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Citimortgage, Inc. v. Comini

Superior Court of Pennsylvania

April 20, 2018

CITIMORTGAGE, INC.
v.
VINCENT A. COMINI

          Appeal from the Order August 7, 2017 In the Court of Common Pleas of Westmoreland County Civil Division at No(s): No. 2082 of 2012

          BEFORE: BENDER, P.J.E., SHOGAN, J., and STRASSBURGER, [*] J.

          OPINION

          SHOGAN, J.

         Paul F. Faletto and Sharon A. Faletto (collectively, "the Falettos") appeal from the order denying their petition to intervene following a mortgage foreclosure action filed by Citimortgage, Inc. ("Citimortgage") against Vincent A. Comini ("Comini") and granting Citimortgage's petition for a corrected deed. We reverse in part and affirm in part.

         Citimortgage filed a mortgage foreclosure action against Comini on April 2, 2012, related to his residence at 135 Buffalo Hill Road, Irwin, Pennsylvania (the "Property"). A default judgment was entered on July 25, 2012, and Citimortgage filed a writ of execution on September 14, 2012. After Citimortgage complied with the notice requirements, it purchased the Property at Sheriff's Sale on March 7, 2016, and a deed was recorded on April 22, 2016.

         Pursuant to Pa.R.C.P. 3135(b), Citimortgage filed a petition on January 27, 2017, seeking correction of the April 22, 2016 deed, which contained language granting a right of first refusal ("ROFR") to the Falettos. The ROFR reads as follows:

SHOULD Grantee [Comini] wish to sell the property the subject hereof or any part of it, Grantee shall first offer in writing to sell the property to Paul F. Faletto and Sharon A. Faletto, his wife, who shall have 10 days to accept said offer.

         Petition for Correction of Sheriff's Deed, 1/27/17, at Exhibit A. The ROFR was in the original deed recorded on July 21, 1992, whereby the Falettos conveyed the Property to Comini and his wife, Kathleen. The ROFR also appeared in the deed recorded on February 27, 2009, whereby Kathleen Comini transferred her interest in the Property to Comini. The ROFR was not included in the legal description of Comini's mortgage with Citimortgage.

         Upon receiving a copy of Citimortgage's petition for a corrected deed, the Falettos presented the trial court with a petition to intervene on April 21, 2017, seeking to preserve their ROFR. The trial court conducted a hearing on June 1, 2017. On June 9, 2017, the trial court denied the petition to intervene and granted Citimortgage's petition for a corrected deed. The Falettos sought reconsideration, which the trial court granted on July 7, 2017. Following oral argument on July 24, 2017, the trial court again denied the Falettos' petition to intervene and affirmed its grant of Citimortgage's petition. Order, 8/7/17. This appeal followed. The Falettos and the trial court complied with Pa.R.A.P. 1925.

         The Falettos raise two issues for our consideration:

1. Whether the lower [c]ourt erred in denying [the Falettos] the right to be permitted to intervene to object to the removal of their right of first refusal from [Citimortgage's] deed.
2. Whether the lower [c]ourt erred in granting approval to [Citimortgage] to remove the right of first refusal of [the Falettos] from [Citimortgage's] deed.

         The Falettos' Brief at 4.

         The Falettos first argue that the trial court erred in denying their petition to intervene. Relying on the bases for allowing intervention set forth in Pa.R.C.P. 2329, the Falettos assert: (1) their request to secure the ROFR does not speak to the underlying foreclosure action; (2) their interest is not adequately represented because they were not party to the foreclosure action; and (3) they acted promptly after Citimortgage served them with a copy of its petition for a corrective deed, given the fact that they did not receive notice of the Sheriff's Sale. The Falettos' Brief at 11; N.T., 6/1/17, at 25. Citimortgage responds that "the Falettos incorrectly focus on [Pa.R.C.P.] 2329, which sets forth reasons a court may deny an otherwise proper Petition to Intervene. . . . ...


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