J-S32031-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
CF SBC UST 3, LLC IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
JOSE CEDENO AND ALI S. SHAMAN
J.A.C.C. EL BEY
APPEAL OF JOSE CEDENO
No. 3054 EDA 2016
Appeal from the Order August 25, 2016
in the Court of Common Pleas of Philadelphia County Civil Division
at No(s): March Term, 2012 No. 02454
BEFORE: GANTMAN, P.J., STABILE and FITZGERALD,* JJ.
MEMORANDUM BY FITZGERALD, J.: FILED MAY 24, 2017
Appellant Jose Cedeno appeals from an order entered in the
Philadelphia Court of Common Pleas denying his motion to strike the
judgment entered in this mortgage foreclosure action. We affirm.
The history of this case is as follows. Appellant was the owner of real
property at 3101-03 Frankford Avenue, Philadelphia, Pennsylvania. The
property was mortgaged to Goldman Sachs Mortgage Company. On March
21, 2012, Goldman Sachs filed an in rem mortgage foreclosure action
against Appellant in the Court of Common Pleas of Philadelphia County.
Appellant filed preliminary objections to the complaint, which were denied,
and a motion for reconsideration, which was denied on July 10, 2012.
*
Former Justice specially assigned to the Superior Court.
J-S32031-17
Appellant appealed the denial of the motion for reconsideration to this Court,
which quashed the appeal.
Appellant filed an answer to the complaint with new matter. Goldman
Sachs first moved for judgment on the pleadings and then for summary
judgment, but the trial court denied both motions. During these motion
proceedings, Goldman Sachs assigned the mortgage to Appellee, CF SBC
UST 3, LLC, and Appellee substituted itself for Goldman Sachs as the
plaintiff.
The case proceeded to a two-day non-jury trial. Appellee introduced
into evidence, inter alia, certified copies of the assignment of the subject
mortgage from Goldman Sachs to Appellee. On March 11, 2014, the trial
court entered a verdict in favor of Appellee in the amount of $95,191.84.
On March 25, 2014, Appellee filed a praecipe for entry of judgment on the
verdict. On April 7, 2014, Appellant filed a motion for reconsideration, which
the court denied on April 9, 2014. Appellant appealed to the Superior Court
on April 23, 2014, but this Court quashed the appeal due to Appellant's
failure to file post-trial motions.
Appellant filed for bankruptcy under Chapter 7 in the United States
Bankruptcy Court for the Eastern District of Pennsylvania. Appellee filed a
motion seeking relief from the automatic stay, which the Bankruptcy Court
granted on September 17, 2014.
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On November 6, 2014, Appellee purchased the mortgaged property at
a sheriff’s sale for a prevailing bid of $11,500.00. On November 24, 2014,
Appellant filed a motion to set aside the sheriff’s sale. On March 12, 2015,
following a hearing, the trial court denied the motion. Appellant appealed to
this Court, which affirmed on December 5, 2015 at 1117 EDA 2015.
On July 6, 2016, Appellant filed a motion to strike the judgment in the
mortgage foreclosure action as void. On August 25, 2016, the trial court
denied the motion to strike. This timely appeal followed. Without ordering
Appellant to file a Pa.R.A.P. 1925(b) statement, the trial court has filed a
Pa.R.A.P. 1925(a) opinion.
Appellant raises the following issues in this appeal:
1. Whether the [trial] [c]ourt erred in denying said
[m]otion [to strike judgment] when the facts upon which
the relief requested [are] clear and unequivocal[?]
2. Whether the issue of the effect of Goldman Sachs[’]
[a]ssignment of the [m]ortgage prior to the filing of the
[f]oreclosure [s]uit has been properly addressed in this or
another court[?]
Appellant’s Brief at 3.
Appellant’s position boils down to one argument: the trial court erred
in denying the motion to strike the judgment,1 because Goldman Sachs was
not the holder, owner or other party entitled to foreclose on the mortgage on
1
“A petition to strike a judgment may be granted only for a fatal defect or
irregularity appearing on the face of the record.” Resolution Trust Corp.
v. Copley Qu-Wayne Assocs, 683 A.2d 269, 273 (Pa. 1996) (citations
omitted).
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the date it commenced this mortgage foreclosure action, rendering the
judgment against Appellant null and void. The law of the case doctrine
precludes Appellant from obtaining relief, because this Court ruled against
Appellant on this issue in his prior appeal at 1117 EDA 2015.
The law of the case doctrine is
a family of rules which embody the concept that a court
involved in the later phases of a litigated matter should not
reopen questions decided by another judge of that same
court or by a higher court in the earlier phases of the
matter. Among the related but distinct rules which make
up the law of the case doctrine are that: (1) upon remand
for further proceedings, a trial court may not alter the
resolution of a legal question previously decided by the
appellate court in the matter; (2) upon a second appeal,
an appellate court may not alter the resolution of a legal
question previously decided by the same appellate court;
and (3) upon transfer of a matter between trial judges of
coordinate jurisdiction, the transferee trial court may not
alter the resolution of a legal question previously decided
by the transferor trial court.
Commonwealth v. Starr, 664 A.2d 1326, 1331 (Pa. 1995) (citations
omitted). This general prohibition, however, is not absolute. Departure
from the rule is permissible in “exceptional circumstances such as where
there has been a change in the controlling law, a substantial change in the
facts or evidence giving rise to the dispute in the matter, or where the prior
holding was clearly erroneous and would create a manifest injustice if
followed.” Id. at 1332 (citations omitted).
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In his previous appeal at 1117 EDA 2015, a panel of this Court ruled
against Appellant on the very issue that he attempts to raise in the present
appeal. The previous panel stated:
[Appellant] claims that the trial court erred in failing to
consider the fact that the trial court lacked jurisdiction, ab
initio, as Goldman Sachs was not in possession of the
subject note and mortgage at the time of filing the
foreclosure action. Contrary to [Appellant’s] claim, the trial
court did consider this jurisdictional question. The court
stated:
In the instant matter, Goldman Sachs satisfied the
requisite elements of Pa.R.C.P. 1147(a) for an action
in mortgage foreclosure and a copy of the mortgage
was attached to the Complaint as Exhibit A.
Additionally, any issues of service of the notice of the
Sheriff’s sale are unsupported by the record, as a
representative of [Appellant] was present on the day
of the sale. Further, all issues pertaining to the
assignments of the mortgage were decided during
the trial before the Honorable M. Teresa Sarmina
and, thus, any challenges to Goldman Sachs’
possession of the note and mortgage were not
property raised before this Court in the instant
Motion to Set Aside Sheriff’s Sale.
We find no error or abuse of discretion . . . and we affirm
the trial court’s order denying [Appellant’s] motion to set
aside sheriff’s sale.
Goldman Sachs, CF SBC UST 3, LLC v. Cedeno, 1117 EDA 2015
(unpublished memorandum at 6) (Pa. Super. Dec. 4, 2015).
Appellant’s present appeal is an attempt to re-litigate whether the
judgment against him should be stricken due to Goldman Sachs’ alleged lack
of possession of the note and mortgage. Because he has already raised this
issue without success, the law of the case doctrine precludes him from re-
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raising it. Moreover, his argument does not fall within any exception to the
law of the case doctrine, such as an intervening change in the law, a
substantial change in the facts, or a prior ruling that was clearly erroneous
that would create a manifest injustice if followed. See Starr, 664 A.2d at
1332.
For these reasons, the trial court properly denied Appellant’s motion to
strike the judgment.
Order affirmed. Appellee’s motion to quash denied as moot.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/24/2017
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