Citibank, N.A. v. Toole, K. ( 2019 )

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
CITIBANK, N.A. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
KAREN S. TOOLE, : No. 1292 EDA 2018
:
Appellant :
Appeal from the Order, April 2, 2018,
in the Court of Common Pleas of Northampton County
Civil Division at No. C-48-CV-2017-06199
BEFORE: GANTMAN, P.J., McLAUGHLIN, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED APRIL 17, 2019
Karen S. Toole appeals pro se from the April 2, 2018 order entered by
the Court of Common Pleas of Northampton County that denied and
dismissed her motion to set aside sheriff’s sale for failure to prosecute the
motion. After careful review, we dismiss appellant’s appeal.
The record reflects that on January 31, 2002, appellant made,
executed, and delivered a mortgage for real property located at
1729 Washington Avenue, Northampton, Pennsylvania 18067-1513
(“Property”) to Cardinal Financial Company, Ltd. Partnership. The mortgage
was assigned to Citibank, N.A. (“appellee”) as indicated by an assignment of
mortgage recorded on March 6, 2017 in the Office of the Recorder of Deeds
of Northampton County.
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On July 11, 2017, appellee commenced an action in mortgage
foreclosure and alleged that the mortgage was in default because appellant
failed to render a monthly payment due on September 1, 2016, and had
failed to render any monthly payments due thereafter. On October 20,
2017, appellee served notice of its intent to seek default judgment if a
response to the complaint was not filed in ten days. On November 7, 2017,
after appellant failed to file a written response to the complaint, an in rem
judgment was entered in appellee’s favor and against appellant in the
amount of $78,272.49, and appellee praeciped for a writ of execution. The
Property was sold at the sheriff’s sale for $48,000 to Petra Holdings, LLC
(“Petra”) on February 9, 2018.
On February 14, 2018, appellant moved to set aside the sheriff’s sale.
In the motion, appellant alleged that the entire judgment should be struck,
because there never really was a mortgage, thereby rendering the
foreclosure unlawful and void; that the foreclosure lawsuit should have been
barred by public policy; and that under the United States Constitution, all
money judgments were effectively abolished in 1932 when the United States
“generally started using unqualified bank currency instead of redeemable
gold and silver instruments.” (Motion to set aside sheriff’s sale, 2/14/18
at 16.) Appellant failed to appear for a hearing on March 23, 2018;
therefore, the trial court denied and dismissed appellant’s motion to set
aside on the grounds that she failed to pursue the motion.
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On April 10, 2018, the sheriff of Northampton County acknowledged
the sheriff’s deed. The sheriff filed the deed poll on April 11, 2018. On
April 23, 2018, the sheriff’s deed that conveyed the Property to Petra was
recorded in the Office of the Recorder of Deeds of Northampton County.
Appellant filed a timely notice of appeal on April 26, 2018.1 The
following day, the trial court ordered appellant to file a concise statement of
errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). On April 30,
2018, appellant complied with the order. The trial court filed a statement
pursuant to Pa.R.A.P. 1925(a) on May 7, 2018.
On June 4, 2018, this court, in a per curiam order, directed appellant
to show cause why the appeal should not be dismissed as moot because “the
mortgagee may already [have] executed on the judgment and the property
may be now owned by the mortgagee under a recorded Sheriff’s deed.”
(Order, 6/4/18 at 1.)
In a response filed June 8, 2018, appellant asserted that the appeal
was not moot. Specifically, appellant contended:
[W]e are only talking about ‘title’ to the real property
and not ‘possession’. The Superior Court has a real
and justiciable controversy to review here, which is
the Appellant[’]s Motion or Petition that was before
the trial court, seeking to vacate the void foreclosure
judgment and to set-aside [sic] the unlawful and
incompliant Sheriff Sale, and also seeking ‘equitable
relief’, and relief that was due as a matter of
1 While the order denying and dismissing appellant’s motion to set aside
sheriff’s sale is dated March 23, 2018, the order was not entered on the
docket until April 2, 2018. We have changed the caption accordingly.
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constitutional law, which naturally includes ordinary
sale price redemption.
