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BAC Home Loans Serving L.P. v. Vizard
Superior Court of Pennsylvania
August 8, 2013
BAC HOME LOANS SERVING L.P., ET. AL.
v.
FRANK VIZARD AND ATA ZANDIEH APPEAL OF: ATA ZANDIEH
v.
FRANK VIZARD AND ATA ZANDIEH APPEAL OF: ATA ZANDIEH
NON-PRECEDENTIAL DECISION
Appeal from the Order Entered August 24, 2012, in the Court of Common Pleas of Philadelphia County, Civil Division, at No(s): 100602487.
Appellant, Ata Zandieh (Zandieh), appeals from two orders entered by the trial court in this mortgage foreclosure case. Zandieh appeals from the trial court's order denying his petition to intervene in a mortgage foreclosure action between Appellee Bank of America (BOA), successor by merger to BAC Home Loan Servicing, LP (BAC) and Frank Vizard. Zandieh also appeals from the order denying his petition to open/strike default judgment in that matter.[1]Upon review, we quash this appeal.
This case concerns a house located in Philadelphia, Pennsylvania. On June 29, 2007, Robert Rufo (Rufo) executed a mortgage in favor of BAC for $344, 800. Rufo stopped paying the mortgage on February 1, 2009. Rufo died on July 26, 2009, and Frank Vizard was appointed as administrator of the estate. Rufo's surviving heir and next of kin, his mother Rita Rufo, died on October 3, 2009, and Frank Vizard was appointed as administrator of her estate. Rita Rufo's surviving heir and next of kin is her sister, Maria Vizard.
On June 24, 2010, BAC filed a complaint for mortgage foreclosure against Frank Vizard, Maria Vizard, and the unknown heirs of both Rufo estates. The Vizards were personally served with the complaint. On August 10, 2010, the trial court entered an order permitting alternative service for the unknown heirs, including both mailing the complaint to the house and posting the complaint on the house. BAC complied with this order. On April 25, 2012, BOA, having been substituted for BAC, filed a praecipe for entry of an in rem default judgment in the amount of $374, 977.07 plus interest because no answer or responsive pleading was filed in this matter.
On May 15, 2012, Zandieh filed a petition to intervene in the case. Zandieh asserted that he purchased the property at issue at a District Attorney Sale pursuant to 42 Pa.C.S. § 6801 for $4, 000, and the deed was recorded on June 20, 2011. Zandieh averred that he was aware of a mortgage foreclosure action being pursued by BOA at a different docket number, but was unaware of the mortgage foreclosure action at the docket number at issue.
In an order signed on June 8, 2012, and docketed on June 12, 2012, the trial court granted Zandieh leave to intervene in the mortgage foreclosure action. BOA filed a motion to vacate that order, averring that it was not served with the petition to intervene, nor did it receive the order granting the petition. Moreover, BOA contended that Zandieh should not be permitted to intervene because default judgment had already been entered in the case, making the petition to intervene moot.
On June 22, 2012, Zandieh filed a petition to open/strike the default judgment entered by BOA on April 25, 2012. On August 23, 2012, the trial court entered an order granting BOA's motion to vacate its June 8, 2012 order allowing Zandieh to intervene, effectively denying Zandieh intervenor status. On the same day, the trial court also denied Zandieh's motion to open/strike the default judgment.
Zandieh filed one timely notice of appeal from both orders, along with a concise statement of matters complained of on appeal. On November 19, 2012, the trial court filed its opinion.
