J. S14032/20


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

U.S. BANK NATIONAL ASSOCIATION            :     IN THE SUPERIOR COURT OF
(TRUSTEE FOR THE PENNSYLVANIA             :           PENNSYLVANIA
HOUSING FINANCE AGENCY)                   :
                                          :
                     v.                   :
                                          :
JOE HOLMES,                               :          No. 2289 EDA 2019
                                          :
                           Appellant      :


                   Appeal from the Order Dated June 20, 2019,
              in the Court of Common Pleas of Philadelphia County
                         Civil Division at No. 150802640


BEFORE: BOWES, J., KING, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                      FILED JULY 28, 2020

        Joe Holmes (“Homeowner”) appeals pro se1 from the June 20, 2019

order entered in the Court of Common Pleas of Philadelphia County which

denied Homeowner’s miscellaneous motion for relief. We affirm.

        The relevant procedural history, as gleaned from the certified record and

the trial court’s Rule 1925(a) opinion, is as follows:    On August 21, 2015,

U.S. Bank National Association (Trustee for the Pennsylvania Housing Finance

Agency) (“Bank”)          filed a complaint in mortgage     foreclosure   against

Homeowner.        On November 24, 2015, Homeowner filed an answer.

Thereafter, on March 23, 2017, Bank filed a motion for summary judgment.




1   The record reflects that Homeowner also proceeded pro se in the trial court.
J. S14032/20

Homeowner failed to file a response. On April 26, 2017, the trial court granted

Bank’s motion and ordered Homeowner’s property be sold at sheriff’s sale.2

Homeowner did not appeal. Rather, on April 28, 2017, Homeowner filed a

motion for reconsideration,3 which was denied by the trial court on May 30,

2017. Homeowner then appealed. On September 6, 2017, this court quashed

Homeowner’s appeal as untimely. See U.S. Bank Nat’l Ass’n. (Trustee for

the Pennsylvania Housing Finance Agency) v. Holmes, No. 1978 EDA

2017, per curiam order (Pa.Super. filed September 6, 2017).                 On

September 12, 2017, Homeowner’s property was sold at sheriff’s sale. The

sheriff delivered the deed on October 27, 2017. Homeowner did not seek to

set aside the sheriff’s sale.

        On February 26, 2018, Homeowner filed a “petition to vacate & void

[ab initio] the civil procedural default summary judgment.” (Capitalization

omitted.) The motion was denied by the trial court on April 3, 2018.

Homeowner did not appeal.          On May 17, 2019, Homeowner filed a

“miscellaneous motion for relief from sheriff’s sale and deed, and to vacate




2   The trial court assessed damages at $197,581.34 plus interest.

3Although Homeowner titled his filing a “motion for reconsideration,” a review
of the motion reveals that Homeowner actually sought permission to file an
untimely response to Bank’s motion for summary judgment, objected to the
complaint in mortgage foreclosure, and included a brief in support of those
objections.


                                      -2-
J. S14032/20

praecipe of writ and summary judgment.”4 (Capitalization omitted.) The trial

court denied this motion on June 20, 2019. Homeowner timely appealed. The

trial court did not order Homeowner to file a concise statement of errors

complained of on appeal pursuant to Pa.R.A.P. 1925(b).       The trial court,

however, filed a Rule 1925(a) opinion on August 20, 2019.

     Homeowner raises the following issues:

           1.    Were [a]ppellant’s rights violated by the trial
                 court upon ignoring appellant’s claim that the
                 mortgage loan in dispute is void as to appellant
                 who was and remains illiterate and incompetent
                 upon his execution of the mortgage loan and
                 modification instruments in dispute?

           2.    Were [a]ppellant’s procedural due process
                 rights under Pa.R.Civ.P. 2002 violated because
                 [a]ppellee was never a real party in interest?

           3.    Were [a]ppellant’s rights under Pennsylvania’s
                 uniform commercial code violated upon the note
                 instrument submitted in support of summary
                 judgment failing to display an [e]ndorsement
                 paid to the order of [a]ppellee or in blank
                 pursuant to 13 Pa.C.S.A. §§ 3204 and 3205
                 (respectively)?

           4.    Were [a]ppellant’s rights under sections 6(b)
                 and 9(d) of the note [and] mortgage in dispute
                 violated   and    denied    upon    [a]ppellee
                 commencing the foreclosure action below
                 without complying with sections 6(b) and 9(d)
                 of the note [and] mortgage (respectively) and
                 as required by 24 [C.F.R.] §§ 203.604,
                 203.605, and 203.606?


