J-S66004-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
WELLS FARGO BANK NA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
JAMES PATRICK MCKENNA :
:
Appellant : No. 1144 EDA 2018
Appeal from the Order Dated March 28, 2018
In the Court of Common Pleas of Montgomery County
Civil Division at No(s): 2014-07290
BEFORE: GANTMAN, P.J., PANELLA, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY GANTMAN, P.J.: FILED MARCH 20, 2019
Appellant, James Patrick McKenna, appeals pro se from the order
entered in the Montgomery County Court of Common Pleas, which denied his
petition to set aside a sheriff’s sale of his foreclosed property. We affirm.
The relevant facts and procedural history of this case are as follows. On
May 4, 2004, Appellant executed a residential mortgage in favor of Wachovia
Bank, N.A. (“Wachovia”), in the principal amount of $100,000.00. Wachovia
later merged with Appellee, Wells Fargo Bank, N.A. (“Bank”). Appellant failed
to make the monthly payment due on January 23, 2011, and all subsequent
payments. Bank filed a mortgage foreclosure complaint against Appellant on
April 3, 2014. On May 28, 2014, Appellant filed an answer and new matter;
Bank filed a reply to Appellant’s new matter on June 10, 2014.
Bank filed a motion for summary judgment on March 1, 2017. On May
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11, 2017, the court granted Bank summary judgment and entered judgment
in favor of Bank and against Appellant in the amount of $155,380.59, plus
costs and interest. Appellant timely filed a pro se notice of appeal on May 18,
2017. On November 17, 2017, Appellant’s counsel filed a petition to withdraw,
which the court granted on November 28, 2017. On January 31, 2018, a third
party bought the mortgaged property at a sheriff’s sale. On February 2, 2018,
this Court dismissed Appellant’s appeal, from the order granting Bank
summary judgment, for failure to file a brief.
On February 15, 2018, Appellant filed a pro se motion to set aside
sheriff’s sale, which the court denied on March 28, 2018. Appellant timely
filed a pro se notice of appeal on April 16, 2018. The court ordered Appellant
on April 18, 2018, to file a concise statement of errors complained of on appeal
per Pa.R.A.P. 1925(b); Appellant timely complied pro se on April 30, 2018.
Appellant raises the following issues for our review:
1. IS IT A FUNDAMENTAL ERROR AS A MATTER OF LAW
THAT THE PENNSYLVANIA COURTS DO NOT ISSUE AN
ACTUAL DECREE GRANTING OR DENYING WHAT IS
INHERENTLY EQUITABLE AND DISCRETIONARY RELIEF
THAT IS THE “FORECLOSURE OF A MORTGAGE” AND “SALE
OF THE PROPERTY BY THE SHERIFF” AS UNDER PA.R.C.P.
1037(D)?
2. WAS THE TRIAL COURT REQUIRED AS A MATTER OF LAW
TO VACATE THE UNDERLYING “MORTGAGE JUDGMENT”
OBTAINED BY ENTRY OF DEFAULT WHERE THE COMPLAINT
ITSELF FAILED TO CONFORM WITH A SUBSTANTIVE RULE
OF COURT AT PA.R.C.P. 1024(A) & (B) IN THE
VERIFICATION OF PLEADINGS, AND DID THIS IN EFFECT
ALLOW A “CHAMPERTOUS” SUIT TO PROCEED IN THE NAME
OF AN UNVERIFIED PLAINTIFF WHILE ACTUALLY
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UNDERWRITTEN BY THE NONPARTY DEBT COLLECTOR?
3. WAS THE SHERIFF SALE ACTUALLY ILLEGAL OR
UNLAWFUL BY “SHORTING” THE WRIT OF EXECUTION AT
HAND AND SELLING THE PROPERTY FOR LESS THAN THE
TOTAL OF “THE JUDGMENT, INTERESTS AND COSTS” AS
ESTABLISHED IN KAIB V. SMITH, 684 A.2D 630, 632
(PA.SUPER. 1996), AND DID THIS “SHORT SALE”
THEREFORE FAIL TO DIVEST THE MORTGAGOR OF HIS
TITLE AS AN “INCOMPLETE PAYMENT”?
4. DOES THE FAILURE OF PENNSYLVANIA LAW TO REQUIRE
“ADEQUATE COMPENSATION” AT “FAIR PRICE” FOR THE
“PUBLIC TAKING” BY A “PUBLIC OFFICER” IN A “SHERIFF
SALE” MAKE AN UNCONSTITUTIONAL BREACH OF
SUBSTANTIVE PROPERTY AND DUE PROCESS RIGHTS?
5. WAS [BANK]’S MORTGAGE JUDGMENT A CLOG ON THE
EQUITY OF REDEMPTION FOR BEING TWICE THE SALE
PRICE AND THE COURT MUST THEREFORE SET ASIDE THE
SHERIFF SALE AND THE FAILURE TO DO SO WAS A
MANIFEST ABUSE OF DISCRETION?
