J-A03004-20
2020 PA Super 82
WELLS FARGO BANK MINNESOTA : IN THE SUPERIOR COURT OF
NATIONAL ASSOCIATION AS : PENNSYLVANIA
TRUSTEE FOR CERTIFICATE :
HOLDERS OF EMC MORTGAGE LOAN :
TRUST 2002-A MORTGAGE LOAN :
PASS-THROUGH CERTIFICATES, :
SERIES 2002-A :
:
: No. 1113 MDA 2019
v. :
:
:
DONALD L. & MARIA BARRON :
:
Appellants :
Appeal from the Order Entered June 12, 2019
In the Court of Common Pleas of Lancaster County Civil Division at
No(s): CI-04-08099
BEFORE: LAZARUS, J., STABILE, J., and DUBOW, J.
OPINION BY LAZARUS, J.: FILED MARCH 31, 2020
Donald L. and Maria Barron (h/w) (collectively, the Barrons) appeal from
the order, entered in the Court of Common Pleas of Lancaster Country,
denying their petitions to strike a judgment and to set aside a sheriff’s sale.
After careful review, we affirm.
On August 27, 2004, Appellees Wells Fargo Bank Minnesota, N.A., as
trustee for the EMC Mortgage Loan Trust 2002-A, Mortgage Pass-Through
Certificates Series 2002-A (collectively, Wells Fargo) filed a complaint in
mortgage foreclosure against the Barrons after they defaulted on a mortgage
dated September 24, 1992, which was secured by real estate located at 1541
Hiemenz Road, Manheim Township, Lancaster County (Property). On October
J-A03004-20
8, 2004, Maria Barron, appearing pro se, filed an answer to the complaint. On
February 28, 2005, Wells Fargo filed a motion for summary judgment, which
was unopposed by the Barrons. On May 26, 2005, the court granted the
motion and entered an in rem judgment in the amount of $185,215.63, plus
interest and costs, against the Barrons.
On October 13, 2005, Wells Fargo filed a writ of execution and began
execution proceedings. The sheriff’s sale for the Property was originally
scheduled for February 22, 2006. However, through a series of stays and
continuances over the following thirteen years, the sheriff’s sale did not take
place until November 28, 2018. On November 28, 2018, the Property was
sold to a third party, AJ Home Solutions, LLC, for the sum of $230,000.00.
On December 17, 2018, before the sheriff issued and recorded the deed to
the Property, the Barrons filed a petition to open or strike judgment, as well
as a petition to set aside the sheriff’s sale. In the petition to set aside, the
Barrons raised a number of arguments, including Plaintiff’s alleged non-
compliance with Pa.R.C.P. 3129.1-3129.3 regarding failure to file a new
affidavit under Rule 3129.1 before the November 2018 sale. On January 24,
2019, Wells Fargo filed its opposition to the Barrons’ petitions arguing that the
Barrons failed to meet their burden of proof for setting aside the sale where
Wells Fargo had legal standing to foreclose, both the Barrons and all other
lienholders were served with a notice of the sale indicating the scheduled date
of the sheriff's sale (January 31, 2018) and were also served with a notice of
-2-
J-A03004-20
the date of the continued sheriff's sale on or about October 4, 2018, when the
sale was moved to November 28, 2018.
On June 10, 2019, the trial court denied the Barrons’ petitions.
Regarding the petition to set aside, the court found that: the Barrons received
notice of the November 28, 2018 sale; they failed to cite to any supporting
case law; they lacked standing to assert any rights on behalf of the other
lienholders; and, while it appeared those other lienholders did not have any
claims of priority over the subject mortgage, their liens were not necessarily
divested by virtue of the sale. The Barrons filed a timely notice of appeal and
court-ordered Pa.R.A.P. 1925(b) concise statement of errors complained of on
appeal.1 They present the following issue for our review: “[Whether] the
[c]ourt erred in not setting aside the [s]heriff’s [s]ale of November 28, 2018[,]
due to Plaintiff not following the mandated notices of P[a].R[.]]C[.]P[.] 3129.1
through (and notably) 3129.3.” Appellants’ Brief, at 8.
We first note that “[e]quitable considerations govern the trial court’s
decision to set aside a sheriff’s sale, and [an appellate court] will not reverse
the trial court’s decision absent an abuse of discretion. An abuse of discretion
____________________________________________
1 Appellees argue that the Barrons have waived their argument on appeal due
to the vagueness of their Pa.R.A.P. 1925(b) concise statement of errors
complained of on appeal. We do not find the statement, which is almost
identical to the issue quoted in the body of this opinion, too vague to permit
proper appellate review. Thus, we decline to find their issue waived on appeal.
Cf. Lineberger v. Wyeth, 894 A.2d 141 (Pa. Super. 2006) (patient, who
sued pharmaceutical companies that manufactured and sold drug patient was
prescribed, waived all arguments on appeal where her Rule 1925(b) statement
was so vague and overbroad that it was functional equivalent of no statement
at all).
