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Mortgage Electronic Registration Systems, Inc. v. Ralich

August 25, 2009

MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC., AS NOMINEE FOR AMERICAN HOME MORTGAGE ACCEPTANCE, INC., D/B/A AMERICAN HOME MORTGAGE SERVICING, INC., APPELLEE
v.
KENNETH L. RALICH AND KAREN R. RALICH, APPELLANTS



Appeal from the Order entered August 8, 2008 In the Court of Common Pleas of Allegheny County Civil Division at No. GD06-031037.

The opinion of the court was delivered by: Cleland, J.

BEFORE: DONOHUE, CLELAND and KELLY, JJ.

OPINION

¶ 1 Appellants, Kenneth and Karen Ralich (the Ralichs), appeal from the Order of the Court of Common Pleas of Allegheny County granting the Motion to Strike the Ralichs' Petition to Set Aside Sheriff's Sale and Motion to Dismiss Foreclosure Proceedings. Because the Ralichs' Petition was not timely filed pursuant to Pa.R.C.P. 3132 and 3135(a), and its untimeliness was not excused by an exception, we affirm.

¶ 2 The record establishes the following facts and procedural history: On November 23, 2004, the Ralichs granted a mortgage (the Mortgage) on their primary residence in Allegheny County to American Home Mortgage Acceptance, Inc. (Lender) as security for payment of an adjustable-rate note granted to Lender. In the Mortgage, Mortgage Electronic Registration Systems, Inc. (MERS) was named as Nominee for Lender.

¶ 3 On December 22, 2006, "Mortgage Electronic Registration Systems, Inc., as Nominee for American Home Mortgage, Inc., d/b/a American Home Mortgage Servicing, Inc." (Appellee) filed a Complaint in Mortgage Foreclosure against the Ralichs to foreclose upon the residence.

¶ 4 On February 6, 2007, a default judgment was entered in favor of Appellee. On February 7, 2007, Appellee filed a writ of execution.

¶ 5 On May 1, 2007, the Ralichs filed for Chapter 11 Bankruptcy in the Bankruptcy Court for the Western District of Pennsylvania. On August 28, 2007, Appellee filed an Affidavit of Stay because the Ralichs remained in bankruptcy. On September 7, 2007, the writ was stayed. On November 30, 2007, Appellee filed a second writ of execution.

¶ 6 After one continuance on February 4, 2008, the sheriff's sale took place on April 7, 2008. At the sheriff's sale, the Mortgage was purchased by Parkvale Bank, a junior lienholder, for $720,000. A sheriff's deed to Parkvale Bank was acknowledged on April 21, 2008, and recorded June 19, 2008.

¶ 7 During the foreclosure process, the Mortgage was transferred two times. First, it was assigned from Lender to American Home Mortgage Servicing, Inc. (Assignee). Then the Mortgage and note (collectively, the Interest) were transferred from Assignee to AH Mortgage Acquisition Co. Inc. (Purchaser) pursuant to Assignee's Chapter 11 bankruptcy.

¶ 8 On July 14, 2008, the Ralichs filed a combined Petition to Set Aside Sheriff's Sale and Motion to Dismiss Foreclosure Proceedings (Petition). On the same day, Appellee filed a Motion to Strike the Petition, arguing it was untimely.

¶ 9 The parties appeared before the trial court. The judge determined the sole issue was whether Purchaser had the authority to complete the sheriff's sale of the property, even though the Interest had been transferred during the pendency of the Ralichs' Chapter 11 bankruptcy proceedings. The trial judge directed them to argue this matter before the court on August 7, 2008.

¶ 10 On August 7, 2008, the parties returned to court and the trial judge entered an order striking the Ralichs' Petition as untimely under Pa.R.C.P. 3132 and 3135(a). On August 11, 2008, the Ralichs appealed.*fn1

ΒΆ 11 On September 7, 2008, the Ralichs filed an Application for Reconsideration of the August 7, 2008 order. On September 17, 2008, the trial court denied the Ralichs' Application for ...


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