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HomeMy WebLinkAbout08-0394UDREN LAW OFFICES, P.C. ATTORNEY FOR PLAINTIFF BY: Mark J. Udren, Esquire ATTY I.D. NO. 04302 WOODCREST CORPORATE CENTER 111 WOODCREST ROAD, SUITE 200 CHERRY HILL, NJ 08003-3620 856-669-5400 HOUSEHOLD REALTY CORPORATION, = COURT OF COMMON PLEAS CIVIL DIVISION Plaintiff = Cumberland County VS. NO. ?$ - 394 aivi l (ern WAYNE SHIRK and SUSAN SHIRK Defendants NOTICE TO DEFEND YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. LAWYERS REFERRAL SERVICE Cumberland County Bar Association 32 S. Bedford Street Carlisle, PA 17013 AVISO Le han demandado a usted en la corte. Si usted quiere defenderse de estas demandas expuestas en las paginas siguientes, usted tiene veinte (20) dias de plazo al partir de la fecha de la demanda y la notificacion. Hace falta ascentar una comparencia escrita o en persona o con un abogado y entregar a la corte en forma escrita sus defensas o sus objeciones a las demandas en contra de su persona. Sea avisado que si usted no se dafiende, la corte tomara medidas y puede continuar la demanda en contra suya sin previo aviso o notificacion. Ademas, la carte puede decidir a favor del demandante y requiere que usted cumpla con todas las provisiones de esta demanda. Usted puede perder dinero o sus propiedades u otros derechos importantes para usted. LLEVE ESTA DEMANDA A UN ABOGADO IMMEDIATAMENTE, SI NO TIENE ABOGADO O SI NO TIENE EL DINERO SUFICIENTE DE PAGAR TAL SERVICIO, VAYA EN PERSONA O LLAME POR TELEFONO A LA OFICINA CUYA DIRECCION SE ENCUENTRA ESCRITA ABAJO PARA AVERIGUAR DONDE SE PUEDE CONSEGUIR ASISTENCIA LEGAL. LAWYERS REFERRAL SERVICE Cumberland County Bar Association 32 S. Bedford Street Carlisle, PA 17013 UDREN LAW OFFICES, P.C. BY: Mark J. Udren, Esquire ATTY I.D. NO. 04302 ATTORNEY FOR PLAINTIFF WOODCREST CORPORATE CENTER 111 WOODCREST ROAD, SUITE 200 CHERRY HILL, NJ 08003-3620 856-669-5400 HOUSEHOLD REALTY CORPORATION, COURT OF COMMON PLEAS € CIVIL DIVISION Plaintiff € Cumberland County VS. NO. WAYNE SHIRK and SUSAN SHIRK Defendants COMPLAINT TO QUIET TITLE Plaintiff, Household Realty Corporation, by and through undersigned counsel, and by way of Complaint to Quiet Title with respect to premises located 1827 Ritner Highway, Shippensburg, PA, says: THE PARTIES Plaintiff is Household Realty Corporation ("Plaintiff' or "Household"). 2. Household was the holder of the mortgage given by the former owners, Steve L. Nenninger and Susan E. Nenninger ("Nenningers"), from original lender Conseco Bank, Inc., said mortgage having been recorded on February 27, 2002, with the recorder of Deeds at Cumberland County, PA, in Book 1750 Page 2316 ("Nenninger Mortgage") 3. The Nenningers owned the real property located at 1827 Ritner Highway, North Newton Township, Cumberland County, Pennsylvania ("Property"). 4. Based upon the Nenningers' default of the mortgage, foreclosure proceedings were filed by Household in the Cumberland County, Pennsylvania Court of Common Pleas, No. 05-2286 Civil Term on May 3, 2005. 5. Judgment in mortgage foreclosure was entered in favor of Household on September 2, 2005. 6. The Property was exposed to sheriff's foreclosure sale on December 7, 2005 ("Foreclosure Sale"). 7. Mortgage Electronic Registration Systems, Inc. ("MERS") was the successful bidder at Sheriff's Sale and purchased the Property as "Attorney on the Writ". 8. The Property was further exposed to Cumberland County Tax Claim Bureau Upset Tax Sale on December 8, 2005 ("Tax Sale"). 9. The successful purchaser at Tax Sale was James Halkias ("Halkias") for the bid amount of $6,503.96. 10. On February 8, 2006, the Sheriff of Cumberland County, conveyed the Property to Household Realty Corporation as MERS' successor/assignee in interest ("Foreclosure Deed"). 11. No Objections or Exceptions or any other attempts were made by Halkias to set aside the sheriff's sale or strike the Foreclosure Deed. 12. On February 13, 2006, the Tax Claim Bureau recorded a Deed to Halkias ("Tax Deed"). 13. On March 6, 2006, Plaintiff filed a Lis Pendens against the Property to serve notice of its interest in the Property. 14. Plaintiff served a copy of the Lis Pendens upon Halkias. 15. On March 20, 2006, Halkias transferred any interests he had in the Property by deed to Wayne Z. Shirk and Susan S. Shirk ("Shirks") for consideration ("Shirk Deed"). QUIETING TITLE 16. At the time the Tax Deed to Halkias was recorded, the Property had already been conveyed to and owned by the Plaintiff as a result of the recorded Foreclosure Deed. IT At the time the Property was transferred by Halkias to the Shirks, the Property had already been conveyed and owned by the Plaintiff as a result of the recorded Foreclosure Deed. 18. Halkias took ownership of the Property subject and subordinate to the Plaintiff's ownership interest in the Property. 19. In turn, Halkias conveyed the Property to the Shirks subject and subordinate to the Plaintiff's ownership interest in the Property. 20. Based upon information and belief, Halkias' realized a significant profit from the sale of the Property to Shirk. 21. Based upon information and belief, the Shirks have been utilizing the Property as a rental unit to collect rental proceeds. 22. Despite demand, the Shirks continue to wrongfully retain possession of the Property in contravention of Plaintiff's legal and rightful ownership interests in the Property and continues to refuse to acknowledge Plaintiff's legal and rightful ownership interests in the Property. 23. Plaintiff's rights have been substantially prejudiced and continue to be substantially prejudiced by the Shirks' unlawful possession of the Property. WHEREFORE, Plaintiff, Household Realty Corporation, seeks Judgment 1) Quieting Title to real property known and located at 1827 Ritner Highway, North Newton Township, Cumberland County, Pennsylvania; 2) confirming that the Shirks' interests in the Property is subject to and subordinate to the ownership interests of Household Realty Corporation; 3) ordering that the Shirks surrender possession of the Property to Plaintiff. Respectfully submitted, UDREN LAW OF P By: Attorney for Plaintiff Woodcrest Corporate Center 111 Woodcrest Road, Suite 200 Cherry Hill, NJ 08003 856-669-5400 z UI A a w ro A 0 0 U 3 q o. b0 q? N 1-4 w. w: ? c a ? ?' a v o ? O ? ? oo O 00 c4 v 72u s b s `° t a v y r. y lz7zHU ? ` ? '? t cd a J Fn a :Ly v ? ? o m S . N F 9 p o a .? U .u0 .q ? y p 0 t? w F' CA NDp 0 O •q at 40 o y o . 5 a co 1 UDREN LAW OFFICES, P.C. ATTORNEY FOR PLAINTIFF BY: Alan M. Minato, Esquire ATTY I.D. NO. 75860 WOODCREST CORPORATE CENTER 111 WOODCREST ROAD, SUITE 200 CHERRY HILL, NJ 08003-3620 856-669-5400 pleadings@udren.com Household Realty Corporation € COURT OF COMMON PLEAS € CIVIL DIVISION Plaintiff Cumberland County V. Wayne Shirk and Susan Shirk NO. 08-394 Civil Term Defendants ACCEPTANCE OF SERVICE I accept service this day of 1?j v <.-_?' _, 2008, of the Quiet Title Complaint being served in the above captioned matter upon Defendants, Wayne Shirk and Susan Shirk, and state that I am authorized to do so. Robert G. Frey, Esquire Attorney for Defendants, Wayne Shirk and Susan Shirk rya P n co f ?i; (D C-5 rn C ..., :7 -r- 3Z HOUSEHOLD REALTY CORPORATION: IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA VS. : CIVIL ACTION - LAW WAYNE SHIRK and SUSAN SHIRK, NO. 08-394 Civil Term Defendants ANSWER AND NOW, comes Wayne Shirk and Susan Shirk, Defendants, by and through Frey & Tiley Attorneys at Law and respectfully answer the Complaint of Plaintiff as follows: 1. Admitted 2. Denied. The allegations contained in paragraph number 2 are within the exclusive knowledge and control of Plaintiff. Strict proof at trial, if relevant, is demanded. 