July 5, 2013
ROBERT P. MILLER, CHRISTINE MARIE MILLER, Appellants
CITIMORTGAGE, INC., Appellee CITIMORTGAGE INC., Appellee
ROBERT P. MILLER, CHRISTINE MARIE MILLER, Appellants
Appeal from the Order May 11, 2012 In the Court of Common Pleas of Westmoreland County Civil Division at No(s): 126 of 2012
Appeal from the Judgment Entered September 27, 2012 In the Court of Common Pleas of Westmoreland County Civil Division at No(s): 7871 of 2011
BEFORE: STEVENS, P.J., BOWES, J., and MUSMANNO, J.
In this consolidated appeal, Appellants Robert P. Miller and Christine Marie Miller appeal from the trial court's determinations in favor of Appellee CitiMortgage, Inc. in the ejectment action filed by CitiMortgage and the action to quiet title filed by the Millers with respect to certain disputed property. The Millers assert the trial court's judgment in the underlying foreclosure action was void as CitiMortgage did not have standing to bring the foreclosure action as the true party in interest. In addition, the Millers claim that CitiMortgage failed to join all indispensable parties to the action.
The relevant facts and procedural history are as follows: On February 10, 2006, the Millers executed a promissory note in the amount of $157, 250.00 to First NLC Financial Services, LLC ("First NLC") to finance the purchase of a residential property located at 223 Cody Road, Herminie, Pennsylvania. To secure the note, the Millers executed a mortgage document that specifically named the mortgagee as Mortgage Electronic Registration Systems, Inc. ("MERS") as a Nominee for First NLC.
The Millers defaulted on their obligations under the mortgage on or about April 1, 2010. After MERS subsequently assigned the mortgage to CitiMortgage on or about July 28, 2010, CitiMortgage filed a mortgage foreclosure complaint against the Millers on August 10, 2010, stating it "is now the legal owner of the mortgage and is in process of formalizing an assignment of same." Complaint (Foreclosure), at 1. The parties agree that the assignment of the mortgage from MERS to CitiMortgage was recorded on August 30, 2010. As the Millers did not contest the foreclosure action, the trial court entered judgment in favor of CitiMortgage on March 8, 2011 in the amount of $180, 420.18. On April 19, 2011, the trial court entered an amended judgment in the amount of $187, 677.14. Following the issuance of a writ of execution on May 5, 2011, the subject property was sold at a sheriff's sale to CitiMortgage on September 6, 2011. CitiMortgage recorded its deed to the subject property on October 18, 2011. The Millers did not contest the sheriff's sale.
Thereafter, CitiMortgage initiated an ejectment action against the Millers on December 6, 2011. In response, the Millers filed (1) a separate quiet title action against CitiMortgage and (2) an Answer to CitiMortgage's Complaint in the ejectment action which included New Matter and a Counterclaim which incorporated the allegations set forth in the Millers' action to quiet title. The Millers suggested that the assignment of the mortgage from MERS to CitiMortgage was fraudulent as they alleged that the assignment was not authorized by an actual officer of MERS. Moreover, the Millers claim that MERS did not have the authority or legal ability to transfer and assign the mortgage as it solely operated as the nominee of First NLC and was not a party that could receive title to and foreclose on the Millers' property. Even if MERS was the proper mortgagee, Millers claimed that MERS could not foreclose on the property as it did not own the note which presumably remained with the lender, First NLC. The Millers alleged in their pleadings that as First NLC had filed for bankruptcy prior to the assignment of the mortgage from MERS to CitiMortgage, MERS did not have the authority to transfer the mortgage to CitiMortgage.
CitiMortgage filed preliminary objections in the nature of a demurrer to both the Millers' New Matter/Counterclaim in the ejectment action and their Complaint in the quiet title action. The trial court sua sponte consolidated the ejectment and quiet title actions. In an Order and Opinion dated May 11, 2012, the trial court sustained CitiMortgage's preliminary objections to the Millers' New Matter/Counterclaim in the ejectment action and dismissed the counterclaims with prejudice. In the same order, the trial court sustained CitiMortgage's preliminary objections in the quiet title action and dismissed the Millers' complaint with prejudice. The Millers appealed the trial court's May 11, 2012 order. This appeal was docketed at 866 WDA 2012.