-3-
J-A03004-20
occurs where, for example, the trial court misapplies the law.” Nationstar
Mortgage, LLC v. Lark, 73 A.3d 1265, 1267 (Pa. Super. 2013). Generally,
the burden of proving circumstances warranting the exercise of such equitable
powers is on the petitioner, the allegations of the petition must be proved by
clear evidence, and the request to set aside a sheriff’s sale may be refused
due to insufficient proof to support the allegations in the petition. First Fed.
Sav. Bank v. CPM Energy Sys. Corp., 619 A.2d 371, 373 (Pa. Super. 1993).
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.
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, as does the burden of showing inadequate
notice resulting in prejudice, which is on the person who
seeks to set aside the sale. 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.
An abuse of discretion is not merely an error of judgment.
Furthermore, it is insufficient to persuade the appellate court that
it might have reached a different conclusion if, in the first place,
charged with the duty imposed on the trial court. An abuse of
discretion exists when the trial court has rendered a judgment
that is manifestly unreasonable, arbitrary, or capricious, has failed
to apply the law, or was motivated by partiality, prejudice, bias,
or ill will. Where the record adequately supports the trial court’s
reasons and factual basis, the court did not abuse its discretion.
GMAC Mortgage Corporation of PA v. Buchanan, 929 A.2d 1164, 1167
(Pa. Super. 2007) (emphasis added) (internal quotation marks and citations
omitted).
-4-
J-A03004-20
On appeal, the Barrons complain that, pursuant to Rule 3129.3(b)(1),
Wells Fargo was required to hold a sheriff’s sale within 130 days after a
continued sale, rather than postpone it more than twice without first re-
serving an affidavit. Specifically, they argue that where Wells Fargo
postponed a scheduled sheriff’s sale from January 31, 2018, to March 28,
2018, to May 30, 2018, to July 25, 2018, to September 26, 2018, and, finally,
to November 28, 2018, and did not re-serve an affidavit since January 12,
2018, the sale should be set aside for non-compliance with Rule 3129.3.
With regard to sheriff’s sales in Pennsylvania, “[t]he notice requirements
of [Rules] 3129.1, 3129.2, and 3129.3 were intended to protect fundamental
rights of due process by insuring that persons with an interest in real estate
would receive adequate notice before being deprived of their property.” First
Eastern Bank, N.A. v. Campstead, Inc., 637 A.2d 1364, 1366 (Pa. Super.
1994). Because notice is “the most basic requirement of due process, [it]
must ‘be reasonably calculated to inform interested parties of the pending
action, and the information necessary to provide an opportunity to present
objections. The form of notice required depends on what is reasonable
considering the interests at stake and the burdens of providing notice.’” Id.
(citations omitted).
Pennsylvania Rule of Civil Procedure 3129.1(a) mandates that “[n]o sale
of real property upon a writ of execution shall be held until the plaintiff has
filed with the sheriff the affidavit required by subdivision (b) [of Rule 3129.1]
and the notice required by Rule 3129.2 has been served.” See Pa.R.C.P.
-5-
J-A03004-20
3129.1(a)2 (emphasis added). A Rule 3129.1(b) affidavit shall set forth: the
owners or reputed owners of the real property and of the defendant in the
judgment; every other person who has a record lien on the property; any
person who has a record interest in the property which may be affected by
the sale; and any person who has an interest in the property that is not of
record which may be affected by the sale and of which the plaintiff has
knowledge. Pa.R.C.P. 3129.1(b)(1)-(4). In addition, a Rule 3129.2 notice of
the sale of real property “shall be given by handbills,[3] by written notice . . .
to all persons whose names and addresses are set forth in the affidavit
required by Rule 3129.1, and by publication[.]” Pa.R.C.P. 3129.2(a)
(emphasis added). “The written notice shall be prepared by the plaintiff, shall
contain the same information as the handbills or may consist of the handbill
and shall be served at least thirty days before the sale on all persons whose
names and addresses are set forth in the affidavit required by Rule 3129.1.”
Pa.R.C.P. 3129.1(c). The handbills shall include, in part, a brief description of
the property to be sold; its location; any improvements; the judgment of the
court on which the sale is being held; the name of the owner or reputed owner;
and the time and place of the sale. Pa.R.C.P. 3129.2(b)(1).
____________________________________________
2The required content for an affidavit is set forth in Rule 3129.1(b), while the
notice of sale provisions are found in Rule 3129.2.
3 A “handbill” is defined as “a small printed sheet to be distributed (as for
advertising) by hand.” See https://www.merriam-
webster.com/dictionary/handbill (last visited 2/24/20).
-6-
J-A03004-20
When a scheduled sheriff’s sale is stayed, continued, postponed, or
adjourned, which is what occurred in the present case, Pennsylvania Rule of
Civil Procedure 3129.3 provides, in pertinent part:
(a) except as provided by subdivision (b) or special order
of court, new notice shall be given as provided by Rule
3129.2 if a sale of real property is stayed, continued,
postponed or adjourned.
