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LAWRENCE MARRA AND FRANCESCA MARRA v. KENNETH STOCKER (11/16/89)

decided: November 16, 1989.

LAWRENCE MARRA AND FRANCESCA MARRA, HUSBAND AND WIFE, APPELLANTS,
v.
KENNETH STOCKER, SHERIFF OF NORTHAMPTON COUNTY, MERCHANTS BANK, N.A., BRIAN R. HARTMAN, ROBERT S. APGAR, MARIE E. APGAR



Appeal from the Judgment entered in the Court of Common Pleas of Northampton County, Civil Division, No. 1987-C-6574.

COUNSEL

Gerald M. Barr, Allentown, for appellants.

John M. Metzger, Allentown, for Merchants Bank, appellee.

Brian M.P. Monahan, Easton, for Hartman and Apgar, appellees.

Tamilia, Kelly and Cercone, JJ.

Author: Tamilia

[ 389 Pa. Super. Page 7]

This is an appeal from judgment for appellees entered May 12, 1989, denying appellants' motion to declare a sheriff's sale null and void. Appellants brought the underlying action six months after the mortgage foreclosure by appellee/bank and subsequent sheriff's sale of the property at issue to appellee/Hartman.

On November 22, 1982, Robert S. Apgar and Marie E. Apgar received title to the property in question and subsequently mortgaged it to appellee/bank. The mortgage contained a "due on sale" clause. Appellants later purchased the property at a tax upset sale for $1,614.37; whereupon the county tax claim bureau deeded the premises to appellants. Although appellants notified appellee/bank of their interest and requested the balance due on the mortgage, appellee/bank, on December 22, 1986, filed and served a mortgage foreclosure action against the Apgars, who had previously filed for bankruptcy, and against appellants as terre tenants. Appellants did not file a responsive pleading, and at the April 10, 1987 sheriff's sale of the property, although appellants attended they did not bid on the property. The successful bidder was appellee/Hartman.

Appellants argue the sheriff's sale should be declared null and void because appellee/bank did not notify them of the intention to foreclose as required in 41 P.S. § 403, Notice of intention to foreclose.

(a) Before any residential mortgage lender may accelerate the maturity of any residential mortgage obligation,

[ 389 Pa. Super. Page 8]

    commence any legal action including mortgage foreclosure to recover under such obligation, or take possession of any security of the residential mortgage debtor for such residential mortgage obligation, such person shall give the residential mortgage debtor notice of such intention at least thirty days in advance as provided in this section.

41 P.S. § 403(a). Furthermore, under section 404, Right to cure a default, the reason for such notice is so that a residential mortgage debtor may cure his default and prevent sale or other disposition of the property and avoid ...


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