J-A24024-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

TD BANK. N.A.,                               IN THE SUPERIOR COURT OF
                                                   PENNSYLVANIA
                        Appellant

                   v.

BURTON2ASSOCIATES, LLC & BUCKS
COUNTY INDUSTRIAL DEVELOPMENT
AUTHORITY,

                        Appellees                 No. 56 EDA 2014


              Appeal from the Order Entered December 5, 2013
               In the Court of Common Pleas of Bucks County
                     Civil Division at No(s): 2011-09088


TD BANK. N.A.,                               IN THE SUPERIOR COURT OF
                                                   PENNSYLVANIA
                        Appellant

                   v.

BURTON2ASSOCIATES, LLC & BUCKS
COUNTY INDUSTRIAL DEVELOPMENT
AUTHORITY,

                        Appellees                 No. 340 EDA 2014


           Appeal from the Order Entered December 26, 2013
             In the Court of Common Pleas of Bucks County
                   Civil Division at No(s): 2011-09088

TD BANK. N.A.,                               IN THE SUPERIOR COURT OF
                                                   PENNSYLVANIA
                        Appellant

                   v.

BURTON2ASSOCIATES, LLC & BUCKS
COUNTY INDUSTRIAL DEVELOPMENT
AUTHORITY,
J-A24024-14



                            Appellees                  No. 343 EDA 2014


               Appeal from the Order Entered December 26, 2013
                 In the Court of Common Pleas of Bucks County
                       Civil Division at No(s): 2011-09088

BEFORE: BENDER, P.J.E., FITZGERALD, J.* and PLATT, J.*

MEMORANDUM BY BENDER, P.J.E.:                    FILED NOVEMBER 05, 2014

         In this mortgage foreclosure action, TD Bank, N.A. (TD Bank) appeals

from the orders entered December 5, and 26, 2013, which, collectively,

granted the petitions filed by Steven Gross (Gross) and Wayne and Barbara

Schur (the Schurs) and directed the Bucks County Prothonotary to mark the

judgment entered December 28, 2011, “satisfied, released, and discharged,”

pursuant to 42 Pa.C.S. § 8103(d).1 We affirm.

         On August 8, 2007, Burton2Associates, LLC, of which both Gross and

Wayne Schur are members, borrowed $4,083,000 from TD Bank, to

purchase and renovate a commercial property located at 625 Winks Lane,

____________________________________________


*
    Former Justice specially assigned to the Superior Court.
**
     Former Senior Judge assigned to the Superior Court.
1
  At No. 56 EDA 2014, the order appealed was dated December 4, 2012, and
entered on the docket on December 5, 2012. At No. 340 EDA 2014, the
order appealed was dated December 20, 2012, and entered December 26,
2012. At No. 343 EDA 2012, the order appealed was dated December 23,
2012, and entered December 26, 2012. This Court sua sponte consolidated
these appeals. See Pa.R.A.P. 513.




                                           -2-
J-A24024-14


Bensalem, Bucks County, Pennsylvania (the Property).2           The loan was

secured by a mortgage. In addition, Gross and Wayne Schur guaranteed the

loan individually.3

       Burton2Associates, LLC defaulted on its loan. On March 4, 2011, TD

Bank confessed judgment against Burton2Associates, LLC, Gross, Wayne

Schur, et al., in Chester County. See Chester County Civil Action No. 11-

02426. Thereafter, TD Bank transferred the confessed judgment to Bucks

and Montgomery Counties and commenced a complaint in mortgage

foreclosure against the Schurs’ personal residence. See Bucks County Civil

Action No. 2011-02419; Montgomery County Civil Action No. 2011-30497.

In response, Gross petitioned to open and/or strike the confessed judgment

in Chester County.       On November 29, 2012, Gross sought and thereafter

obtained an emergency stay of execution against his personal assets in

Montgomery County, pending disposition of his petition to open and/or

strike.   The stay remained in effect until terminated on May 6, 2013.

       In parallel proceedings, on October 14, 2011, TD Bank commenced

this mortgage foreclosure action.          On December 28, 2011, judgment was

entered on its behalf (the Property judgment).          On July 13, 2012, the
____________________________________________


2
  TD Bank is the successor-in-interest to Commerce Bank, with whom the
initial loan originated.
3
  Wayne Schur gave TD Bank a mortgage on his personal residence located
in Montgomery County.




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Property was sold to TD Bank for costs in the amount of $1,217.89.         The

deed was dated October 11, 2012, and recorded on October 26, 2012.

      On May 14, 2013, Gross filed a petition pursuant to 42 Pa.C.S. §

8103(d), asserting TD Bank had failed to file timely a petition to set the fair

market value of the Property and seeking to have the foreclosure judgment

marked satisfied, released and discharged.        The Schurs filed a similar

petition on May 13, 2013, and an amended petition on June 4, 2013.

Thereafter, TD Bank filed a petition to set the fair market value on

September 13, 2013.       Following argument and briefing, the trial court

granted their petitions in a series of orders, and TD Bank timely appealed.

TD Bank filed court-ordered Pa.R.A.P. 1925(b) statements, and the court

filed a responsive opinion.

