J-S63020-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
STEPHEN J. BYERS IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
ERNEST E. LIGGETT AND
MARILYN KOSTIK LIGGETT
Appellants No. 56 WDA 2017
Appeal from the Judgment Entered December 14, 2016
In the Court of Common Pleas of Allegheny County
Civil Division at No(s): GD-09-013539
BEFORE: BOWES, J., SOLANO, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY SOLANO, J.: FILED DECEMBER 26, 2017
Appellants Ernest E. Liggett and Marilyn Kostick Liggett appeal pro se
from the December 14, 2016, order of the Court of Common Pleas of
Allegheny County setting the fair market value of property sold at a sheriff’s
sale and entering a deficiency judgment. We affirm.
By our count, this is the seventh time this case has been before this
Court on appeal. For the sixth appeal, this Court set forth the relevant facts
and procedural history as follows:
In the fall of 2006, the Liggetts obtained short-term loans from
[Stephen] Byers, along with an agreement to purchase
additional parcels of real property located in Brownsville, Fayette
County for use in real estate development. When the Liggetts
failed to repay the loans or purchase the additional property, the
parties entered into a settlement agreement in the Court of
Common Pleas of Fayette County that required the Liggetts to
either pay Byers a specified sum of money within 45 days or
have judgment entered against them. When the Liggetts did not
J-S63020-17
pay the money within the agreed upon timeframe, Byers entered
judgment against them in Fayette County for $145,[5]00.00.[1]
In July 2009, Byers transferred the judgment to Allegheny
County, and issued a Writ of Execution for the sale of personalty
and realty located at 43 Brownstone Road, Pittsburgh,
Pennsylvania 15235 [(“the Property”)]. Over the following
years, the Liggetts filed various motions to stay or obviate the
proceedings, all of which have been denied by the trial court and
affirmed by this Court.
Byers v. Liggett, No. 361 WDA 2015, at 2-3 (Pa. Super., Apr. 29, 2016);
see also Docket from Fayette County Prothonotary for Civil Case No. 2007-
01616.
On October 1, 2012, Ernest E. Liggett filed a “Suggestion of
Bankruptcy” with the trial court, indicating that he had initiated bankruptcy
proceedings and was subject to an automatic stay of legal proceedings
against him pursuant to Section 362 of the Bankruptcy Code, 11 U.S.C.
§ 362. The stay was lifted on June 26, 2013. On November 1, 2013,
Marilyn Kostick Liggett filed for bankruptcy and also claimed to be subject to
an automatic stay. The record is unclear as to when the stay was lifted in
Ms. Liggett’s bankruptcy action, but the Liggetts do not allege that this
appeal is affected by a stay.2
____________________________________________
1
The underlying judgment was entered by stipulation in 2008. Byers v.
Liggett, No. 229 WDA 2012, at 3 (Pa. Super., Nov. 15, 2013).
2
In Byers’ petition for a deficiency judgment, he states that the Western
District of Pennsylvania Bankruptcy Court ordered relief from the stay on
February 7, 2014, but Byers’ petition does not provide any citation for this
date. Pet. to Fix Fair Market Value of Real Prop. Sold at Sheriff’s Sale & for
Deficiency J., 12/2/14, at 4 ¶ 12.
-2-
J-S63020-17
Ultimately, the Liggetts’ Property was sold at a sheriff’s sale, and
Byers was the successful bidder. However, there was a delay in filing the
deed due to a dispute over realty transfer taxes and the legal effect of
pending appeals filed by the Liggetts. Once the pending appeals were
resolved, the Liggetts moved to compel Byers to mark the judgment
satisfied. Instead, on December 2, 2014, Byers petitioned to determine the
fair market value of the Property so that he could then recover a deficiency
judgment.
On February 5, 2015, the trial court declared the judgment satisfied
because it believed Byers had waited more than six months after the
sheriff’s sale to petition for the deficiency judgment.3 Byers appealed that
decision, and we reversed, explaining that the six-month period did not
commence until the sheriff’s deed was delivered to Byers and that the trial
court needed to have a hearing to determine that date. On remand, the trial
court found that the deed was delivered to Byers on June 25, 2015.
Therefore, Byers’ earlier, December 2, 2014 petition to establish a deficiency
____________________________________________
3
Section 5522(b) of the Judicial Code provides:
The following actions and proceedings must be commenced
within six months: . . .
(2) A petition for the establishment of a deficiency
judgment following execution and delivery of the sheriff’s
deed for the property sold in connection with the execution
proceedings referenced in the provisions of section
8103(a) (relating to deficiency judgments).
42 Pa. C.S. § 5522(b).
-3-
J-S63020-17
judgment was not filed later than permitted under the statute.
In response, the Liggetts then argued to the trial court that Byers’
petition for a deficiency judgment was untimely because it was filed too
early. They contended that the Deficiency Judgment Act required Byers to
file his petition within six months after receiving the sheriff’s deed, and not
earlier. Liggetts’ Br. in Opp’n to Byers’ Dec. 2, 2014 Pet. to Fix Fair Market
Value & for Deficiency J. and in Supp. of Liggetts’ Mot. for Decl. Byers’ J. is
Satisfied, Released & Discharged, 7/25/16, at 8.