As the trial court's order dismissing the Millers' New Matter/ Counterclaim in the ejectment action filed by CitiMortgage did not constitute a final, appealable order as the claims in CitiMortgage's complaint still remained, this appeal must be dismissed as interlocutory. See In re Bridgeport Fire Litig., 51 A.3d 224, 229 (Pa. Super. 2012) (emphasizing that "[a]s a general rule, only final orders are appealable, and final orders are defined as orders disposing of all claims and all parties") (citing Pa.R.A.P. 341; American Independent Insurance Co. v. E.S., 809 A.2d 388, 391 (Pa. Super. 2002)). Accordingly, as the Millers' appeal from the trial court's May 11, 2012 order was premature, we quash the appeal docketed at 866 WDA 2012.
During the pendency of the appeal, however, the trial court entered judgment in possession for CitiMortgage in the ejectment action on September 27, 2012. The Millers filed another appeal, which was docketed at 1507 WDA 2012. Although as a general rule, a trial court may no longer proceed in a matter once an appeal is taken, the trial court may "[p]roceed further in any matter in which a non-appealable interlocutory order has been entered." Pa.R.A.P. 1701(a), (b)(6). After the Millers had originally appealed the denial of their preliminary objections in the ejectment action, which was an interlocutory order, the trial court was permitted to proceed further and enter judgment in possession for CitiMortgage during the pendency of this appeal. "A final judgment entered during the pendency of an appeal is sufficient to perfect appellate jurisdiction." Prime Medica Associates v. Valley Forge Ins. Co., 970 A.2d 1149, 1154 (Pa. Super. 2009) (citing Drum v. Shaull Equipment and Supply Co., 787 A.2d 1050 (Pa. Super. 2001), appeal denied, 569 Pa. 693, 803 A.2d 735 (2002)). When the trial court entered a final order entering judgment of possession for CitiMortgage and concluded the ejectment action, the Millers' challenge to the trial court's dismissal of their complaint in quiet title also became ripe for review. Accordingly, we may proceed to review the merits of the Millers' appeal which is docketed at 1507 WDA 2012.
The Millers challenge the trial court's decision to sustain CitiMortgage's preliminary objections to the Millers' counterclaim in the ejectment action and complaint in the quiet title action. We are mindful that:
Our standard of review of an order of the trial court overruling or [sustaining] preliminary objections is to determine whether the trial court committed an error of law. When considering the appropriateness of a ruling on preliminary objections, the appellate court must apply the same standard as the trial court.
Preliminary objections in the nature of a demurrer test the legal sufficiency of the complaint. When considering preliminary objections, all material facts set forth in the challenged pleadings are admitted as true, as well as all inferences reasonably deducible therefrom. Preliminary objections which seek the dismissal of a cause of action should be sustained only in cases in which it is clear and free from doubt that the pleader will be unable to prove facts legally sufficient to establish the right to relief. If any doubt exists as to whether a demurrer should be sustained, it should be resolved in favor of overruling the preliminary objections.
Hand v. City of Philadelphia, 65 A.3d 916 (Pa. Super. 2013) (quoting Richmond v. McHale, 35 A.3d 779, 783 (Pa. Super. 2012) (citations omitted)).
In these consolidated actions, the Millers challenged the entry of judgment in favor of CitiMortgage in the underlying mortgage foreclosure action. Although a judgment in a mortgage foreclosure action generally may not be attacked in a collateral proceeding, a party may attack a judgment which is void. Dime Sav. Bank, FSB v. Greene, 813 A.2d 893, 895 (Pa. Super. 2002).
