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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
U.S. BANK NATIONAL ASSOCIATION : IN THE SUPERIOR COURT OF
(TRUSTEE FOR THE PENNSYLVANIA : PENNSYLVANIA
HOUSING FINANCE AGENCY) :
:
v. :
:
JOE HOLMES, : No. 2289 EDA 2019
:
Appellant :
Appeal from the Order Dated June 20, 2019,
in the Court of Common Pleas of Philadelphia County
Civil Division at No. 150802640
BEFORE: BOWES, J., KING, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED JULY 28, 2020
Joe Holmes (“Homeowner”) appeals pro se1 from the June 20, 2019
order entered in the Court of Common Pleas of Philadelphia County which
denied Homeowner’s miscellaneous motion for relief. We affirm.
The relevant procedural history, as gleaned from the certified record and
the trial court’s Rule 1925(a) opinion, is as follows: On August 21, 2015,
U.S. Bank National Association (Trustee for the Pennsylvania Housing Finance
Agency) (“Bank”) filed a complaint in mortgage foreclosure against
Homeowner. On November 24, 2015, Homeowner filed an answer.
Thereafter, on March 23, 2017, Bank filed a motion for summary judgment.
1 The record reflects that Homeowner also proceeded pro se in the trial court.
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Homeowner failed to file a response. On April 26, 2017, the trial court granted
Bank’s motion and ordered Homeowner’s property be sold at sheriff’s sale.2
Homeowner did not appeal. Rather, on April 28, 2017, Homeowner filed a
motion for reconsideration,3 which was denied by the trial court on May 30,
2017. Homeowner then appealed. On September 6, 2017, this court quashed
Homeowner’s appeal as untimely. See U.S. Bank Nat’l Ass’n. (Trustee for
the Pennsylvania Housing Finance Agency) v. Holmes, No. 1978 EDA
2017, per curiam order (Pa.Super. filed September 6, 2017). On
September 12, 2017, Homeowner’s property was sold at sheriff’s sale. The
sheriff delivered the deed on October 27, 2017. Homeowner did not seek to
set aside the sheriff’s sale.
On February 26, 2018, Homeowner filed a “petition to vacate & void
[ab initio] the civil procedural default summary judgment.” (Capitalization
omitted.) The motion was denied by the trial court on April 3, 2018.
Homeowner did not appeal. On May 17, 2019, Homeowner filed a
“miscellaneous motion for relief from sheriff’s sale and deed, and to vacate
2 The trial court assessed damages at $197,581.34 plus interest.
3Although Homeowner titled his filing a “motion for reconsideration,” a review
of the motion reveals that Homeowner actually sought permission to file an
untimely response to Bank’s motion for summary judgment, objected to the
complaint in mortgage foreclosure, and included a brief in support of those
objections.
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praecipe of writ and summary judgment.”4 (Capitalization omitted.) The trial
court denied this motion on June 20, 2019. Homeowner timely appealed. The
trial court did not order Homeowner to file a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b). The trial court,
however, filed a Rule 1925(a) opinion on August 20, 2019.
Homeowner raises the following issues:
1. Were [a]ppellant’s rights violated by the trial
court upon ignoring appellant’s claim that the
mortgage loan in dispute is void as to appellant
who was and remains illiterate and incompetent
upon his execution of the mortgage loan and
modification instruments in dispute?
2. Were [a]ppellant’s procedural due process
rights under Pa.R.Civ.P. 2002 violated because
[a]ppellee was never a real party in interest?
3. Were [a]ppellant’s rights under Pennsylvania’s
uniform commercial code violated upon the note
instrument submitted in support of summary
judgment failing to display an [e]ndorsement
paid to the order of [a]ppellee or in blank
pursuant to 13 Pa.C.S.A. §§ 3204 and 3205
(respectively)?
4. Were [a]ppellant’s rights under sections 6(b)
and 9(d) of the note [and] mortgage in dispute
violated and denied upon [a]ppellee
commencing the foreclosure action below
without complying with sections 6(b) and 9(d)
of the note [and] mortgage (respectively) and
as required by 24 [C.F.R.] §§ 203.604,
203.605, and 203.606?
4The motion’s title further states: “and dismissal pursuant to 42 Pa.C.S.A.
§§ 5504(B), 5505 and Pa.R.C.P. 3132, 227.1, 208.3, and the court’s inherent
power.” (Capitalization omitted.)
