J-A22042-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

JP MORGAN CHASE BANK N.A., CHASE                     IN THE SUPERIOR COURT OF
HOME FINANCE LLC,                                          PENNSYLVANIA

                            Appellees

                       v.

PAUL AND LYDIA COOK,

                            Appellants                   No. 200 MDA 2015


                 Appeal from the Order Entered January 5, 2015
                in the Court of Common Pleas of Luzerne County
                        Civil Division at No.: 2010-11615


BEFORE: BOWES, J., JENKINS, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                              FILED OCTOBER 08, 2015

        Appellants, Paul and Lydia Cook, husband and wife, appeal from the

order denying their petition to set aside a sheriff’s sale and to strike a

judgment. They allege Appellee, JP Morgan Chase Bank, N.A., successor by

merger to Chase Home Finance, LLC, failed to prove fraudulent transfer.

They also allege that Appellant Lydia Cook was not properly served with

notice of the sheriff’s sale.      They fail to develop and support either claim.

Accordingly, both issues are waived.           Moreover, on the merits, we would

affirm on the basis of the trial court opinion.



____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
J-A22042-15


       In its opinion, the trial court fully and correctly sets forth the relevant

facts and procedural history of this mortgage foreclosure case. (See Trial

Court Opinion, 3/20/15, at unnumbered pages 1-2). Therefore, we have no

reason to restate them at length here.

       For convenience of the reader, we note the most pertinent facts in

summary form as follows: Appellant Paul owned the property at issue in his

own name, although married to Appellant Lydia, from 1993 until 2011.

Monthly payments ceased in December, 2009.             In 2011, a month after

foreclosure, Appellant Paul transferred the deed to himself and his wife

Appellant Lydia, as tenants by the entireties.            Appellee claimed the

conveyance was fraudulent, as intentionally incurred to hinder, delay or

defraud present or future creditors. The trial court agreed. Appellee served

notice of the sheriff’s sale on Appellant Lydia, in Sanibel, Florida. The trial

court found that service on Lydia was legally sufficient. The court denied the

petition to set aside the sheriff’s sale and to strike the judgment.         This

timely appeal followed.1

       Appellants present three questions for our review:

            1. If the deed was a fraudulent transfer in 2011, was it
       handled properly by the [c]ourt?


____________________________________________


1
  Appellants timely filed a statement of errors on February 23, 2015. See
Pa.R.A.P. 1925(b). The court filed its opinion on March 20, 2015. See
Pa.R.A.P. 1925(a).



                                           -2-
J-A22042-15


           2. If the [d]eed was a fraudulent transfer in 2011, was it
      handled properly by JP Morgan?

           3. Did Lydia Cook, based on the facts presented, receive
      proper notice?

(Appellants’ Brief, at unnumbered page 4).

      Rule 3132 of the Pennsylvania Rules of Civil Procedure provides as

follows:

            Upon 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. 3132.

      Equitable considerations govern the trial court’s decision to set
      aside a sheriff’s sale. This Court will not reverse the trial court’s
      decision absent an abuse of discretion.

                  As a general rule, the burden of proving
           circumstances warranting the exercise of the court’s
           equitable powers is on the applicant, and the application to
           set aside a sheriff’s sale may be refused because of the
           insufficiency of proof to support the material allegations of
           the application, which are generally required to be
           established by clear evidence.

            An abuse of discretion occurs where, for example, the trial
      court misapplies the law.

Bank of Am., N.A. v. Estate of Hood, 47 A.3d 1208, 1211 (Pa. Super.

2012), appeal denied, 60 A.3d 534 (Pa. 2012) (citations omitted). Similarly,

            The purpose of a sheriff’s sale in mortgage foreclosure
      proceedings is to realize out of the land, the debt, interest, and
      costs which are due, or have accrued to, the judgment creditor.
      Pursuant to Rule 3132 of the Pennsylvania Rules of Civil
      Procedure, a sheriff’s sale may be set aside upon petition of an

                                       -3-
J-A22042-15


      interested party “upon proper cause shown” and where the trial
      court deems it “just and proper under the circumstances.”
      Pa.R.C.P. 3132.        The burden of proving circumstances
      warranting the exercise of the court’s equitable powers is on the
      petitioner.   Equitable considerations govern the trial court’s
      decision to set aside a sheriff’s sale, and this Court will not
      reverse the trial court’s decision absent an abuse of discretion.

Nationstar Mortgage, LLC v. Lark, 73 A.3d 1265, 1267 (Pa. Super. 2013)

(case citations and internal quotation marks omitted).

