Ocwen Loan Servicing v. Lewis, D. ( 2018 )

J-A05017-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
OCWEN LOAN SERVICING, LLC : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DEBORAH AND MARK LEWIS :
:
Appellant : No. 1924 EDA 2017
Appeal from the Order Dated April 26, 2017
In the Court of Common Pleas of Philadelphia County Civil Division at
No(s): August Term, 2016 No. 04446
BEFORE: DUBOW, J., MURRAY, J., and STEVENS*, P.J.E.
JUDGMENT ORDER BY MURRAY, J.: FILED JANUARY 30, 2018
Deborah and Mark Lewis (Appellants) have filed a pro se appeal
purportedly challenging the settlement agreement in this ejectment action
filed by their former mortgagee, Ocwen Loan Servicing, LLC (Ocwen). We
quash this appeal as improperly taken.
In 2013, Ocwen commenced a mortgage foreclosure suit against
Appellants, related to Appellants’ residential property in Philadelphia. At a
bench trial on August 21, 2015, before a verdict was returned, the parties
entered into a consent judgment in favor of Ocwen. Subsequently, Ocwen
purchased the property at sheriff’s sale and recorded a deed on August 26,
2016.
Six days later, on September 1, 2016, Ocwen filed the instant
ejectment action against Appellants, who were still residing in the property.
Appellants filed numerous pro se motions averring fraud. The case
____________________________________
* Former Justice specially assigned to the Superior Court.
J-A05017-18
proceeded to trial and a jury was selected, though not sworn in. On March
30, 2017, Ocwen argued a motion in limine to preclude Appellants from
presenting any arguments relating to the concluded foreclosure action. The
court granted the motion, at which point Appellants acknowledged that they
could not proceed. N.T., 3/30/17, at 32 (Appellant Mark Lewis stating, “[I]f
our situation is, based on the fact that we can’t move forward anyway,
because you’re not in the position [of hearing any issues relating to the
underlying mortgage or foreclosure judgment] why are we involving the jury
at this point[?]”). Following discussion off the record, Appellants agreed to
vacate the property within 60 days and the case was marked “settled” on
the trial docket. Notably, the trial court stated on the record that Appellants
could not appeal their own agreement to vacate the property. Id. at 35.
Nevertheless, beginning on April 18, 2017, Appellants filed a series of
pro se motions, claiming fraud, challenging the mortgage foreclosure and
the ejectment action, and alleging that the trial court lacked subject matter
jurisdiction. The court denied these motions and Appellants filed a notice of
appeal on June 9, 2017.
Our Supreme Court has stated:
A consent decree is not a legal determination by the court of the
matters in controversy but is merely an agreement between the
parties-a contract binding the parties thereto to the terms
thereof. As a contract, the court, in the absence of fraud,
accident or mistake, had neither the power nor the authority to
modify or vary the terms set forth….
Lower Frederick Twp. v. Clemmer, 543 A.2d 502, 510 (Pa. 1988)
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J-A05017-18
(citations omitted). See also Brown v. Commonwealth, Dept. of
Health, 434 A.2d 1179, 1181 (Pa. 1981) (“Ordinarily, a party who consents
to, or acquiesces in, a judgment or order cannot appeal therefrom.”);
Karkaria v. Karkaria, 592 A.2d 64, 72 (Pa. Super. 1991) (“A party who has
acquiesced in an order or judgment will not later be heard to challenge it.”).
The trial court and Ocwen both argue that because Appellants
knowingly and voluntarily agreed to vacate the property, their attempt to
appeal from the settlement agreement is improper. Trial Ct. Op. at 4-5;
Ocwen’s Brief at 15-16. Based on the foregoing authority, we agree. We
therefore quash this appeal and direct the Prothonotary to strike this case
from the argument session scheduled for February 27, 2018.
Appeal quashed. Case stricken from argument list. Jurisdiction
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/30/2018
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