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5. Were [a]ppellant’s due process rights violated
upon [a]ttorneys KLM as officers of the court
engaging in fraud upon the court, tampering
with and fabricating evidence?
Appellant’s brief at 3-4.
The trial court determined that Homeowner’s “miscellaneous motion,”
filed May 17, 2019, was in the nature of a
petition to (1) strike and/or open the April 26, 2017
order granting summary judgment in favor of Bank
and against Homeowner; (2) vacate the June 7, 2017
writ of execution; and (3) set aside the Sheriff's sale
and deed (the “petition”).
Trial court opinion, 8/20/19 at 1 (extraneous capitalization omitted).
The trial court determined that its order of April 26, 2017, granting
Bank’s motion for summary judgment became a final order on May 26, 2017,
from which Homeowner failed to timely appeal. (Id. at 3.) Further, the trial
court found Homeowner failed to demonstrate “extrinsic fraud, lack of
jurisdiction over the subject matter, a fatal defect apparent on the face of the
record or some other evidence of extraordinary cause justifying intervention
by the court.” Id. at 2-3 (numbers omitted), citing Manufacturers and
Traders Trust Co. v. Greenville Gastroenterology, SC, 108 A.3d 913,
918-919 (Pa.Super. 2015).
With respect to the sheriff’s sale and deed, the trial court found
Homeowner’s “petition” was untimely as it was not filed until more than
one and one-half years after the sheriff’s deed was delivered and Homeowner
did not establish that the deed was based on fraud or lack of authority to make
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the sale. See Mortgage Elec. Registration Sys., Inc. v. Ralich, 982 A.2d
77, 80 (Pa.Super. 2009), appeal denied, 992 A.2d 889 (Pa. 2010).
After careful review, we find that the trial court’s August 20, 2019
Rule 1925(a) opinion ably and comprehensively disposes of all issues raised
on appeal. The trial court’s findings are amply supported by the record, and
its conclusions are without legal error. We, therefore, affirm on the basis of
that opinion.
Order affirmed.
Judgment Entered.
JosephD.Seletyn,Esq.
Prothonotary
Date: 7/28/2020
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Circulated 06/29/2020 02:32 PM
IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY
FIRST JUDICIAL DISTRICT OF PENNSYLVANIA
TRIAL DIVISION - CIVIL
U.S. BANK NATIONAL ASSOCIATION
(TRUSTEE FOR THE
PENNSYLVANIA HOUSING FINANCE
AUTHORITY),
2289 EDA 2019
Trial Court Case No. 150802640
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OPINION
Defendant Joe Holmes (the "Homeowner") appeals the trial court's June 20, 2019 order
denying Homeowner's Petition to (1) Strike and/or Open the April 26, 2017 Order Granting
Summary Judgment in Favor of Bank and against Homeowner; (2) Vacate the June 7, 2017 Writ
of Execution; and (3) Set Aside the Sheriffs Sale and Deed (the "Petition"). For the reasons
discussed below, the Superior Court should affirm the June 20, 2019 order.
FACTUAL AND PROCEDURAL BACKGROUND
On August 21, 2015, Plaintiff U.S. Bank National Association (Trustee for the
Pennsylvania Housing Finance Authority) (the "Bank") filed a mortgage foreclosure complaint
against Homeowner regarding property located at 4833 Morris Street, Philadelphia, Pennsylvania
19144 ( the "Property").
On March 23, 2017, Bank filed a Motion for Summary Judgment to which Homeowner
failed to file a response. On April 26, 2017, the trial court entered a final order granting Bank's
Motion for Summary Judgment. Homeowner never appealed the April 26, 2017 final order.1 On
September 12, 2017, the Sheriff sold the Property to KML Law Group for $17,100.
1
Instead, Homeowner filed a Motion for Reconsideration of the April 26, 2017 final order, which the trial court
denied. Homeowner then improperly appealed the trial court's May 30, 2017 order denying Homeowner's Motion for
Reconsideration. On September 6, 2017, the Superior Court quashed Homeowner's appeal as untimely. See Order,
Filed 9/6/2017.
COPIES SENT PURSUANT TO Pa.R.C.P. 236(b) D. DRAYTON 08/22/2019
On May 17, 2019, Homeowner filed the Petition that is the subject of this Appeal. The
trial court denied the Petition on June 20, 2019. On July 15, 2019, Homeowner filed a timely
appeal of the trial court's June 20, 2019 order.
