Wells Fargo Bank v. Scicchitano, M. ( 2018 )


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  • J-A10023-18
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    WELLS FARGO BANK, N.A.                   :   IN THE SUPERIOR COURT OF
    SUCCESSOR BY MERGER TO                   :        PENNSYLVANIA
    WACHOVIA BANK, N.A.                      :
    :
    :
    v.                          :
    :
    :
    MARZAILE SCICCHITANO                     :   No. 3056 EDA 2017
    :
    Appellant             :
    Appeal from the Order Entered August 25, 2017
    In the Court of Common Pleas of Delaware County Civil Division at
    No(s): 2014-11559
    BEFORE:    GANTMAN, P.J., McLAUGHLIN, J., and RANSOM*, J.
    MEMORANDUM BY McLAUGHLIN, J.:                         FILED JUNE 22, 2018
    In this mortgage foreclosure action, Marzaile Scicchitano has appealed
    from an order that denied his Petition to Set Aside Sheriff’s Sale. He sought
    to undo the sheriff’s sale because of alleged misrepresentations in
    communications from Appellee, Wells Fargo Bank, N.A. Successor by Merger
    to Wachovia Bank, N.A. (“Bank”), allegedly causing him to believe that the
    sale would not proceed. He also contended that the sale price at the sheriff’s
    sale was too low. The Court of Common Pleas, the Honorable Chad F. Kenney,
    denied the petition. Judge Kenney concluded that Scicchitano reasonably
    should have known that the sheriff’s sale would proceed. He also rejected
    Scicchitano’s price challenge. We affirm based on Judge Kenney’s opinion.
    We adopt Judge Kenney’s recitation of the factual and procedural
    history. See Trial Court Opinion, filed 10/24/17, at 1-3.
    ____________________________________
    * Retired Senior Judge assigned to the Superior Court.
    J-A10023-18
    Scicchitano raises four issues on appeal:
    1.    Did the Court abuse its discretion or otherwise err in denying
    [Scicchitano’s] Petition to Set Aside Sheriff’s Sale where,
    after a hearing, it was undisputed that (a) [Bank] last direct
    communication (in contrast to ongoing communications
    from [Bank’s] third party attorney which [Bank] instructed
    [Scicchitano] would occur) misrepresented that [Bank] (i)
    “received the documentation you sent us supporting your
    request for mortgage assistance...;” (ii) “as part of the
    foreclosure process, you may receive notices from a third
    party attorney delivered by mail or see steps being taken to
    proceed with foreclosure...;” and (iii) “if your loan has been
    referred to foreclosure and you have submitted all required
    documentation, we will not conduct a foreclosure sale while
    your documents are being reviewed” ((i), (ii) and (iii) being
    hereinafter referred to as the “Final Communication
    Misrepresentations”); and (b) despite those Final
    Communication Misrepresentations, Appellant [sic], without
    any further direct communication, proceeded with a sheriff’s
    sale and sold [Scicchitano’s] property at 61.8% of it’s [sic]
    appraised Fair Market Value of $100,000, approximately
    49% of [Bank’s] internal value and 30% of the total debt
    alleged to be due from [Scicchitano] to [Bank]?
    2.    Did the Court abuse its discretion or otherwise err in not
    finding that the combination of (a) the grossly inadequate
    or inadequate price; and (b) the irregularities in the notice
    process, consisting of (i) the Final Communication
    Misrepresentation, and (ii) two prior continuances of the
    ultimate sale unilaterally effectuated by [Bank] (which
    created a false sense of security in [Scicchitano] that the
    ultimate sale would also be continued based on the Final
    Communication Misrepresentation); created an irregularity
    in the notice procedure and denied [Scicchitano] of due
    process rights, and was sufficient cause to set aside the
    sale?
    3.    Did the Court abuse its discretion or otherwise err in not
    granting [Scicchitano’s] Petition to Set Aside Sheriff’s Sale
    by in effect inequitably and unfairly shifting the burden to
    [Scicchitano] to (a) have understood the Final
    Communication Misrepresentation was a misrepresentation,
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    J-A10023-18
    and    (b)   correct      [Bank’s]     Final   Communication
    Misrepresentation?
    4.    Did the Court err by allowing undue bias against other
    alleged misbehaviors of [Scicchitano] that are not relevant
    to the due process question to unduly influence the
    determination of whether the substantially below value sale
    and the irregularities and defect in notice created by the
    Final Communication Misrepresentation and prior unilateral
    continuances establish sufficient cause to set aside the sale
    and violate [Scicchitano’s] due process rights?
    Appellant’s Br. at 4-6.
    Scicchitano waived his second and fourth issues by not raising them
    below. See Pa.R.A.P. 302. They are meritless in any event. As to the second
    issue, Judge Kenney did not err in not considering the combined effect of
    Scicchitano’s sale price and misrepresentation arguments. The issues are not
    logically related – that is, any misunderstanding on Scicchitano’s part about
    whether the sale would proceed had nothing to do with the price obtained at
    the sale, and vice-versa – and to the extent either argument would carry any
