BENEFICIAL CONSUMER DISCOUNT COMPANY D/B/A BENEFICIAL MORTGAGE COMPANY OF PENNSYLVANIA, Appellant
PAMELA A. VUKMAN, Appellee
Argued April 9, 2013
As Corrected October 10, 2013.
Appeal from the Order of the Superior Court entered January 30, 2012 at No. 259 WDA 2011, affirming the Order of the Court of Common Pleas of Allegheny County entered January 10, 2011 at No. GD-06-024554. Appeal allowed October 16, 2012 at 218 WAL 2012. Trial Court Judge: Lee J. Mazur, Senior Judge. Intermediate Court Judges: John L. Musmanno, Christine Donohue, Robert E. Colville, JJ.
For Pennsylvania Association of Community Bankers, AMICUS CURIAE: Paul Arthur Adams, Esq. Shumaker Williams, P.C., Keith Allen Clark, Esq. Shumaker Williams, P.C.
For Pennsylvania Association of Realtors, AMICUS CURIAE: David Evenhuis, Esq.
For Pennsylvania Housing Finance Agency, AMICUS CURIAE: Michael Steven O'Neill, Esq.
For Pennsylvania Bankers Association, AMICUS CURIAE: Raymond Paul Pepe, Esq. K& L Gates, L.L.P.
For Beneficial Consumer Discount Company, APPELLANT: David James Bird, Esq. Reed Smith, LLP, Mark S. Melodia, Esq. Reed Smith, LLP, Henry Falkner Reichner, Esq. Reed Smith LLP, Andrew K. Stutzman, Esq. Stradley, Ronon, Stevens & Young, L.L.P.
For Pennsylvania Land Title Association, APPELLANT AMICUS CURIAE: Lauren P. McKenna, Esq. Fox Rothschild, L.L.P.
For Pamela Vukman, APPELLEE: Michael P. Malakoff, Esq. Malakoff & Brady, P.C., Jeffrey L. Suher, Esq. Jeffrey Suher, P.C.
For AARP & National Association of Consumer Advocates, APPELLEE AMICUS CURIAE: Ellen Mary M. Doyle, Esq. Stember Feinstein Doyle Payne & Kravec, Julie Nepveu, Esq.
For Community Legal Services, Inc., APPELLEE AMICUS CURIAE: Devon E. Sanders, Esq. Community Legal Services
For Neighborhood Legal Services Association, APPELLEE AMICUS CURIAE: Eileen D. Yacknin, Esq. Neighborhood Legal Services Association.
BEFORE: CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, ORIE MELVIN, JJ. Former Justice Orie Melvin did not participate in the consideration or decision of this case. Mr. Chief Justice Castille and Messrs. Justice Baer and McCaffery join the opinion. Mr. Justice Saylor files a concurring opinion in which Madame Justice Todd joins.
[621 Pa. 194] MR. EAKIN,
This is an appeal from the order of the Superior Court affirming the order of the Court of Common Pleas of Allegheny County, which granted appellee's motion to set aside judgment and sheriff's sale, and dismissed appellant Beneficial Consumer Discount Company's praecipe without prejudice. Upon review, we reverse and remand.
In October, 2006, mortgagee Beneficial filed a complaint in mortgage foreclosure against mortgagor appellee, alleging appellee was in default. Prior to the filing, Beneficial provided appellee an " Act 91" notice, discussed below. The [621 Pa. 195] parties eventually agreed to a settlement whereby Beneficial received judgment for the accelerated amount due on the mortgage; in turn, Beneficial agreed not to execute on the judgment so long as appellee made regular payments. The trial court approved this settlement in May, 2009.
On April 5, 2010, Beneficial filed an affidavit alleging appellee had defaulted on her obligations under the settlement agreement. The following day, Beneficial filed a praecipe for writ of execution. On August 2, 2010, the property was sold at sheriff's sale; Beneficial was the successful bidder.
On August 31, 2010, appellee filed a document titled " Motion to Set Aside Judgment and Sheriff's Sale," in which she contended Beneficial failed to comply with the requirements of the Homeowner's Emergency Mortgage Act (Act 91), 35 P.S. § § 1680.401c et seq. Specifically, appellee alleged the Act 91 notice in 2006 failed to inform her of the option of a face-to-face meeting with Beneficial. Following a hearing, the trial court found the Act 91 notice was deficient based on this omission. See Combined Act 91/Act 6 Notice, 5/17/06. The court concluded this stripped it of subject matter jurisdiction, which cannot be waived; therefore, the court set aside the sheriff's sale and judgment, and dismissed Beneficial's original complaint. Trial Court Order, 12/7/11, at 3 (quoting HSBC Bank ...