3. Denied. The allegations contained in paragraph number 3 are within the exclusive knowledge and control of Plaintiff. Strict proof at trial, if relevant, is demanded. 4. Denied. The allegations contained in paragraph number 4 are within the exclusive knowledge and control of Plaintiff. Strict proof at trial, if relevant, is demanded. By way of further answer, the documents filed to no. 05-2286 Civil Term are of public record and speak for themselves. 5. Admitted in part, denied in part. It is admitted that a judgment was entered. However, it is denied that the judgment was in favor of Household as it is believed from a review of the record that judgment was entered in favor of Mortgage Electronic Registration Systems, Inc., hereinafter referred to as "MERS". 6. Admitted. 7. Admitted. 8. Admitted. 9. Admitted. 10. Admitted in part, denied in part. It is admitted that a deed from the Sheriff of Cumberland County to Household Realty was recorded on February 8, 2006. It is denied that the real estate was conveyed that day. Under well settled Pennsylvania law, title was actually conveyed on the date of the Sheriff's sale on December 8, 2005. The recording of the deed on February 8, 2006 merely confirmed the conveyance previously made. 11. Denied. The allegations contained in paragraph number 11 are within the exclusive knowledge and control of Plaintiff or others. Strict proof at trial, if relevant, is demanded. 12. Admitted. 13. Admitted in part, denied in part. It is admitted that Household filed a praecipe to the tax claim file which attempted to place a lis pendens on the real estate. However, Household filed the praecipe after the tax sale had been confirmed absolutely with no exceptions filed by Household and Household failed to have the attempted Us pendens indexed against Halkias who was then the owner of the property. Therefore, Household failed to give notice to anyone of its purported claim through its filing of the praecipe. 14. Denied. The allegations contained in paragraph number 14 are within the exclusive knowledge and control of Plaintiff or others. Strict proof at trial, if relevant, is demanded. 15. Admitted. 16. Denied. The Property was conveyed to Household by the Sheriff s Sale on December 7, 2005. The Property then owned by Household was exposed to tax sale on December 8, 2005 and was sold to Halkias. The tax deed to Halkias was confirmation of the sale of the Property formerly owned by Household to Halkias. 17. Denied. As stated above, Household's ownership interest in the Property was extinguished when it was sold at the tax sale on December 8, 2005. 18. Denied. As stated above, Household's ownership interest in the Property was extinguished when it was sold at the tax sale on December 8, 2005. Therefore, Halkias took the property free and clear of Household's ownership interest which was extinguished by the tax sale on December 8, 2005. 19. Denied. As stated above, Household's ownership interest in the Property was extinguished when it was sold at the tax sale on December 8, 2005. Therefore, the conveyance by Halkias was free and clear of any interest of Household. 20. Denied. The allegations contained in paragraph number 20 are within the exclusive knowledge and control of Plaintiff or others. Strict proof at trial, if relevant, is demanded. 21. Admitted. 22. Admitted in part, denied in part. It is admitted that Shirks retain ownership and possession of the property. It is denied that wrongful and it is further denied that Household has any interest whatsoever in the Property. 23. Denied. Household's rights in the Property were legally and properly extinguished through a tax sale of the Property. Any prejudice to Household is the result of its failure to timely act to protect its rights pursuant to the tax sale. WHEREFORE, Defendants respectfully request judgment in favor of Defendants and against Plaintiff on the Complaint of Plaintiff. NEW MATTER RES JUDICATA and COLLATERAL ESTOPPEL 24. Paragraphs 1 through 23 are incorporated herein by reference. 25. On July 12, 2006, Household filed in the office of the Prothonotary of Cumberland County to file number 05-6758 a "Petition to Set Aside and/or Strike Public Tax Upset Sale of Property or Alternatively, to Order Upset Tax Sale Purchaser to Satisfy Mortgage. Household later filed an amended petition to the same term and number. The contents of the proceedings filed to no. 05-6758 are incorporated herein by reference. 26. The Petitioner in that action was Household Realty Corporation. Household's amended petition joined Wayne Z. Shirk and Susan S. Shirk as Respondents. Thus, the parties to that action and the within action are identical. 27. The matter sued upon was the effect of the tax sale held December 7, 2005 as it pertained to the ownership of 1827 Ritner Highway, North Newton Township, Cumberland County, Pennsylvania. Thus, the matter sued upon and the Property in that action and in the within action are identical. 28. Among the items sought by Household in the prior action was that the Court set aside or strike the tax sale of the Property or "otherwise declare it null and void" and ordering that the deed to Halkias and the subsequent deed to the Shirks be stricken of record. In the within action Household seeks to quiet title to the Property against the Shirks in favor of Household. Thus, the cause of action and the relief sought in that action and in the within action are identical. 29. Counsel for Household and in the prior action and in the within action are identical. 30. A hearing was held on July 16, 2007 at which testimony was taken. The Shirks were present and testified at the hearing and counsel for Household had the opportunity to cross examine them under oath. 31. The issues raised were briefed and argued before the Court on August 23, 2007. Household filed a brief through its counsel was represented by counsel at argument in open court. 32. Final judgment was entered in the prior action on September 18, 2007 in favor of the Shirks and against Household. A copy of the Order of Court and Opinion are attached hereto and incorporated herein as Exhibit "A". 33. No appeal was taken to that judgment. 34. In the Order and Opinion of Court, the Court recognized that an action to quiet title could have been an alternative means of challenging the tax sale and specifically found that the Petition filed by Household was an acceptable means of challenging the tax sale and that Household was "not limited to seeking relief in equity or in another civil proceeding such as an action to quiet title. (page 6) Therefore, that matters raised in the within action were finally decided by the Court in its Opinion and Order denying the Petition of Household. 35. Among the matters ruled upon in the Opinion and Order of Court were that "MERS purchased the property at a tax sale on December 7, 2005, one day before the upset tax sale on December 8, 2005" (page 10), MERS assigned the ownership it obtained at the mortgage foreclosure sale to Household Realty Corporation (page 3), and that MERS failed to protect its interest prior to the final decree of absolute confirmation (page 10). 