J-S52031-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

STEVEN COHN, SUCCESSOR IN                      IN THE SUPERIOR COURT OF
INTEREST TO WELLS FARGO BANK, N.A.                   PENNSYLVANIA

                        Appellee

                   v.

MARC DUBROVSKY

                        Appellant                   No. 3473 EDA 2013


             Appeal from the Order Entered November 13, 2013
              In the Court of Common Pleas of Wayne County
                   Civil Division at No(s): 673-Civil-2010


BEFORE: GANTMAN, P.J., ALLEN, J., and FITZGERALD, J.*

MEMORANDUM BY GANTMAN, P.J.:                  FILED SEPTEMBER 11, 2014

     Appellant, Marc Dubrovsky, appeals from the order entered in the

Wayne County Court of Common Pleas, denying his petition to set aside



     The relevant facts and procedural history of this appeal are as follows.



mortgage foreclosure against Appellant.    Appellant did not respond to the

complaint.    On December 30, 2010, Bank filed a praecipe for in rem

judgment.    That same day, the court entered judgment against Appellant.

Bank filed a praecipe for a writ of execution on February 23, 2011.



Steven Cohn and recorded the assignment on October 4, 2011.           Also on

_____________________________

*Former Justice specially assigned to the Superior Court.
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October 4, 2011, Bank filed a praecipe for the voluntary substitution of

Appellee as plaintiff.      That same day, Bank filed a praecipe to mark its

judgment against Appellant to the use of Appellee.        On October 5, 2011,




2011.     On December 23, 2011, Appellee filed a petition to correct the

                               o Pa.R.C.P. 3135(b).1   In the petition, Appellee

explained the legal description in the deed did not include the correct metes



                                                       uary 15, 2012, the court

permitted Appellee to prepare and execute an amended deed.




82a).    Specifically, Appellant argued Appellee was not a real party in

interest:

            On March 23, 2011, [Bank] assigned the underlying
            mortgage to [Appellee]. [Bank] never assigned the
            December 30, 2010 judgment. Based solely upon the
____________________________________________


1
  If the sheriff has made a defective return of the execution proceeding or
has executed a defective deed, including the erroneous description of the

successors in title may correct the return or deed or order that a new return
                              .P. 3135(b).



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        assignment of a mortgage that had been extinguished by
        merger [Appellee] substituted himself as a plaintiff in the
        action. This substitution was invalid, because without
        assignment of the judgment he obtained no interest in the
        action itself.

Id. Appellant also claimed Bank had assigned its interest in the mortgage to

an entity other than Appellee:

        [A]round March 2011 or April 2011, [Bank] transferred or
        otherwise assigned the mortgage and/or note underlying
        said mortgage to PennyMac Loan Services, LLC

        transfer, [Bank] had no interest in the underlying
        mortgage at the time it pursued and directed execution
        proceedings in this matter. Consequently, [Bank] was not



(Id. at 2-3; R.R. at 82a-83a). Ultimately, the court conducted a hearing on

October 25, 2013.    By order dated November 13, 2013, the court denied



     Appellant timely filed a notice of appeal on December 10, 2013. On

December 23, 2013, the court ordered Appellant to file a concise statement

of errors complained of on appeal, pursuant to Pa.R.A.P. 1925(b). Appellant

timely filed a Rule 1925(b) statement on January 10, 2014.

     Appellant now raises three issues for our review:

        WHETHER THE TRIAL COURT ABUSED ITS DISCRETION
        AND MISAPPLIED LAW WHEN IT FOUND THAT [APPELLEE]

        MORTGAGE AND JUDGMENT DESPITE THE FACT THAT THE
        ONLY EVIDENCE OF RECORD ESTABLISHED THAT [BANK]
        HAD   PREVIOUSLY  ASSIGNED   ITS  INTEREST   TO
        PENNYMAC?


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        WHETHER THE TRIAL COURT ABUSED ITS DISCRETION
        AND MISAPPLIED LAW WHEN IT FOUND THAT [APPELLEE]
        WAS A REAL PARTY IN INTEREST AS THE RESULT OF THE
        PURPORTED ASSIGNMENT FROM [BANK]?

        WHETHER THE TRIAL COURT ABUSED ITS DISCRETION
        AND MISAPPLIED LAW IN CONCLUDING THAT THERE WAS
        NEITHER A LACK OF AUTHORITY NOR FRAUD SUFFICIENT

        SUBSTITUTED HIMSELF INTO THIS LITIGATION BY
        RECORDING    AN  IMPROPER   ASSIGNMENT   WHICH
        MISREPRESENTS THE TRUE CHAIN OF ASSIGNMENTS AND
        FAILS TO DISCLOSE THAT OTHER NON-PARTY ENTITIES
        HAVE BEEN DOCUMENTED ASSIGNEES OF [BANK] SINCE
        MARCH 2011?




mortgage to PennyMac in March 2011, before Bank purportedly assigned its




assignment to Appellee was invalid.       Appellant also avers there is no

evidence that Bank assigned the December 30, 2010 judgment to Appellee.



successor in interest. Further, Appellant argues Appellee misrepresented the

chain of assignments for the mortgage, and the record does not support the



the sheriff lacked authority to sell the property, because the case proceeded

without a real party in intere

Appellant concludes this Court must reverse the order denying the petition


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to realize out of the land, the debt, interest, and costs which are due, or

                                                   GMAC Mortg. Corp. of PA v.