We will consider the appealability of each order in turn, as "[i]t is well settled that questions as to the appealability of an order go to the jurisdiction of the court asked to review the order." Pridgen v. Parker Hannifin Corp., 974 A.2d 1166, 1171 (Pa. Super. 2009). "Our Court may reach the merits of an appeal taken from "(a) a final order or an order certified as a final order; (2) an interlocutory order [appealable] as of right; (3) an interlocutory order [appealable] by permission; or (4) a collateral order." In re Bridgeport Fire Litig., 51 A.3d 224, 229 (Pa. Super. 2012). Instantly, the only avenue by which Zandieh's appeal from the order denying intervention may be appealed is if it qualifies as a collateral order pursuant to Pa.R.A.P. 341.[2] A collateral order is defined as "an order separable from and collateral to the main cause of action where the right involved is too important to be denied review and the question presented is such that if review is postponed until final judgment in the case, the claim will be irreparably lost." Pa.R.A.P. 313(b).
In defining a collateral order, Pa.R.A.P. 313(b) sets forth a three-part test, and [t]o benefit from the collateral order doctrine, an order must satisfy all three elements. According to our Supreme Court, if an order satisfies Rule 313's three-pronged test, then an appellate court may exercise appellate jurisdiction where the order is not final. To buttress the final order rule, however, the collateral order doctrine is to be construed narrowly, and [...] every one of its three prongs [must] be clearly present before collateral appellate review is allowed. In adopting a narrow construction, [our Supreme Court] endeavor[ed] to avoid piecemeal determinations and the consequent protection of litigation. Moreover, the collateral order rule's three-pronged test must be applied independently to each distinct legal issue over which an appellate court is asked to assert jurisdiction pursuant to Rule 313.
Case law has clarified how appellate courts should apply the three-part analysis under the collateral order doctrine. For the first prong of the analysis under Pa.R.A.P. 313(b), a court must determine whether the issue(s) raised in the order are separable from the central issue of the ongoing litigation. Under the second prong, in order to be considered too important to be denied review, the issue presented must involve rights deeply rooted in public policy going beyond the particular litigation at hand. [A]n issue is important if the interests that would potentially go unprotected without immediate appellate review of that issue are significant relative to the efficiency interests sought to be advanced by the final judgment rule. Furthermore, with regard to the third prong of the analysis, our Supreme Court explained that whether a right is adequately vindicable or effectively reviewable, simply cannot be answered without a judgment about the value interests that would be lost through rigorous application of a final judgment requirement.
Mortgage Elec. Registration Sys., Inc. v. Malehorn, 16 A.3d 1138, 1141-42 (Pa. Super. 2011) (internal quotations and citations omitted).
In Malehorn, Coann Elaine Miller (Miller) appealed from an order denying her petition to intervene in a mortgage foreclosure action filed by Mortgage Electronic Registration Systems, Inc. (MERS) against Betty Malehorn (Malehorn). Miller was the owner of a mobile home situated on property owned by Malehorn, which was subject to a mortgage she took out and held by MERS. When Malehorn defaulted on her mortgage payments, MERS filed a complaint in mortgage foreclosure against Malehorn. After significant litigation, Miller filed a motion to intervene in the mortgage foreclosure action. On March 10, 2010, the trial court denied her petition and Miller filed a timely appeal. A panel of this Court analyzed the propriety of the appeal pursuant to the collateral order doctrine.
In the case sub judice, we observe that the March 10, 2010 order denying [Miller's] petition to intervene satisfies the first prong of the analysis under Pa.R.A.P. 313(b). [Miller's] right to intervene in the foreclosure action between MERS and Malehorn is peripheral to the ultimate resolution of the property rights at issue. Hence, the March 10, 2010 order presents an issue that is separable from the central issue raised in the foreclosure action.
Next, we recognize that the order denying Appellant's petition to intervene directly affects rights deeply rooted in public policy going beyond the particular litigation at hand. Ascertaining [Miller's] right to the property at issue is an important right that ordinarily should not be denied review. See[Nemirovsky v. Nemirovsky, 776 A.2d 988, 991 (Pa. Super. 2001)] (noting that "[i]t is beyond peradventure that the right involved-the right to property-is deeply rooted in public policy"). As a result, the March 10, 2010 order satisfies the second prong of the collateral order doctrine set forth in Pa.R.A.P. 313(b).