36. The final judgment and determinations made in the prior action act as a bar to the within action under the doctrines of collateral estoppel and Res Judicata. 37. With a final judgment denying Household's request to have the sale to Shirks nullified, Household's action to quiet title is barred. WHEREFORE, Defendants respectfully request judgment in favor of Defendants and against Plaintiff on the Complaint of Plaintiff. Respectfully submitted; Frey & Tiley, Attorneys for Plaintiff By: Robert G. Frey, Esquire Supreme Court Number 46397 5 South Hanover Street Carlisle, Pennsylvania 17013 (717) 243-5838 I verify that the statements made herein are true and correct and understand that false statements herein are made subject to the penalties of 18 Pa. C. S. A. § 4904 relating to unswom falsification to authorities. Dated: February f I , 2008 lcf a . 1U,4 WAYNE' SHIRK e SUSAN SHIRK i i '? si ') 4 i? IN RE: PUBLIC UPSET SALE OF IN THE COURT OF COMMON PLEAS OF PROPERTIES HELD BY THE CUMBERLAND COUNTY, PENNSYLVANIA CUMBERLAND COUNTY TAX CLAIM BUREAU ON DECEMBER 8, 2005 TAX SALE LAW (1827 Ritner Highway, Shippensburg, PA Tax Parcel #30-11-0304-001) 05-6758 CIVIL TERM AND NOW, this ORDER OF COURT j4g-v---? day of September, 2007, the relief sought by petitioner, Household Realty Corporation, IS DENIED. Alan M. Minato, Esquire Woodcrest Corporate Center 111 Woodcrest Road, Suite 200 Cherry Hill, NJ 08003 For Household Realty Corporation Stephen D. Tiley, Esquire 5 South Hanover Street Carlisle, PA 17013 Solicitor, Cumberland County Tax Claim Bureau Norman M. Yoffe, Esquire 214 Senate Avenue, Suite 404 Camp Hill, PA 17011 For James P. Halkias Robert Frey, Esquire 5 South Hanover Street Carlisle, PA 17013 For Wayne Z. Shirk and Susan S. Shirk :sal IN RE: PETITION TO SET ASIDE TAX SALE OR ORDER SATISFACTION OF MORTGAGE IN RE: PUBLIC UPSET SALE OF IN THE COURT OF COMMON PLEAS OF PROPERTIES HELD BY THE CUMBERLAND COUNTY, PENNSYLVANIA CUMBERLAND COUNTY TAX CLAIM BUREAU ON DECEMBER 8, 2005 TAX SALE LAW (1827 Ritner Highway, Shippensburg, PA Tax Parcel #30-11-0304-001) 05-6758 CIVIL TERM IN RE: PETITION TO SET ASIDE TAX SALE OR ORDER SATISFACTION OF MORTGAGE OPINION AND ORDER OF COURT Bayley, J., September 18, 2007:-- Steve L. Nenninger and Susan E. Nenninger were the owners of 1827 Ritner Highway, North Newton Township, Cumberland County, Pennsylvania. They were in default of a mortgage on the property for which an action in foreclosure was filed on May 3, 2005 by the holder of the mortgage, Mortgage Electronic Registration Systems (MERS).' In July, 2005, as a result of the Nenningers failure to pay taxes, the Cumberland County Tax Claim Bureau notified them that their property would be sold at a tax sale. On December 7, 2005, the property was sold in foreclosure to MERS by the Sheriff of Cumberland County. The next day, December 8, 2005, the property was sold for the upset price at a tax sale to James Halkias.2 On December 29, 2005, on the petition of the Tax Claim Bureau, this court entered an order of confirmation nisi. On February 1, 2006, no objections or exceptions having been filed, a The original lender on February 28, 2002, was Conseco Bank, Inc. That mortgage was assigned to Conseco Finance Consumer Discount Company. That company then assigned the mortgage to MERS. The assignment dated October 20, 2005, was recorded on November 3, 2005, in the Office of the Recorder of Deeds of Cumberland County at Miscellaneous Book 689, Page 330. The address of MERS on the assignment is in Flint, Michigan. 2 The bid was for $6,503.96. 05-6758 CIVIL TERM final decree of absolute confirmation was entered. On January 30, 2006, the Tax Claim Bureau executed a deed, which was recorded on February 13, 2006, to James Halkias. The Sheriff of Cumberland County, by a deed executed on February 7, 2006, and recorded on February 8, 2006, conveyed the property to Household Realty Corporation, the assignee from MERS. On March 20, 2006, for the consideration of $65,000, James Halkias executed and recorded a deed to the property to Wayne Z. Shirk and Susan S. Shirk. On July 12, 2006, Household Realty Corporation filed a petition to "set aside and/or strike public tax upset sale of property or alternatively, to order upset tax sale purchaser to satisfy mortgage." On July 13, 2006, a Rule was entered upon the Cumberland County Tax Claim Bureau and James P. Halkias to show cause why petitioner was not entitled to the relief requested. A hearing was scheduled for August 10, 2006, which was continued. On December 29, 2006, Household filed an amended petition "to set aside and/or strike public tax upset sale of property or alternatively, to order petitioner to satisfy mortgage." This petition included Wayne Z. Shirk and Susan S. Shirk as respondents. A hearing was scheduled, which was continued. The hearing was conducted on July 16, 2007. The issues where briefed and argued on August 23, 2007. STANDING Respondents maintain that Household Realty Corporation does not have standing to seek the relief sought in its amended petition. The Real Estate Tax Sale Law, 72 P.S. Section 5860.101 et seq., at Section 607(g), provides: If no objections or exceptions are filed or if objections or -2- 05-6758 CIVIL TERM exceptions are finally overruled and the sale confirmed absolutely, the validity of the tax, its return for nonpayment, the entry of the claim, or the making of such claim absolute and the proceedings of the bureau with respect to such sale, shall not thereafter be inquired into judicially in equity or by civil proceedings by the person in whose name such property was sold, by a grantee or assignee, by any lien creditor or by any other person, except with respect to the giving of notice under the act, to the time of holding the sale, or to the time of petitioning the court for an order of sale. There shall be no period of redemption after such sale and the sale shall be deemed to pass a good and valid title to the purchaser, free from any liens or encumbrances whatsoever, except such liens as are hereafter specifically saved, and in all respects as valid and effective as if acquired by a sheriff's deed. (Emphasis added.) Household Realty Corporation was not the owner of 1827 Ritner Highway when this court entered an order of confirmation nisi on December 29, 2005. However, by a letter to the Sheriff of Cumberland County dated January 26, 2006, and received by the Sheriff on January 30, 2006, one day before the final decree of absolute confirmation of the tax sale was entered on February 1, 2006, MFRS provided notice that it was "assigning the bid and requesting the DEED be recorded in the name of Household Realty Corporation (MERS is acting/has acted as the agent for the real party in interest or beneficial owner), 1270 Northland Drive, Ste 200, Mendota Heights, MN 55120." The assignment to Household by MERS of the ownership it obtained at the mortgage foreclosure sale gives Household Realty Corporation standing in this post-confirmation judicial challenge to the tax sale.3 s Contrast the facts in First Horizon Loan Corporation v. Adams County Tax Claim Bureau, 847 A.2d 774 (Pa. Commw. 