BR Holding Fund v, McKendrick, S. ( 2018 )

J-A29003-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
BR HOLDING FUND LLC : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
SHAHEIDA MCKENDRICK AND :
SHACONDA MCKENDRICK :
: No. 385 EDA 2018
Appellants :
Appeal from the Judgment Entered February 23, 2018
In the Court of Common Pleas of Philadelphia County
Civil Division at No(s): 01159 May Term, 2015
BEFORE: OTT, J., DUBOW, J., and STEVENS*, P.J.E.
JUDGMENT ORDER BY OTT, J.: FILED DECEMBER 31, 2018
Shaheida McKendrick and Shaconda McKendrick (collectively,
McKendricks) appeal the judgment entered February 23, 2018, in the Court of
Common Pleas of Philadelphia County, entered in favor of BR Holding Fund
LLC (BR Holding), following a nonjury trial and the denial of post-trial motions
in this mortgage foreclosure action. We grant the motion of BR Holding to
dismiss the appeal as moot.
In 2007, Shaheida McKendrick obtained a $765,000 loan from
Alternative Business Credit LLC. She executed a loan and promissory note for
the full sum of the loan balance, as well as a mortgage on her property at 113
South Street, Philadelphia. Later in 2007, Alternative Business Credit
transferred its interest in the loan documents to The Patriot Group, which in
turn transferred its interest to Fairway Fund III, LLC, in 2008. Meanwhile,
____________________________________
* Former Justice specially assigned to the Superior Court.
J-A29003-18
Shaheida McKendrick transferred a 50% ownership interest of the property to
her sister, Shaconda McKendrick. McKendricks defaulted and Fairway filed a
mortgage foreclosure action in 2009. That mortgage foreclosure action ended
in a judgment of non pros. Fairway thereafter assigned its interest to BR
Holding in 2014.
BR Holding filed the underlying mortgage foreclosure action in 2015
after McKendricks defaulted. Following the denial of cross motions for
summary judgment and McKendricks’ motion in limine, a non-jury trial was
held on June 26, 2017. On August 21, 2017, the trial court entered a
judgment in mortgage foreclosure in favor of BR Holding, and against
McKendricks, foreclosing all rights, title and interest in the real property at
113 South Street, Philadelphia. Damages were assessed at $1,866,100.85,
plus interest, and BR Holding was permitted to undertake any action necessary
to enforce the judgment in mortgage foreclosure, including but not limited to
selling the property at sheriff’s sale. See Judgment in Mortgage Foreclosure,
8/21/2017. Post-trial motions were denied by operation of law and
McKendricks filed this timely appeal.1
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1 Specifically, McKendricks claim (1) the trial court erred in failing to apply
Pa.R.C.P. 3051 (“Relief from Judgment of Non Pros”) as a prerequisite to BR
Holding’s filing a mortgage foreclosure action after the mortgage was the
subject of a non pros in the same court, (2) the verdict was against the weight
of the evidence in that there was no testimony that the Appellee as claimed
holder of the rights of its assignor was not subject to the order of non pros
and Rule 3051, and (3) the trial court erred by denying the motion in limine
based on an earlier denial of a summary judgment motion.
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BR Holding has filed a motion to dismiss this appeal, claiming that the
appeal is moot because the McKendricks did not file a supersedeas bond, and
the property was sold at a sheriff’s sale on November 9, 2018. Exhibit A
attached to BR Holdings’ application to dismiss shows that title to the property
was conveyed to BR Holding for $71,700.00, and that title was recorded on
November 19, 2018 with the Philadelphia County Recorder of Deeds.
“The sole purpose of a judgment obtained through mortgage foreclosure
is to effectuate a judicial sale of the mortgaged real estate[.]” Insilco Corp.
v. Rayburn, 543 A.2d 120, 123 (Pa. Super. 1988). Pa.R.A.P. 1733 sets forth
requirements for supersedeas in mortgage foreclosure actions.
Based on our review, we agree with BR Holdings’ position that
McKendricks’ failure to post any security, pursuant to Pa.R.A.P. 1733, renders
this appeal moot as McKendricks no longer have any interest in the subject
property. See Deutsche Bank v. Butler, 868 A.2d 574, 576 (Pa. Super.
2005) (“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
occur to eliminate the claim or controversy at any stage in the process, the
case becomes moot.”). Accordingly, we grant the motion of BR Holding to
dismiss the appeal as moot.
Motion to dismiss the appeal as moot granted.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/31/18
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