J-A06039-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

FLAGSTAR BANK, FSB                               IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                         Appellee

                    v.

BRIAN D. WAMPOLE A/K/A BRIAN
WAMPOLE, TAMMY WAMPOLE, THE
UNITED STATES OF AMERICA C/O THE
UNITED STATES ATTORNEY FOR THE
EASTERN DISTRICT OF PA.

                         Appellants                  No. 1542 MDA 2015


              Appeal from the Order Entered August 10, 2015
              In the Court of Common Pleas of Berks County
                       Civil Division at No: 10-11460


BEFORE: LAZARUS, STABILE, and DUBOW, JJ.

MEMORANDUM BY STABILE, J.:                        FILED OCTOBER 11, 2016

      Appellants, Brian D. Wampole and Tammy L. Wampole (together the

“Wampoles”), appeal from the August 10, 2015 order of the Court of

Common Pleas of Berks County (“trial court”), denying the Wampoles’

petition to set aside a sheriff’s sale. Upon review, we affirm.

      This Court quoted the following factual and procedural history of the

case in the Memorandum filed on June 6, 2014:

            On June 22, 2010, plaintiff, Flagstar Bank F.S.B.
            [(“Bank”)], filed a [c]omplaint in [m]ortgage [f]oreclosure
            against the real property owners, Brian D. Wampole . . .
            and his wife, Tammy L. Wampole (Wife), and The United
            States of America due to a federal tax lien against [the
            Wampoles] in the amount of $43,606.91.
            According to the complaint, on June 3, 2008, the
            Wampoles entered into a mortgage with [Bank] in the
            principal amount of $305,365.00 which was payable in
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          equal monthly installments. [The Wampoles] have been in
          default of the mortgage since September 1, 2009. They
          filed an answer alleging that since June 2009 they had
          been promised that they were eligible for a loan
          modification, and since [s]pring 2010 [Bank] has told them
          they had been approved for a loan modification and to
          disregard notices concerning the mortgage default.

          On January 18, 2011, [Bank] filed its original [m]otion for
          [s]ummary [j]udgment at which time the mortgage due for
          the September 1, 2009, payment was due for a period in
          excess of seventeen months. [Bank] attached a loan
          history to its motion detailing this fact. [The Wampoles]
          filed an answer to this motion alleging [Bank’s] deficiencies
          in reviewing their request for a loan modification. This
          original motion for summary judgment was not presented
          to [the trial] court for disposition.
          On April 15, 2013, [Bank] filed a [s]upplemental [m]otion
          for [s]ummary [j]udgment which again requested
          summary judgment in its favor. [Bank] submitted that in
          the intervening period between filing the original and
          supplemental motions, [Bank] reviewed the account of
          [the Wampoles] for a possible workout. After the review,
          [Bank] offered them a HAMP Trial Plan (Plan). Pursuant to
          this action, [Wampole] had to complete documents,
          include a 4506-T form and a hardship affidavit and return
          [] them to [Bank]. Upon completion of the documents and
          timely payments of the trial period amounts, the mortgage
          was to be permanently modified.

          [The Wampoles] made all of the required payments under
          the Plan; however, [the Wampoles] failed to submit the
          4506-T form and hardship affidavit according to [Bank].
          On January 5, 2012, [Bank] sent an e-mail requesting the
          documents directly to [the Wampoles] and copied [the
          Wampoles’] counsel. On January 9, 2012, and March 2,
          2012, [Bank] again sent e-mails directly to [the
          Wampoles] and copied [the Wampoles’] counsel to request
          the needed documentation.          [The Wampoles] never
          provided the information to [Bank], so [Bank] determined
          that they breached the terms of the Plan and therefore
          were not eligible for a loan modification. [Bank] closed its
          loss mitigation file.    At the time of the filing of the
          [s]upplemental [m]otion for [s]ummary [j]udgment, [the
          Wampoles] owed the November 1, 2009 payment. Thus,
          no payments were made by [the Wampoles] for
          approximately forty-one months.

          [The Wampoles] filed an answer to the supplemental
          motion for summary judgment. They submit[ted] that
          they provided the required documentation but that [Bank]
          lost everything. [The Wampoles] contend[] in [their] brief
          that [Bank] should not be allowed to foreclose because it

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           waited too long to bring this action, and [the Wampoles]
           ha[ve] been detrimentally affected by the delay.