Buchanan, 929 A.2d 1164, 1167 (Pa.Super. 2007) (quoting Kaib v. Smith,

684 A.2d 630, 632 (Pa.Super. 1996)).


         equitable principles and is addressed to the sound
         discretion of the hearing court. The burden of proving

         equitable    powers   rests   on    the    petitioner   When


         discretionary one, and it will not be reversed on appeal
         unless there is a clear abuse of that discretion.

Buchanan, supra at 1167 (internal citations omitted).



as follows:

         Rule 3132. Setting Aside Sale

              Upon petition of any party in interest before delivery of

         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.




Mortgage Electronic Registration Systems, Inc. v. Ralich, 982 A.2d 77,

79 (Pa.Super. 2009), appeal denied, 606 Pa. 650, 992 A.2d 889 (2010)


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(quoting First Union Nat. Bank v. Estate of Shevlin, 897 A.2d 1241,

1246 (Pa.Super. 2006)).



                                                o   Real   Property.
              Correction of Deed

           (a) When real property is sold in execution and no
        petition to set aside the sale has been filed, the sheriff, at
        the expiration of twenty days but no later than 40 days
        after either the filing of the schedule of distribution or the
        execution sale if no schedule of distribution need be filed,
        shall execute and acknowledge before the prothonotary a
        deed to the property sold. The sheriff shall forthwith
        deliver the deed to the appropriate officers for recording
        and for registry if required. Confirmation of the sale by
        the court shall not be required.




the sale, but befo                             Ralich, supra             There is

an exception to this time bar, however.    A



                 Id.

                          actions shall be prosecuted by and in the name of




is a real party in interest if it has the legal right under the applicable

                                                           US Bank N.A. v.

Mallory, 982 A.2d 986, 994 (Pa.Super. 2009) (quoting Cole v. Boyd, 719


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A.2d 311, 312 13 (Pa.Super. 1998)

who by operation of law, election or appointment has succeeded to the



may become a party to a pending action by filing of record a statement of

the material facts on which the right to subs

2352(a).

       Instantly, Bank filed its complaint in mortgage foreclosure on August

9, 2010.     On December 30, 2010, Bank obtained an in rem judgment in

foreclosure against Appellant.            On March 23, 2011, Bank assigned



October 4, 2011.         Also on October 4, 2011, Bank filed a praecipe to

substitute Appellee as the successor plaintiff,2 as well as a praecipe to mark

its judgment against Appellant to the use of Appellee. Appellee purchased



was recorded on November 8, 2011.

       Appellant subsequently file

the October 25, 2013 hearing on the petition, Appellant submitted multiple

documents in an attempt to prove that Bank had assigned its interest in

                                                                       est to
____________________________________________


2
  The praecipe
holder of the mortgage by virtue of that certain Assignment of Mortgage,
which Assignment has been executed and sent for recording in Wayne
County on or about 09/30       See Praecipe, filed 10/4/11, at 1.)



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purported assignment from Bank to                  PennyMac had    occurred.   The

documents included an assignment of mortgage form, which Appellant

                                                           See

submitted 10/25/13, at 4; R.R. at 102a.) The incomplete, unrecorded form

did not list an assignee. (Id. at Attachment 1; R.R. at 106a).

       Regarding the involvement of PennyMac, Appellee conceded that Bank

had assigned its interest in the mortgage to PennyMac at some point. (See




                                                                  See N.T. Hearing,

10/25/13, at 7; R.R. at 95a.)



assignment of mortgage form he executed with Bank.                  (See

Exhibit 3, submitted 10/25/13, at 1.)3 The form confirmed that the parties

executed the assignment on March 23, 2011, and Appellee recorded the

assignment on October 4, 2011.                 Moreover, Appellee presented another

assignment of mortgage form, indicating PennyMac assigned any interest it

had in the mortgage to Appellee in August 2011. (See Appelle

submitted 10/25/13, at 1.)

____________________________________________


3




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      Based upon the foregoing,

Bank had assigned

Bank assigned its interest to Appellee. In any event, the record shows Bank

was the original real party in interest, and Appellee properly acted as its

successor to the pending action. See Mallory, supra; Pa.R.C.P. 2352(a).

Therefore, Appellant failed to excuse the untimely filing of his petition to set

               sale. See Ralich, supra. Absent more, the court correctly

                        -aside petition. See Buchanan, supra. Accordingly,

we affirm.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/11/2014




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