denied on April 9, 2014. Appellant appealed to the Superior Court

on April 23, 2014, but this Court quashed the appeal due to Appellant's

failure to file post-trial motions.

       Appellant filed for bankruptcy under Chapter 7 in the United States

Bankruptcy Court for the Eastern District of Pennsylvania. Appellee filed a

motion seeking relief from the automatic stay, which the Bankruptcy Court

granted on September 17, 2014.




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      On November 6, 2014, Appellee purchased the mortgaged property at

a sheriff’s sale for a prevailing bid of $11,500.00. On November 24, 2014,

Appellant filed a motion to set aside the sheriff’s sale. On March 12, 2015,

following a hearing, the trial court denied the motion. Appellant appealed to

this Court, which affirmed on December 5, 2015 at 1117 EDA 2015.

      On July 6, 2016, Appellant filed a motion to strike the judgment in the

mortgage foreclosure action as void.     On August 25, 2016, the trial court

denied the motion to strike. This timely appeal followed. Without ordering

Appellant to file a Pa.R.A.P. 1925(b) statement, the trial court has filed a

Pa.R.A.P. 1925(a) opinion.

      Appellant raises the following issues in this appeal:

         1. Whether the [trial] [c]ourt erred in denying said
         [m]otion [to strike judgment] when the facts upon which
         the relief requested [are] clear and unequivocal[?]

         2. Whether the issue of the effect of Goldman Sachs[’]
         [a]ssignment of the [m]ortgage prior to the filing of the
         [f]oreclosure [s]uit has been properly addressed in this or
         another court[?]

Appellant’s Brief at 3.

      Appellant’s position boils down to one argument: the trial court erred

in denying the motion to strike the judgment,1 because Goldman Sachs was

not the holder, owner or other party entitled to foreclose on the mortgage on

1
  “A petition to strike a judgment may be granted only for a fatal defect or
irregularity appearing on the face of the record.” Resolution Trust Corp.
v. Copley Qu-Wayne Assocs, 683 A.2d 269, 273 (Pa. 1996) (citations
omitted).



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the date it commenced this mortgage foreclosure action, rendering the

judgment against Appellant null and void.      The law of the case doctrine

precludes Appellant from obtaining relief, because this Court ruled against

Appellant on this issue in his prior appeal at 1117 EDA 2015.

      The law of the case doctrine is

         a family of rules which embody the concept that a court
         involved in the later phases of a litigated matter should not
         reopen questions decided by another judge of that same
         court or by a higher court in the earlier phases of the
         matter. Among the related but distinct rules which make
         up the law of the case doctrine are that: (1) upon remand
         for further proceedings, a trial court may not alter the
         resolution of a legal question previously decided by the
         appellate court in the matter; (2) upon a second appeal,
         an appellate court may not alter the resolution of a legal
         question previously decided by the same appellate court;
         and (3) upon transfer of a matter between trial judges of
         coordinate jurisdiction, the transferee trial court may not
         alter the resolution of a legal question previously decided
         by the transferor trial court.

Commonwealth v. Starr, 664 A.2d 1326, 1331 (Pa. 1995) (citations

omitted).   This general prohibition, however, is not absolute.     Departure

from the rule is permissible in “exceptional circumstances such as where

there has been a change in the controlling law, a substantial change in the

facts or evidence giving rise to the dispute in the matter, or where the prior

holding was clearly erroneous and would create a manifest injustice if

followed.” Id. at 1332 (citations omitted).




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     In his previous appeal at 1117 EDA 2015, a panel of this Court ruled

against Appellant on the very issue that he attempts to raise in the present

appeal. The previous panel stated:

        [Appellant] claims that the trial court erred in failing to
        consider the fact that the trial court lacked jurisdiction, ab
        initio, as Goldman Sachs was not in possession of the
        subject note and mortgage at the time of filing the
        foreclosure action. Contrary to [Appellant’s] claim, the trial
        court did consider this jurisdictional question. The court
        stated:

           In the instant matter, Goldman Sachs satisfied the
           requisite elements of Pa.R.C.P. 1147(a) for an action
           in mortgage foreclosure and a copy of the mortgage
           was attached to the Complaint as Exhibit A.
           Additionally, any issues of service of the notice of the
           Sheriff’s sale are unsupported by the record, as a
           representative of [Appellant] was present on the day
           of the sale. Further, all issues pertaining to the
           assignments of the mortgage were decided during
           the trial before the Honorable M. Teresa Sarmina
           and, thus, any challenges to Goldman Sachs’
           possession of the note and mortgage were not
           property raised before this Court in the instant
           Motion to Set Aside Sheriff’s Sale.

        We find no error or abuse of discretion . . . and we affirm
        the trial court’s order denying [Appellant’s] motion to set
        aside sheriff’s sale.

Goldman Sachs, CF SBC UST 3, LLC v. Cedeno, 1117 EDA 2015

(unpublished memorandum at 6) (Pa. Super. Dec. 4, 2015).

     Appellant’s present appeal is an attempt to re-litigate whether the

judgment against him should be stricken due to Goldman Sachs’ alleged lack

of possession of the note and mortgage. Because he has already raised this

issue without success, the law of the case doctrine precludes him from re-


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raising it. Moreover, his argument does not fall within any exception to the

law of the case doctrine, such as an intervening change in the law, a

substantial change in the facts, or a prior ruling that was clearly erroneous

that would create a manifest injustice if followed. See Starr, 664 A.2d at

1332.

        For these reasons, the trial court properly denied Appellant’s motion to

strike the judgment.

        Order affirmed. Appellee’s motion to quash denied as moot.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 5/24/2017




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