      Preliminarily, we note that in a substantially non-compliant brief,

Appellants have failed to develop an argument for each question raised with

specific citation to pertinent authority to support the assertions made. (See

Appellants’ Brief, at unnumbered pages 9-11). In little more than a page,

exclusive of a lengthy statutory citation (to selected sections from the

Pennsylvania Fraudulent Transfers Act), Appellants present a threadbare and

undeveloped argument which makes no effort to apply the statute cited to

the errors claimed.   Accordingly, all of Appellants’ arguments are waived.

See Pa.R.A.P. 2119(a), (b).

      Moreover, after a thorough review of the record, the briefs of the

parties, the applicable law, and the well-reasoned opinion of the trial court

we conclude that there is no merit to the issues Appellants have raised on

appeal. The trial court opinion properly disposes of the questions presented.

(See Trial Ct. Op., at unnumbered pages 3-5) (concluding (1) Appellee

presented sufficient evidence to establish fraudulent intent of Appellant Paul

Cook and “classic fraudulent conveyance,” and (2) service on Appellant Lydia


                                    -4-
J-A22042-15


Cook was legally sufficient). Even if Appellants’ claims were not waived, we

would affirm on the basis of the trial court’s opinion.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/8/2015




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                                                           111 rur;~:~lMIJIIIU
                                                                         Filing ID: 2030267
                                                                     2010-11615-0132 Opinion

                                                                    Luzerne County Civil Records
                       IN THE COURT OF (                              3/20/2015 12:06:27 PM
                             OF LUZERNE COUNTY


JP MORGAN CHASE BANK NATIONAL :
ASSOCIATION, S/B/M TO CHASE
HOME FINANCE, LLC,
                      Plaintiff                       CIVIL ACTION--LA W
     v.

PAUL J. COOK and LYDIA COOK,
Husband and wife,                                     NO: 11615 OF 2010
                       Defendants


                     OPINION PURSUANT TO RULE 1925(A)(l)

BY THE HONORABLE MICHAEL T. VOUGH

       This matter crune before the Court on a Petition to Set Aside Sheriff's Sale and to

Strike Judgment filed by Lydia Cook and Defendant Paul J. Cook. On October 3, 2014,

the property located at RR3, Box 3054, Harvey's Lake, Luzerne County, Pennsylvania

was sold at a Sheriffs sale to Plaintiff. At the time of the sale, the deed to the property

listed Paul J. Cook and Lydia M. Cook as owners. This deed was dated August 26, 2011

and recorded on September 2, 2011 in Luzerne County deed book 3011 at page 166900.

Defendant, Paul J. Cook, used this deed to convey the property from himself to himself

and his wife. This conveyance was approximately one month after the entry of a

mortgage foreclosure judgment which occurred on July 29, 2011 when the property was

owned by Paul J. Cook.

        Defendant, Paul J. Cook, filed a Petition to Open the Judgment on September 7,

2011. The Petition was denied by this Court and the denial was affirmed on Appeal by

the Pennsylvania Superior Court. Defendant filed a separate petition to open the

judgment on October 18, 2013. His petition was denied and the property was listed for

sale on June 6, 2014. Defendant and his wife then filed separate petitions to stay the sale
                                                                             Circulated 09/18/2015 04:46 PM




which were denied. The sale was postponed until October 3, 2014 so Defendant's       wife

could be served with notice of the sale. Wife's petition for supersedeas was denied on

September 11, 2014 and her appeal was quashed by the Superior Court on October 24,

2014.

        By Order dated January 5, 2015, this Court denied the Petition to Set Aside the

October 3, 2014 Sheriffs Sale and to Strike the Judgment.    Defendant, Paul   J. Cook, filed

a timely appeal to the Pennsylvania Superior Court on January 26, 2015.

        On February 2, 2015, this Court issued an Order requiring Defendant to file a

Concise Statement of Errors Complained of on appeal within twenty-one days.

Defendant complied with this Order on February 23, 2015. In his Concise Statement,

Defendant raises five issues which can be summarized as follows: Was Plaintiff

permitted to execute against the jointly owned property due to the fact that the transfer

from Defendant to Defendant and his wife was a fraudulent conveyance and whether

notice of the sale was properly made to Lydia Cook.

        Defendant, Paul J. Cook, was solely responsible for the mortgage on the property.

From June 17, 1993 until August 26, 2011, the property was owned by Defendant alone.

Lydia Cook's name was added to the deed on August 26, 2011. Once the property was

jointly owned, a tenancy by the entireties was formed and each spouse owned the entire

property. Fazekas v. Fazekas, 737 A.2d 1262 (Pa.Super. 1999). A creditor of one has no

interest in entireties property. Constitution Bank v. Olson, 620 A.2d 1146 (Pa.Super.

