Deutsche Bank v. Vorburger S. ( 2018 )

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
DEUTSCHE BANK NATIONAL TRUST : IN THE SUPERIOR COURT OF
CO. AS TRUSTEE FOR QUEST TRUST : PENNSYLVANIA
2006-XI, ASSET BACKED :
CERTIFICATES, SERIES 2006-XI :
:
v. :
:
SOPHIE CAHEN VORBURGER :
: No. 3440 EDA 2016
APPEAL OF: LAKE REGION :
DEVELOPMENT III, LLC :
Appeal from the Order Entered October 4, 2016,
in the Court of Common Pleas of Wayne County
Civil Division at No. 145-2007-Civil
BEFORE: PANELLA, J., OLSON, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED JANUARY 12, 2018
Lake Region Development III, LLC (“Lake”) appeals the order that
denied its petition to intervene and its petition to stay and set aside writ of
execution. After careful review, we affirm.
In December 2004, Sophie Cahen-Vorburger (“Cahen-Vorburger”)
acquired the property identified as Wayne County Tax Parcel No. 19-294-
0034.0005 and located at 19 or 20 Bone Ridge Road, Lakeville, Pennsylvania
(“Property”). On August 12, 2005, Cahen-Vorburger granted a mortgage to
Ameriquest Mortgage Company (“Ameriquest”) that was recorded in Wayne
County Record Book 2844 at page 1. This mortgage described the Property.
This mortgage did not list Cahen-Vorburger’s last name as
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“Cahen-Vorburger” but listed it as “Vorburger.” The Mortgage was indexed
under “V” in the Wayne County Recorder of Deeds. The deed to the
Property was indexed under “C.” Other mortgages for Cahen-Vorburger
were indexed under “C.” The Ameriquest Mortgage was assigned several
times between 2005 and 2007, with Deutsche Bank National Trust Co.
(“Deutsche Bank”) as trustee for Quest Trust 2006-XI, Asset Backed
Certificates, Series 2006-XI, the last assignee.
Cahen-Vorburger defaulted on the mortgage for the payment due
November 1, 2006. On March 2, 2007, Deutsche Bank filed a complaint in
mortgage foreclosure. Cahen-Vorburger did not file an answer. Deutsche
Bank filed a praecipe for judgment and assessment of damages which was
entered by the Wayne County Prothonotary on July 22, 2009. On petition by
Deutsche Bank and a corresponding order entered by the trial court on
August 21, 2012, Deutsche Bank filed a praecipe to enter judgment and
reassess damages on October 15, 2012. Writs of execution were issued in
2012 and 2013, but no sheriff’s sale was ever held.
Lake, a Pennsylvania limited liability company, acquired the Property
from the Tax Claim Bureau of Wayne County at a tax sale in 2014. The
deed was issued on September 8, 2014 and recorded in Wayne County
Record Book 4790 at page 93. Because Lake’s name was entered incorrectly
on the deed, a corrective deed was issued with the correct name. The new
deed was recorded in Wayne County Record Book 4794 at page 88. The
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Property was advertised to Tax Sale by the Wayne County Tax Claim Bureau
as the property of Sophie Cahen-Vorburger, based on a 2004 deed dated
December 8, 2004 and recorded in the Wayne County Record Book 2691 at
page 230.
On March 7, 2016, Deutsche Bank again praeciped for a writ of
execution. A sheriff’s sale was scheduled for June 1, 2016. On May 24,
2016, the sheriff’s sale was continued until September 7, 2016.
On July 27, 2016, Lake petitioned to intervene in the foreclosure
action and petitioned to stay and set aside the writ of execution issued on
March 7, 2016. In the petition to intervene, Lake alleged the following:
7. Prior to the 2014 Tax Sale, [Lake] had a title
search done for the property of Sophie Cahen-
Vorburger, as that is how the Property owner
was listed by the Wayne County Tax Claim
Bureau, which is consistent with her recorded
deed. The search disclosed 3 mortgages
against the Property, but not the Ameriquest
Mortgage, nor the Deutsche Bank Foreclosure
action, as they were not properly filed against
the Property.
8. [Lake] was notified in April of this year that the
Writ of Execution was issued for the Property
and a Sheriff Sale scheduled, which was
postponed until September 7, 2016.
9. [Lake] is seeking to set aside the Writ of
Execution based upon the Ameriquest
Mortgage not being perfected as alien [sic]
against the Property and the Mortgage
Foreclosure action was improperly filed.
