Flagstar Bank, FSB. v. Wampole, B. ( 2016 )

J-A06039-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
FLAGSTAR BANK, FSB IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
BRIAN D. WAMPOLE A/K/A BRIAN
WAMPOLE, TAMMY WAMPOLE, THE
UNITED STATES OF AMERICA C/O THE
UNITED STATES ATTORNEY FOR THE
EASTERN DISTRICT OF PA.
Appellants No. 1542 MDA 2015
Appeal from the Order Entered August 10, 2015
In the Court of Common Pleas of Berks County
Civil Division at No: 10-11460
BEFORE: LAZARUS, STABILE, and DUBOW, JJ.
MEMORANDUM BY STABILE, J.: FILED OCTOBER 11, 2016
Appellants, Brian D. Wampole and Tammy L. Wampole (together the
“Wampoles”), appeal from the August 10, 2015 order of the Court of
Common Pleas of Berks County (“trial court”), denying the Wampoles’
petition to set aside a sheriff’s sale. Upon review, we affirm.
This Court quoted the following factual and procedural history of the
case in the Memorandum filed on June 6, 2014:
On June 22, 2010, plaintiff, Flagstar Bank F.S.B.
[(“Bank”)], filed a [c]omplaint in [m]ortgage [f]oreclosure
against the real property owners, Brian D. Wampole . . .
and his wife, Tammy L. Wampole (Wife), and The United
States of America due to a federal tax lien against [the
Wampoles] in the amount of $43,606.91.
According to the complaint, on June 3, 2008, the
Wampoles entered into a mortgage with [Bank] in the
principal amount of $305,365.00 which was payable in
J-A06039-16
equal monthly installments. [The Wampoles] have been in
default of the mortgage since September 1, 2009. They
filed an answer alleging that since June 2009 they had
been promised that they were eligible for a loan
modification, and since [s]pring 2010 [Bank] has told them
they had been approved for a loan modification and to
disregard notices concerning the mortgage default.
On January 18, 2011, [Bank] filed its original [m]otion for
[s]ummary [j]udgment at which time the mortgage due for
the September 1, 2009, payment was due for a period in
excess of seventeen months. [Bank] attached a loan
history to its motion detailing this fact. [The Wampoles]
filed an answer to this motion alleging [Bank’s] deficiencies
in reviewing their request for a loan modification. This
original motion for summary judgment was not presented
to [the trial] court for disposition.
On April 15, 2013, [Bank] filed a [s]upplemental [m]otion
for [s]ummary [j]udgment which again requested
summary judgment in its favor. [Bank] submitted that in
the intervening period between filing the original and
supplemental motions, [Bank] reviewed the account of
[the Wampoles] for a possible workout. After the review,
[Bank] offered them a HAMP Trial Plan (Plan). Pursuant to
this action, [Wampole] had to complete documents,
include a 4506-T form and a hardship affidavit and return
[] them to [Bank]. Upon completion of the documents and
timely payments of the trial period amounts, the mortgage
was to be permanently modified.
[The Wampoles] made all of the required payments under
the Plan; however, [the Wampoles] failed to submit the
4506-T form and hardship affidavit according to [Bank].
On January 5, 2012, [Bank] sent an e-mail requesting the
documents directly to [the Wampoles] and copied [the
Wampoles’] counsel. On January 9, 2012, and March 2,
2012, [Bank] again sent e-mails directly to [the
Wampoles] and copied [the Wampoles’] counsel to request
the needed documentation. [The Wampoles] never
provided the information to [Bank], so [Bank] determined
that they breached the terms of the Plan and therefore
were not eligible for a loan modification. [Bank] closed its
loss mitigation file. At the time of the filing of the
[s]upplemental [m]otion for [s]ummary [j]udgment, [the
Wampoles] owed the November 1, 2009 payment. Thus,
no payments were made by [the Wampoles] for
approximately forty-one months.
[The Wampoles] filed an answer to the supplemental
motion for summary judgment. They submit[ted] that
they provided the required documentation but that [Bank]
lost everything. [The Wampoles] contend[] in [their] brief
that [Bank] should not be allowed to foreclose because it
-2-
J-A06039-16
waited too long to bring this action, and [the Wampoles]
ha[ve] been detrimentally affected by the delay.