2004). -3- 05-6758 CIVIL TERM PROCEDURE Respondents maintain that Household's amended petition must be dismissed because they did not seek permission nunc pro tunc to file objections or exceptions to the tax sale. The Real Estate Tax Sale Law at Section 5860.607(a.1)(1) provides that notice shall be given by the Tax Claim Bureau within thirty days of the actual sale to each owner of the property: that the property was sold and that the owner may file objections or exceptions with the court relating to the regularity and procedures followed during the sale no later than thirty (30) days after the court has made a confirmation nisi of the consolidated return. (Emphasis added.)' Subsection 607(a.1)(2) sets forth the actual warning to be provided to the owner in this notice. Subsection 607(b.1), provides: If notice is given under subsection (a.1)(2), proof that notice under subsection (a.1)(1) was not received by the owner shall not defeat a sale nor invalidate title to property. If the mailed or published notice required under this section is defective or was served in an untimely manner, the court shall enter an order nunc pro tunc for cause and, upon proof of prejudice, shall grant the owner leave to file objections and exceptions. (Emphasis added.) 4 Section 102 of the Real Estate Tax Sale Law contains the following definition: "OWNER," the person in whose name the property is last registered, if registered according to law, or, if not registered according to law, the person whose name last appears as an owner of record on any deed or instrument of conveyance recorded in the county office designated for recording and in all other cases means any person in open, peaceable and notorious possession of the property, as apparent owner or owners thereof, or the reputed owner or owners thereof, in the neighborhood of such property; as to property having been turned over to the bureau under Article VII by any county, "owner" shall mean the county. -4- 05-6758 CIVIL TERM In In re The Property of Continental Motels, Inc., 32 Pa. Commw. 429 (1977), an owner of property sold at a tax sale filed a petition for leave to file objections and exceptions nunc pro tunc after the sale was confirmed and made absolute and a deed was transferred to the purchaser and recorded. The trial court granted the petition, and exceptions and objections were filed. The court then found the notice requirements had not been met, and an order was entered pursuant to Section 607(g), setting aside the sale. On appeal, the Commonwealth Court of Pennsylvania stated: The first issue before us is whether the use of a petition and rule to show cause is an improper procedure for the challenging of the validity of a tax sale after confirmation and recording of the tax deed. We note that here the petition and rule were not used to challenge the validity of the sale; rather, they were used simply to obtain leave to file the objections and exceptions by which such challenge was made. Nor do we find error in the lower court's permitting the property owner to file its objections and exceptions nunc pro tunc. While section 607(g) of the Law, 72 P.S. §5860.607(g), establishes generally the invulnerability of sales confirmed absolutely, that subsection expressly excepts allegations "as to the giving of notice as required by the act ..." and permits them to be heard after confirmation. The allegations here clearly fall within that exception. In the present case, the petition of Household is not brought under Section 607(b.1) which allows an owner leave to file objections and exceptions if published notices are defective or were served in an untimely manner in which case the court shall enter an order nunc pro tunc for cause and, upon proof of prejudice, grant the owner leave to file objections and exceptions. Rather, Household brought its petition, for which a rule was entered under Section 607(g), after the tax sale was confirmed absolutely. Section 607(g) limits relief "except with respect to the giving of notice under the act, to the time of holding the sale, or to the time of petitioning the court for an order -5- 05-6758 CIVIL TERM of sale." There is no time limit in Section 607(g) for seeking relief judicially, in equity or by civil proceedings. While the Commonwealth Court in In re The Property of Continental Motels, Inc., supra, concluded that a petition and rule to show cause was a proper procedure for challenging the validity of a tax sale after confirmation and recording of the tax deed, that procedure was not used to challenge the validity of the sale but was "used to simply obtain leave to file the objections and exceptions by which such a challenge was made." Notwithstanding, we are satisfied that Household's petition for a rule under Section 607(g) to judicially set aside this tax sale, even though it did not petition for leave to file objections and exceptions, is not precluded because there is no time limit under the Section for seeking relief. Household's judicial challenge is limited to the type of relief allowed under Section 607(g) after final confirmation and the Tax Bureau's transfer of the deed to Halkias, i.e., relief based on a claim of inadequate notice under the Real Estate Tax Sale Law. Therefore, no petition to proceed nunc pro tunc is required and Household is not limited to seeking relief in equity or in another civil proceeding such as an action to quiet title. PETITION TO SET ASIDE TAX SALE Until 1827 Ritner Highway was sold to the mortgagee MERS at the Sheriff's sale on December 7, 2005, the owners were the Nenningers. Household and respondents agree that the issue Household now raises pursuant to Section 607(g) as to "the giving of notice under the act," involves any notice that was required to be given to MERS. In Parkton Enterprises, Inc. v. Krulac, 53 Cumberland L.J. 84 (2003), the Sheriff of Cumberland County, on September 4, 2002, sold the property of Torres and Malave in -6- 05-6758 CIVIL TERM foreclosure to the first mortgagee and executing creditor. On September 26, 2002, the property was sold at an upset tax sale to the Krulacs, to whom a deed from the Cumberland County Tax Claim Bureau was recorded on December 2, 2002. The Tax Claim Bureau knew that the property was listed for a Sheriff's sale but did not check before the tax upset sale to determine if it was sold by the Sheriff. The Tax Claim Bureau did not provide the purchaser at the Sheriff sale with any notice of the tax sale. We concluded that even though the purchaser had knowledge that taxes were owed and overdue on the property, such knowledge did not equate to implied actual notice of the tax sale. We held that it was incumbent upon the Tax Claim Bureau, having received notice of a pending Sheriff sale, to use common sense business practices to make inquiry of the Sheriff before the tax upset sale on September 26, 2002, to determine if the property was sold. A check by the Tax Claim Bureau would have disclosed the sale by the Sheriff twenty-two days before the upset tax sale. We held that "[a]lthough the Tax Claim Bureau served all of the notices on the record owner within the timeframes required by the Real Estate Tax Law, the Bureau was constitutionally required to give notice to any new owner if reasonably ascertainable, which Parkton was." An order setting aside the tax sale was entered. The Commonwealth Court affirmed, stating: Certainly, as the trial court stated, it would have been