On August 4, 2016, Byers filed a supplement to his petition for a
deficiency judgment and attached information regarding a complaint in
mortgage foreclosure that had been filed against the Property. The
foreclosure was on the first mortgage on the Property, and the amount due
on the mortgage was $147,286.24. The Liggetts opposed Byers’ filing of the
supplement. Resp. in Opp’n to Byers’ Pet. & Suppl. to Fix Fair Market Value
& for Deficiency J. & New Matter, 12/9/16, at 1.
On December 13, 2016, the trial court held a hearing to determine the
amount of the deficiency judgment. Byers was the sole witness at the
hearing; the Liggetts presented no evidence regarding calculation of the
deficiency judgment or the fair market value of the Property.
Byers testified that “the value of the judgment to date of the sale was
$198,411.” N.T., 12/13/16, at 11-12. He explained that he calculated this
amount by beginning with the original judgment of $145,500, and then:
-4-
J-S63020-17
I took a judgment interest rate of 6 percent and applied that
annually, so the following year the judgment and interest
increased to $154,230. The beginning of year three would be
another 6 percent, making it $163,483. And then we go to the
end of year three, the beginning of year four, and you have
another 6 percent, $173,292. And then to August 2012, which
was the end of year four, beginning of year five, $183,690. And
then November 4 of 2012, we received a distribution check from
the liquidation of some properties of Mr. Liggett for $7,774.13.
. . . Then I deduct[ed] that amount. And then for that year’s
interest, there are two calculations. There’s one up to the date
of the check then there’s another one from the date of the check
to the end of the year. And so there were two amounts
calculated, which then added to the principal, the remaining
came to $186,603. . . . [I]n 2013, there were several sheriff’s
sale efforts that resulted in costs. And they’re added in as
$1,616 and then another $1,600. And then that totaled the writ
of execution that we were issued August 5, 2013, of
$191,419.63. [He was required to pay for a writ of execution
twice, paying $1,600 each time.] . . . Then, in August the sheriff
added to the writ another amount of $1,616 and used that as
part of the cost calculation in the writ. . . . [T]here’s an
additional interest of $5,375. And that becomes the total value
of the judgment on the date of the sale of $198,411.06.
Id. at 12-14 (some formatting altered).
Byers also testified as to the fair market value of the Property, stating
that he had “determined it to be, just following some public records, to be
$215,000, and that was from a broker’s price opinion that was filed by the
mortgage company.” N.T., 12/13/16, at 15. The broker’s price opinion was
dated December 20, 2012. Id. at 29. Byers explained that the Property
had two mortgages — a first mortgage that “filed a foreclosure” that “had a
value of $147,286.24,” and a second mortgage for $25,399 plus an
additional $500 in settlement costs. Id. at 17, 19. Byers clarified that in his
first submission to the trial court in 2014, he listed the value of the first
-5-
J-S63020-17
mortgage at $105,999, based upon a bankruptcy petition filed by the
Liggetts, but he later realized that this figure was merely the principal of the
debt. Id. at 37.
By an order dated December 17, 2016, the trial court entered a
deficiency judgment in the amount of $137,083.67. The court attached the
following calculations to its decision:
Judgment Amount 1/6/2014 $198,411.06
Less:
Home value $236,500.00[4]
2nd mortgage (25,899.00)
1st mortgage (124,793.17)[5]
85,807.83 ( 85,807.83)
Judgment 112,603.23
Interest 1/7/2014-1/7/2015 6,756.19
Interest 1/7/2015-1/7/2016 6,756.19
Interest 1/7/2[01]6-12/14/2016 6,330.46
Transfer Cost 4,637.60
$137,083.67
____________________________________________
4
The trial court said that it compensated for the difference between the
$215,000 value of the Property as of the date of the broker’s price opinion
and the value of the Property as of the date of the sheriff’s sale by adjusting
the value upward to $236,500 to account for the fifteen months between the
valuation and the sheriff sale. Trial Ct. Op., 3/10/17, at 6.
5
The trial court stated that it determined this amount “by extrapolating from
the [Liggetts’] 2012 bankruptcy and 2015 mortgage foreclosure
proceedings,” and provided the following calculation:
$ 82,804.94 Principal
18,343.20 Interest 8/1/2011-1/16/2014
1,091.93 Late charges
22,553.10 Escrow Deficit
$124,793.17
Trial Ct. Op., 3/10/17, at 6-7.
-6-
J-S63020-17
Order, 12/14/16, “Calculations” (some formatting altered). The Liggetts did
not file a post-trial motion contesting this amount.
On January 9, 2017, the Liggetts filed a timely notice of appeal, and
their brief presents the following issues for our review:
Question 1: Did the Trial Court err as a matter of law in its
interpretation of the Deficiency Judgment Act 42 Pa.C.S.A.
§ 8103 and 42 Pa.C.S.A. § 5522(b)(2) for subject matter
jurisdiction to procedurally address and issue an Order pursuant
to the merits of issues presented in [Byers’] premature Petition
To Fix Fair Market Value Of Real Property Sold At Sheriff’s Sale
And For Deficiency Judgment of December 2, 2014?
