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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: STATE RESOURCES CORP. IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
SPIRIT AND TRUTH WORSHIP AND
TRAINING CHURCH, INC.
Appellant No. 2992 EDA 2013
Appeal from the Order September 18, 2013
In the Court of Common Pleas of Philadelphia County
Civil Division at No(s): 002767
BEFORE: GANTMAN, P.J., BENDER, P.J.E., and PLATT, J.*
MEMORANDUM BY GANTMAN, P.J.: FILED OCTOBER 24, 2014
Appellant, Spirit and Truth Worship and Training Church, Inc., appeals
from the order entered in the Philadelphia County Court of Common Pleas,
denying Appellant’s “motion” to set aside sheriff’s sale.1 We affirm.
The relevant facts and procedural history of this appeal are as follows.
On August 27, 2012, State Resources Corp. (“Appellee”) filed a complaint in
mortgage foreclosure against Appellant. Appellant did not respond to the
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1
Although Appellant styled its filing as a “motion” to set aside sheriff’s sale,
our rules of civil procedure mandate the filing of a “petition” under such
circumstances. See Pa.R.C.P. 3132 (stating, “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”).
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*Retired Senior Judge assigned to the Superior Court.
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complaint. On October 22, 2012, Appellee filed a praecipe for entry of
default judgment in the amount of $132,565.48. That same day, the court
entered judgment against Appellant. Appellee filed a praecipe for a writ of
execution on December 3, 2012. On March 5, 2013, Appellee purchased the
property at a sheriff’s sale for $8,600.00. Appellee was the only bidder for
the property.
Prior to the delivery and recording of the deed, Appellant filed a
“motion” to set aside sheriff’s sale on March 20, 2013. In it, Appellant
argued Appellee’s winning bid was far less than the amount owed on the
mortgage and/or the fair market value of the property.2 Appellant concluded
the court should set aside the sheriff’s sale on this basis. Appellee filed a
response in opposition on April 24, 2013. On June 4, 2013, the court denied
Appellant’s “motion” to set aside sheriff’s sale.
Appellant filed a motion for reconsideration on June 14, 2013. In it,
Appellant complained the court had denied relief “without providing
[Appellant] an opportunity to present a revised property appraisal and
additional evidence…proving the Premises’ fair market value as compared to
the…purchase price.” (Motion for Reconsideration, filed 6/14/13, at 2). On
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2
Regarding the fair market value, Appellant claimed: “The most recent
formal appraisal of the Premises, completed in May 2004, set the current
approximate fair market value of the property within a range of $325,000.00
to $750,000.00.” (Motion to Set Aside Sheriff’s Sale, filed 3/20/13, at 2).
Appellant attached a summary of the appraisal as an exhibit to the filing.
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June 19, 2013, the court granted Appellant’s motion for reconsideration and
issued a stay on all proceedings. The court conducted a hearing on
September 18, 2013.3 Immediately following the hearing, the court again
denied Appellant’s “motion” to set aside sheriff’s sale.
Appellant timely filed a notice of appeal on October 15, 2013. On
October 16, 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 November 5, 2013.
Appellant now raises three issues for our review:
DID THE TRIAL COURT ERR AS A MATTER OF LAW WHEN
IT FAILED TO SET ASIDE THE SHERIFF’S SALE, ALTHOUGH
APPELLEE’S PURCHASE [PRICE FOR] THE PROPERTY WAS
GROSSLY INADEQUATE PURSUANT TO THE LAWS OF THE
COMMONWEALTH OF PENNSYLVANIA?
DID THE TRIAL COURT ERR AS A MATTER OF LAW WHEN
IT FAILED TO SET ASIDE THE SHERIFF’S SALE WHERE THE
EVIDENCE ESTABLISHED THAT THE SHERIFF’S SALE WAS
NOT EXECUTED PROPERLY AND APPELLANT DID NOT HAVE
AN OPPORTUNITY TO BID ON THE SUBJECT PROPERTY?
DID THE TRIAL COURT ERR WHEN IT MADE A FACTUAL
DETERMINATION THAT APPELLANT RECEIVED PROPER
NOTICE OF THE PENDING SHERIFF SALE WHERE THE
EVIDENCE OF RECORD DEMONSTRATED THAT APPELLANT
WAS NEVER SERVED WITH THE FORECLOSURE
COMPLAINT, WAS NEVER NOTIFIED THAT A DEFAULT
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3
The certified record does not include a transcript from the September 18,
2013 hearing. Nevertheless, the record contains a copy of a June 2013
appraisal report, which Appellant presented at the hearing. The June 2013
appraisal report estimated the fair market value of the property was
$647,000.00.
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JUDGMENT WAS ENTERED AGAINST IT IN THE
FORECLOSURE ACTION AND DID NOT RECEIVE NOTICE OF
THE PENDING SHERIFF SALE OF THE SUBJECT PROPERTY
PRIOR TO THE SALE?
(Appellant’s Brief at 4).4
“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.” 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)).