Malehorn, 16 A.3d at 1142-43. Similarly, Zandieh's petition to intervene is both peripheral to the ultimate resolution of the mortgage foreclosure action between BOA and the Vizards. Furthermore, the petition also seeks to ascertain property rights which are historically important and deeply rooted in public policy. Accordingly, we conclude that as in Malehorn, supra, Zandieh has satisfied the first two prongs of the collateral order doctrine.
We now turn to the third prong of the test, where we must determine whether the "question presented is such that if review is postponed until final judgment in the case, the claim will be irreparably lost." Pa.R.A.P. 313(b). InMalehorn, supra, the panel of this Court concluded that Miller's rights would not be irreparably lost as she had actively pursued the same remedy in Bankruptcy Court, her claim was barred by res judicata, and she had failed to appeal any decisions made by the Zoning Hearing Board in conjunction with a variance. Thus, because Miller had availed herself of the opportunity to litigate fully the issue of her property rights in other forums, we determined that her claim cannot become "irreparably lost" as the third prong of Pa.R.A.P. 313(b) requires. Malehorn, supra, at 1144.
Instantly, BOA argues that for similar reasons, we should conclude that Zandieh has failed to satisfy the third prong of the collateral order doctrine. See BOA's Brief at 12-13. Specifically, BOA argues that Zandieh pursued his interest in the property in an action to quiet title he filed against it. According to BOA, that action was decided against Zandieh and in favor of BOA, and Zandieh did not file an appeal from that determination. Zandieh responds that "[t]he present lawsuit is instead the only action wherein he has been afforded the opportunity to defend [BOA's] claims to foreclose against his home." Zandieh's Reply Brief at 6. Oddly, Zandieh does not mention his own action to quiet title which he filed against BOA. Zandieh's complaint to quiet title is included in the certified record as Exhibit D of BOA's brief in support of its motion to vacate the order allowing Zandieh to intervene. In that complaint, filed June 10, 2011, [3] Zandieh asserted that "[i]t is believed that the encumbrance is either paid in full but not satisfied, divested by Pa (sic) statutes, invalid and unenforceable in and to the foregoing real property." Complaint to Quiet Title at ¶ 10. Zandieh requested an order of court stating that he is the legal owner of the property, and enjoining BOA "from having or claiming to have any type of right, lien, title or interest in and to said real property[.]" Id. at ¶ 11. According to BOA, that lawsuit was decided in its favor.[4]
We keep in mind that the collateral order doctrine is to be construed "narrowly, and the requirements for an appealable collateral order remain stringent in order to prevent undue corrosion of the final order rule." Melvin v. Doe, 826 A.2d 42, 47 (Pa. 2003). Here, we conclude that Zandieh has failed to set forth any argument whatsoever as to how his claim in this case is different from his claim in his action to quiet title. Moreover, he had the opportunity to litigate the validity of BOA's mortgage on this property, and he lost. In his petition to open the default judgment, his meritorious defense is simply that he "has a meritorious defense as in [he] would like to question the validity and accounting of the Mortgage foreclosure action." Petition to Open Default Judgment, 6/22/2012, at ¶ 29. Similar to his complaint to quiet title, Zandieh questions the validity of the mortgage on the property. Zandieh did not file a notice of appeal in that action. Thus, as we concluded in Maleform, supra, Zandieh is not entitled to re-litigate the same issue now. Therefore, he has failed to satisfy the third prong of the collateral order doctrine, and the order denying the petition to intervene is not appealable as a collateral order. Accordingly, we quash the appeal from that order.
We now turn to Zandieh's appeal from the order denying his petition to open/strike a default judgment. This order satisfies the appealable order jurisdictional requirement as it is an appeal from an interlocutory order as of right pursuant to Pa.R.A.P. 311(a)(1). However, because Zandieh failed to achieve intervenor status in the underlying litigation, we must consider whether he has standing to appeal from this order.