4The motion’s title further states: “and dismissal pursuant to 42 Pa.C.S.A.
§§ 5504(B), 5505 and Pa.R.C.P. 3132, 227.1, 208.3, and the court’s inherent
power.” (Capitalization omitted.)


                                   -3-
J. S14032/20


            5.    Were [a]ppellant’s due process rights violated
                  upon [a]ttorneys KLM as officers of the court
                  engaging in fraud upon the court, tampering
                  with and fabricating evidence?

Appellant’s brief at 3-4.

      The trial court determined that Homeowner’s “miscellaneous motion,”

filed May 17, 2019, was in the nature of a

            petition to (1) strike and/or open the April 26, 2017
            order granting summary judgment in favor of Bank
            and against Homeowner; (2) vacate the June 7, 2017
            writ of execution; and (3) set aside the Sheriff's sale
            and deed (the “petition”).

Trial court opinion, 8/20/19 at 1 (extraneous capitalization omitted).

      The trial court determined that its order of April 26, 2017, granting

Bank’s motion for summary judgment became a final order on May 26, 2017,

from which Homeowner failed to timely appeal. (Id. at 3.) Further, the trial

court found Homeowner failed to demonstrate “extrinsic fraud, lack of

jurisdiction over the subject matter, a fatal defect apparent on the face of the

record or some other evidence of extraordinary cause justifying intervention

by the court.”   Id. at 2-3 (numbers omitted), citing Manufacturers and

Traders Trust Co. v. Greenville Gastroenterology, SC, 108 A.3d 913,

918-919 (Pa.Super. 2015).

      With respect to the sheriff’s sale and deed, the trial court found

Homeowner’s “petition” was untimely as it was not filed until more than

one and one-half years after the sheriff’s deed was delivered and Homeowner

did not establish that the deed was based on fraud or lack of authority to make


                                     -4-
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the sale. See Mortgage Elec. Registration Sys., Inc. v. Ralich, 982 A.2d

77, 80 (Pa.Super. 2009), appeal denied, 992 A.2d 889 (Pa. 2010).

      After careful review, we find that the trial court’s August 20, 2019

Rule 1925(a) opinion ably and comprehensively disposes of all issues raised

on appeal. The trial court’s findings are amply supported by the record, and

its conclusions are without legal error. We, therefore, affirm on the basis of

that opinion.

      Order affirmed.

Judgment Entered.




JosephD.Seletyn,Esq.
Prothonotary




Date: 7/28/2020




                                    -5-
                                                                                                                    Circulated 06/29/2020 02:32 PM




                           IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY
                                   FIRST JUDICIAL DISTRICT OF PENNSYLVANIA
                                             TRIAL DIVISION - CIVIL

               U.S. BANK NATIONAL ASSOCIATION
               (TRUSTEE FOR THE
               PENNSYLVANIA HOUSING FINANCE
               AUTHORITY),
                                                                            2289 EDA 2019

                                                                            Trial Court Case No. 150802640
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               JOE HOLMES,
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                                                                OPINION

                       Defendant Joe Holmes (the "Homeowner") appeals the trial court's June 20, 2019 order

               denying Homeowner's Petition to (1) Strike and/or Open the April 26, 2017 Order Granting

               Summary Judgment in Favor of Bank and against Homeowner; (2) Vacate the June 7, 2017 Writ

               of Execution; and (3) Set Aside the Sheriffs Sale and Deed (the "Petition"). For the reasons

               discussed below, the Superior Court should affirm the June 20, 2019 order.

               FACTUAL AND PROCEDURAL BACKGROUND

                       On August 21, 2015, Plaintiff U.S. Bank National Association (Trustee for the

               Pennsylvania Housing Finance Authority) (the "Bank") filed a mortgage foreclosure complaint

               against Homeowner regarding property located at 4833 Morris Street, Philadelphia, Pennsylvania

               19144 ( the "Property").

                       On March 23, 2017, Bank filed a Motion for Summary Judgment to which Homeowner

               failed to file a response. On April 26, 2017, the trial court entered a final order granting Bank's

               Motion for Summary Judgment. Homeowner never appealed the April 26, 2017 final order.1 On

               September 12, 2017, the Sheriff sold the Property to KML Law Group for $17,100.


               1
                Instead, Homeowner filed a Motion for Reconsideration of the April 26, 2017 final order, which the trial court
               denied. Homeowner then improperly appealed the trial court's May 30, 2017 order denying Homeowner's Motion for
               Reconsideration. On September 6, 2017, the Superior Court quashed Homeowner's appeal as untimely. See Order,
               Filed 9/6/2017.




