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[U] Green Tree Servicing, LLC v. Strausbaugh

Superior Court of Pennsylvania

February 27, 2014

GREEN TREE SERVICING, LLC, Appellee
v.
MICHAEL J. STRAUSBAUGH, Appellant

NON-PRECEDENTIAL DECISION

Appeal from the Order entered on January 31, 2013 in the Court of Common Pleas of Adams County, Civil Division, No. 2012 SU 71

BEFORE: DONOHUE, SHOGAN and MUSMANNO, JJ.

MEMORANDUM

MUSMANNO, J.

Michael J. Strausbaugh ("Strausbaugh"), [1] pro se, appeals from the trial court's Order denying his "Formal Objection; Motion for Reconsideration and Annulment of Final Judgment" in the mortgage foreclosure action brought against him and Rebecca Strausbaugh[2] by Green Tree Servicing, LLC ("Green Tree"). We affirm.

The trial court summarized the history underlying the instant appeal as follows:

On January 17, 2012, [Green Tree] initiated a cause of action in mortgage foreclosure against [Rebecca Strausbaugh and Strausbaugh (collectively, "the Strausbaughs")]. [Green Tree] sought to foreclose upon [the Strausbaughs'] property located at 1946 E. Berlin Road, New Oxford, Pennsylvania. Initial attempts by the Sheriff to serve [the Strausbaughs] with [Green Tree's] complaint in mortgage foreclosure at the mortgaged property were unsuccessful[, ] as the property appeared to be vacant. On February 17, 2012, service of the complaint on [the Strausbaughs] was eventually accomplished at 513 McArthur Boulevard, Warner Robins, Georgia, 31093[, ] in accordance with Pennsylvania Rules of Civil Procedure 402 and 404[, ] and as evidenced by two affidavits of service filed on February 24, 2012. [The Strausbaughs] failed to file a responsive pleading to [Green Tree's] complaint. [Green Tree] sent notices of default to [the Strausbaughs], both at the address of the mortgaged property and the Georgia address where service of the complaint had been accomplished. [The Strausbaughs] failed to respond to the notices of default, and, accordingly, default judgment was entered against [the Strausbaughs] on July 18, 2012. A Sheriff's sale of the property was scheduled on November 16, 2012[, ] at 10:00 a.m. [Strausbaugh] received Notice of the Sheriff's sale at his address at the United States Penitentiary-Tucson.
On November 13, 2012, Strausbaugh filed his pro se "Petition to Postpone November 16, 2012 Sheriff Sale." Strausbaugh alleged that he had means to cure or satisfy the mortgage foreclosure debt and requested a postponement of the November 16, 2012 Sheriff's sale. By Order dated November 14, 2012, [the trial c]ourt granted Strausbaugh's request and postponed the Sheriff's sale until January 18, 2013. The November 14, 2012 Order also indicated that [Green Tree] was not required to provide additional advertisement or notice of the sale. On November 16, 2012, a copy of the November 14, 2012 Order was served on Strausbaugh by mail at his current address at the United States Penitentiary-Tucson, the address Strausbaugh used in his Petition to Postpone. The Sheriff's sale ultimately occurred on January 18, 2013.

Trial Court Opinion, 2/11/13, at 1-2 (footnotes omitted).

Eleven days after the Sheriff's sale, on January 29, 2013, Strausbaugh filed a pro se "Formal Objection; Motion for Reconsideration and Annulment of Final Judgment." By this filing, Strausbaugh sought to strike off or open the judgment entered against him, or set aside the Sheriff's sale, averring that he had not received notices from the court and that his right to due process had been violated. Formal Objection at 3-4.

On January 31, 2013, the trial court denied Strausbaugh's Motion. On February 5, 2013, Strausbaugh filed a pro se "Motion to Hold Proceedings in Abeyance" and a Notice of Appeal. The trial court denied Strausbaugh's Motion. Trial Court Order, 3/15/13. Strausbaugh has filed with this Court a court-ordered Pa.R.A.P. 1925(b) Concise Statement of Matters Complained of on Appeal.