reasonable for the Bureau to contact the Sheriff prior to the tax sale to determine whether there was a new owner of the Property. Because the Bureau failed to make a reasonable effort to discover the identity of the new owner of the -7- 05-6758 CIVIL TERM Property, i.e., Parkton, we conclude that the trial court properly set aside the Tax Upset Sale and quieted title in Parkton.5 In the case sub judice, 1827 Ritner Highway was sold by the Sheriff in foreclosure to MERS on December 7, 2005. The next day, December 8, 2005, the property was sold at the upset tax sale to James Halkias. Although the Cumberland County Tax Claim Bureau was not under any legal obligation to give any pre-sale notice to MERS as the mortgagee,' it nevertheless, having been involved in the Parkton case, and anticipating that the property might be sold to MERS at the Sheriff sale, sent MERS notice on October 6, 2005, of the tax sale scheduled for December 8, 2005, by two letters. One letter was sent to the address in Flint, Michigan, which is its address on the mortgage assignment to MERS recorded at Miscellaneous Book 689, Page 330. The Tax Bureau also sent MFRS a notice at another address in Elmhurst, Illinois. Each was sent by certified mail. The letter sent to Flint, Michigan, was signed for and delivered on October 9, 2005, and the one sent to Elmhurst, Illinois, was signed for and delivered on October 11, 2005. Each letter described the property at 1827 Ritner Highway, North Newton Township, Cumberland County, Pennsylvania, the owner as Steve L. and Susan E. Nenninger, and stated: The above property is scheduled for an Upset Tax Sale for the collection of delinquent real estate taxes on December 8, 2005. To avoid said sale, the following amount must be paid to the Tax Claim Bureau Parkton Enterprises, Inc. v. Krulac, 865 A.2d 295 (Pa. Commw. 2005). s Properties sold at an upset tax sale are conveyed "subject to the lien of every recorded obligation, claim, lien, estate, mortgage, ground rent and Commonwealth tax lien not included in the upset price with which said property may have or shall become charged or for which it may be come liable." 72 P.S. § 5860.609. -8- 05-6758 CIVIL TERM before the date of sale at the above address: Tax parcel no. 30-11-0304-001 $4,610.03 If you have any questions regarding these matters, please contact the Cumberland County Tax Claim Bureau at (717) 240-6366. Enclosed please find a copy of your mortgage. On December 9, 2005, the Cumberland County Tax Bureau sent MERS a post- sale notice that the property had been sold on December 8, 2005. Notice was sent to the Flint, Michigan, address and signed for and delivered on December 15, 2005; to the Elmhurst, Illinois, address and signed for and delivered on December 11, 2005; and to another address at 1270 Northland Drive, Suite 200, Mendota Heights, Minnesota, which was signed for and delivered on December 16, 2005. In each letter the 1827 Ritner Highway property was set out with a parcel number, and the notice, pursuant to Section 607(a.1)(2) of the Real Estate Tax Sale Law, set forth: WARNING "THE ABOVE PROPERTY HAS BEEN SOLD AT A TAX UPSET SALE ON DECEMBER 8, 2005 FOR THE COLLECTION OF DELINQUENT TAXES INCURRED IN THE MUNICIPALITY OF NORTH NEWTON TOWNSHIP, CUMBERLAND COUNTY, PENNSYLVANIA YOU MAY FILE OBJECTIONS OR EXCEPTIONS TO THE SALE IMMEDIATELY BUT NO LATER THAN THIRTY (30) DAYS FOLLOWING THE COMFIRMATION [SIC] NISI OF THE RETURN BY THE COURT. IF YOU HAVE ANY QUESTIONS PLEASE CALL YOUR ATTORNEY, THIS TAX CLAIM BUREAU AT THE FOLLOWING TELEPHONE NUMBER (717) 240-6366, OR THE COUNTY LAWYER REFERRAL SERVICE." Household now argues that the tax sale should be set aside because the pre- sale notice sent to MERS was not in the form required by Section 602(g) of the Real -9- 05-6758 CIVIL TERM Estate Tax Sale Law, which provides: All notices required by this section other than the newspaper notice and notice in the legal journal shall contain the following provision which shall be conspicuously placed upon said notices and set in at least 10- point type in a box as follows: WARNING "YOUR PROPERTY IS ABOUT TO BE SOLD WITHOUT YOUR CONSENT FOR DELINQUENT TAXES. YOUR PROPERTY MAY BE SOLD FOR A SMALL FRACTION OF ITS FAIR MARKET VALUE. IF YOU HAVE ANY QUESTIONS AS TO WHAT YOU MUST DO IN ORDER TO SAVE YOUR PROPERTY, PLEASE CALL YOUR ATTORNEY, THE TAX CLAIM BUREAU AT THE FOLLOWING TELEPHONE NUMBER , OR THE COUNTY LAWYER REFERRAL SERVICE." Household forgets that when the notices of the tax sale scheduled for December 8, 2005, were sent to MFRS on October 6, 2005, MERS was a mortgagee and there was no requirement to send it notice. Therefore, Household's position that the tax sale should now be set aside because of the form of the notices is chutzpah. MERS purchased the property at a tax sale on December 7, 2005, one day before the upset tax sale on December 8, 2005. The holding in Parkton, where the foreclosure sale occurred twenty-two days before the tax sale, thus triggering a requirement to send the purchaser notice of the tax sale, cannot realistically be applied here where the foreclosure sale was one day before the tax sale. Furthermore, the Tax Claim Bureau sent MERS a post-sale notice on December 9, 2005, one day after the tax sale, in the form required in Section 607(a.1)(2) of the Real Estate Tax Sale Law. It is inexplicable that MERS, having received pre-sale and post-sale notices, did not protect its interest prior to the final decree of absolute confirmation entered on February 1, 2006. -10- 05-6758 CIVIL TERM PETITION TO ORDER SATISFACTION OF MORTGAGE Household maintains in this Judicial proceeding to set aside a tax sale, that this court should order the purchaser, James Halkias, to satisfy the MERS mortgage. There is no such remedy. Besides, the Sheriff's sale discharged the lien of MERS' mortgage on 1827 Ritner Highway. See Pennsylvania Company v. Emmons, 338 Pa. 513 (1940).' Therefore, there was no lien of the MERS' mortgage on the property when it was purchased by Halkias and later purchased by the Shirks. ORDER OF COURT 1 AND NOW, this day of September, 2007, the relief sought by petitioner, Household Realty Corporation, IS DENIED. Alan M. Minato, Esquire Woodcrest Corporate Center 111 Woodcrest Road, Suite 200 Cherry Hill, NJ 08003 For Household Realty Corporation By thesCod-rt, Edgar B. Bayley, J. Stephen D. Tiley, Esquire 5 South Hanover Street Carlisle, PA 17013 Solicitor, Cumberland County Tax Claim Bureau ' However, the unpaid mortgage indebtedness continued to exist against the Nenningers. -11- 05-6758 CIVIL TERM Norman M. Yoffe, Esquire 214 Senate Avenue, Suite 404 Camp Hill, PA 17011 For James P. Halkias Robert Frey, Esquire 5 South Hanover Street Carlisle, PA 17013 For Wayne Z. Shirk and Susan S. Shirk :sal -12- ? `? `n z ? ? -? ? -r ..,? c ? ? ?