    weight, it would not reinforce the other. Regarding the fourth issue, as we
    explain below, Judge Kenney only mentioned Scicchitano’s failure to make
    payments as one of the reasons that Scicchitano reasonably should have
    known that the foreclosure sale would occur.
    We affirm Scicchitano’s remaining issues based on Judge Kenney’s
    opinion. A petition to set aside a sheriff’s sale is a request for equitable relief
    addressed to the sound discretion of the Court of Common Pleas. Blue Ball
    Nat’l Bank v. Balmer, 
    810 A.2d 164
    , 167 (Pa.Super. 2002); Greater
    Pittsburgh Bus. Dev. Corp. v. Braunstein, 
    568 A.2d 1261
    , 1263 (Pa.Super.
    -3-
    J-A10023-18
    1989). The petitioner bears the burden of proving circumstances warranting
    the Court of Common Pleas to exercise its equitable powers and set aside the
    sale. 
    Id. We will
    reverse the Court of Common Pleas’ decision not to set aside
    a sheriff’s sale only for a clear abuse of discretion. Kaib v. Smith, 
    684 A.2d 630
    , 631-32 (Pa.Super. 1996).
    Scicchitano argues that the Bank’s alleged misrepresentations led him
    to believe that the sheriff’s sale would not take place. Scicchitano had applied
    to the Bank to participate in a loan assistance program. The Bank first advised
    him by letter that “[b]ecause you have not provided us with all the required
    documentation to complete the application, we are not able to offer you
    assistance options.” Letter from Bank to Appellant of 12/16/16, at 1, R.191a.
    The Bank sent a subsequent letter three days later, stating that “[i]f your loan
    has been referred to foreclosure and you have submitted all required
    documentation, we will not conduct a foreclosure sale on this loan while your
    documents are being reviewed. . . .” Letter from Bank to Appellant of
    12/19/16, at 1, R.58a. This letter also advised Scicchitano that “[a]s part of
    the foreclosure process,” he might “receive notices from a third-party attorney
    delivered by mail or see steps being taken to proceed with a foreclosure sale
    of your home.” 
    Id. Scicchitano argues
    that the second letter misled him and
    caused him to incorrectly believe that the sheriff’s sale would not take place
    as scheduled.
    Regarding the sale price, Scicchitano argues that the amount ($61,800)
    was grossly inadequate because it was 61.8% of the Bank’s appraisal of the
    -4-
    J-A10023-18
    property’s value ($100,000), and 49% of the Bank’s internal valuation
    ($125,000).
    Scicchitano also contends that Judge Kenney improperly put the burden
    on Scicchitano to learn that the alleged “misrepresentation that his loan was
    still under review” was untrue. Appellant’s Br. at 22. He further argues that
    he   reasonably   understood    the   statements    that   he   might   receive
    communications from attorneys about the foreclosure process, and that the
    sale would not happen while his loan assistance application was under review,
    “as an instruction not to be concerned by attorney communications.” 
    Id. (emphasis in
    original).
    Judge Kenney’s Pa.R.A.P. 1925(a) opinion explains that Scicchitano
    should have known that the sheriff’s sale would take place. Judge Kenney
    points out that the second letter did not in fact suggest that a sheriff’s sale
    would never occur. Rather, the letter simply let Scicchitano know that the
    sheriff’s sale would not take place during the review period, which the previous
    letter told him had already ended. Judge Kenney concluded that because of
    the language of the letters, and the fact that Scicchitano did not make any
    payments between the time of the letters and the day of the sheriff’s sale,
    Scicchitano reasonably should have known that the sale would go forward.
    Regarding the sale price, Judge Kenney explained that the law presumes
    that the price obtained at a sheriff’s sale is the highest and best obtainable
    price. Trial Court Opinion at 5 (citing Blue Ball Nat’l 
    Bank, 810 A.2d at 167
    ).
    Judge Kenney observed that cases in which Pennsylvania courts have set aside
    -5-
    J-A10023-18
    a sheriff’s sale for an inadequate sale price were cases where the sale price
    was ten percent or less of the established market value. 
    Id. at 6
    (citing Bank
    of America, N.A. v. Hood, 
    47 A.3d 1208
    , 1212 (Pa.Super. 2002)). Judge
    Kenney concluded that because the only evidence Scicchitano produced on
    this issue was an appraiser’s affidavit that the property was worth $100,000,
    and the property sold for 61.8% of that figure, Scicchitano failed to rebut the
    presumption.
    Finally, Judge Kenney properly put the burden on Scicchitano to
    persuade the court that the alleged misrepresentations merited setting aside
    the sheriff’s sale. See Blue Ball Nat’l 
    Bank, 810 A.2d at 167
    . The court
    concluded that Scicchitano failed to carry his burden to do so, and Scicchitano
    has not established that Judge Kenney’s decision was a clear abuse of
    discretion. 
    Id. We affirm
    based on Judge Kenney’s Opinion.
    Order affirmed.
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 6/22/18
    -6-
    

Document Info

Docket Number: 3056 EDA 2017

Filed Date: 6/22/2018

Precedential Status: Precedential

Modified Date: 6/22/2018