DEVON SERVICE, LLC ASSIGNEE OF CUSTOMERS BANK F/K/A NEW CENTURY BANK, Appellee
S & T REALTY AND SAUL BARSH, Appellants
from the Order Entered October 26, 2016 in the Court of
Common Pleas of Chester County Civil Division at No.:
BEFORE: GANTMAN, P.J., RANSOM, J., and PLATT, J. [*]
S & T Realty and Saul Barsh, appeal from the order fixing
the fair market value of four foreclosed commercial
properties and entering a decree in favor of
plaintiff/Appellee, Devon Service, LLC, the judgment creditor
by assignment. Appellants claim chiefly that the trial court
improperly used lower sales prices instead of their own
appraiser's higher valuations, and together with other
purported procedural mistakes, set the fair market value too
low, erroneously depriving them of a net credit of $132, 500
against the deficiency judgment they owe. We affirm.
derive the facts from the trial court's opinion and our
independent review of the certified record.
Defendant/Appellant Saul Barsh is the sole owner of the other
named Appellant, S & T Realty (S & T). (See
Trial Court Opinion, 10/26/16, at 1). Barsh, through S &
T, owned four commercial properties subject to mortgages in
favor of Customers Bank, Appellee's assignor/predecessor
in interest. Appellants ultimately defaulted.
December 18, 2014, the trial court granted summary judgment
in favor of Customers Bank, in the amount of $1, 444, 155.00.
Customers Bank eventually assigned its interest to
Appellee. Appellee later bought the properties at a
Sheriff's sale, on April 16, 2015. Appellee then
timely petitioned for a deficiency judgment. The trial court
held a hearing on June 22, 2016, and September 16, 2016.
Appellee's appraiser, Robert B. Rogers, determined the
fair market value of the properties to be $1, 030, 000.00.
Appellants' appraiser, Vincent D. Quinn, determined the
properties to have a fair market value of $1, 510, 000.00. In
addition to providing written reports, both appraisers
testified at the hearing.
the hearings, the trial court issued its order, together with
an explanatory opinion. (See Order, and Decision,
10/26/16). The trial court fixed the fair market value of the
real estate at issue, net of credits, municipal liens,
etc., (which are not in dispute), to be $897,
500.00. It also entered a deficiency judgment of
$687, 704.66. (See Order, supra).
trial court essentially accepted the valuation of
Appellee's appraiser, Mr. Rogers (originally prepared for
Customers Bank), over Appellants' valuation from Mr.
Quinn. Appellants did not file a motion for post-trial
relief. See Pa.R.C.P. 227.1.
timely appealed, on November 23, 2016. The trial court issued
an order on November 29, 2016 for a Rule 1925(b) statement of
errors, due on December 20, 2016. Although the docket
confirms that the order was served on all counsel, neither
Appellants nor appellate counsel responded, and both deny
January 10, 2017, the trial court filed a Rule 1925(a)
opinion, noting that Appellants had failed to file a Rule
1925(b) statement of errors. (See Rule 1925(a)
Opinion, 1/10/17, at 1). It concluded that all appellate
issues were automatically waived. The trial court also
expressed its belief that the prior Order and Decision
adequately explained the reasoning for its judgment. (See
id. at 2).
Appellants and appellate counsel maintain that the trial
court's opinion was their first notice that the court had
ordered a Rule 1925(b) statement of errors. (See
Sur-Reply of Appellants S & T Realty and Saul Barsh, at
present three questions on appeal.
I. Where the [trial] [c]ourt considered the appraisals of
fair market value of the parties' expert appraisers and
accepted and relied upon the [Appellee's] appraiser's
opinion of $1, 030, 000, did it err as a matter of law, in
only crediting [Appellant(s)] with the (lower) [sic] sales
price and not fair market value?
II. Did the [trial] [c]ourt err as a matter of law in failing
to apply credit for the fair market value of the foreclosed
properties as of the date of the Sheriff's Sale (April
III. Did the [trial] [c]ourt err as a matter of law by
miscalculating interest, both by using the incorrect credit
for the sale of the foreclosed properties and by failing to
credit the fair market value of the foreclosed properties ...