           On June 20, 2013, [the trial] court entered judgment in
           favor of [Bank] and against [the Wampoles] in the amount
           of $449,135.99 plus interest and costs. The Wampoles,
           pro se, filed the instant appeal. [The trial] court directed
           [the Wampoles] to file a concise statement of errors. [The
           Wampoles] requested an extension of time to file this
           statement which [the trial] court granted.

Flagstar Bank, FSB v. Wampole, No. 1321 MDA 2013, unpublished

memorandum, at 1-3 (Pa. Super filed June 6, 2014) (quoting Trial Court

Opinion, 12/3/13, at 1-3).   On appeal, the Wampoles claimed that they

never in good faith defaulted on the mortgage.        Id. at 3.   This Court

affirmed the trial court’s grant of summary judgment. Id. at 6. This Court

found that the Wampoles “failed to specifically deny that the mortgage was

in default because [t]he[y] failed to make payments.”             Id. at 5.

Furthermore, this Court found that the Wampoles failed to produce specific

evidence to overcome the Bank’s evidence of default as required by Marks

v. Tasman, 589 A.2d 205, 206 (Pa. 1991). Flagstar Bank, FSB, No. 1321

MDA 2013, at 5.

     Subsequently, the property was listed for sheriff’s sale. After which,

           [o]n October 7, 2014, [the Wampoles] filed a petition to
           stay the Sheriff’s sale and to divert the case to the Berks
           County Mortgage Foreclosure Diversion Program. [The
           trial] court denied this petition on December 9, 2014. The
           property was sold to [Bank’s] attorney at the Sheriff’s sale
           on June 5, 2015. [The Wampoles] filed a pro se petition to
           set aside the Sheriff’s sale on June 29, 2015. A Sheriff’s
           Deed was executed on June 30, 2015 and recorded on July
           1, 2015.

           According to [the Wampoles’] petition to set aside the
           Sheriff’s sale, [Bank] was the mortgage servicer and
           Fannie Mae was the mortgage holder of [Wampole’s]
           residence. Greentree Servicing – Green Tree had informed

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              [the Wampoles] on April 1, 2015, that it would stay the
              sale and honor [the Wampoles’] trial agreement, but the
              sale proceeded anyway. At the June 5, 2015 sale, a
              Fannie Mae representative informed [the Wampoles] that it
              had a new servicing company. [The Wampoles] attempted
              to negotiate a resolution, but [Bank] refused to enter into
              an agreement. [The Wampoles] also contended that there
              was an error of $100,000.00 on the amount of damages in
              the petition to reassess damages.

              [The trial] court held an argument on [the Wampoles’]
              petition.    At the argument, [the Wampoles] were
              represented by counsel who had filed a brief in support of
              the[] petition. [The trial] court denied [the Wampoles’]
              petition. [The Wampoles] filed the instant appeal.

Trial Court Opinion, 10/20/2015, at 1-2.

        On appeal, the Wampoles raise only a single issue for our review.

              I.     Whether the [trial court] abused its discretion or
                     committed an error of law by finding that [the
                     Wampoles] failed to establish just and proper cause
                     to set aside (or estop) the Sheriff’s sale of [the
                     Wampoles’] residence, when evidence was presented
                     to the [trial court] of [Bank’s] bad faith and
                     oppressive conduct that resulted in sanctions against
                     [Bank] by the Consumer Financial Protection Bureau
                     for [Bank’s] deceptive acts and practices that
                     prevented mortgagors such as [the Wampoles] from
                     making an informed choice of how to retain or
                     dispose of their home, which resulted in unnecessary
                     foreclosures by the [Bank]?

Appellants’ Brief at 6. Bank asserts that the Wampoles waived all issues as

their brief fails to comply with the briefing rules outlined in the Pennsylvania

Rules of Appellate Procedure1 and their concise statement is vague and

overbroad. See Appellee’s Brief at 10-14. The Wampoles’ failure to specify

adequately the issue complained of on appeal and the brief’s failure to

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1
    Specifically Pa.R.A.P. 2117, 2119, and 2131.




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comply with the appellate rules may constitute sufficient grounds to find

waiver on these issues. See Pa.R.A.P. 1925; Pa.R.A.P. 2119. Nonetheless,

we decline to find waiver and address the Wampoles’ claim.