10. [Lake] is an innocent purchaser for value and
the Writ of Execution should be set aside.
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Petition to intervene, 7/27/at 1-2 ¶¶ 7-10.
In the petition to stay and set aside the writ of execution, Lake
alleged:
10. [Lake] purchased the Property in reliance on
both the Tax Claim Bureau listing and the
records of the Recorder of Deeds, which were
accurate.
11. The Ameriquest Mortgage was assigned several
times, but every Assignment followed the same
mistake of listing the Mortgagor as Sophie
Cahen Vorburger, all of which were indexed as
Vorburger and not as Cahen-Vorburger. The
Assignments were questioned by [Deutsche
Bank] and an Order was entered by this Court
on July 12, 2013, striking three Assignments,
and that Order was also recorded in the
Recorder of Deeds Office in Record Book 4593
at page 23. . . .
12. Neither the Assignments of the Ameriquest
Mortgage, nor the 2013 Order . . . showed up
in the title search done on behalf of [Lake]
prior to the 2014 Tax Sale because they are all
indexed under “V” in the Recorder’s computer
index and not under “C”.
13. The Ameriquest Mortgage is defective as to the
mortgage lien that Ameriquest intended to put
on the Property because the Mortgagor was
not properly set forth on the Ameriquest
Mortgage and, as a result thereof, this
Mortgage Foreclosure and the Writ of
Execution issued are also defective.
14. [Lake] is an innocent purchaser of value
because [Lake] acquired the property, owned
by Sophie Cahen-Vorburger by paying
$21,826.00 to the Wayne County Tax claim
Bureau. [Lake] also made improvements to
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the Property in reliance upon the deed granted
it by the Tax Claim Bureau.
15. [Lake] only became aware of the Mortgage
foreclosure action and Writ of Execution when
it was recently served with the notice of
Sheriff’s sale.
16. While Deutsche Bank, as the Trustee for the
mortgage assets previously held by Ameriquest
and/or its assignees, apparently has a right to
pursue Sophie Cahen-Vorburger for
nonpayment on the mortgage loan, it does not
have a right to execute on a mortgage lien that
was not perfected against the Property, as the
named Defendant in the Writ was never the
owner of the Property.
Petition to stay and set aside writ of execution, 7/27/16 at 2-3 ¶¶ 10-16.
Deutsche Bank opposed the petitions. The trial court conducted a
hearing on the petitions on September 13, 2016. On October 4, 2016, the
trial court denied both petitions. The trial court reasoned that intervention
was improper because the mortgage foreclosure was not a pending action as
judgment had been entered. See Pa.R.C.P. 2327. The trial court also
determined that because intervention was improper, Lake did not have
standing to challenge the execution process as it was not a party.
Lake moved for reconsideration which the trial court denied on
October 24, 2016. Lake appealed to this court on November 3, 2016. On
November 10, 2016, the trial court ordered Lake to file a concise statement
of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). Lake
complied with the order on November 30, 2016.
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Lake raises the following issues for this court’s review:
1. Did the [trial] court err in denying [Lake’s]
petition to intervene pursuant to Rule 3183 of
the Pa Rules of Civil Procedure?
2. Did the [trial] court err in denying [Lake’s]
petition to set aside the writ of execution for
the sheriff’s sale of the property?
Lake’s brief at 6 (capitalization omitted).
“[I]t is well established that a ‘question of intervention is a matter
within the sound discretion of the trial court and unless there is a manifest
abuse of such discretion, its exercise will not be interfered with on review.’”
Nemirovsky v. Nemirovsky, 772 A.2d 988, 991-992 (Pa.Super. 2001),
quoting Wilson v. State Farm Mut. Auto Ins. Co., 517 A.2d 944, 947 (Pa.
1986). In deciding whether to grant or deny a petition to intervene, a trial
court must determine whether the petition’s allegations have been
established, and if they have, whether the allegations demonstrate that the
petitioner has sufficient interest to justify intervention. Marion Power
Shovel Co., Div. of Dresser Indus., Inc. v. Fort Pitt Steel Casting Co.,
Div. of Conval-Penn, Inc., 426 A.2d 696 (Pa.Super. 1981).