      TD Bank raises the following issues on appeal:

      1. Whether TD Bank was required to file a petition to set fair
      market value in a mortgage foreclosure proceeding during the
      pendency of a stay of “all actions in furtherance of execution or
      transfer of [a] confessed judgment” where a) the mortgage
      foreclosure action and confessed judgment are predicated on the
      same underlying debt, b) the language of the order directing a
      stay was broadly drafted by Appellant Gross, c) and [sic] where
      Gross was a necessary party to any petition to set fair market
      value?

      …

      2. Whether the scope of the stay order drafted by Gross could
      be retroactively interpreted to TD Bank’s detriment by
      considering facts outside the language of the stay order?

      …


                                     -4-
J-A24024-14


      3. Whether, in interpreting the language of the stay order, it
      was appropriate for the trial court to narrowly and retroactively
      construe the language of the stay order to TD Bank’s detriment
      under the premise that the Deficiency Judgment Act should be
      liberally construed in favor of debtors where 1) interpreting the
      stay order did not require interpretation of any provision of the
      Deficiency Judgment Act and 2) where the Pennsylvania Savings
      Statute is to be liberally construed in favor of TD Bank?

      …

      4. Whether the trial court was required to create an evidentiary
      record and hold a trial pursuant to Pa.R.C.P. 3291 where 1) TD
      Bank denied the material allegations of the petitions to mark the
      judgment satisfied by [Appellees] Gross and the Schurs, 2)
      where the court expressly considered matters outside the record
      and made credibility determinations and 3) where TD Bank
      repeatedly demanded a trial in writing?

Appellant’s Brief, at 6-7.

      In addressing these issues, our review is limited to

      ‘assessing whether sufficient evidence exists to sustain the trial
      court’s order, or whether the court committed a reversible error
      of law. The creditor must carry the burden to demonstrate its
      compliance with the Deficiency Judgment Act.’ … Moreover, the
      Deficiency Judgment Act is to be liberally interpreted in favor of
      judgment creditors.

Home Sav. & Loan Co. of Youngstown, Ohio v. Irongate Ventures,

LLC, 19 A.3d 1074, 1078 (Pa. Super. 2011) (Irongate Ventures) (quoting

and citing First Fed. Sav. & Loan Ass’n of Carnegie v. Keisling, 746

A.2d 1150, 1153-54 (Pa. Super. 2000)). To the extent TD Bank challenges

the trial court’s interpretation of the Deficiency Judgment Act, our review is

plenary and de novo. See Wilson v. Transp. Ins. Co., 889 A.2d 563, 570

(Pa. Super. 2005).


                                     -5-
J-A24024-14


       We have reviewed the certified record, the briefs of the parties, the

applicable law, and the opinion authored by the Honorable Jeffrey L. Finley

of the Court of Common Pleas of Bucks County, entered April 28, 2014. The

principal dispute between the parties involves the proper application of the

Deficiency Judgment Act, specifically whether an emergency stay of

execution against Gross’ personal assets located in Montgomery County

tolled the six-month time limit to file a petition to set the fair market value

of the Property. In this regard, the trial court determined that (1) TD Bank

was required to file a petition to set the fair market value of the Property

within six months of recording its deed on October 26, 2012; (2) the six-

month period expired on April 26, 2013; (3) TD Bank’s petition, filed in

September 2013, was untimely; (4) the stay of execution was relevant only

to the confessed judgment pending in Montgomery County and did not

impact TD Bank’s obligation to file a petition in the mortgage foreclosure

proceeding; and (5) therefore, pursuant to the Deficiency Judgment Act, the

debtors were entitled to have the Property judgment marked satisfied,

released, and discharged.4



____________________________________________


4
  The trial court opinion includes typographical errors on pages 9 and 11,
suggesting that the time expired for TD Bank’s petition to set fair market
value on “April 26, 2012.” Trial Court Opinion, 04/28/2014, at 9, 11.
Clearly, this was inadvertent. The six-month period expired on April 26,
2013.



                                           -6-
J-A24024-14


      We observe that TD Bank did not dispute material facts before the trial

court, averring rather that this matter called for a legal determination to be

made by the court. Further, we discern no error in the court’s interpretation

and application of the Deficiency Judgment Act. See 42 Pa.C.S. § 8103; see

also Irongate Ventures, 19 A.3d at 1078-80.             To the extent TD Bank

draws a comparison between the limited stay of execution granted in

Montgomery County and the broad, automatic stay granted debtors in the

context of bankruptcy proceedings, we deem its arguments unpersuasive.

See 11 U.S.C.A. § 362.      Finally, TD Bank’s reliance on the Pennsylvania

Savings   Statute,   codified   at   42   Pa.C.S.   §   5535(b),   is   misplaced.

Accordingly, TD Bank is not entitled to relief.

      We conclude that Judge Finley’s opinion is dispositive of the issues

presented in this appeal. Accordingly, we adopt the opinion as our own for

purposes of further appellate review.

      Orders affirmed.

      Judge Platt joins the memorandum.

      Justice Fitzgerald concurs in the result.




                                      -7-
J-A24024-14




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/5/2014




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