A petition to set aside a sheriff’s sale is grounded in
equitable principles and is addressed to the sound
discretion of the hearing court. The burden of proving
circumstances warranting the exercise of the court’s
equitable powers rests on the petitioner…. When
reviewing a trial court’s ruling on a petition to set aside a
sheriff’s sale, we recognize that the court’s ruling is a
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).
In its first issue, Appellant relies on Bank of America, N.A. v. Estate
of Hood, 47 A.3d 1208, 1212 (Pa.Super. 2012), appeal denied, 619 Pa.
670, 60 A.3d 534 (2012), for the proposition that a sheriff’s sale price is
“grossly inadequate where [the] sale price was a small percentage―roughly
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4
Appellant’s statement of questions involved raises additional issues, which
do not correspond to the argument section of its brief. Specifically, the
argument section is divided into two parts, which overlap with the issues
included in the statement of questions involved. Consequently, we address
the issues set forth in the argument section of the brief.
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ten percent or less―of the established market value.” (Appellant’s Brief at
10). Appellant insists the $8,600.00 purchase price of the property was far
less than ten percent of the amount Appellant owed on the mortgage and/or
the fair market value of the property. Appellant concludes the court should
have set aside the sheriff’s sale. We disagree.
The following principles govern our examination of the adequacy of the
price obtained for a property at a sheriff’s sale:
Where a sale is challenged based upon the adequacy of the
price our courts have frequently said that mere inadequacy
of price standing alone is not a sufficient basis for setting
aside a sheriff’s sale. However where a “gross
inadequacy” in the price is established courts have found
proper grounds exist to set aside a sheriff’s sale. The
courts have traditionally looked at each case on its own
facts. It is for this reason that the term “grossly
inadequate price” has never been fixed by any court
at any given amount or any percentage amount of
the sale. Further, it is presumed that the price received
at a duly advertised public sale is the highest and best
obtainable.
Estate of Hood, supra at 1211 (quoting Blue Ball Nat’l Bank v. Balmer,
810 A.2d 164, 166-67 (Pa.Super. 2002), appeal denied, 573 Pa. 662, 820
A.2d 702 (2003)) (emphasis added).
Instantly, the trial court concluded:
Here, Appellant twice has failed to rebut the presumption
that the price paid at the sheriff’s sale was the best
obtainable. In its initial Motion to Set Aside the Sheriff’s
Sale, Appellant did not provide competent evidence of the
current fair market value of the subject property.
Appellant relied on an appraisal report from May 2004,
which valued the subject property between $325,000.00
and $750,000.00, to allege that the current market value
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was between $450,000.00 and $850,000.00 without
explanation of how Appellant calculated the new figures.
When the court granted Appellant a second bite at the
apple, Appellant offered an Appraisal Report dated June
19, 2013, that valued the subject property at
$647,000.00. However, assuming arguendo that the June
19, 2013 Appraisal Report is accurate, it alone does not
show that Appellee paid any amount less than the best
obtainable price. Appellant did not properly raise or
present evidence to establish that Appellant was not
notified of the sale, that the sale was not duly advertised,
or that there was misinformation or confusion about the
terms of the sale. Appellee, the judgment creditor, was
the only bidder on the subject property at a duly
advertised and lawfully conducted sheriff’s sale. Although
there was no competitive bidding here, a factor upon which
the Hood court relied, there were not any impediments to
competitive bidding. Presumably, no one else bid on the
subject property because no one else wanted it.
(See Trial Court Opinion, filed December 12, 2013, at 7-8) (internal citations
omitted). We agree and emphasize that the record does not reveal any
procedural irregularities in the sheriff’s sale process. See Estate of Hood,
supra (indicating procedural irregularities can hamper competitive bidding
process and contribute to grossly inadequate sale price). Therefore, the
court properly denied Appellant’s motion to set aside sheriff’s sale. See
Buchanan, supra.
Next, despite the wording in its statement of questions involved,
Appellant baldly asserts only that Appellee did not properly serve the
complaint. Appellant, however, failed to raise this issue in the trial court.
Therefore, the issue is waived. See Pa.R.A.P. 302(a) (stating, “Issues not
raised in the [trial] court are waived and cannot be raised for the first time
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on appeal”). See also Manack v. Sandlin, 812 A.2d 676, 683 (Pa.Super.
2002), appeal denied, 572 Pa. 766, 819 A.2d 548 (2003) (holding
appellant’s failure to raise any objections in trial court regarding improper
service constituted waiver of issue on appeal).5 Accordingly, we affirm.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/24/2014
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5
Moreover, the certified record contains an affidavit of service, indicating a
process server served Appellant with the complaint, at the property, on
September 7, 2012. The affidavit stated that the process server handed the
complaint to Arande Freeman, an individual “who is authorized to accept
service” on Appellant’s behalf. (See Affidavit of Service, filed 9/12/12, at
1.) Absent more, the certified record does not reveal a defect in service of
the complaint. See Pa.R.C.P. 424(3) (explaining service of original process
upon corporation shall be made by handing copy to, inter alia, agent
authorized by corporation in writing to receive service of process for it).
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