-, :.?? --? W ?. ? ?,:? ° ` ? s n ._?, ,?. HOUSEHOLD REALTY CORPORATION: IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA VS. CIVIL ACTION -LAW WAYNE SHIRK and SUSAN SHIRK, NO. 08-394 Civil Term Defendants AFFIDAVIT OF SERVICE I, Robert G. Frey, do hereby certify that I have this day serving a certified copy of the Answer and New Matter upon the Plaintiff herein by mailing the same by first class United States mail postage prepaid to its counsel of record at the following address: Alan M. Minato, Esquire Udren Law Offices, P.C. 111 Woodcrest Road, Suite 200 Cherry Hill, NJ 08003 Dated: 2/13/08 G. Frey ,ate.. N, U .?rNµ j ;?vra A UDREN LAW OFFICES, P.C. ALAN M. MINATO, ESQ. ATTY. ID. NO: 75860 WOODCREST CORPORATE CENTER 111 WOODCREST ROAD, SUITE 200 CHERRY HILL, NJ 08003 (856) 669-5400 pleadings(--)udren.com HOUSEHOLD REALTY CORPORATION Plaintiff V. WAYNE SHIRK and SUSAN SHIRK Defendants ATTORNEY FOR PETITIONER CUMBERLAND COUNTY, PA CIVIL ACTION NO. 08-394 Civil Term HOUSEHOLD REALTY CORPORATION'S REPLY TO TO DEFENDANTS' NEW MATTER Plaintiff, Household Realty Corporation ("Household") by and through its undersigned counsel, replies to the New Matter filed by Defendants, Wayne Shirk and Susan Shirk, and states as follows: NEW MATTER RES JUDICATA AND COLLATERAL ESTOPPEL 24. Denied inasmuch as the documents speak for themselves. 25. Denied inasmuch as the documents speak for themselves. 26. Admitted that Household was the petitioner in the action described in this averment. The remaining averment is denied inasmuch as the documents speak for themselves and the relief sought herein was not disposed of by the court in the prior action nor were the parties identical to the parties herein. The court's ruling in the prior action only disposed of the issues surrounding the propriety of the Cumberland County Tax Claim Bureau's Upset Tax Sale 1 against the subject property and not the merits of Plaintiffs judgment against real property which was not extinguished by a subsequent upset tax sale. 27. Denied as a conclusion of law to which no response is required. By way of further reply, see response to number 26 hereinabove. 28. Denied as a conclusion of law to which no response is required. By way of further reply, see response to number 26 hereinabove. 29. Admitted. 30. Denied as a conclusion of law to which no response is required. 31. Denied as a conclusion of law to which no response is required. By way of further reply, see response to number 26 hereinabove. 32. Denied as a conclusion of law to which no response is required. By way of further reply, see response to number 26 hereinabove. 33. Denied as a conclusion of law to which no response is required. By way of further reply, see response to number 26 hereinabove. 34. Denied. Defendants' misquote the Court's Opinion at page 6. In fact, the Court held that "Household's judicial challenge is limited to the type of relief allowed under Section 607(g) after final confirmation [of the upset tax sale] and the Tax Bureau's transfer of the deed to Halkias, i.e., relief based on a claim of inadequate notice under the Real Estate Tax Sale' Law. Therefore, ... Household is not limited to seeking relief in equity or in another civil proceeding such as an action to quiet title." (emphasis added). Thus, the Court acknowledged that the only matter before it for disposition was the propriety of the Tax Claim's Bureau's Notice and Upset Tax Sale (under Section 607(g)) and Household was not precluded from bringing "another civil 2 proceeding such as an action to quiet title". Additionally, the ability of Household to bring a subsequent quiet title action was addressed on the record in the context of the respondents' argument that Household, was ostensibly, not without remedy if the tax sale was not set aside because it could pursue the quiet title action. Notwithstanding, Defendants now take the position that Plaintiff is barred from proceeding on the merits of its claims herein. 35. Denied as a conclusion of law to which no response is necessary. By way of further response, see response to numbers 26 and 34 hereinabove. 36. Denied as a conclusion of law to which no response is necessary. By way of further response, see response to numbers 26 and 34 hereinabove. 37. Denied as a conclusion of law to which no response is necessary. By way of further response, see response to numbers 26 and 34 hereinabove. WHEREFORE, Plaintiff prays and respectfully requests that the Honorable Court deny and dismiss, with prejudice, Defendant's New Matter and award judgment in Plaintiffs favor as prayed for in its Complaint. UDREN L FFICES, P.C. B• 7 Alan M. ina , Attorneys for Plaintiff 3 UDREN LAW OFFICES, P.C. STUART WINNEG, ESQ. ALAN M. MINATO, ESQ. ATTY. ID. NOS. 45362, 75860 WOODCREST CORPORATE CENTER 111 WOODCREST ROAD, SUITE 200 CHERRY HILL, NJ 08003 (856) 669-5400 ATTORNEY FOR PETITIONER HOUSEHOLD REALTY CORPORATION : CUMBERLAND COUNTY, PA Plaintiff CIVIL ACTION V. WAYNE SHIRK and SUSAN SHIRK NO. 08-394-Civil Term Defendants CERTIFICATE OF SERVICE I, Alan M. Minato, Esquire, hereby certify that I have served true and correct copy of Household Realty Corporation's Reply to New Matter of Defendants, Wayne and Susan Shirk, upon the following persons named herein at their last known address via electronic mail, facsimile and U.S. First Class Mail: Date Served: March 23, 2008 TO: Robert G. Frey, Esquire Frey & Tiley Attorneys as Law 5 South Hanover Street Carlisle, PA 17013 Attorney for Wayne Shirk and Susan Shirk UDREN LAW OFFICES, P.C. By: , Alan M. Minat , Attorney for Plaintiff, Household Realty Corporation r?? :r :-? -s? ? ? ?; i;- .. ,..wy ? ?',``,?+ ??,s s..? ??? ?,,. --,.??, T_ 'i "lip OF COURT OF COMMON HOUSEHOLD REALTY CORPORATION IN THE Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION -LAW vs. WAYNE SHIRK and SUSAN SHIRK, NO. 08-394 Civil Term Defendants DEFENDANTS' MOTION FOR SUMMARY JUDGMENT Defendants, Wayne Shirk and Susan Shirk, by and through their attorney, Robert G. Frey, respectfully request your Honorable Court grant Summary Judgment in Defendants' favor pursuant to Pa. R.C.P. t035. t, et seq. and in support thereof aver as follows: This action to quiet title was initiated by Plaintiff, Household Realty Corporation, by the filing of a Complaint on January 17, 2008. A copy of Plaintiff's Complaint is attached hereto and incorporated herein as Exhibit "A." 2. Plaintiffs Complaint seeks Judgment "1) quieting title to real property known and located at 1827 Ritner Highway, North Newton Township, Cumberland County, Pennsylvania; 2) Confirming that the Shirks' interest in the property is subject to and subordinate to the ownership interest of Household Realty Corporation; 3) Ordering that the Shirks surrender possession to Plaintiff." 3. In a prior matter filed to the office of the Prothonotary of Cumberland County to No. 2005-6758 (hereinafer referred to as the "Tax Sale Appeal"), Plaintiff as Petitioner therein filed an amended Petition against Defendants and others seeking as follows: 1. Set aside and/or strike the Public Tax Upset Sale of December 7, 2005 with regard to property: 1827 Ritner Highway, Page 1 Defendant's Motion for Summary Judgment-Shirk Shippensburg, PA 17257; Tax Parcel No.: 30-11-0304-001 and otherwise declare it null and void; 2. Order that the tax sale Deed to James P. Halkias, recorded on February 13, 2006 at Book 273, Page 698 be stricken of record; 3. Order that any recorded Deed from James P. Halkias to Wayne Z. Shirk and Susan S. Shirk, be stricken of record; 4. Direct the Tax Claim Bureau to accept from Household payment of the delinquent taxes and costs; 5. Alternatively, that the Upset Tax Sale Purchaser/Respondent, James P. Halkias and/or subsequent purchasers, Wayne Z. Shirk and Susan S. Shirk, be ordered to satisfy Household's mortgage in full forthwith. 