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Wells Fargo Bank, N.A v. Mary A. Vanmeter A/K/A Mary A. Van Meter

May 14, 2013

WELLS FARGO BANK, N.A., APPELLEE
v.
MARY A. VANMETER A/K/A MARY A. VAN METER, AND EDWIN M. VANMETER A/K/A EDWIN M. VAN METER, APPELLANTS



Appeal from the Order entered May 9, 2012, in the Court of Common Pleas of Monroe County, Civil Division, at No(s): 4969-CV- 2010

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

BEFORE: GANTMAN, ALLEN, and OTT, JJ.

OPINION BY ALLEN, J.

Mary A. Vanmeter a/k/a Mary A. Van Meter, and her husband, Edwin

M. Vanmeter a/k/a Edwin M. Van Meter, ("Appellants"), appeal from the trial court's order denying their petition to open or strike the default judgment entered in favor of Wells Fargo Bank, N.A. ("Bank"). We affirm.

Our review of the record reveals that Bank filed a mortgage foreclosure action against Appellants on May 28, 2010. See generally Bank's Complaint in Mortgage Foreclosure, 5/28/10. Bank averred that Appellants had defaulted on their mortgage by failing to make monthly payments of principal and interest since February 1, 2010. Id. at 3. The mortgaged premises were located at 512 Thomas Street, Stroudsburg, PA 18360. Id. The complaint included a notice to defend, which stated in pertinent part:

You have been sued in Court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served by entering a written appearance personally or by attorney and filing in writing with the Court your defense or objections to the claims set forth against you. You are warned that if you fail to do so, the case may proceed without you, and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the plaintiff. You may lose money or property or other rights important to you.

Id. at 2 (emphasis supplied).

The complaint was served on Appellants on June 4, 2010, and the Sheriff's return of service was filed on June 11, 2010. See Sheriff's Return of Service, 6/11/10. Appellants did not file an answer to the complaint. On July 20, 2010, Bank filed a praecipe for in rem judgment against Appellants, which stated:

I hereby certify that (1) [Appellants'] last known address is 10854 SOUTHWEST MEETING STREET, PORT SAINT LUCIE, FL 34987-2158, and mortgaged premises located at 512 THOMAS STREET, STROUDSBURG, PA 18360-2125, and (2) that notice has been given in accordance with Rule 237.1, copy attached.

Bank's Praecipe for In Rem Judgment for Failure to Answer and Assessment of Damages, 7/20/10, at 2 (emphasis supplied). Bank appended copies of the four separate ten-day notices of intent to enter a default judgment, which Bank sent to Appellants. Id. The ten-day notices were dated June 25, 2010. Id. Two of the notices were individually addressed to Mrs. Vanmeter at her Pennsylvania and Florida addresses, and the remaining two notices were addressed specifically to Mr. Vanmeter at his Pennsylvania and Florida addresses. Id.

The docket reflects that a default judgment was entered against Appellants on July 20, 2010, and copies of the judgment were sent to Bank's counsel and to Appellants. See Monroe County Pennsylvania Docket entries, 6/8/12, at 2. On August 27, 2010, Bank sought, and received, a writ of execution of the default judgment. Id. The writ of execution was reissued on February 3, 2012. Id. A notice of sale regarding the mortgaged premises was filed on February 22, 2012.

On March 19, 2012, Appellants filed a petition to strike or open the July 20, 2010 default judgment. In their petition, Appellants averred that "[b]efore entering the judgment by default against [Appellants], [Bank] failed to provide [Appellants], nor did [Bank] file with this Court, the 10 day Notice of Default required by Pa.R.C.P 237.5." Appellants' Petition to Strike or Open Default Judgment, 3/19/12, at 2. Appellants maintained that "[t]he default judgment must be opened since there exists material issues of fact as to the allegations set forth in the Complaint in Mortgage Foreclosure." Id. at 3. Appellants further averred that they have "a meritorious defense to the default judgment entered.[and that] [t]here is sufficient evidence of the meritorious defense raised by [Appellants] to require submission of the issue to the jury." Id. at 3-4.

Bank's response to Appellants' petition averred that "[Appellants] did not file an Answer to [Bank's] Complaint after being served on June 4, 2010, have failed to make a mortgage payment under the terms of the Mortgage since February 1, 2010[,] and have otherwise failed to take any action to cure the arrears or resolve this matter with [Bank] until the instant Petition." Bank's Response to [Appellants'] Petition to Strike and/or Open Default Judgment, 5/3/12, at 3. Following arguments on Appellants' petition, the trial court denied Appellants' ...


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