6. DOES THE FAILURE OF PENNSYLVANIA LAW TO
GUARANTEE SALE PRICE REDEMPTION MAKE AN
UNCONSTITUTIONAL BREACH OF SUBSTANTIVE PROPERTY
AND DUE PROCESS RIGHTS, AND THAT THE COURT MUST
THEREFORE ORDER SALE PRICE REDEMPTION AS A MATTER
OF LAW ANALOG TO THE PROCEDURE FOR “JUDICIAL TAX
SALES” IN THIS STATE?
7. DID THE COURT ERR AS A MATTER OF LAW IN REFUSING
TO VACATE THE MORTGAGE JUDGMENT WHERE THE
UNDERLYING COMPLAINT FAILED TO STATE ANY
“GROUNDS” FOR A MORTGAGE FORECLOSURE REMEDY AS
UNDER PA.R.C.P. 1146?
8. WAS [BANK]’S FAILURE TO FIRST PRESENT THE
MORTGAGE NOTE FOR EXCHANGE AT THE “PLACE OF
PAYMENT” OR TO OBTAIN A DISCHARGE AS UNDER
GERBER V. PIERGROSSI[, 142 A.3D 854 (PA.SUPER.
2016), APPEAL DENIED, 641 PA. 179, 166 A.3D 1215
(2017)] A FATAL DEFECT PRIMA FACIE IN THE UNDERLYING
COMPLAINT WHERE NEGOTIABLE INSTRUMENTS ARE
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PERSONAL CLAIMS BARRED IN FORECLOSURE CASES
UNDER RULES 1141, 1146 & 1148?
9. “[M]ORTGAGE FORECLOSURE” BEING THE WRONG FORM
OF ACTION FOR “NEGOTIABLE INSTRUMENTS” (“IN REM
VS. IN PERSONAM”), THEREFORE DID THE COURT ERR AS
A MATTER OF LAW BY REFUSING TO STRIKE THE “IN REM”
MORTGAGE JUDGMENT THAT [WAS] OBTAINED ON A
FICTITIOUS AND ILLEGAL PERSONAL OBLIGATION
INSTEAD OF SETTING FORTH THE “ASSIGNMENTS OF
MORTGAGE DEBT” AS THE “REAL INTERESTED PARTY”?
10. IS IT AN ERROR AS A MATTER OF LAW WHERE REAL
ESTATE IS INHERENTLY EXCLUDED FROM NEGOTIABLE
COLLATERAL BY DEFINITION AND THEREFORE IMPOSSIBLE
TO STATE A CLAIM FOR WHICH RELIEF COULD BE
GRANTED, RELATING TO BOTH THE “UNIFORM
COMMERCIAL CODE” IN THE SAME CAUSE OF ACTION AS
FOR “IN REM MORTGAGE FORECLOSURE AGAINST LAND
PARCELS” ESPECIALLY WHERE LAND IS AN IMMOVABLE
THING AND NEGOTIABLE INSTRUMENTS RELATE TO
TOKENS OF EXCHANGE FOR THINGS WHICH ARE ACTUALLY
MOVABLE?
11. IS A PENNSYLVANIA TRIAL COURT BOUND BY THE
SUPREMACY CLAUSE OF THE UNITED STATES
CONSTITUTION TO “MAKE NOTHING BUT GOLD OR SILVER
TENDER FOR DEBT” AS UNDER ARTICLE 1, SECTION 10
UNITED STATES CONSTITUTION, AND THAT THEREFORE
UNDER THE PREVAILING CIRCUMSTANCES IN THIS DAY,
ALL DEBTS ARE FICTITIOUS ACCOUNT ENTRIES THAT
CANNOT BE GIVEN THE SUBSTANCE OF LAW UNLESS THE
COURTS WILL RENDER JUDGMENT IN THE VALUE OF
LAWFUL UNITED STATES GOLD OR SILVER MONEY?
12. WAS IT THEREFORE IN LIGHT OF THE TOTAL
CIRCUMSTANCE MORE EFFICIENT AND REASONABLE TO
EXERCISE THE POWER OF SOUND DISCRETION AND
IMPOSE A “CONSTRUCTIVE TRUST” OR TO RECOGNIZE
THAT THE MODERN BANKING RELATIONSHIP IS A
“RESULTING TRUST” WHERE THE MORTGAGOR IS
ACTUALLY A SECURITIZATION TRUSTOR WITH THE RIGHT
TO SEE THE CONTINUATION OF THE UNDERLYING FDIC
“FAIR VALUE” GUARANTEE, ALONG WITH A SUBSTANTIAL
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VICARIOUS INTEREST IN THE BENEFITS OF THE FDIC “80%
LOSS SHARING” ARRANGEMENT AS PLEAD WITHIN THE
UNDERLYING MOTION BEFORE THE…TRIAL COURT?
13. [D]ID THE…TRIAL COURT COMMIT A MANIFEST ABUSE
OF DISCRETION BY REFUSING TO GRANT THE EQUITABLE
RELIEF THEREIN REQUESTED, SEEKING THE IMPOSITION
OR RECOGNITION OF THE UNDERLYING
FINANCIALIZATION ARRANGEMENT AS AN EXTENDED
SECURITIZATION MODEL THAT ALSO INURES TO THE
BENEFIT OF A MORTGAGOR WHO IS REALLY THE
SECURITIZATION TRUSTOR?