(b)
(1) If the sale is stayed, continued, postponed or adjourned
to a date certain within one hundred thirty days of the
scheduled sale, notice of which sale was given as provided
by Rule 3129.2, and public announcement thereof, including
the new date, is made to the bidders assembled at the time
and place fixed for the sale, no new notice as provided by
Rule 3129.2 shall be required, but there may be only two
such stays, continuances, postponements or
adjournments within the one hundred thirty day
period without new notice.
Pa.R.C.P. 3129.3 (a), (b)(1) (emphasis added). Thus, there are two
exceptions under Rule 3129.3(a) where no new notice is required when a sale
has been postponed or stayed: (1) when the court issues a “special order”
dispensing with the requirement of additional notice; and (2) when the sale is
postponed no more than twice within 130 days of the originally scheduled sale
date.
Wells Fargo filed its initial affidavit and served notice of the sale,
pursuant to Rule 3129.1(a), on August 14, 2017. On January 11, 2018, Wells
Fargo gave new Rule 3129.2(a) notice of the intended January 31, 2018 sale,
and filed an amended Rule 3129.1 affidavit. On January 10, 2018, and March
2, 2018, Wells Fargo exhausted its two Rule 3129.3(b)(1) continuances,
-7-
J-A03004-20
continuing the scheduled sale from January 31, 2018 to March 28, 2018 and
again from March 28, 2018 to May 30, 2018.
On May 9, 2018 and July 24, 2018, in response to Wells Fargo’s motions
to postpone the sheriff’s sale, the court entered special orders postponing the
sale and indicating that “[n]o further advertising or additional notice to
lienholders or Defendants[, the Barrons] is required.” See Order, 5/9/18;
Order, 7/24/18; Order, 9/26/18. Thus, under Rule 3129.3(a), there was no
new need for notice or advertisement. See Pa.R.C.P. 3129.3(a) (Except as
provided by subdivision (b) or special order of court, new notice shall be given
as provided by Rule 3129.2.”) (emphasis added). On September 24, 2018,
the Barrons filed a petition for stay of the scheduled September 26, 2018
sheriff’s sale. The court granted the Barrons’ petition and postponed the sale
until November 28, 2018. See Order, 9/26/18.
Instantly, the Barrons contend that Wells Fargo was required to “re-
serve an Affidavit pursuant to Rule 3129” where it did not hold the sale within
130 days of the scheduled sale and where the sale was continued more than
two times. Appellants’ Brief, at 11.
Fundamentally, “[d]ue process requires that a party who will be
adversely affected by a court order must receive notice and a right to be heard
in an appropriate setting.” McKinney v. Carolus, 634 A.2d 1144, 1146 (Pa.
Super. 1993). “Due process, reduced to its most elemental component,
requires notice.” Romeo v. Looks, 535 A.2d 1101, 1105 (Pa. Super. 1987)
(en banc) (citations omitted). Here, the Barrons do not contend that they
-8-
J-A03004-20
failed to receive notice of the November 28, 2018 sheriff’s sale. Rather, they
argue that Wells Fargo was required to re-serve an affidavit under Rule
3129.1. We disagree.
Nowhere in Rule 3129.3 does it state that a new affidavit under Rule
3129.1 is required when a sale of real property is stayed, continued,
postponed or adjourned and we decline to read such a burdensome
requirement into the rule. When the “words of a rule are clear and free from
all ambiguity, the letter of it is not to be disregarded under the pretext of
pursuing its spirit.” Pa.R.C.P. 127(b). Rather, Rule 3129.3(a) specifically
requires “new notice as provided by Rule 3129.2” when a sale is stayed,
continued, postponed or adjourned. Pa.R.C.P. 3129.3(a). Moreover, under
Rule 3129.3(b)(1), when the sale is postponed no more than two times within
130 days of the scheduled date, the plaintiff shall file a notice and certificate
as delineated under Rule 3129.3(b)(2)(i)(A-B). Here, Wells Fargo provided
the requisite Rule 3129.3(b)(2) notice when it exercised its two Rule
3129.3(b)(1) continuances within 130 days of the original sale date.
Additionally, the two remaining times that Wells Fargo petitioned to continue
or postpone the sale, the court granted its request by “special order,”
specifying that “[n]o further advertising or additional notice to lienholders or
[the Barrons] is required.” See Pa.R.C.P. 3129.3(a).
Because Wells Fargo provided the requisite notice for postponing the
sheriff’s sale, as required by Rule 3129.3, the Barrons were on notice of the
scheduled sale that took place on November 28, 2018. Romeo, supra;
-9-
J-A03004-20
McKinney, supra. Accordingly, we conclude that the court did not abuse its
discretion denying the Barrons’ petition to set aside the sheriff’s sale where
the record adequately supports its determination. Buchanan, supra.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 03/31/2020
- 10 -