Strausbaugh presents the following claims for our review:
I. Whether [Strausbaugh] was denied due process in service of Pleadings, Orders[, ] Agreements, etc., by [Green Tree] and the [trial c]ourt or otherwise opportunity to defend[?]
II. Whether [Strausbaugh] has been deprived of his property without due process of the law[?]
III. Whether the [trial court] erred in denying [Strausbaugh's] Formal Objection; Motion for Reconsideration and Annulment of Final Judgment[?]

Appellant's Brief at ii. As these claims are related, we will address them together.

Strausbaugh claims that he was denied his constitutional right to due process. Id. at 6, 11. Strausbaugh argues that Green Tree failed to serve him with notice of the mortgage foreclosure action. Id. at 6-7, 9-10. Strausbaugh also asserts that he was not served with the judgment entered against him, or documents related to the Sheriff's sale. Id. at 14-15. Based upon the lack of service, Strausbaugh "requests [this Court] to vacate[] the procedures below and dismiss all proceedings." Id. at 10.

Strausbaugh also argues that the trial court failed to afford Strausbaugh his "right to obtain discovery[.]" Id. at 12. According to Strausbaugh, such discovery would demonstrate that the mortgage contract allowed Strausbaugh to use any means to "settle that discrepancy." Id.

Here, Strausbaugh sought to strike off/open the judgment entered against him, or to set aside the Sheriff's sale. A petition to strike a judgment will only be granted where a fatal defect in the judgment is apparent on the face of the record. Wells Fargo Bank, N.A. v. Vanmeter, 67 A.3d 14, 17 (Pa.Super. 2013).

When deciding if there are fatal defects on the face of the record for the purposes of a petition to strike a judgment, a court may only look at what was in the record when the judgment was entered. Importantly, a petition to strike is not a chance to review the merits of the allegations of a complaint. Rather, a petition to strike is aimed at defects that affect the validity of the judgment and that entitle the petitioner, as a matter of law, to relief. Importantly, [a] petition to strike does not involve the discretion of the [trial] court.

Oswald v. WB Pub. Square Assocs., LLC, 80 A.3d 790, 794 (Pa.Super. 2013) (internal quotation marks and citations omitted). By contrast, to open a default judgment, the movant must promptly file a petition to that effect, must plead a meritorious defense to the claims raised in the complaint, and provide a reasonable excuse for not filing a responsive pleading. Wells Fargo Bank, 67 A.3d at 17.

When reviewing a trial court's ruling on a petition to set aside a sheriff's sale,

it is recognized that the trial court's ruling is one of discretion, thus a ruling will not be reversed on appeal absent a clear demonstration of an abuse of that discretion. . . . The burden of proving circumstances warranting the exercise of the court's equitable powers is on the petitioner. Courts have entertained petitions and granted relief where the validity of sale proceedings is challenged, or a deficiency pertaining to the notice of sale exists or where misconduct occurs in the bidding process.

First Union Nat'l Bank v. Estate of Shevlin, 897 A.2d 1241, 1246 (Pa.Super. 2006).

Our review of the record discloses that Strausbaugh did not assert a defect on the face of the record. Accordingly, we discern no error in the trial court's refusal to strike off the judgment. See Wells Fargo Bank, 67 A.3d at 17.

In seeking to open the default judgment, Strausbaugh failed to plead a meritorious defense to the mortgage foreclosure action. Accordingly, we discern no error or abuse of discretion by the trial court in not opening the default judgment. See Wells Fargo Bank, 67 A.3d at 18.

Finally, in denying Strausbaugh's request to set aside the Sheriff's sale, the trial court opined as follows:

Upon review of the record, … Strausbaugh was properly served with [Green Tree's C]omplaint in mortgage foreclosure as well as all notices and orders related to the proceedings and the sale of the mortgaged property. Additionally, [the trial c]ourt postponed the Sheriff's sale for a period of two months to allow Strausbaugh to cure or satisfy the mortgage deficiencies. However, Strausbaugh took no such action during that two month period, and the property was ultimately sold at Sheriff's sale. Strausbaugh has failed to present any evidence that he was denied due process of law….

Supplemental Trial Court Opinion, 2/11/13, at 4. We discern no abuse of discretion by the trial court in not setting aside the Sheriff's sale, and affirm based on the trial court's reasoning, as set forth above.[3] See id.

Application to File Supplemental Brief granted; Order affirmed.

Judgment Entered.


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