(Appellant’s Brief at 8-11).
As a prefatory matter, we must address the timeliness of Appellant’s
appeal. Pennsylvania Rule of Appellate Procedure 903 provides: “[E]xcept as
otherwise prescribed by this rule, the notice of appeal required by Rule 902
(manner of taking appeal) shall be filed within 30 days after the entry of the
order from which the appeal is taken.” Pa.R.A.P. 903(a). Time limitations for
taking appeals are strictly construed and cannot be extended as a matter of
grace. Commonwealth v. Valentine, 928 A.2d 346 (Pa.Super. 2007). This
Court can raise the matter sua sponte, as the issue is one of jurisdiction to
entertain the appeal. Id. This Court has no jurisdiction to entertain an
untimely appeal. Commonwealth v. Patterson, 940 A.2d 493 (Pa.Super.
2007), appeal denied, 599 Pa. 691, 960 A.2d 838 (2008). “Where a party
fails to appeal a final order, it operates as res judicata on the issues decided.”
Morgan Guar. Trust Co. of New York v. Mowl, 705 A.2d 923, 928
(Pa.Super. 1998), appeal denied, 556 Pa. 693, 727 A.2d 1211 (1998).
Here, Appellant raises on appeal numerous issues, which effectively
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challenge the court’s prior May 11, 2017 order granting summary judgment
in favor of Bank in the mortgage foreclosure action. Appellant initially timely
appealed from the summary judgment, which disposed of all claims and
parties. See Pa.R.A.P. 341(b), 903(a). This Court, however, dismissed the
appeal for Appellant’s failure to file a brief, and Appellant sought no further
relief. To the extent he now seeks review of the May 11, 2017 summary
judgment, Appellant’s current appeal, filed in April 2018, is well beyond the
applicable 30-day appeal period for that challenge. Additionally, the current
notice of appeal expressly refers to the order of March 28, 2018, which denied
Appellant’s petition to set aside the sheriff’s sale. Therefore, this Court has
no jurisdiction to address Appellant’s claims challenging the mortgage
foreclosure summary judgment. See Patterson, supra; Pa.R.A.P. 903(a).
Accordingly, we dismiss Appellant’s first, second, fifth, seventh, eighth, ninth,
tenth, and eleventh issues for lack of jurisdiction.
As a second prefatory matter, appellate briefs must conform in all
material respects to the briefing requirements in the Pennsylvania Rules of
Appellate Procedure. Pa.R.A.P. 2101. See also Pa.R.A.P. 2114-2119
(addressing specific requirements of each subsection of brief on appeal).
Regarding the argument section of an appellate brief, Rule 2119(a) provides:
Rule 2119. Argument
(a) General rule.—The argument shall be divided into
as many parts as there are questions to be argued; and shall
have at the head of each part—in distinctive type or in type
distinctively displayed—the particular point treated therein,
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followed by such discussion and citation of authorities as are
deemed pertinent.
Pa.R.A.P. 2119(a). Importantly, where an appellant fails to raise or develop
his issues on appeal properly, or where his brief is wholly inadequate to
present specific issues for review, this Court can decline to address the
appellant’s claims on the merits. Butler v. Illes, 747 A.2d 943 (Pa.Super.
2000). See also Lackner v. Glosser, 892 A.2d 21 (Pa.Super. 2006)
(explaining arguments must adhere to rules of appellate procedure and
arguments which are not appropriately developed are waived; arguments not
appropriately developed include those where party has failed to cite authority
to support contention); Estate of Haiko v. McGinley, 799 A.2d 155
(Pa.Super. 2002) (stating appellant must support each question raised by
discussion and analysis of pertinent authority; absent reasoned discussion of
law in appellate brief, appellant hampers this Court’s review and risks waiver).
This Court is willing to construe materials of a pro se litigant liberally, but pro
se status confers no special benefit upon the appellant. Wilkins v. Marsico,
903 A.2d 1281, 1284-85 (Pa.Super. 2006), appeal denied, 591 Pa. 704, 918
A.2d 747 (2007). When the issues on appeal are waived, the trial court’s
order is more properly “affirmed.” In re K.L.S., 594 Pa. 194, 197 n.3, 934
A.2d 1244, 1246 n.3 (2007) (noting upon waiver of issues on appeal, this
Court should affirm trial court’s decision, not quash appeal).
Instantly, Appellant fails to cite to any relevant authority in his brief to
support his fourth, twelfth, and thirteenth issues. The arguments contained
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in these claims amount to rambling and subjective discussions of
Constitutional law and public policy, without citation to any relevant legal
authority. Appellant’s failure to develop his arguments with citations to
pertinent law precludes meaningful review and constitutes waiver of his
fourth, twelfth, and thirteenth issues. See Butler, supra; Pa.R.A.P. 2119(a).
With respect to Appellant’s remaining issues three and six, “[t]he
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). See also Mortgage
Electronic Registration Systems, Inc. v. Ralich, 982 A.2d 77, 80
(Pa.Super. 2009), appeal denied, 606 Pa. 650, 992 A.2d 889 (2010) (stating
sheriff’s sale may be set aside after delivery of sheriff’s deed, if sale was
product of fraud or lack of authority to make sale); Blue Ball Nat’l Bank v.