Question 2: Did the Trial Court err as a matter of law by
failing to grant [the Liggetts’] challenge of [Byers’] August 4,
2016 Supplement to Petition To Fix Fair Market Value Of Real
Property Sold At Sheriff’s Sale And For Deficiency Judgment as a
legal “nullity” over which the Trial Court has no jurisdiction to
procedurally address the merits of the issues presented therein?
Question 3: Did the Trial Court err in determining the fair
market value of [the Property]?
Liggetts’ Brief at 1-2 (suggested answers omitted).
The Liggetts’ issues all arise under the Deficiency Judgment Act, 42 Pa.
C.S. § 8103. We summarized application of that statute in Devon Serv.,
LLC v. S & T Realty, 171 A.3d 287 (Pa. Super. 2017), as follows:
The Deficiency Judgment Act applies whenever real property of
the debtor has been sold in execution to the judgment creditor
for a sum less than the amount of the judgment, interest and
costs. Under the Deficiency Judgment Act, the creditor’s
judgment against the debtor is reduced by the fair market value
of the property purchased by the creditor rather than by the
actual sale price of the property. The objective of the Deficiency
Judgment Act is to relieve a debtor from further personal liability
to the judgment creditor when the real property taken by the
judgment creditor on an execution has a fair market value on
-7-
J-S63020-17
the date of sale sufficient so that the judgment creditor can
dispose of the property to others without a further loss.
Id. at 291 (quoting Horbal v. Moxham Nat’l Bank, 697 A.2d 577, 581-82
(Pa. 1997)).
The Liggetts’ first issue asserts that Byers’ petition for a deficiency
judgment should have been dismissed with prejudice, because it was
prematurely filed before the commencement of the six-month statute of
limitations.6 Their second issue is a variant of the first: they contend that,
because Byers’ petition was premature, it was a “nullity” and Byers should
not have been permitted to supplement it with his August 4, 2016, filing
providing mortgage information. The Liggetts’ third issue presents various
complaints about the way the deficiency judgment was calculated: that
compound interest improperly was included in the judgment amount; that
the Property was valued using a 2012 broker’s price, rather than a price as
of the date of the sheriff’s sale; that Byers’ evidence of the amount of the
first mortgage also was as of an incorrect date7; and that the trial court
erroneously calculated interest between the date of the sheriff’s sale and the
date of the deficiency judgment order.
____________________________________________
6
The statute states that a deficiency judgment action “must be
commenced within six months . . . following execution and delivery of the
sheriff’s deed.” 42 Pa.C.S. § 5522(b)(2) (emphasis added). Thus, six
months after delivery of the deed is the last possible date to file the petition.
Here, although Byers prematurely filed his petition, he did not exceed the
time required by Section 5522(b)(2).
7
As the trial court explained, it did not blindly accept the figures presented
by Byers on this issue, but instead did its own extrapolation. See Trial Ct.
Op., 3/10/17, at 6-7.
-8-
J-S63020-17
We hold that all of these issues were waived by the Liggetts’ failure to
file post-trial motions. This Court recently addressed the requirement to file
post-trial motions in a deficiency judgment case in Devon:
[P]etitions to fix the fair market value and accompanying
deficiency judgments are governed by Pa.R.C.P. 3281–3285.
Specifically, Pa.R.C.P. 3285 provides that a trial to fix fair value
shall be conducted pursuant to Pa.R.C.P. 1038, Trial Without
Jury. The general rules applying to petitions do not apply to
petitions to fix fair market value. See Pa.R.C.P. 3285, Note.
Rule 1038 provides that for post-trial relief, a party must file a
motion pursuant to Pa.R.C.P. 227.1. See Pa.R.C.P. 1038, Note.
Post-trial motions must be filed within ten days after verdict.
See Pa.R.C.P. 227.1(c)(1). Accordingly, to preserve issues
for appeal, a timely post-trial motion must be filed. See
Pa.R.C.P. 1038; see also Pa.R.C.P. 227.1. Appellants did not do
so. “Grounds not specified by a party in post-trial motions
pursuant to Rule 227.1 shall be deemed waived on appellate
review.” Chalkey v. Roush, 569 Pa. 462, 467, 805 A.2d 491,
494 (2002) (citations and footnote omitted).
171 A.3d at 292-93 (footnote omitted; emphasis added). Here, as in
Devon, the Liggetts never filed a timely post-trial motion preserving their
claims regarding the deficiency judgment. They thus waived all of those
claims. See Pa.R.C.P. 227.1(c)(1), 1038; Pa.R.A.P. 302(a) (“Issues not
raised in the lower court are waived and cannot be raised for the first time
on appeal”); Devon, 171 A.3d at 292-93. This includes the Liggetts’
challenges to the date of Byers’ filing, the judgment amount as of the date
of the sheriff’s sale, the use of the broker’s price opinion, and the values of
the first mortgage and the interest after the sheriff’s sale.
Judgment affirmed.
-9-
J-S63020-17
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/26/2017
- 10 -