      Pursuant to Pennsylvania Rule of Civil Procedure 3132,

            [u]pon petition of any party in interest before delivery of
            the personal property or of the sheriff’s deed to real
            property, the court may upon proper cause shown, set
            aside the sale and order a resale or enter any other order
            which may be just and proper under the circumstances.


Pa.R.C.P. No. 3132. “The burden of proving circumstances warranting the

exercise of the court’s equitable powers is on the petitioner.” Merrill Lynch

Mortgage Capital v. Steele, 859 A.2d 788, 792 (Pa. Super. 2004) (citation

omitted). “The decision to set aside a sheriff’s sale is governed by equitable

considerations, and this Court will not reverse the trial court’s decision

absent an abuse of discretion.” See Nationstar Mortgage, LLC v. Lark,

73 A.3d 1265, 1267 (Pa. Super. 2013) (citation omitted).          “An abuse of

discretion occurs if there was an error of law or the judgment was manifestly

unreasonable or the result of partiality, prejudice, bias or ill will.” Silver v.

Thompson, 26 A.3d 514, 516 (Pa. Super. 2011) (citation omitted).

      The Wampoles’ sole argument is that Bank’s entrance into a consented

fine, with the Consumer Financial Protection Bureau (“CFPB”), for unfair and

deceptive trade practices warrants equitable relief because such practices

occurred in the instant matter. Simply, the Wampoles are challenging the

underlying judgment using the same argument they previously asserted and




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this Court found meritless.        See Flagstar Bank, FSB, No. 1321 MDA 2013

at 3, 6.2

       “The law of the case doctrine sets forth various rules that 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 matter.”           Ario v. Reliance Ins. Co., 980 A.2d

588, 597 (Pa. 2009) (citation omitted). The law of the case doctrine exists

to ensure fundamental fairness in the justice system.                   Id. at 599.

Therefore, departure from such doctrine

              is allowed only in exceptional circumstances such as where
              there has been an intervening 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. (quoting Commonwealth v. Starr, 664 A.2d 1326, 1332 (Pa. 1995)).

       In the instant matter, there has been no intervening change in the

controlling   law,    and    the   prior   holding    was   not   clearly   erroneous.

Additionally, although Bank did enter into a consented fine agreement with

CFPB subsequent to the previous judgment, this fact, by itself, does not
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2
  “[The Wampoles] claims that [t]he[y] ‘never in good faith defaulted on the
mortgage.’ Rather, [t]he[y] explain[] that Bank suggested [t]he[y] apply
for a modification before any default had occurred. [The Wampoles] further
asserts that [t]he[y] complied with all of Bank’s instructions regarding the
modification, but that Bank misled [them] and caused delays and difficulties
that impacted the loan modification.” See Flagstar Bank, FSB, No. 1321
MDA 2013 at 3.




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J-A06039-16



constitute a substantial change in the facts or evidence, does not change the

circumstances regarding the default sub judice,3 and does not warrant

equitable relief.

       Furthermore, in Bornman v. Gordon, 527 A.2d 109, 112 (Pa. Super.

1987), a tenant attempted to set aside a sheriff’s sale of personal property

to satisfy the judgment against her.           Bornman, 527 A.2d at 112.   This

Court held that it was not an abuse of discretion for the trial court to deny a

petition to set aside a sheriff’s sale where the record was clear that there

was no effort to satisfy the judgment regardless of whether she was

misinformed of the amount she was indebted. Id.

       In the matter sub judice, the trial court, in addressing the petition to

set aside sheriff’s sale, found that during the time period after summary

judgment was entered and the sheriff’s sale occurred, the Wampoles lived at

the residence without having cured the mortgage or entered into an

agreement with Bank.         See Trial Court Opinion, 10/20/15, at 3.   As this

Court previously affirmed the underlying judgment, the trial court was not

presented with any substantial new evidence regarding said judgment, and

the Wampoles failed to establish that equitable considerations warranted


____________________________________________


3
  In the underlying judgment, this Court found that the Wampoles failed to
produce evidence regarding statements denying the evidence of default and
did not specifically deny the mortgage was in default for non-payment. See
Flagstar Bank, FSB, No. 1321 MDA 2013 at 5.




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relief, the trial court did not abuse its discretion when it denied the

Wampoles’ petition to set aside the sheriff’s sale.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/11/2016




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