Pursuant to Pa.R.A.P. 501, the right of appeal belongs only to a "party who is aggrieved by an appealable order[.]" A party is defined as "[a] person who commences or against whom relief is sought in a matter." 42 Pa.C.S. § 102. The law is clear that even though Zandieh holds title to the property, he is not a party to the mortgage foreclosure action. "[O]nce a foreclosure has been commenced, any person or entity acquiring an interest in the property will be bound by decree and need not be joined." Fin. Freedom, SFC v. Cooper, 21 A.3d 1229, 1232 (Pa. Super. 2011). Here, BAC commenced the mortgage foreclosure action on June 24, 2010, and Zandieh did not purchase the property until 2011.
Accordingly, Zandieh's failure to achieve intervenor status necessarily deprived him of the right to appeal from an order denying the petition to open/strike the default judgment because he was not a party in the mortgage foreclosure action. Accordingly, we quash the appeal from this order due to Zandieh's lack of standing to appeal the order.
Appeal quashed.
Sovereign Bank v. Fox
Superior Court of Pennsylvania
August 8, 2013
SOVEREIGN BANK
v.
KERRI FOX APPEAL OF: ATA ZANDIEH
v.
KERRI FOX APPEAL OF: ATA ZANDIEH
NON-PRECEDENTIAL DECISION
Appeal from the Order August 3, 2012 In the Court of Common Pleas of Dauphin County Civil Division at No.: 2011-CV-9088-MF
Appellant, Ata Zandieh, appeals pro se from the order entered in the Dauphin County Court of Common Pleas on August 3, 2012. Specifically, Appellant challenges the trial court's denial of his petition to open a default judgment entered on May 21, 2012, in a mortgage foreclosure action.[1] We affirm.
This foreclosure action arises out of a mortgage agreement dated July 17, 2007 between Appellee, Sovereign Bank, and the original defendants in this matter, Kerri and Billy E. Fox, Jr. The mortgage gave Appellee a security interest in the property located at 6495 Huntsmen Drive, Harrisburg, PA 17111. This mortgage was recorded on July 31, 2007.
Appellee instituted the instant foreclosure action against Kerri Fox on September 20, 2011, after a default on required loan payments since December 21, 2009 in the amount of $42, 806.17.
Unbeknownst to Appellee, Kerri and Billy Fox had apparently transferred the property to Appellant in exchange for one dollar, on July 9, 2011, by means of an unrecorded "Special Warranty Deed." (See Amended Complaint, 1/20/12, at Exhibit B). Appellant filed a petition to intervene as defendant and preliminary objections to Appellee's complaint on October 25, 2011. Likewise, Appellee filed a motion seeking leave to file an amended complaint to include Appellant, as reputed owner of the property, on December 5, 2011. On December 28, 2011, the trial court granted Appellee's motion for leave to amend its complaint to include Appellant, and denied Appellant's motion to intervene as moot.
Appellant prematurely filed an answer on January 11, 2012, which the trial court deemed null because Appellee had not yet actually filed its amended complaint. Appellee later filed its amended complaint on January 20, 2012. However, due to difficulties locating Appellant, the amended complaint was not served on him until April 2, 2012. A ten-day notice of default was then sent to Appellant on April 23, 2012. After Appellant failed to respond, the trial court entered a default judgment against Appellant and defendants Kerri and Billy Fox on May 21, 2012.
Appellant filed a petition to open/strike the default judgment on June 12, 2012, which the trial court denied for failure to comply with Dauphin County Court Rules. Appellant then filed a second petition to open/strike the default judgment on June 26, 2012, which the trial court denied by order of August 3, 2012. Appellant filed a motion for reconsideration on August 23, 2012, which the trial court denied on August 28, 2012. Appellant filed both a timely notice of appeal and a Rule 1925(b) statement of errors on August 31, 2012.[2] See Pa.R.A.P. 1925(b). The trial court filed a 1925(a) opinion on October 31, 2012. See Pa.R.A.P. 1925(a).