“Appellant Karen S. Toole ‘Showing Cause’ Why the Appeal ‘Should Not Be
Dismissed as Moot,’” 6/8/18 at 2 (emphasis in original).
By per curiam order dated June 18, 2018, this court discharged the
rule and permitted the appeal to proceed. In the order, we cautioned the
parties that the issue of mootness may be revisited by the merits panel and
that the parties should be prepared to address in their briefs any concerns
the panel may have concerning the issue. (Order, 6/18/18 at 1.)
Preliminarily, we must first address the issue of mootness as raised by
appellee. Appellee contends that this appeal is moot and therefore should
be quashed. (See appellee’s brief at 9-10.) Specifically, appellee argues
that the appeal before us is moot because appellant has been “divested of all
interest in the Property upon the acknowledgment and recording of the
Sheriff’s Deed[,]” by Petra Holdings, LLC. (Id. at 10.) Appellee further
notes that appellant failed to obtain a supersedeas or stay pending appeal
following the trial court’s denial of appellant’s motion to set aside the
sheriff’s sale. In her reply brief, appellant avers that the sheriff’s deed “does
not make anything moot, because the Superior Court is still capable of
effectuating a judicial decision.” (Appellant’s reply brief at 1 (quotation
marks omitted).)
“Generally, an actual claim or controversy must be
present at all stages of the judicial process for the
case to be actionable or reviewable. . . . If events
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occur to eliminate the claim or controversy at any
stage in the process, the case becomes moot.”
J.S. v. Whetzel, 860 A.2d 1112, 1118 (Pa.Super.
2004) (quotation marks and citation omitted). “An
issue can become moot during the pendency of an
appeal due to an intervening change in the facts of
the case or due to an intervening change in the
applicable law.” In re Cain, [] 590 A.2d 291, 292
([Pa.] 1991). “An issue before a court is moot if in
ruling upon the issue the court cannot enter an order
that has any legal force or effect.” Rivera v.
Pennsylvania Dept. of Corrections, 837 A.2d 525,
527 (Pa.Super. 2003).
Deutsche Bank Nat. Co. v. Butler, 868 A.2d 574, 577 (Pa.Super. 2005).
In Deutsche Bank, the appellant, Philip Stout, purchased a parcel of
real property at a sheriff’s sale. Id. at 576. Due to a bidding mistake on
the part of its counsel during the sheriff’s sale, Deutsche Bank filed a petition
to set aside the sheriff’s sale, which was granted by the trial court. Id.
Additionally, the trial court rescheduled the sheriff’s sale. Id. Mr. Stout filed
a notice of appeal from the trial court’s order; however, he failed to obtain a
supersedeas of the order at issue, and the property in question was sold at
the subsequent sale. Id. at 577. This court found that there was nothing of
record indicating that Deutsche Bank owned the property in question, and
ultimately dismissed Mr. Stout’s appeal on mootness grounds because an
order declaring the first sheriff’s sale valid would have no effect because the
property at issue was sold during the subsequent sheriff’s sale. Id.
The Deutsche Bank court also noted that Mr. Stout “did not exhaust
his remedies in preventing this issue from becoming moot.” Id. at 578.
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Specifically, we found that while Mr. Stout did initiate supersedeas
proceedings, he never posted the bond set by the trial court, nor did he file a
motion contesting the amount of the bond. Id. at 577, 578.
Here, the controversy at issue was eliminated when appellant was
divested of all interest in the Property. Indeed, appellant is no longer an
aggrieved party because she no longer has any immediate, direct,
pecuniary, or substantial interest in the Property. See Insilco Corp. v.
Rayburn, 543 A.2d 120, 125-126 (Pa.Super. 1988). As noted by appellee,
appellant was divested of all interest in the Property when the sheriff’s deed
was acknowledged and recorded. See Wells Fargo Bank, N.A. v. Long,
934 A.2d 76, 80 (Pa.Super. 2007). Similar to Mr. Stout in Deutsche Bank,
appellant failed to obtain a supersedeas or stay pending appeal following the
trial court’s denial of appellant’s motion to set aside the sheriff’s sale.
Accordingly, we find that appellant does not have any interest in the
Property and her appeal is moot.
Appeal dismissed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/17/19
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