An ejectment action is a proceeding collateral to that under which the land was sold. Mencke v. Rosenberg, 202 Pa. 131, 51 A. 767, 769 (1902). Thus, where it is claimed that the underlying default judgment is merely voidable, that claim will not be entertained because such a judgment cannot be reached collaterally. Roberts v. Gibson, 214 Pa.Super. 220, 251 A.2d 799 (1969). However, in an ejectment action it may be alleged that the judgment is void. A void decree can be attacked at any time. Brokans v. Melnick, 391 Pa.Super. 21, 569 A.2d 1373, 1376 (1989). Where a judgment is void, the sheriff's sale which follows is a nullity. A judgment is void when the court had no jurisdiction over the parties, or the subject matter, or the court had no power or authority to render the particular judgment. Id. A judgment which is void cannot support an ejectment action and may be asserted as a defense in the ejectment proceeding. Id.
Dime Sav. Bank, 813 A.2d at 895. See Mortgage Elec. Registration Sys., Inc. v. Ralich, 982 A.2d 77, 80 (Pa. Super. 2009) (providing that "[a] sheriff's sale may be set aside after delivery of the sheriff's deed based on fraud or lack of authority to make the sale"); Roberts v. Gibson, 251 A.2d 799, 801 (Pa. Super. 1969) (providing that sheriff's sale could not be attacked in an ejectment proceeding where no fraud was alleged in connection the sale unless the sheriff lacked authority to make the sale or the judgment upon which the execution was based was void on its face).
The Millers concede they defaulted on their obligations to repay the note, but essentially challenge the chain of succession of the mortgage and the note, the present ownership of the mortgage and the note, and the party, if any, who is entitled to enforce the note. Specifically, the Millers claim CitiMortgage lacked standing to foreclose on the note as the real party in interest. However, as the issue of whether a party has standing to maintain an action is not a jurisdictional question, challenges to standing can be waived. Brayman Const. Corp. v. Com., Dep't of Transp., 608 Pa. 584, 595, 13 A.3d 925, 932 (2011); In re Nomination Petition of deYoung, 588 Pa. 194, 201, 903 A.2d 1164, 1168 (2006). The issue of standing may be waived by a party "if not objected to at the earliest possible opportunity." In re Estate of Brown, 30 A.3d 1200, 1204 (Pa. Super. 2011). As a result, we find that the Millers waived their challenge to CitiMortgage's standing by failing to raise this issue in the foreclosure action.
The Millers also suggest that CitiMortgage failed to join all indispensable parties to the mortgage foreclosure action. In contrast, the failure to join an indispensable party cannot be waived. "The absence of an indispensable party goes to the court's jurisdiction and prevents it from granting relief." In re Estate of Moore, 871 A.2d 196, 202-203 (Pa. Super. 2005) (citing Centolanza v. Lehigh Valley Dairies, 540 Pa. 398, 402-403, 658 A.2d 336, 338 (1995); Kuney v. Benjamin Franklin Clinic, 751 A.2d 662, 665 (Pa. Super. 2000)).
An indispensable party is one whose rights or interests are so pervasively connected with the claims of the litigants that no relief can be granted without infringing on those rights or interests. The basic inquiry in determining indispensability concerns whether, in the absence of the person sought to be joined, justice can be done.
Jacob v. Shultz-Jacob, 923 A.2d 473, 480 (Pa. Super. 2007).
In its pleadings, the Millers suggest that First NLC may be an indispensable party to the foreclosure action because it may hold the note associated with the mortgage. However, the Millers did not allege any facts that would establish that First NLC had any legal rights that would have been violated by granting relief in the underlying foreclosure action. The Millers do not claim that First NLC would have had a right to foreclose on the property and do not set forth any argument on how First NLC would be prejudiced by allowing this judgment to stand. Further, the Millers do not support their claim with citation to relevant authority. We find this claim waived for lack of development. See Korn v. Epstein, 727 A.2d 1130, 1135 (Pa. Super. 1999) ("arguments not appropriately developed are waived") (emphasis in original). Accordingly, we affirm the trial court's judgment in the ejectment action and order dismissing the Millers' complaint in the quiet title action.
Appeal at 866 WDA 2012 quashed. Order of May 11, 2012, dismissing the Millers' complaint in quiet title, affirmed. Judgment entered on September 27, 2012, affirmed.