4. By Order dated September 181 2007 this Honorable Court denied the Petition of Plaintiff in the Tax Sale Appeal. A copy of said Order is attached hereto and incorporated herein as Exhibit "B." 5. Plaintiff did not appeal the Order filed in the Tax Sale Appeal. 6. On February 12, 2008, Defendants filed a New Matter to Plaintiff's Complaint in the above captioned matter asserting that the Order in the Tax Sale Appeal acts as a bar to the above captioned Complaint of Plaintiff under the doctrines of collateral estoppel and res judicata. 7. The issue in both actions is identical: the effect of a Tax Upset Sale, subsequent Sheriff's Sale, and subsequent Deeds of conveyance. Page 2 Defendant's Motion for Summary Judgment -Shirk s The relief requested by Plaintiff is both actions is identical: nullifying the transfer of title to Defendants. 9. The real property that is the subject matter of both actions is identical: 1827 Ritner Highway, Shippensburg, Cumberland County, Pennsylvania. 10. Final judgment of the merits was entered in the Tax Sale Appeal. 11. Plaintiff and Defendants were both parties in the Tax Sale Appeal, both were present and represented by counsel at all scheduled hearings. Defendant had a full and fair opportunity to litigate the issue, and did litigate the issue in the prior proceeding. 12. The determination of the issue raised in the prior action was essential to the Order entered. 13. The Pennsylvania Superior Court in Atyyeh v. BEAR and Whitney, 456 Pa. Superior Ct. 548, 698.2d. 1245 (1997) held that "Collareral estoppel applies if (1) the issue decided in the prior case is identical to the one presented in the later case; (2) there was a final judgment on the merits; (3) the party against whom the plea is asserted was a party or in privity with a party in the prior case; (4) the party or person privy to the party against whom the doctrine is asserted had a full and fair opportunity to litigate the issue in the prior proceeding; and, (5) the determination in the prior proceeding was essential to the judgment. Office of Disciplinary Counsel v. Duffield, 537 Pa. 485, 644 A.2d 1186, 1189 (1994)." 14. Similarly, the Pennsylvania Superior Court ruled in Ham v. Sulek, 427 Pa. Superior Ct. 615, 620 A.2d 5 (1993) "For the doctrine of res judicata to prevail there must be a concurrence of four conditions: (1) identity of issues; (2) identity of causes of action; (3) identity of persons and parties to the action; and, (4) identity of the quality or the capacity of parties suing or sued.... A final judgment on the merits by a court of competent jurisdiction bars any future suit between the same parties or their privies on Page 3 Defendant's Motion for Summary Judgment-Shirk the same cause of action. Fornwalt v. Silverman, 417 Pa. 187, 208 A.2d 786 (1965), cert. denied, 382 U.S. 833, 86 S.Ct. 76, 15 L.Ed.2d 76 (1966). 15. The doctrines of res judicata and collateral estoppel bar Plaintiffs action as a matter of law. WHEREFORE, Defendants Wayne Shirk and Susan Shirk respectfully request that Summary Judgment be granted in their favor against Plaintiff Household Realty Corporation. u Dated: .V20 , 2008 Respectfully submitted, n„ ?-z Robert G. Frey, Esquire Attorney for Wayne Z. and Susan S. S 5 South Hanover Street Carlisle, PA 17013 (717) 243-5838 Supreme Court I.D.#46397 Defendant's Motion for Summary Judgment -Shirk Page 4 UDREN LAW OFFICES, P.C. BY: Mark J. Udren, Esquire ATTY I.D. NO. 04302 WOODCREST CORPORATE CENTER 111 WOODCREST ROAD, SUITE 200 CHERRY HILL, NJ 08003-3620 856-669-5400 ATTORNEY FOR PLAINTIFF c_ HOUSEHOLD REALTY CORPORATION, COURT OF COMMON PLEAS --: - CIVIL DIVISION Plaintiff =Cumberland County vs. ivd ITP.rm NO. d$ 394 0 WAYNE SHIRK and SUSAN SHIRK Defendants NOTICE TO DEFEND =J J, YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. - You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. LAWYERS REFERRAL SERVICE Cumberland County Bar Association 32 S. Bedford Street Carlisle, PA 17013 E1QRW A' AVISO Le han demandado a usted en la corte. Si usted quiere defenderse de estas demandas expuestas en las paginas siguientes, usted tiene veinte (20) dias de plazo al partir de la fecha de la demanda y la notificacion. Hace falta ascentar una comparencia escrita o en persona o con un abogado y entregar a la corte en forma escrita sus defensas o sus objeciones a las demandas en contra de su persona. Sea avisado que si usted no se dafiende, la corte tomara medidas y puede continuar la demanda en contra suya sin previo aviso o notificacion. Ademas, la corte puede decidir a favor del demandante y requiere que usted cumpla con todas las provisioner de esta demanda. Usted puede perder dinero o sus propiedades u otros derechos importantes para usted. LLEVE ESTA DEMANDA A UN ABOGADO IMMEDIATAMENTE, SI NO TIENE ABOGADO O SI NO TIENE EL DINERO SUFICIENTE DE PAGAR TAL SERVICIO, VAYA EN PERSONA O LLAME POR TELEFONO A LA OFICINA CUYA DIRECCION SE ENCUENTRA ESCRITA ABAJO PARA AVERIGUAR DONDE SE PUEDE CONSEGUIR ASISTENCIA LEGAL. LAWYERS REFERRAL SERVICE Cumberland County Bar Association 32 S. Bedford Street Carlisle, PA 17013 UDREN LAW OFFICES, P.C. BY: Mark J. Udren, Esquire ATTY I.D. NO. 04302 WOODCREST CORPORATE CENTER 111 WOODCREST ROAD, SUITE 200 CHERRY HILL, NJ 08003-3620 ATTORNEY FOR PLAINTIFF 856-669-5400 HOUSEHOLD REALTY CORPORATION, = COURT OF COMMON PLEAS € CIVIL DIVISION Plaintiff € Cumberland County vs. NO. WAYNE SHIRK and SUSAN SHIRK Defendants COMPLAINT TO QUIET TITLE Plaintiff, Household Realty Corporation, by and through undersigned counsel, and by way of Complaint to Quiet Title with respect to premises located 1827 Ritner Highway, Shippensburg, PA, says: THE PARTIES Plaintiff is Household Realty Corporation ("Plaintiff' or "Household"). 2. Household was the holder of the mortgage given by the former owners, Steve L. Nenninger and Susan E. Nenninger ("Nenningers"), from original lender Conseco Bank, Inc., said mortgage having been recorded on February 27, 2002, with the recorder of Deeds at Cumberland County, PA, in Book 1750 Page 2316 ("Nenninger Mortgage") 3. The Nenningers owned the real property located at 1827 Ritner Highway, North Newton Township, Cumberland County, Pennsylvania ("Property") 4. Based upon the Nenningers' default of the mortgage, foreclosure proceedings were filed by Household in the Cumberland County, Pennsylvania Court of Common Pleas, No. 05-2286 Civil Term on May 3, 2005. 5. Judgment in mortgage foreclosure was entered in favor of Household on September 2, 2005 6. The Property was exposed to sheriff's foreclosure sale on December 7, 2005 ("Foreclosure Sale"). 7. Mortgage Electronic Registration Systems, Inc. ("MERS") was the successful bidder at Sheriff s Sale and purchased the Property as "Attorney on the Writ". 8. The Property was further exposed to Cumberland County Tax Claim Bureau Upset Tax Sale on December 8, 2005 ("Tax Sale"). 9. The successful purchaser at Tax Sale was James Halkias ("Halkias") for the bid amount of $6,503.96. 10. On February 8, 2006, the Sheriff of Cumberland County, conveyed the Property to Household Realty Corporation as MERS' successor/assignee in interest ("Foreclosure Deed") 11. No Objections or Exceptions or any other attempts were made by Halkias to set aside the sheriff's sale or strike the Foreclosure Deed. 12. On February 13, 2006, the Tax Claim Bureau recorded a Deed to Halkias ("Tax Deed") 13. On March 6, 2006, Plaintiff filed a Lis Pendens against the Property to serve notice of its interest in the Property. 