Balmer, 810 A.2d 164, 166 (Pa.Super. 2002), appeal denied, 573 Pa. 662,
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820 A.2d 702 (2003) (noting that gross inadequacy in sale price is sufficient
grounds to set aside sheriff’s sale); First Eastern Bank, N.A. v. Campstead,
Inc., 637 A.2d 1364, 1365-66 (Pa.Super. 1994) (stating lack of adequate
notice constitutes clear and convincing evidence to set aside sheriff’s sale).
After a thorough review of the record, the briefs of the parties, the
applicable law, and the well-reasoned opinion of the Honorable Garrett D.
Page, we conclude Appellant’s third and sixth issues merit no relief. The trial
court opinion comprehensively discusses and properly disposes of the
questions presented. (See Trial Court Opinion, filed May 8, 2018, at 9-11)
(finding: (3, 6) Appellant fails to raise any equitable grounds for court to set
aside sheriff sale; Appellant does not challenge sale itself, bidding process,
notice, or price; equity does not permit Appellant to fail to meet his contractual
obligations under mortgage note and then redeem property for price paid by
highest bidder at sheriff sale). The record supports the trial court’s rationale.
Accordingly, as to Appellant’s third and sixth issues, we affirm on the basis of
the trial court opinion.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/20/19
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2014-07290-0084
Circulated Opinion,
02/25/2019 Page 1
10:56 AM
IN THE COURT OF COMMON PLEAS OF MONTGOMERY COUNTY, PENNSYLVANIA
CIVIL DIVISION
WELLS FARGO BANK, N.A. LOWER COURT DOCKET:
No. 2014-07290
v.
1144 EDA 2018
JAMES PATRICK MCKENNA, JR.
OPINION
Page, J. May 8, 2018
Defendant appeals from this Court's Denial of his Petition to Set Aside the Sheriff Sale
on March 28, 2018. For the reasons set forth below, Defendant's appeal is without merit.
Therefore, any claim of error on the part of this Court should be dismissed and the ruling should
be affirmed.
FACTS AND PROCEDURAL HISTORY
In this case, on May 4, 2004, the Defendant made, executed, and delivered a promissory
note ("Note") to Wachovia Bank, National Association in consideration for a prime equity line
of credit. Defendant agreed to repay the advances made to him under the Note, plus interest and
charges as provided for in the Note, in monthly installments, until the total amount of the Note
plus all interest and charges were paid. See Complaint f 3. The Defendant also made, executed,
and delivered a mortgage to Wachovia as security for the payment of the amount due under the
Note. See Id at � 4. The Mortgage encumbers real property located at 631 Maple Glen Circle,
Pottstown, Pennsylvania I 9464 located within Montgomery County and recorded in the Office
of the Recorder of Deeds for Montgomery County in Mortgage Book I 1140, Page 59. Id.
1111 !J;[itt i'� l'Jt.131111
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Rcpt#Z3389506 Fee:$0.00 Opinion
Main (Public)
MontCo Prothonotary
2014-07290-0084 Opinion, Page 2
Wachovia subsequently merged into Wells Fargo Bank, National Association, succeeding
Wachovia Bank's rights with respect to the Note and Mortgage. Id. at 15,
On January 23, 2011, Defendant defaulted on the terms and condition of the Note and
Mortgage by failing to make the required payment, and has failed to make all subsequent
payments. Id at 18, The terms of the Note and Mortgage permit foreclosure on the Mortgage in
judicial proceedings. Defendant was also provided with notice pursuant to the requirements of 41
P.S. §§ 403 (b) et seq. ("Act 6") and 35 P.S. §§ 1680.403c et seq. ("Act 91") on March 20, 2013
prior to the commencement of this action by regular and certified mail. Id. at 110. Defendant
failed to cure his default, this instant action was filed by a complaint, Defendant filed an answer,
and Plaintiff filed a reply. See Complaint, Answer, and Reply.
Wells Fargo filed a Motion for Summary Judgment at the close of discovery which was
granted on May 11, 2017, and an in rem judgment was entered in favor of Wells Fargo in the
amount of$155,380.69, plus costs and interest from the date of judgment. See Order J. Carluccio
5/11/17. Defendant filed an appeal with the Pennsylvania Superior Court contesting the
Summary Judgment which was dismissed on February 2, 2018 for failure to file a brief. See
Superior Court Docket I 696 EDA 2017. Prior to the dismissal of Defendant's appeal, on January
3 I, 2018, a Sheriff Sale was conduct by the Montgomery County Sheriffs Office in which
Hammer Investments paid a bid price of $55,400. See Sheriff Distribution 4/4/2018. Defendant
filed his Petition to Set Aside the Sheriff Sale alleging numerous grounds including challenges to
the underlying complaint which this Court denied on March 28, 2018.
On April 16, 2018, the Defendant filed a timely Notice of Appeal.