On June 20, 2013, [the trial] court entered judgment in
favor of [Bank] and against [the Wampoles] in the amount
of $449,135.99 plus interest and costs. The Wampoles,
pro se, filed the instant appeal. [The trial] court directed
[the Wampoles] to file a concise statement of errors. [The
Wampoles] requested an extension of time to file this
statement which [the trial] court granted.
Flagstar Bank, FSB v. Wampole, No. 1321 MDA 2013, unpublished
memorandum, at 1-3 (Pa. Super filed June 6, 2014) (quoting Trial Court
Opinion, 12/3/13, at 1-3). On appeal, the Wampoles claimed that they
never in good faith defaulted on the mortgage. Id. at 3. This Court
affirmed the trial court’s grant of summary judgment. Id. at 6. This Court
found that the Wampoles “failed to specifically deny that the mortgage was
in default because [t]he[y] failed to make payments.” Id. at 5.
Furthermore, this Court found that the Wampoles failed to produce specific
evidence to overcome the Bank’s evidence of default as required by Marks
v. Tasman, 589 A.2d 205, 206 (Pa. 1991). Flagstar Bank, FSB, No. 1321
MDA 2013, at 5.
Subsequently, the property was listed for sheriff’s sale. After which,
[o]n October 7, 2014, [the Wampoles] filed a petition to
stay the Sheriff’s sale and to divert the case to the Berks
County Mortgage Foreclosure Diversion Program. [The
trial] court denied this petition on December 9, 2014. The
property was sold to [Bank’s] attorney at the Sheriff’s sale
on June 5, 2015. [The Wampoles] filed a pro se petition to
set aside the Sheriff’s sale on June 29, 2015. A Sheriff’s
Deed was executed on June 30, 2015 and recorded on July
1, 2015.
According to [the Wampoles’] petition to set aside the
Sheriff’s sale, [Bank] was the mortgage servicer and
Fannie Mae was the mortgage holder of [Wampole’s]
residence. Greentree Servicing – Green Tree had informed
-3-
J-A06039-16
[the Wampoles] on April 1, 2015, that it would stay the
sale and honor [the Wampoles’] trial agreement, but the
sale proceeded anyway. At the June 5, 2015 sale, a
Fannie Mae representative informed [the Wampoles] that it
had a new servicing company. [The Wampoles] attempted
to negotiate a resolution, but [Bank] refused to enter into
an agreement. [The Wampoles] also contended that there
was an error of $100,000.00 on the amount of damages in
the petition to reassess damages.
[The trial] court held an argument on [the Wampoles’]
petition. At the argument, [the Wampoles] were
represented by counsel who had filed a brief in support of
the[] petition. [The trial] court denied [the Wampoles’]
petition. [The Wampoles] filed the instant appeal.
Trial Court Opinion, 10/20/2015, at 1-2.
On appeal, the Wampoles raise only a single issue for our review.
I. Whether the [trial court] abused its discretion or
committed an error of law by finding that [the
Wampoles] failed to establish just and proper cause
to set aside (or estop) the Sheriff’s sale of [the
Wampoles’] residence, when evidence was presented
to the [trial court] of [Bank’s] bad faith and
oppressive conduct that resulted in sanctions against
[Bank] by the Consumer Financial Protection Bureau
for [Bank’s] deceptive acts and practices that
prevented mortgagors such as [the Wampoles] from
making an informed choice of how to retain or
dispose of their home, which resulted in unnecessary
foreclosures by the [Bank]?
Appellants’ Brief at 6. Bank asserts that the Wampoles waived all issues as
their brief fails to comply with the briefing rules outlined in the Pennsylvania
Rules of Appellate Procedure1 and their concise statement is vague and
overbroad. See Appellee’s Brief at 10-14. The Wampoles’ failure to specify
adequately the issue complained of on appeal and the brief’s failure to
____________________________________________
1
Specifically Pa.R.A.P. 2117, 2119, and 2131.
-4-
J-A06039-16
comply with the appellate rules may constitute sufficient grounds to find
waiver on these issues. See Pa.R.A.P. 1925; Pa.R.A.P. 2119. Nonetheless,
we decline to find waiver and address the Wampoles’ claim.
Pursuant to Pennsylvania Rule of Civil Procedure 3132,
[u]pon petition of any party in interest before delivery of
the personal property or of the sheriff’s deed to real
property, the court may upon proper cause shown, set
aside the sale and order a resale or enter any other order
which may be just and proper under the circumstances.