DISCUSSION
1. The Trial Court Properly Denied Homeowner's Petition
A. Homeowner's Petition to Strike and/or Open Summary Judgment
A judgment entered in an adverse proceeding generally cannot be modified, rescinded,
vacated, struck, or opened after it has become final. Manufacturers & Traders Tr. Co. v.
Greenville Gastroenterology, SC, 108 A.3d 913, 918 (Pa. Super. Ct. 2015). A judgment entered
in an adverse proceeding becomes final if, within 30 days of the order, (1) no party filed an
appeal of it, (2) no party filed a motion for reconsideration for which the trial court expressly
granted reconsideration, or (3) the trial court did not vacate the order on its own accord. Id. The
purpose of this doctrine is to "establish a point at which litigants, counsel[,] and courts ordinarily
may regard contested lawsuits as being at an end." Id.
A final judgment entered in an adverse proceeding may be modified, rescinded, vacated,
struck, or opened, however, if a party can demonstrate (1) extrinsic fraud, (2) lack of subject
matter jurisdiction, (3) a fatal defect apparent on the face of the record, or (4) some other
circumstance so grave or compelling as to constitute "extraordinary cause" justifying
intervention by the court. 2 Id. at 918-19.
2
"Extraordinary cause" generally refers to "an oversight or action on the part of the court or the judicial process which
operates to deny the losing party knowledge of the entry of final judgment so that the commencement of the running
of the appeal time is not known to the losing party." Greenville Gastroenterology, I 08 A.3d at 919. The following do
not constitute "extraordinary cause:" (1) mistakes or ordinary neglect by counsel or (2) where a party has notice of the
entry of a final order. Id.
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Here, the trial court entered an order granting Bank's Motion for Summary Judgment on
April 26, 2017. Homeowner never filed an appeal from that order. Although Homeowner filed a
Motion for Reconsideration of that order, the trial court denied the motion. Lastly, the trial court
did not vacate that order on its own accord. Therefore, 30 days later on May 26, 2017, the April
26, 2017 order became final. On April 27, 2017, Homeowner received Rule 236 Notice of the
entry of the trial court's order granting summary judgment.
In his Petition to Strike and/or Open Summary Judgment, Homeowner failed to
demonstrate any extraordinary cause justifying intervention by the court. Instead, Homeowner
improperly sought to attack the merits of the allegations of the complaint. See Homeowner's
Petition, Filed 5/17/2019. Therefore, the trial court properly denied Homeowner' s Petition to
Strike and/or Open Summary Judgment.
B. The Trial Court Properly Denied Homeowner's
Petition to Set Aside the Sheriffs Sale and Deed as Untimely
If the petitioner waits until after the Sheriff delivers the deed to file the petition to set
aside, the petition is untimely and, even if there are procedural deficiencies such as a lack of
service or notice, a court must deny the petition. See Mortg. Elec. Registration Sys., Inc. v.
Ralich, 982 A.2d 77, 79-80 (Pa. Super. Ct. 2009). There is a narrow exception to this general
rule, however, which is that a court may grant relief to an untimely petition to set aside if the
petitioner can prove (1) fraud in the Sheriffs sale of the property, (2) the Sheriff lacked authority
to make the sale, or (3) the judgment underlying the execution was void on its face. Id. at 80.
Here, Homeowner filed an untimely Petition to Set Aside the Sheriffs Sale and Deed
because it was filed more than one and an half years after the Sheriff delivered the deed on
October 27, 2017. Homeowner's Petition was post-delivery of the deed and thus patently
untimely. See Homeowner's Petition, Exhibit "I," The Sheriffs Deed. Moreover, none of the
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three narrow exceptions to the general rule of untimeliness apply. There was no fraud in the
Sheriff sale, the Sheriff had the authority to make the sale, and the underlying April 26, 2017
final order granting summary judgment was valid on its face.3 See supra Sections A and B.
Therefore, the trial court properly denied Homeowner's Petition to Set Aside Sheriffs Sale and
Deed.
CONCLUSION
oing, the Superior Court should affirm the June 20, 2019 order.
B
RS, JUDGE
Dated: August 20, 2019
3
Likewise, the trial court properly denied Homeowner's Petition to Vacate the June 7, 2017 Writ of Execution. The
Writ of Execution was properly issued on the basis ofa valid judgment. Therefore, this claim of error is also meritless.
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