COPIES SENT PURSUANT TO Pa.R.C.P. 236(b) D. DRAYTON 08/22/2019
         On May 17, 2019, Homeowner filed the Petition that is the subject of this Appeal. The

trial court denied the Petition on June 20, 2019. On July 15, 2019, Homeowner filed a timely

appeal of the trial court's June 20, 2019 order.

DISCUSSION

1.       The Trial Court Properly Denied Homeowner's Petition

         A.       Homeowner's Petition to Strike and/or Open Summary Judgment

          A judgment entered in an adverse proceeding generally cannot be modified, rescinded,

vacated, struck, or opened after it has become final. Manufacturers & Traders Tr. Co. v.

Greenville Gastroenterology, SC, 108 A.3d 913, 918 (Pa. Super. Ct. 2015). A judgment entered

in an adverse proceeding becomes final if, within 30 days of the order, (1) no party filed an

appeal of it, (2) no party filed a motion for reconsideration for which the trial court expressly

granted reconsideration, or (3) the trial court did not vacate the order on its own accord. Id. The

purpose of this doctrine is to "establish a point at which litigants, counsel[,] and courts ordinarily

may regard contested lawsuits as being at an end." Id.

         A final judgment entered in an adverse proceeding may be modified, rescinded, vacated,

struck, or opened, however, if a party can demonstrate (1) extrinsic fraud, (2) lack of subject

matter jurisdiction, (3) a fatal defect apparent on the face of the record, or (4) some other

circumstance so grave or compelling as to constitute "extraordinary cause" justifying

intervention by the court. 2 Id. at 918-19.




2
 "Extraordinary cause" generally refers to "an oversight or action on the part of the court or the judicial process which
operates to deny the losing party knowledge of the entry of final judgment so that the commencement of the running
of the appeal time is not known to the losing party." Greenville Gastroenterology, I 08 A.3d at 919. The following do
not constitute "extraordinary cause:" (1) mistakes or ordinary neglect by counsel or (2) where a party has notice of the
entry of a final order. Id.

                                                          -2-
       Here, the trial court entered an order granting Bank's Motion for Summary Judgment on

April 26, 2017. Homeowner never filed an appeal from that order. Although Homeowner filed a

Motion for Reconsideration of that order, the trial court denied the motion. Lastly, the trial court

did not vacate that order on its own accord. Therefore, 30 days later on May 26, 2017, the April

26, 2017 order became final. On April 27, 2017, Homeowner received Rule 236 Notice of the

entry of the trial court's order granting summary judgment.

       In his Petition to Strike and/or Open Summary Judgment, Homeowner failed to

demonstrate any extraordinary cause justifying intervention by the court. Instead, Homeowner

improperly sought to attack the merits of the allegations of the complaint. See Homeowner's

Petition, Filed 5/17/2019. Therefore, the trial court properly denied Homeowner' s Petition to

Strike and/or Open Summary Judgment.

       B.      The Trial Court Properly Denied Homeowner's
               Petition to Set Aside the Sheriffs Sale and Deed as Untimely

       If the petitioner waits until after the Sheriff delivers the deed to file the petition to set

aside, the petition is untimely and, even if there are procedural deficiencies such as a lack of

service or notice, a court must deny the petition. See Mortg. Elec. Registration Sys., Inc. v.

Ralich, 982 A.2d 77, 79-80 (Pa. Super. Ct. 2009). There is a narrow exception to this general

rule, however, which is that a court may grant relief to an untimely petition to set aside if the

petitioner can prove (1) fraud in the Sheriffs sale of the property, (2) the Sheriff lacked authority

to make the sale, or (3) the judgment underlying the execution was void on its face. Id. at 80.

       Here, Homeowner filed an untimely Petition to Set Aside the Sheriffs Sale and Deed

because it was filed more than one and an half years after the Sheriff delivered the deed on

October 27, 2017. Homeowner's Petition was post-delivery of the deed and thus patently

untimely. See Homeowner's Petition, Exhibit "I," The Sheriffs Deed. Moreover, none of the


                                                  -3-
three narrow exceptions to the general rule of untimeliness apply. There was no fraud in the

Sheriff sale, the Sheriff had the authority to make the sale, and the underlying April 26, 2017

final order granting summary judgment was valid on its face.3 See supra Sections A and B.

Therefore, the trial court properly denied Homeowner's Petition to Set Aside Sheriffs Sale and

Deed.

CONCLUSION

                                oing, the Superior Court should affirm the June 20, 2019 order.

B



                  RS, JUDGE
Dated: August 20, 2019




3
 Likewise, the trial court properly denied Homeowner's Petition to Vacate the June 7, 2017 Writ of Execution. The
Writ of Execution was properly issued on the basis ofa valid judgment. Therefore, this claim of error is also meritless.
                                                          -4-