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ISSUES
Defendant's Concise Statement, received in chambers on April 30, 2018, is reproduced
verbatim below:
I. Failure to enter a Decree of Foreclosure and Sale of the Property under PA RCP
1037 (d). This was an Error as a matter of Law that left the Sheriff Sale void. The
Court must enter the decree of foreclosure and Sale as in all other judicial sales; a
judicial sale rests on a judicial decree. Foreclosure is an equitable action formatted by
a claim to money judgment, in rem. Only the bench can make a Judicial Sale, after
default judgment. See Pa. R.C.P. 1037 (d) and mortgage foreclosure rule 1146
requiring "grounds pleaded in foreclosure". (sic)
A Sheriff Sale is the "judicial or tax sale" described in Rule 1061 ( d), "Actions to
Quiet Title". (sic) The foreclosure of a lien is an equitable remedy and the Sheriff
Sale is in the execution of a judicial act. Only the bench can make an Order under this
rule; and only after a judicially meaningful process as guaranteed under both the
United States Constitution, and the Pennsylvania Constitution. The practice of
judicially unauthorized Sheriff Sales on mortgaged property is a mass-fraud and in
fundamental violation of due process in the Pennsylvania Constitution, implicating
the 141h Amendment of the United States.
II. All Champertous suits are barred by public policy and the Plaintifffailed to verify
any of the pleadings. The Court must strike the judgment on failing to self-sustain.
Plaintiff failed to verify any of their pleadings as required under civil Rule 1024(a) &
(c). This is a non-waivable, jurisdictional defect. All champertous suits are barred as a
matter of public policy, and the 3rd party intermeddler-plaintiff could not verify or
obtain the verification of any pleadings. The underlying "mortgage foreclosure
action" was a fraudulent debt collection scheme invented by the under-scribed law
firm. The Plaintiff appeared in name only and the only verification was by the lawyer
and the book-keeper.
The foreclosure complaint failed as a matter of law to state a cause of action on which
relief could be granted due to the complete absence of any verified allegations. An
authorized signature in an executive capacity must appear within the complaint. This
omission was fatal to the cause of action and left the Court with nothing but a
"lawyer's narration," even in default judgment. As stated in the next errors, there was
nothing for the Court to go on without verification, and it would have been
impossible to decree the mortgage foreclosure and sale of the property without
verified facts in view. Foreclosure is an act of sound discretion and this Court will not
operate without facts.
III. The Sheriff unlawfully "shorted" the writ of execution and the Sale was illegal on
failure to "strike down" the entire judgment. Error as a matter of law, the Court
must set aside the Sheriff Sale. In that, "[t}he purpose of a sheriff's sale in judicial
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. " See Kaib v. Smith,
684 A.2d 630, 632 (Pa. Super. 1996).
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A sheriffs sale of property passes to the purchaser any interest which the judgment
debtor may have had in that property. When a judgment debtor has been deprived of
his property by the sheriffs sale, "the proceeds of that sale are a satisfaction ''pro
tanto" of the execution production that fund ... " J.R. Clausen & Son, 7 Pa. Super. at
222; Campbell, Bredin & Co. 's Appeal; Beachy v. Miller, 103 Pa. Super. 1, 157 A.
336 (1931); In re Estate of Wetzler, 3 Pa. Super. 435 (1897).
"The judgment which occasioned the execution procedure is discharged to the
extent that the proceeds of the sheriff's sale are applied to pay the judgment." See
Campbell, Bredin & Co. 's Appeal; Beachy supra; JR. Clausen & Son; In Re Estate of
Wetzler; 14 Standard Pennsylvania Practice 2d §78:27. Ergo, the Defendant still has
the right to "redeem" the outstanding difference, and the Sale must be held
incomplete as failing to divest the title of the mortgage debtor without full purchase
of the judgment "in rem''. (sic)
IV. The failure of Pennsylvania to provide "adequate compensation" at "fair price't for
the "public taking" by a "public Officer" in a Sheriff Sale" was unconstitutional as
a breach of substantive property and due process rights. The 5th Amendment to the
national Constitution and the corresponding Pennsylvania guarantee against
uncompensated seizures of private property is a question of fundamental rights. The
County Sheriff is a public officer and his seizure and sale of the demised premises
was a "public taking" in support of the State and the dignity of its judgments.
The property which is assessed publically here at some H$153,000" cannot facially be
sold for just "$55,000", (sic) which also included the costs of the Sheriff sale. We are
entitled to 100% "adequate compensation" on this "public taking" by a Public
Officer. The Court erred as a matter of law by upholding an unconstitutional legal
practice, public policy or civil procedure. Subject matter jurisdiction may be raised
for the first time on appeal, and this is a challenge to the constitutional authority of
the Sheriff Sale process in this State, that fails to meet the preliminary threshold of
"fair value" within the guarantees against a "public taking". (sic) See property
assessment report attached.
V. Plaintiff's Mortgage was a clog on the Equity of Redemption and the Court must
therefore set aside the Sheriff Sale. Failure to relieve the Defendant was a Manifest
Abuse of Discretion, and an Error as a Matter of longstanding Mortgage Law.
Plaintiff sold the property for $55,000 on a judgment for over $170,000 plus ongoing
costs and interests. If they were going to sell the place for 55k the Defendant was
entitled to pay the mortgage claim at that number as well. This clog on the equity of
redemption is both unlawful and unconscionable.