Pa.R.C.P. No. 3132. “The burden of proving circumstances warranting the
exercise of the court’s equitable powers is on the petitioner.” Merrill Lynch
Mortgage Capital v. Steele, 859 A.2d 788, 792 (Pa. Super. 2004) (citation
omitted). “The decision to set aside a sheriff’s sale is governed by equitable
considerations, and this Court will not reverse the trial court’s decision
absent an abuse of discretion.” See Nationstar Mortgage, LLC v. Lark,
73 A.3d 1265, 1267 (Pa. Super. 2013) (citation omitted). “An abuse of
discretion occurs if there was an error of law or the judgment was manifestly
unreasonable or the result of partiality, prejudice, bias or ill will.” Silver v.
Thompson, 26 A.3d 514, 516 (Pa. Super. 2011) (citation omitted).
The Wampoles’ sole argument is that Bank’s entrance into a consented
fine, with the Consumer Financial Protection Bureau (“CFPB”), for unfair and
deceptive trade practices warrants equitable relief because such practices
occurred in the instant matter. Simply, the Wampoles are challenging the
underlying judgment using the same argument they previously asserted and
-5-
J-A06039-16
this Court found meritless. See Flagstar Bank, FSB, No. 1321 MDA 2013
at 3, 6.2
“The law of the case doctrine sets forth various rules that embody the
concept that a court involved in the later phases of a litigated matter should
not reopen questions decided by another judge of that same court or by a
higher court in the earlier matter.” Ario v. Reliance Ins. Co., 980 A.2d
588, 597 (Pa. 2009) (citation omitted). The law of the case doctrine exists
to ensure fundamental fairness in the justice system. Id. at 599.
Therefore, departure from such doctrine
is allowed only in exceptional circumstances such as where
there has been an intervening change in the controlling
law, a substantial change in the facts or evidence giving
rise to the dispute in the matter, or where the prior
holding was clearly erroneous and would create a manifest
injustice if followed.
Id. (quoting Commonwealth v. Starr, 664 A.2d 1326, 1332 (Pa. 1995)).
In the instant matter, there has been no intervening change in the
controlling law, and the prior holding was not clearly erroneous.
Additionally, although Bank did enter into a consented fine agreement with
CFPB subsequent to the previous judgment, this fact, by itself, does not
____________________________________________
2
“[The Wampoles] claims that [t]he[y] ‘never in good faith defaulted on the
mortgage.’ Rather, [t]he[y] explain[] that Bank suggested [t]he[y] apply
for a modification before any default had occurred. [The Wampoles] further
asserts that [t]he[y] complied with all of Bank’s instructions regarding the
modification, but that Bank misled [them] and caused delays and difficulties
that impacted the loan modification.” See Flagstar Bank, FSB, No. 1321
MDA 2013 at 3.
-6-
J-A06039-16
constitute a substantial change in the facts or evidence, does not change the
circumstances regarding the default sub judice,3 and does not warrant
equitable relief.
Furthermore, in Bornman v. Gordon, 527 A.2d 109, 112 (Pa. Super.
1987), a tenant attempted to set aside a sheriff’s sale of personal property
to satisfy the judgment against her. Bornman, 527 A.2d at 112. This
Court held that it was not an abuse of discretion for the trial court to deny a
petition to set aside a sheriff’s sale where the record was clear that there
was no effort to satisfy the judgment regardless of whether she was
misinformed of the amount she was indebted. Id.
In the matter sub judice, the trial court, in addressing the petition to
set aside sheriff’s sale, found that during the time period after summary
judgment was entered and the sheriff’s sale occurred, the Wampoles lived at
the residence without having cured the mortgage or entered into an
agreement with Bank. See Trial Court Opinion, 10/20/15, at 3. As this
Court previously affirmed the underlying judgment, the trial court was not
presented with any substantial new evidence regarding said judgment, and
the Wampoles failed to establish that equitable considerations warranted
____________________________________________
3
In the underlying judgment, this Court found that the Wampoles failed to
produce evidence regarding statements denying the evidence of default and
did not specifically deny the mortgage was in default for non-payment. See
Flagstar Bank, FSB, No. 1321 MDA 2013 at 5.
-7-
J-A06039-16
relief, the trial court did not abuse its discretion when it denied the
Wampoles’ petition to set aside the sheriff’s sale.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/11/2016
-8-