1993). "When a spouse conveys individual property to a tenancy by the entireties in

fraud of creditors, the creditor may nevertheless execute against the property so

conveyed." Stinner v. Stinner, 446 A.2d 651, 652 (Pa.Super. 1982).
                                                                              Circulated 09/18/2015 04:46 PM




       Plaintiff claims that the conveyance made by Defendant on August 26, 2011 was

fraudulent pursuant to Section 354 and Section 357 of the Pennsylvania     Fraudulent

Conveyance Act. 39 P.S. Sections 354 and 357.      It appears that Section 357 more clearly

supports Plaintiff's position. Section 357 is entitled "Conveyance made with intent to

defraud" and states: "Every conveyance made and every obligation incurred with actual

intent, as distinguished from intent presumed in law, to hinder, delay, or defraud either

present or future creditors, is fraudulent as to both present and future creditors." 39 P.S.

Section 357. In addressing this Section, the Pennsylvania Superior Court stated:

               This section of the Act does not require that the debtor make
               himself insolvent or execution proof: only that the debtor convey
               with intent to hinder, delay or defraud creditors. "Since fraud is
               usually denied, it must be inferred from all facts and circumstances
               surrounding the conveyance, including subsequent conduct."
               Godina v. Oswald, 206Pa.Super. 51, 55, 211 A.2d 91 (1965).

Garden State Standardbred v. Seese, 611 A.2d 1239, 1243 (Pa.Super. 1992).

        Based on the record established in this case, it is clear that Defendant's only

purpose for transferring the property to himself and his wife was to prevent the sale

which took place on October 3, 2014. For eighteen years, the property remained titled in

Defendant's name alone although he was married to Lydia Cook. It took him slightly

more than one month after the entry of the judgment in foreclosure to add his wife to the

deed. Defendant attempted to open the judgment as did his wife. He now wants the

foreclosure sale to be set aside. We have absolutely no hesitation in finding that the

August 26, 2011 conveyance was done for the sole purpose of hindering, delaying and

defrauding Plaintiff. This is a classic fraudulent conveyance and violates Section 357.

Plaintiff has presented sufficient evidence to adequately establish the fraudulent intent of

Defendant, Paul J. Cook.
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         Defendant's     claim that his wife was not properly served with notice of the

sheriff's sale also lacks merit. Lydia Cook was added to the deed after the entry of

judgment but prior to the sale date. Notice of the sale had to be served on her pursuant to

42 Pa.R.C.P. 3129.2. If service cannot be made as provided by Rule 3129.2(c)(l)(i)(A)

or 3129.2(c)(l)(i)(B),    notice is to be served pursuant to special order of Court as provided

by Rule 430. Pa.R.C.P. 3129.2(c)(l)(i)(C).

         Because Lydia Cook-could not be served, a Motion for Service of Notice of Sale

Pursuant to Special Order of Court was filed by Plaintiff.     On July 14, 2014, the Luzerne

County Court of Common Pleas issued an Order pursuant to Pa.R.C.P. 430 which granted

Plaintiff's   Motion and permitted service by regular mail and posting of the property.

Plaintiff filed an Affidavit of Service on September 4, 2014 which indicated that service

was made in accordance with the July 14, 2014 Order. For the notice to be valid, it m.ust

"be reasonably calculated to inform interested parties of the pending action, and the

information necessary to provide an opportunity to present objections."       Boyer v. Walker,

714 A.2d 458, 462 (Pa.Super. 1998) quoting First Eastern Bank v. Campstead, 637 A.2d

1364, 1366 (Pa.Super. 1994). We find the notice provided by Plaintiff was sufficient.

                  A petition to set aside a sheriffs sale invokes the equitable
                  powers of a trial court. The burden of proof rests upon the
                  proponent of the petition to show by clear and convincing
                  evidence that the circumstances warrant relief. The trial
                  court's ultimate disposition of the matter will not be disturbed
                  upon review absent a find of an abuse of discretion.

Jefferson Bank v. Newton Associates, 686 A.2d 834, 838 (Pa.Super. 1996).

          More   than three and one half years have gone by since the mortgage foreclosure

judgment was entered against Defendant. Numerous legal strategies have been employed

by Defendant and his wife in an effort to prevent Plaintiff from exercising its rights in the

property. Plaintiff is entitled to ownership of the property.
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        Because Defendant has failed to show that he is entitled to relief, our Order

denying his Petition to Set Aside Sheriff's Sale and to Strike Judgment should be

affirmed.




                                                     ~~:ot
                                                      BY THE COURT: .


                                                                                    J.