This was Predatory Lending! Practice, Plain Fraud and Appraisal Fraud; and
Unconscionable Inducement. The Court should have exercised the power of sound
discretion, so as a matter of law this judicially enforced clog on the equity of
redemption is illegal and unconstitutional after four centuries of standard
jurisprudence. We are not compelled to pay over "$170,000" for a $48,000 house.
This speaks directly to the next error:
VI. The failure of Pennsylvania to automate post-sale redemption is unconstitutional
as a breach of substantive property and due process rights, and the Court must set-
aside the Sheriff Sale. The Court erred as a matter of law by upholding an
unconstitutional legal practice, judicial policy and civil procedure.
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We are entitled to pay what the highest bidder paid at the Sheriff sale and my money
is better than anyone else being the "real owner". (sic) Post-sale redemption is the
fundamental test of "fair value', and a natural consequence of the underlying property
right. Either the mortgage was an indefeasible clog on the equity of redemption and
became a slow-motion inalienable sale, or it was a real pledge in security for debt or
performance. Here, the Defendant is entitled to pay the same "$55,000" as the
purchaser, plus ordinary premiums and interest charges and costs. Subject matter
jurisdiction may be raised for the first time on appeal and this is a direct challenge to
the constitutional authority of the Sheriff Sale process in Pennsylvania.
VIL As a matter of Law, the underlying Complaint failed to state any claim for a
mortgage foreclosure remedy, the Court must vacate the void judgment. "Two or
More Grounds May Be Pleas," ergo, at least one ground. Complaint failed to state
any grounds to foreclose. Default is a not an element (sic) of "grounds," it is not an
equitable concept, and all grounds are discretionary and equitable. Rule 1146
makes the distinction between the old chancery side of the court and a proper law-
action. Mortgage Foreclosure is not a law action as it will be heard in other States in a
Chancery Division, which is a court that would never hear a law action like
"negotiable instruments claims". (sic)
The underlying complaint failed to State a Claim under civil rule 1146 and failed to
allege exhaustion of the implied administrative remedy. The foreclosure action is
available only in the absence of a further remedy, by presenting the "negotiable
specialty" mortgage note for payment at the related place of payment, which doesn't
exist by definition. The mortgage note is a non negotiable bond for the installment of
many months of years in payments, it is not a negotiable instrument per se. The only
real remedy to the Plaintiff was to first discharge the debt into the central guarantee
system by issuing a "1099'' income tax form on the excess credit, and this is the
principle administrative remedy which this Plaintiff or its own principle has failed to
exhaust.
The suit in foreclosure is an action of the last resort, not the first impulse. Nobody is
entitled to the equitable relief of a mortgage foreclosure "as a matter of law." As a
matter of law, the equitable relief that is the foreclosure of a mortgage and the sale of
the premises must ordain from the bench as a matter of sound discretion and not
automation under Pa R.C.P. 1037 (d).
VIIL Failure to allege presentment for payment or discharge of the circulating medium.
Error as a matter of law and· wrong form of action as negotiable instruments are
personal claims barred in mortgage foreclosure under rule 1141 and 1148. The
Court must strike the mortgage judgment.
So far as the Plaintiff asserted the premise of a negotiable instrument, the Superior
Court has repeatedly made it clear that "a note secured by a mortgage is a negotiable
instrument, as that term is defined by the Pennsylvania Uniform Commercial Code. "
Gerber v. Piergrossi, 142 A.3d 854, 862 (Pa. Super. 2016). Since the Mortgage Note
was governed under the "PUCC," they failed to exhaust an administrative remedy by
actually seeking payment from the maker of the instrument, at the "place of
payment," following the rules of presentment.
See U.C.C. § 3-501 "PRESENTMENT." Apparently, the mortgage note is still in
circulation and valid as good paper, and it was clearly endorsed "pay to the order of
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blank w/o recourse", (sic) The abstraction of "standing to sue" on a negotiable
instrument is an insufficient cause of action in mortgage foreclosure and is further
barred by the operation of civil rule 1146, limiting the nature and cause to "one form
of action." The Plaintiff must allege to present its instrument for payment, discharge
the action, or at least mark it "payable" and then "cancelled," "refused,"
"dishonored," "paid" or some other designation that will stop the live negotiable
circulation of otherwise non-negotiable mortgage note.
A "negotiable instrument claim" is an action in personam, which here violations Pa
R.C.P. 1141 & 1148, limiting mortgage foreclosure to actions "in rem". (sic) It is
pure law error throughout the State to rely on negotiable instruments in any
foreclosure action; and it is pure law error to ignore the endorsement of the mortgage
note as legal tender currency. Nevertheless, land was not reduced to a bearer-share.
The plaintiff did not and cannot present its mortgage note at the address and demand
payment through the action of the non-negotiable foreclosure claim. The mortgage
note is a bond and an extension of the mortgage deed, the real plaintiff must "own
and hold the mortgage note."
The Plaintiffs Complaint failed to set forth the verification of mortgage debt
"assignments" under Pa R.C.P. 1147 and this is more than procedure, it is
substantive. Instead, Plaintiff has admittedly monetized the chose in action. (sic) See
CitiMortgage, Inc. v. Barbezat, 2016 WL 99772, A. 3d, at *2-3 (Pa. Super. 2016).
