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EQUIBANK v. ANDREW M. DUBOY (10/22/87)

filed: October 22, 1987.

EQUIBANK
v.
ANDREW M. DUBOY, JR., APPELLANT



Appeal from the Order of December 1, 1986, in the Court of Common Pleas of Allegheny County, Civil Division, at No. GD 85-17218.

COUNSEL

Victor H. Pribanic, McKeesport, for appellant.

John R. O'Keefe, Jr., Pittsburgh, for appellee.

Beck, Johnson and Hester, JJ. Beck, J., concurs in the result.

Author: Hester

[ 367 Pa. Super. Page 262]

The judgment debtor in a mortgage foreclosure proceeding has appealed from the order granting the mortgagee bank's petition to fix the fair market value of real estate which resulted in a deficiency judgment against the debtor. The sole issue is whether the trial court erred in disregarding appellant debtor's answer to the petition on the basis that the answer was untimely. We hold that the answer should have been considered on its merits, vacate the order, and remand for further proceedings.

Appellant borrowed $30,000 from Equibank, secured by a mortgage on real estate owned by appellant. Following appellant's default in repayment of the debt, Equibank foreclosed on the mortgage and subsequently purchased the

[ 367 Pa. Super. Page 263]

    real estate at sheriff's sale for $5,877.57. Equibank alleges that although the property was worth $57,500, the value was insufficient to satisfy appellant's debt to Equibank as well as other liens on the property.

On July 29, 1986, Equibank served*fn1 upon appellant a petition to fix the fair market value of the real property pursuant to 42 Pa.C.S. § 8103(a).*fn2 The petition alleged that the real estate was worth $57,500 and that after satisfying other indebtedness on the property, appellant still owed Equibank more than $20,000. On August 5, 1986, the court issued a rule upon appellant to show cause why the fair market value should not be fixed at $57,500, setting a rule return date of August 27, 1986. On August 22, 1986, twenty-four days after service of the petition, appellant filed an answer to Equibank's petition alleging, inter alia,

[ 367 Pa. Super. Page 264]

    that the real estate was worth $110,000 and that the judgment in favor of Equibank should be fully satisfied.

Equibank argued, and the trial court agreed, that 42 Pa.C.S. § 8103(c)(1) required the court to fix the value of the real estate at $57,500, the value ...


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