Appellant raises three questions for our review, all of which, in effect, challenge the trial court's denial of his petition to open the default judgment:
1. Did the [c]ourt commit an error of law and/or abuse its discretion when it denied Appellant's Petition to Open Default Judgment, even though the face of the record confirms that Appellant was timely in his answer?
[2.] Did the [c]ourt commit an error of law and/or abuse its discretion when it denied Appellant's Petition to Open Default Judgment without holding a hearing or allowing discovery pursuant to Pa.R.C.P. 206.7, notwithstanding the fact that there were disputed issues of fact?
[3.] Did the [c]ourt commit an error of law and/or abuse its discretion when it denied Appellant's Petition to Open Default Judgment, notwithstanding the fact that the Petition was timely filed, Appellant demonstrated a reasonable explanation for inactivity (including the lack of notice and due process), and presented meritorious defenses to [Appellee's] action?
(Appellant's Brief, at 4).
We note initially that Appellant's brief is technically defective, as he fails to divide his argument section into three parts for each question from his Statement of Questions Involved. See Pa.R.A.P. 2119(a); Lundy v. Manchel, 865 A.2d 850, 855 (Pa. Super. 2004) ("[P]ursuant to Pa.R.A.P. 2119(a), the argument portion of an appellate brief is to be divided into as many parts as there are questions to be argued."). Rather, Appellant's actual argument section consists of one heading, stating "The Trial Court Improperly Refused to Open the Default Judgment[.]" (Appellant's Brief, at 8). We remind Appellant that "although this Court is willing to construe liberally materials filed by a pro se litigant, pro se status generally confers no special benefit upon an appellant. Accordingly, a pro se litigant must comply with the procedural rules set forth in the Pennsylvania Rules of the Court." Commonwealth v. Lyons, 833 A.2d 245, 251-52 (Pa. Super 2003), appeal denied, 879 A.2d 782 (Pa. 2005) (citations omitted). Nevertheless, noting that Appellant's three stated questions all, in effect, challenge this one central issue, we will address the merits of Appellant's brief raising this sole issue.
Our standard of review for challenging a decision regarding the opening of a default judgment is narrow:
It is well settled that a petition to open a default judgment is an appeal to the equitable powers of the court, and absent an error of law or a clear, manifest abuse of discretion, it will not be disturbed on appeal. An abuse of discretion occurs when a trial court, in reaching its conclusions, overrides or misapplies the law, or exercises judgment which is manifestly unreasonable, or the result of partiality, prejudice, bias or ill will.
US Bank N.A. v. Mallory, 982 A.2d 986, 994 (Pa. Super. 2009) (citation omitted).
Generally, "a default judgment may be opened if the moving party has (1) promptly filed a petition to open the default judgment, (2) provided a reasonable excuse or explanation for failing to file a responsive pleading, and (3) pleaded a meritorious defense to the allegations contained in the complaint." Id. at 994-95. Furthermore, "the trial court cannot open a default judgment based on the equities of the case when the defendant has failed to establish all three of the required criteria." Myers v. Wells Fargo Bank, N.A., 986 A.2d 171, 176 (Pa. Super. 2009) (citation omitted).
