NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P

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1 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P THE BANK OF NEW YORK MELLON FKA THE BANK OF NEW YORK, AS TRUSTEE FOR THE CERTIFICATE HOLDERS OF CWABS, INC., ASSET-BACKED CERTIFICATES, SERIES , IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee v. THOMAS C. STAFFORD AND THE UNITED STATES OF AMERICA, APPEAL OF: THOMAS C. STAFFORD No EDA 2013 Appeal from the Order entered February 26, 2013, in the Court of Common Pleas of Philadelphia County, Civil Division, at No(s): BEFORE: ALLEN, MUNDY, and FITZGERALD*, JJ. MEMORANDUM BY ALLEN, J.: FILED MAY 27, 2014 Thomas C. Stafford ( Appellant ) appeals from the order denying his petition to open default judgment. The trial court summarized the procedural history of this case as follows: On July 25, 2012, the Bank of New York Mellon, serving as Trustee for the Certificate Holders of CWABS Inc., Asset-Backed Certificates, Series , filed a Complaint in Mortgage Foreclosure against Appellant for a property located in Philadelphia, PA. Compl. Filed (07/25/2012). The United States of America (hereinafter referred to as Defendant ), care of the US Attorney for the Eastern District of Pennsylvania, was also named as a defendant in this matter pursuant to a federal tax lien on the subject property in December Id. The matter was scheduled for Conciliation in the Philadelphia County Court of Common Pleas to be held on September 27, *Former Justice specially assigned to the Superior Court.

2 Conciliation Com. Scheduled (07/25/2012). Due to Appellant and Defendant s failure to appear at the Conciliation Conference, the Court entered an Order whereby authorizing [sic] default judgment to be entered against Appellant and Defendant. Order/Failed to Appear by J. Rizzo (10/03/2012). Pursuant to the Court s Order, Appellee entered judgment against Appellant in the amount of nine hundred forty thousand five hundred forty seven dollars and fifteen cents ($940,547.15) on October 24, J. by Default/Final Disp. (10/24/2012). Appellee proceeded to enforce its judgment by filing a Praecipe to Issue Writ in the Philadelphia Court of Common Pleas. Praecipe to Issue Writ Filed (11/19/12). Appellant filed the instant Petition to Open Default Judgment almost three (3) months later on January 21, 2013, to which Appellee responded. Pet. to Open J. (01/21/2013); Ans. (Mot./Pet.) Filed (02/11/2013). On February 26, 2013, the Court denied Appellant s Petition to Open Default Judgment. Order Entered by J. Tucker (02/26/13). Two days later, on February 28, 2013, Appellant filed a Motion for Reconsideration of the Court s Order denying his Petition to Open Judgment; this motion was denied. Mot. Reconsideration (02/28/2013); Order Entered by J. Tucker (03/07/2013). Appellant timely appealed the Court s February 26, 2013 Order denying his Petition to Open Judgment on March 22, Appeal to Commonwealth Court (03/22/2013); Corrective Entry (03/22/2013). The Court ordered Appellant to file of record a Concise Statement of Matters Complained of on appeal pursuant to Pa.R.A.P. 1925(b). Pa.R.A.P. 1925(b). Trial Court Opinion, 5/24/13, at 1-2. Appellant presents one issue for appellate review: I. WHETHER THE LOWER COURT ERRED IN DENYING APPELLANT S MOTION TO OPEN? Appellant s Brief at 1. When reviewing whether a trial court erred or abused its discretion in denying a petition to open a default judgment, we have explained: - 2 -

3 It is well settled that a petition to open default judgment is an appeal to the equitable powers of the court, and absent an error of law or a clear, manifest abuse of discretion, it will not be disturbed on appeal. An abuse of discretion occurs when a trial court, in reaching its conclusion, overrides or misapplies the law, or exercises judgment which is manifestly unreasonable, or the result of partiality, prejudice, bias or ill will. Myers v. Wells Fargo Bank, N.A., 986 A.2d 171, 175 (Pa. Super. 2009) (citation omitted). We further recognize the applicability of Pa.R.Civ.P and the tripartite test prescribed in Schultz v. Erie Insurance Exchange, 477 A.2d 471 (Pa. 1984). Rule provides: If the petition is filed within ten days after the entry of the judgment on the docket, the court shall open the judgment if the proposed complaint or answer states a meritorious cause of action or defense. Pa.R.Civ.P (b). Schultz, supra, requires the petitioner to show that it promptly filed its petition to open the default judgment, offered a reasonable excuse for its failure to file a responsive pleading, and alleged a meritorious defense. Failure to meet just one of these prongs will preclude the opening of a default judgment. Myers v. Wells Fargo Bank, N.A., 986 A.2d at 178 (Pa. Super. 2009) (citation omitted). Relative to the first prong of Schultz requiring prompt filing, Appellant concedes that his filing was late, and with regard to the second prong, offers the excuse that he was never served. Appellant s Brief at 3. Appellant - 3 -

