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Nationstar Mortgage, LLC v. Lark

Superior Court of Pennsylvania

August 13, 2013

NATIONSTAR MORTGAGE, LLC, Appellee
v.
LAUREN LARK, Appellant

Appeal from the Order entered February 3, 2012, Court of Common Pleas, Philadelphia County, Civil Division at No. 0350 December Term, 2007

BEFORE: DONOHUE, ALLEN and MUSMANNO, JJ.

OPINION

DONOHUE, J.

Appellant, Lauren Lark ("Lark"), appeals from the trial court's order denying her motion to set aside the sheriff's sale of her personal residence. Lark claims that she received a defective notice pursuant to the Homeowner's Emergency Mortgage Act, 35 P.S. § 1680.401c et seq. ("Act 91"). Because we conclude that Lark failed to raise the issue of a defective Act 91 notice in a timely fashion, we affirm the trial court's order.

The trial court briefly summarized the relevant factual and procedural background as follows:

On February 9, 2007, [Lark] executed and delivered a mortgage on the property at 62 East Logan Street, Philadelphia [the 'Property'] to AAKO, Inc. in the amount of $205, 000 as security for a loan advanced to her by AAKO, Inc. The mortgage was recorded on February 16, 2007. The mortgage was assigned to Mortgage Electronic Recording Systems ('MERS') who then assigned the Mortgage to GMAC Mortgage, Inc. ('GMAC'). Assignment of the mortgage to GMAC was recorded on January 25, 2008.
When [Lark] defaulted on the loan, GMAC commenced this action in foreclosure on December 4, 2007. [Lark] failed to respond to the Complaint, and default judgment was entered in favor of GMAC and against [Lark] in the amount of $213, 044.49, later reassessed to $266, 144.30. Thereafter, the Mortgage was assigned to [Appellee] National Mortgage LLC ['NM LLC'].
Since the Property was [Lark's] residence, [Lark] was entered into this court's Mortgage Foreclosure Pilot Program. A [c]onciliation conference was held before the Honorable Annette Rizzo, and by agreement of the parties, Judge Rizzo entered an order postponing sale of the Property to allow both parties an opportunity to negotiate a possible settlement. No agreement was reached, and the Property was again scheduled for sale. However, [Lark] filed a Petition to Postpone the Sheriff's Sale, which was granted by the Honorable Paul Panepinto. By [o]rder the sale was postponed to August 2, 2011 and the [o]rder also stated that there would be no further postponement except by agreement. On September 13, 2011, the Property was sold at [s]heriff's [s]ale to the [a]ttorney on the [w]rit. [Lark] then filed two 'Motions to Dismiss' to which [NM LLC] responded. This court denied both [m]otions on October 10, 2011.
On November 15, 2011, the Sheriff delivered and recorded the deed. [Lark] then filed a Motion to Set Aside the Sheriff's Sale. [NM LLC] filed a response to which [Lark] replied, and [NM LLC] then filed a supplemental brief. This court conducted a hearing on the matter, and on February 3, 2012, denied [Lark's] Motion to Set Aside the Sheriff's Sale. [Lark] now appeals.

Trial Court Opinion, 5/16/2012, at 1-2 (footnotes omitted).

In its written opinion pursuant to Rule 1925(a) of the Pennsylvania Rules of Appellate Procedure, the trial court found that the Act 91 notice that Lark had received prior to GMAC's filing of the action in foreclosure complied with the substantive provisions of the law and thus did not constitute a basis for setting aside the sheriff's sale:

Here, [Lark's] own motion attached a notice that informed [Lark] she was in default and that she may qualify for financial assistance under the Homeowner's Mortgage Assistance Program (HEMAP). The notice listed the address of the mortgaged Property, [Lark's] address, [and] the name of the current lender, GMAC. The notice included the amount past due and owed, dates of the missed payments, a list of consumer credit counseling agencies, and a timeline of when [Lark] needed to meet with one of these agencies. [Lark] does not contend that she failed to receive the notice. In fact, after the notice was sent, she contacted and negotiated with GMAC. She also participated in the Mortgage Foreclosure Pilot Program. Clearly, the notice of foreclosure in this case complies with [Act 91] because [Lark] was given notice of the impending foreclosure action, provided with the information the statute required, and the notice was in plain, clear, and conspicuous language.

Id. at 4-5.

On appeal, Lark raises a single issue for our consideration and determination, namely whether the trial court erred in denying her motion to set aside the sheriff's sale because the Act 91 notice she received was defective. She contends that the Act 91 notice was defective because it omitted the name of the original lender (AAKO, Inc.) and listed GMAC as the "current lender/servicer" even though the ...


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