Here, considering the first prong of this inquiry, the trial court found that Appellant's motion was untimely, because he filed it on June 26, 2012, thirty-six days after the default judgment was entered on May 21, 2012.[3](See Trial Ct. Op., 10/31/12, at 2). Appellant fails to develop an argument supported by pertinent authority or any facts of record as to why the trial court erred on the timeliness issue, aside from the mere bald assertion that "Appellant promptly filed his Petition to Open/Vacate Default Judgment on June 26, 2012[.]" (Appellant's Brief, at 7). Accordingly, this issue is waived. See Pa.R.A.P. 2119(a), (b); Giant Food Stores, LLC v. THF Silver Spring Dev., L.P.,959 A.2d 438, 444 (Pa. Super. 2008), appeal denied, 972 A.2d 522 (Pa. 2009) ("The Rules of Appellate Procedure state unequivocally that each question an appellant raises is to be supported by discussion and analysis of pertinent authority. Failure to do so constitutes waiver of the claim.") (citations omitted).[4]
When considering whether a meritorious defense has been pleaded, the third prong of this conjunctive inquiry, we note that "[w]here a petition to open a judgment must allege a meritorious defense, said defense must be presented in precise, specific, clear and unmistakable terms." Sines v. Packer, 463 A.2d 475, 477 (Pa. Super. 1983) (citation omitted). The moving party also "must set forth the facts on which the defense is based." Ecumenical Enters., Inc. v. NADCO Constr., Inc., 385 A.2d 392, 395 (Pa. Super. 1978) (en banc). Furthermore, "[m]erely asserting in a petition to open default judgment that one has a meritorious defense is insufficient." Seeger v. First Union Nat'l Bank, 836 A.2d 163, 166 (Pa. Super. 2003) (citation omitted).
Here, Appellant argued to the trial court that he "has a meritorious defense as in [he] would like to question the validity and accounting of the Mortgage foreclosure action." (Appellant's Petition to Open/Strike Default Judgment, 6/26/12, at 5). The only other averment Appellant makes in his petition that could be viewed as an attempted argument on the merits is the mere bald assertion that "[d]efendant . . . is not in Default and a Default Judgment should not have been granted against him." (Id. at 4).
The trial court found that "[s]uch a bald assertion does not . . . satisfy the burden placed upon the moving party to provide a clear and unmistakable meritorious defense[.]" (Trial Ct. Op., 10/31/12, at 3). Our review of the record reveals that the trial court did not abuse its discretion or make an error of law in this finding. Appellant fails to set forth any facts that provide a plausible defense against the instant mortgage foreclosure action. See Ecumenical Enters., supra at 395. Appellant therefore does not meet his burden as movant to set forth his defense in "precise, specific, clear and unmistakable terms."[5] Sines, supra at 477. Furthermore, Appellant's purported desire to affirm the validity of the mortgage agreement rings hollow in the light of the record. Our review of the record reveals that the original recorded mortgage agreement on the property, the original promissory note, and an Act 91 Notice all confirm the validity of the mortgage agreement and provide the amount of the default.[6]
In one of Appellant's subordinate arguments, he claims that the trial court abused its discretion by denying his petition to open the default judgment "without holding a hearing or allowing discovery pursuant to Pa.R.C.P. 206.7, notwithstanding the fact that there were disputed issues of fact." (Appellant's Brief, at 4). In support of his contention that there were disputed issues of fact, Appellant merely offers the bald assertion that "the [t]rial [c]ourt was presented with a Petition containing various averments that were contested by [Appellee]." (Id. at 8). Appellant fails to reference specifically where these alleged disputed issues of fact are in the certified record. We note that, "[i]t is not the duty of the Superior Court to scour the record and act as the appellant's counsel[;]" therefore we decline to speculate what factual issues Appellant conceives to be disputed.Hayward v. Hayward, 868 A.2d 554, 558 (Pa. Super. 2005) (citation omitted). Accordingly, this argument is waived. See Pa.R.A.P. 2119(c); Lundy, supra at 855 (noting that failure to "specify or offer citation to the location" of the facts supporting one's argument constitutes a violation of Pa.R.A.P. 2119(c)).
Our review of the record provides no support for the claim that the trial court "overr[ode] or misapplie[d] the law, or exercise[d] judgment which is manifestly unreasonable, or the result of partiality, prejudice, bias or ill will." US Bank, supra at 994. Accordingly, we conclude that the trial court properly exercised its discretion in denying Appellant's petition to open the default judgment.
Order affirmed.
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