If the plaintiff "holds" a note, they must also follow the rules for presentment. As set
forth in the Defendant's underlying motion, the mechanics of financialization (sic)
works to monetize the chose in action. The lawyers for the Plaintiff are waving
around the tale of a mortgage bill they seem to already hold, which is both legal
tender and good payment in hand, guaranteed by the underwriting bank-endorsement.
IX. Error as a matter of Law- real estate is not negotiable collateral- impossibleform of
action. Land and real estate is not the subject of any "PUCC" definition. See UCC 9-
102 (no. 12) "Collateral." The property subject to a security interest or agricultural
lien. The term includes: (1) proceeds to which a security interest attaches; (2)
accounts, chattel paper, payment intangibles and promissory notes which have been
sold; and (3) goods which are the subject of a consignment.
The mortgage note is not payable or redeemable in land or rights to land. It was
endorsed by the guarantees of a "federal reserve system" and is floating at a legal
monetary value, even today. It follows that if possession of the note is standing to sue
then they had better present if for payment while any other "remedy" is limited to
law-action in personam under the UCC, and not through an in rem claim against land
property over this impossible and inapposite premise which is also entirely illegal as
barred by Pa R.C.P. 1146-1148.
It was pure Error as a matter of law to conflate the abstract enforceability of a
negotiable instrument that is still in circulation, with a claim for title in land as
measured by the format of a non· negotiable mortgage bond proceeding
"as in assumpsit" but actually limited to an action "de ferris". (sic) And it was error
as a matter of law to allow a claim for any money judgment to proceed out of a
negotiable instrument that is still in unmarked circulation. The underlying judgment is
void and this Sheriff Sale was mathematically impossible.
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X Article 1 Section 10 Unites States Constitution is the Supreme Law of the Land and
the Common Pleas Court is therein bound. As set forth in the undersigned
Defendant's Motion, the Court is reminded that Article 1 Section 10 of the United
States Constitution is alive and well. The Courts must learn to see that all Debts and
Credits are merely fictional account entries, given valid legal tender status in the
absence of gold or silver. Nobody fails to get "paid" in this scenario and we live in a
world of pure equity, without a lawful action for debt.
If there is or was a partition proposed by the Plaintiff's Complaint, it was conducted
without due process or any type of hearing, discovery or evidence; to show why it is
that foreclosure and sale of the premises is warranted. Otherwise, the Supreme Court
of Pennsylvania must abolish the action of Pa R.C.P. 1146 and strike the equitable
grounds concept from the nature of mortgage foreclosure, if this fundament is going
to be systematically ignored. See civil rules 1037 (d), where all discretionary acts
must issue out of the bench. The premise that there are any "grounds" in foreclosure
here is a decision that must sound in the equitable powers of the Court. Also see the
Pennsylvania "Quiet Title" equity-action at civil rule 1061 ( d), to gain possession
"after a judicial or tax sale". (sic) Foreclosure and the subsequent Judicial Sale are an
equitable remedy that must be decreed from the bench.
XI. THE COURT SHOULD HAVE IMPOSED A CONSTRUCTIVE TRUST
Ibid: as in #1-10. It was a manifest abuse of discretion to completely ignore the facts,
the circumstances and the Law of the case. The Court must impose a Constructive
Trust and sort out the various positions in the property; ordering either redemption of
the mortgage on fair and payable conditions or stabilization within the tripartite
arrangement. This mortgage deed is an element in a diffuse and interlocking
securitization trust, where the Plaintiff is either a Servicer or a Trust Minister. The
defendant is the trustor, entitled to a whole other set of rights and remedies just as
the other parties who are situate in their respective positions. The only lawful cause of
action will be equitable dissolution or partition; mortgage foreclose was barred as
there is not actually a standard mortgage or a workable debtor-creditor relationship.
(See Concise Statement. All emphasis, quotations, and errors in the original).
ANALYSIS
Initially, this Court notes that the Concise Statement supplied by Defendant is neither
concise nor coherent in many places. This Court's analysis is fatally impaired by the Defendant's
unclear concise statement. However, this Court will attempt to address the claims that are
understandable, and address the propriety of the denial of the Petition to Set Aside the Sheriff
Sale.
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Issue XI cannot be addressed by this Court, as it is unclear under what grounds Defendant
is alleging the denial of the Petition to Set Aside the Sheriff Sale was improper and why he is
entitled to a Constructive Trust. Issues I, II, V, VII, VIII, IX, and X challenge the underlying
mortgage foreclosure. Issue IV purports to challenge the underlying judgment as void for lack of
subject matter jurisdiction. Finally, issues III and VI allege that the Defendant should be allowed
to redeem his mortgage for the amount it was purchased for at Sheriff Sale.
I. Challenges to the Underlying Summary Judgment
Defendant attempts to challenge the underlying grant of summary judgement based on
alleged deficiencies in the complaint and summary judgment ruling. Defendant cannot challenge
the merits of the underlying grant of summary judgment. "[T]he notice of appeal required by
Rule 902 (manner of taking appeal) shall be filed within 30 days after the entry of the order from
which the appeal is taken." Pa.R.A.P. 903 (a). Defendant had thirty days from the entry of
summary judgment in which to file an appeal. Defendant availed himself of this right. However,
subsequently, Defendant failed to file a brief, and the Superior Court dismissed that appeal.