The trial court here relied on Rule 2327 of the Pennsylvania Rules of
Civil Procedure when it denied the petition to intervene on the basis that the
foreclosure action was no longer pending. Rule 2327 provides:
At any time during the pendency of an action, a
person not a party thereto shall be permitted to
intervene therein, subject to these rules if
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(1) the entry of a judgment will impose any
liability upon such person to indemnify in
whole or in part the party against whom
judgment may be entered; or
(2) such person is so situated as to be
adversely affected by a distribution or
other disposition of property in the
custody of the court or an officer thereof;
or
(3) such a person could have joined as an
original party in the action or could have
been joined therein; or
(4) the determination of such action may
affect any legally enforceable interest of
such person whether or not he may be
bound by a judgment in the action.
Pa.R.C.P. No. 2327.
In a similar case, Fin. Freedom SFC v. Cooper, 21 A.3d 1229
(Pa.Super. 2011), Financial Freedom SFC (“FF”) filed a complaint in
mortgage foreclosure against the Estate of Thelma Bruzdowski (“the Estate”)
on May 22, 2009. An amended complaint was filed on November 1, 2009.
No answer was filed. A default judgment was entered against the Estate on
December 14, 2009. On February 24, 2010, notice was given to any
lienholders that a sheriff’s sale would take place. Id. at 1230.
Abijah Immanuel (“Immanuel”) purchased the property that was
subject to foreclosure through a tax sale of the Tax Claim Bureau and
recorded a deed on November 30, 2009. Immanuel petitioned to intervene
in the foreclosure action on March 26, 2010. The Court of Common Pleas of
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Dauphin County denied the petition to intervene on the basis that the
mortgage foreclosure action was no longer pending. Id. at 1230-1231.
On appeal to this court, one of the issues raised by Immanuel was that
the Court of Common Pleas of Dauphin County erred when it denied his
petition to intervene without holding a hearing. This court applied Rule 2327
and determined that a petition to intervene could only be granted during the
pendency of an action. The court also determined that the foreclosure
action was pending from its inception until a final judgment was reached.
Because Immanuel did not file his petition to intervene until after the default
judgment was entered, he did not file it during the pendency of the
underlying action. Because it was not possible for Immanuel’s petition to be
granted, the Court of Common Pleas of Dauphin County did not abuse its
discretion when it declined to hold a hearing. Id. at 1231.
Here, Deutsche Bank commenced the mortgage foreclosure action on
March 2, 2007. Judgment was entered on July 22, 2009. On August 21,
2012, Deutsche Bank petitioned for leave to reassess damages. The trial
court granted the petition. On October 15, 2012, Deutsche Bank praeciped
to enter judgment and reassess damages. The prothonotary entered
judgment on October 15, 2012. Lake did not file its petition to intervene
until July 27, 2016. Because the petition to intervene was not filed until
years after judgment was entered, the foreclosure action was not pending.
The trial court properly denied the petition to intervene.
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Lake argues that the trial court erred because it did not apply
Rule 3183(d)(3) of the Pennsylvania Rules of Civil Procedure, entitled Stay
of Execution, Setting Aside Execution, when it decided the petition to
intervene. Rule 3183(d)(3) provides that “(d) The court may on application
of any party in interest set aside the writ or service . . . (3) upon any other
legal or equitable ground.” Pa.R.C.P. No. 3183(d)(3). Lake argues that it
was a party in interest because it purchased the Property at the tax sale.
Lake further argues that Rule 2327 is not applicable because that rule
governs a person attempting to intervene in a pending action.
This court does not agree with Lake’s analysis. First, Lake
mischaracterizes the meaning of Rule 2327. Rule 2327 provides that a
person not a party to an action may be permitted to intervene during the
pendency of an action if certain conditions are met. Lake treats Rule 2327
as only applying if an action is still pending, but that if an action is not
pending, Rule 2327 is not an impediment to intervention. This court does
not accept Lake’s reasoning. Rule 2327 provides the means for a person to
intervene in a current or pending action. Once the action is not pending, the
avenue to intervention is closed. Lake believes that once the action is not
pending, it can avoid the constraints of Rule 2327 to intervene. However, it
does not cite relevant case law to support its theory. Second, Lake ignores
the clear precedent of Cooper. In virtually the same factual situation, this
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court held that a person could not intervene in a foreclosure action once the
action was no longer pending.1
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/12/18
1 Because this court has determined that the trial court did not abuse its
discretion when it denied the petition to intervene, we need not address the
second issue regarding the denial of the motion to stay and set aside writ of
execution as appellant was not party to the litigation.
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