4 references affidavit service upon an African American female, and avers that there is insufficient proof that the proper service was made, affidavit notwithstanding. Id. at 4. Appellant states that it is not clear from the affidavit of service that an adult in charge of residence [sic] was served, as there is no age, not even an estimate, given as to who was allegedly served. Finally, it is unclear the relationship of the person allegedly served to [Appellant]. Id. Appellant s argument is not persuasive. Our review of the record indicates that proper service was made. On August 13, 2012, Appellee filed the Affidavit of Service, dated August 7, 2012, which indicated that personal service was made at 6:02 p.m. upon an African American female with glasses at the subject property, 6491 Woodbine Avenue, Philadelphia, PA The Affidavit further states that service was made upon an adult in charge of residence, who refused to provide their name and/or relationship. (emphasis added). As noted by both the trial court and Appellee, service upon Appellant was proper and consistent with Pa.R.C.P. 402(2)(a)(i) (process may be served at the residence of the defendant [upon] an adult person in charge of such residence). In rejecting Appellant s lack of service claim, the trial court explained: [S]ince Appellant alleged that he was not properly served, the Court first reviewed the record to determine whether Appellant was properly served the underlying complaint in mortgage foreclosure. Pursuant to the Pennsylvania Rules of Civil Procedure: - 4 -

5 (a) Original Process may be served (1) by handing a copy to the defendant; or (2) by handing a copy (i) (ii) at the residence of the defendant to an adult member of the family with whom he resides; but if no adult member of the family is found, then to an adult person in charge of such residence; or at the residence of the defendant to the clerk or manager of the hotel, inn, apartment house, boarding house or other place of lodging at which he resides; or (iii) at any office or usual place of business of the defendant to his agent or to the person for the time being in charge thereof. Pa.R.C.P. 402(a). Here, the Return of Service indicates that service was made on August 7, 2012 by handing a copy of the Complaint at the subject property, where Appellant currently resides, with an adult female who wore glasses; the person accepting service refused to give her name. Aff. of Service Filed (08/13/12). Appellant does not make any argument regarding the veracity of the averments in the Return of Service; rather, he simply states that service was improper. In the absence of any allegations to support this conclusion, and pursuant to the Pennsylvania Rules of Civil Procedure governing Service of Original Process, the Court finds that service was proper in this matter. Trial Court Opinion, 5/24/13, at 5. We agree with the trial court that Appellant s lack of service argument lacks merit. Appellant also argues that Appellee failed to establish that it is a holder in due course of the mortgage and note. Appellant s Brief at 4. Appellant asserts that Appellee failed to show how it was transferred the note in this case. Id. at 5. Appellee counters that Appellant was never - 5 -

6 asked to prove it was the holder in due course. Appellee s Brief at 7. Moreover, Appellee explains that its complaint established the requisite standing pursuant to valid assignment of the mortgage. Id. at 9. We agree. As is often the case in mortgage foreclosure actions, the mortgage holder (Appellee) is a successor-in-interest to the originating lender by way of an assignment of the mortgage and endorsed promissory note. Our review of the record indicates that Appellant executed a mortgage with Countrywide Home Loans, Inc. on July 25, An assignment of the mortgage from Countrywide Home Loans, Inc. to Appellee was recorded on June 15, In denying Appellant s petition to open default judgment, the trial court reasoned: Here, Appellant waited almost three (3) months before filing the instant petition to open default judgment. Appellant seeks to explain his three (3) month delay by stating that he was not made aware of the proceedings in this matter until he received a Sheriff s Sale notice. Pet. to Open Judgment (01/21/13). Appellant claims that he delayed in filing the petition to open judgment until January 2013 because he finally decided to engage an attorney after his unsuccessful attempts to seek clarification from Appellee on the pending Sheriff s Sale. Id. While the Court understands that Appellant eventually engaged counsel in this matter, it is still incumbent upon Appellant to act promptly, even in engaging counsel. Penneys v. Kastner Co., Inc., 443 A.2d 353 (Pa. Super. 1982) (affirming a lower court decision that a petition to open judgment filed thirtythree (33) days after judgment was promptly filed where there was evidence showing that the debtor immediately took steps to engage counsel after a breakdown in communication with judgment creditor). Simply put, Appellant did not demonstrate that he acted promptly in engaging counsel to file the instant petition to open default judgment

7 *** Appellant claims that he did not respond to the complaint in mortgage foreclosure because Appellee told him that he had to default on his mortgage in order to be eligible for a modification of the terms of the mortgage. The record in this matter demonstrates that the mortgage on the subject property was in default since October 2008; Appellant entered into the mortgage in July Compl. Filed (07/25/2012). Beyond the notion that a creditor would advise a debtor to default on a financial obligation in order to qualify for a modification of terms, Appellant s argument is not supported by the record. At a minimum, Appellant was on notice that Appellee was foreclosing on the subject property, regardless of whether he was induced to default, as early as August Perhaps Appellant did not take Appellee s complaint seriously; nevertheless, his miscalculation or reliance on assurances by Appellee, if any, were misplaced. Appellant did not provide a reasonable excuse for his delay in answering Appellee s complaint in mortgage foreclosure. Trial Court Opinion, 5/24/13, at 6-7. Based on the foregoing, the trial court s denial of Appellant s petition to open default judgment is supported by the facts of record and applicable law. We thus find no legal error or abuse of discretion by the trial court, and affirm the order denying Appellants petition to open default judgment. See Myers v. Wells Fargo Bank, N.A., 986 A.2d at 176 (citation omitted) (the trial court cannot open a default judgment based on the equities of the case when the defendant has failed to establish all three of the required criteria). Order affirmed

8 Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 5/27/

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