Therefore, the Order granting summary judgment is final, and not subject to disturbance on this
appeal. Thus, issues I, II, V, VII, VIII, IX, and X are waived as those issues address the propriety
of the underlying Summary Judgment which is now final.
However, Issue IV purports to challenge the underlying Order granting Summary
Judgment as void for lack of subject matter jurisdiction. A void decree can be attacked at any
time. Brokans v. Melnick, 391 Pa.Super. 21, 569 A.2d 1373, 1376 (1989). Where ajudgment is
void, the sheriff's sale which follows is a nullity. A judgment is void when the court had no
jurisdiction over the parties, or the subject matter, or the court had no power or authority to
render the particular judgment. Fed Nat. Mortgage Ass'n v. Citiano, 2003 PA Super 381, 11 JO-
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11, 834 A.2d 645, 648 (Pa. Super. Ct. 2003)(some internal citations omitted). Thus, if the Court
lacked subject matter jurisdiction, that issue is not waived.
The test for whether a court has subject matter jurisdiction inquires into the competency
of the court to determine controversies of the general class to which the case presented
for consideration belongs. Thus, as a pure question of law, the standard of review in
determining whether a court has subject matter jurisdiction is de novo and the scope of
review is plenary.
Beneficial Consumer Disc. Co. v. Vukman, 621 Pa. 192, 197-98, 77 A.3d 547, 550 (2013)
"Save for exceptions irrelevant to this matter, our Courts of Common Pleas have
unlimited original jurisdiction over all proceedings in this Commonwealth, unless otherwise
provided by law. Pa. Const. art. 5, § 5; 42 Pa.C.S. § 93 l(a)." Id. at 552. Defendant alleges this
Court lacks Subject Matter Jurisdiction because this was a "public taking" and because it is "a
clog on the equity of redemption." Defendant cites to no law divesting this Court of jurisdiction.
Therefore, this issue is without merit.
II. Challenges to the Sheriff Sale
Defendant's final claims, Issues III and \JI, purport to challenge the Sheriff Sale.
Defendant raises that he should be permitted to redeem the mortgage for the amount paid by
Hammer Investments at the Sheriff Sale. The purpose of a sheriffs 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. Kaib v. Smith, 454 Pa.Super. 67, 684 A.2d 630 (1996) . A sale
may be set aside upon petition of an interested party where "upon proper cause shown" the court
deems it "just and proper under the circumstances." Pa.R.C.P. 3132. The burden of proving
circumstances warranting the exercise of the court's equitable powers is on the petitioner.
Bornman v. Gordon, 363 Pa.Super. 607, 527 A.2d 109, 111 (1987). Courts have entertained
petitions and granted relief where the validity of sale proceedings is challenged, or a deficiency
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pertaining to the notice of sale exists or where misconduct occurs in the bidding process.
National Penn Bank v. Shaffer, 448 Pa.Super. 496, 672 A.2d 326 (1996).
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 sheriffs
sale. Fidelity Bank v. Pierson, 43 7 Pa. 541, 264 A.2d 682 (1970). However where a "gross
inadequacy" in the price is established courts have found proper grounds exist to set aside a
sheriffs sale. Capozzi v. Antonoplos, 414 Pa. 565, 201 A.2d 420, 422 (1964). The courts have
traditionally looked at each case on its own facts. Scott v. Ada! Corp., 353 Pa.Super. 288, 509
A.2d 1279, 1283 (1986). "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." Id. Further,
it is presumed that the price received at a duly advertised public sale is the highest and best
obtainable. First Federal Sav. & Loan Assoc. v. Swift, 457 Pa. 206, 321 A.2d 895 (1974). When
reviewing a trial court's ruling on a petition to set aside a sheriff's sale, it is recognized 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. Blue Ball Nat. Bank v. Balmer, 2002 PA Super 329, if18-9, 810 A.2d
164, I 66-67 (Pa. Super. Ct. 2002) citing (Federal Sav. Bank v. CPM Energy Sys. Corp., 422
Pa.Super. 308, 619 A.2d 371 (1993)).
Here, Defendant failed to raise any; equitable grounds on which this Court should set
aside the Sheriff sale. Defendant does not challenge the sale itself, the bidding process, notice,
or the price. Defendant instead claims that this Court should permit the Defendant to redeem the
mortgage for less than he agreed to pay when he signed the Note and Mortgage. Equity does not
require this Court to permit Defendant to fail to meet his contractual obligations under the Note,
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and then redeem the property for the price paid by the highest bidder at Sheriff Sale. As these
claims lack merit, this Court's denial of the Petition to Set Aside the Sheriff Sale was proper.
CONCLUSION
For all of the aforementioned reasons, this Court's decision and order should be
AFFIRMED.
Copies of the above Opinion
Mailed on5 ?- I/?
By Interoffice Mail to:
Civil - Court Administration
By First Class Mail to:
Kristen Ashe, Esquire
James McKenna, Defendant, Pro Se
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