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Bank of America, N.A. and Gregory v. the Estate of Robert L. Hood

March 22, 2012

BANK OF AMERICA, N.A. AND GREGORY SIMAKAS AND MICHAEL NEWMAN,
v.
THE ESTATE OF ROBERT L. HOOD, LINDA H. JANSEN, CO-EXECUTRIX AND DEVISEE OF THE ESTATE OF ROBERT L. HOOD, AND LARRY HOOD, CO- EXECUTOR AND DEVISEE OF THE ESTATE OF ROBERT L. HOOD AND ALEXANDER K. WING AND JILL SWENSON, APPEAL OF: GREGORY SIMAKAS AND MICHAEL NEWMAN,



Appeal from the Order January 26, 2011, Court of Common Pleas, Butler County, Civil Division at Nos. AD No. 09-10287 and CP No. 09-22192, ED No. 09-30522

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

BEFORE: MUSMANNO, DONOHUE and COLVILLE*fn1 , JJ.

Appellants, Gregory Simakas and Michael Newman ("Appellants"), appeal from the trial court's January 26, 2011 order setting aside a sheriff's sale of real estate. We reverse.

The record reflects the following factual and procedural background. On February 13, 2009, Bank of America (the "Bank") filed a complaint in foreclosure against a house and 100 acres of property (the "Property") owned by the Estate of Robert L. Hood (the "Estate"), as the Estate was in default under the terms of its mortgage loan from the Bank. The original sheriff's sale date was July 16, 2010, but the sale was continued to September 17, 2010. On that date, Appellants put forth the winning bid of $255,800.00. The outstanding balance on the mortgage as of that date was $204,090.84.

The Estate filed a petition to set aside the sale on October 18, 2010. The trial court conducted a hearing on the Estate's petition on January 26, 2011. At the hearing, the Estate offered comparative market analyses indicating that the Property was worth $562,000.00. The Estate also introduced a letter of intent from Alexander K. Wing ("Wing") indicating that Wing stood ready to purchase the Property for $580,000.00.*fn2 At the conclusion of the hearing, the trial court concluded that the sheriff's sale price was grossly inadequate. The trial court entered an order directing Wing and the Estate to enter a binding purchase agreement by January 31, 2011 and close the sale by February 28, 2011. On February 18, 2011, Appellants filed their petition seeking to intervene and asking the trial court to rescind the January 26, 2011 order.*fn3 On February 24, 2011 the trial court entered an order permitting Appellants to intervene but refusing to rescind the January 26, 2011 order. Appellants filed this timely appeal on February 25, 2011. They raise the following issues for our review:

1. Did the trial court err or abuse its discretion when it ordered the Sheriff's sale of September 17, 2010 to be set aside on the basis that 'consideration obtained at the time of the Sheriff's sale was grossly inadequate'?

2. Did the trial court err or abuse its discretion when it found that the evidence presented at the January 26, 2011 hearing supported a finding that the winning bid of the September 17, 2010 Sheriff's sale was 'grossly inadequate'? In particular:

a. Did the trial court err or abuse its discretion when it based its decision - in whole or in part - upon the Market Analysis produced by counsel for [the Estate]?

b. Did the trial court err or abuse its discretion when it based its decision - in whole or in part - upon testimony that [Wing] had interest in purchasing the at-issue real estate for a certain price?

Appellants' Brief at 7.

Rule 3132 of the Pennsylvania Rules of Civil Procedure provides as follows:

Upon petition of any party in interest before delivery of the personal property or of the sheriff's deed to real property, the court may, upon proper cause shown, set aside the sale and order a resale or enter any other order which may be just and proper under the circumstances.

Pa.R.C.P. 3132. Equitable considerations govern the trial court's decision to set aside a sheriff's sale. Bornman v. Gordon, 527 A.2d 109, 111 (Pa. Super. 1987), appeal denied, 517 Pa. 620, 538 A.2d 874 (1988). This Court will not reverse the trial court's decision absent an abuse of discretion. Id.

As a general rule, the burden of proving circumstances warranting the exercise of the court's equitable powers is on the applicant, and the application to set aside a sheriff's sale may be refused because of the insufficiency of proof to support the material allegations of the ...


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