14. Plaintiff served a copy of the Lis Pendens upon Halkias. 15. On March 20, 2006, Halkias transferred any interests he had in the Property by deed to Wayne Z. Shirk and Susan S. Shirk ("Shirks") for consideration ("Shirk Deed") 4... Vn.?C R./Y .-l QUIETING TITLE 16. At the time the Tax Deed to Halkias was recorded, the Property had already been conveyed to and owned`by the Plaintiff as a result of the recorded Foreclosure Deed. 17. At the time the Property was transferred by Halkias to the Shirks, the Property had already been conveyed and owned by the Plaintiff as a result of the recorded Foreclosure Deed. 18. Halkias took ownership of the Property subject and subordinate to the Plaintiff s ownership interest in the Property. 19. In turn, Halkias conveyed the Property to the Shirks subject and subordinate to the Plaintiff s ownership interest in the Property. 20. Based upon information and belief, Halkias' realized a significant profit from the sale of the Property to Shirk. 21. Based upon information and belief, the Shirks have been utilizing the Property as a rental unit to collect rental proceeds. 22. Despite demand, the Shirks continue to wrongfully retain possession of the Property in contravention of Plaintiff s legal and rightful ownership interests in the Property and continues to refuse to acknowledge Plaintiff s legal and rightful ownership interests in the Property. 23. Plaintiff s rights have been substantially prejudiced and continue to be substantially prejudiced by the Shirks' unlawful possession of the Property. WHEREFORE, Plaintiff, Household Realty Corporation, seeks Judgment 1) Quieting Title to real property known and located at 1827 Ritner Highway, North Newton Township, Cumberland County, Pennsylvania; 2) confirming that the Shirks' interests in the Property is IIA subject to and subordinate to the ownership interests of Household Realty Corporation; 3) ordering that the Shirks surrender possession of the Property to Plaintiff. Respectfully submitted, UDREN LAW OFFq7- , P By: for Plaintiff Woodcrest Corporate Center 111 Woodcrest Road, Suite 200 Cherry Hill, NJ 08003 856-669-5400 EMi A$ r r ? IN RE: PUBLIC UPSET SALE OF PROPERTIES HELD BY THE CUMBERLAND COUNTY TAX CLAIM BUREAU ON DECEMBER 8, 2005 TAX SALE LAW (1827 Ritner Highway, Shippensburg, PA Tax Parcel #30-11-0304-001) IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 05-6758 CIVIL TERM IN RE: PETITION TO SET ASIDE TAX SALE OR ORDER SATISFACTION OF MORTGAGE OPINION AND ORDER OF COURT Bayley, J., September 18, 2007:-- Steve L. Nenninger and Susan E. Nenninger were the owners of 1827 Ritner Highway, North Newton Township, Cumberland County, Pennsylvania. They were in default of a mortgage on the property for which an action in foreclosure was filed on May 3, 2005 by the holder of the mortgage, Mortgage Electronic Registration Systems (MERS).' In July, 2005, as a result of the Nenningers failure to pay taxes, the Cumberland County Tax Claim Bureau notified them that their property would be sold at a tax sale. On December 7, 2005, the property was sold in foreclosure to MERS by the Sheriff of Cumberland County. The next day, December 8, 2005, the property was sold for the upset price at a tax sale to James Halkias.Z On December 29, 2005, on the petition of the Tax Claim Bureau, this court entered an order of confirmation nisi. On February 1, 2006, no objections or exceptions having been filed, a ' The original lender on February 28, 2002, was Conseco Bank, Inc. That mortgage was assigned to Conseco Finance Consumer Discount Company. That company then assigned the mortgage to MERS. The assignment dated October 20, 2005, was recorded on November 3, 2005, in the Office of the Recorder of Deeds of Cumberland County at Miscellaneous Book 689, Page 330. The address of MERS on the assignment is in Flint, Michigan. 2 The bid was for $6,503.96. ni- 30 05-6758 CIVIL TERM final decree of absolute confirmation was entered. On January 30, 2006, the Tax Claim Bureau executed a deed, which was recorded on February 13, 2006, to James Halkias. The Sheriff of Cumberland County, by a deed executed on February 7, 2006, and recorded on February 8, 2006, conveyed the property to Household Realty Corporation, the assignee from MERS. On March 20, 2006, for the consideration of $65,000, James Halkias executed and recorded a deed to the property to Wayne Z. Shirk and Susan S. Shirk. On July 12, 2006, Household Realty Corporation filed a petition to "set aside and/or strike public tax upset sale of property or alternatively, to order upset tax sale purchaser to satisfy mortgage." On July 13, 2006, a Rule was entered upon the Cumberland County Tax Claim Bureau and James P. Halkias to show cause why petitioner was not entitled to the relief requested. A hearing was scheduled for August 10, 2006, which was continued. On December 29, 2006, Household filed an amended petition "to set aside and/or strike public tax upset sale of property or alternatively, to order petitioner to satisfy mortgage." This petition included Wayne Z. Shirk and Susan S. Shirk as respondents. A hearing was scheduled, which was continued. The hearing was conducted on July 16, 2007. The issues where briefed and argued on August 23, 2007. STANDING Respondents maintain that Household Realty Corporation does not have standing to seek the relief sought in its amended petition. The Real Estate Tax Sale Law, 72 P.S. Section 5860.101 et seq., at Section 607(g), provides: If no objections or exceptions are filed or if objections or -2- ?r?x`?' .i.F J a 05-6758 CIVIL TERM exceptions are finally overruled and the sale confirmed absolutely, the validity of the tax, its return for nonpayment, the entry of the claim, or the making of such claim absolute and the proceedings of the bureau with respect to such sale, shall not thereafter be inquired into judicially in equity or by civil proceedings by the person in whose name such property was sold, by a grantee or assignee, by any lien creditor or by any other person, except with respect to the giving of notice under the act, to the time of holding the sale, or to the time of petitioning the court for an order of sale. There shall be no period of redemption after such sale and the sale shall be deemed to pass a good and valid title to the purchaser, free from any liens or encumbrances whatsoever, except such liens as are hereafter specifically saved, and in all respects as valid and effective as if acquired by a sheriff's deed. (Emphasis added.) Household Realty Corporation was not the owner of 1827 Ritner Highway when this court entered an order of confirmation nisi on December 29, 2005. However, by a letter to the Sheriff of Cumberland County dated January 26, 2006, and received by the Sheriff on January 30, 2006, one day before the final decree of absolute confirmation of the tax sale was entered on February 1, 2006, MERS provided notice that it was "assigning the bid and requesting the DEED be recorded in the name of Household Realty Corporation (MERS is acting/has acted as the agent for the real party in interest or beneficial owner), 1270 Northland Drive, Ste 200, Mendota Heights, MN 55120." The assignment to Household by MERS of the ownership it obtained at the mortgage foreclosure sale gives Household Realty Corporation standing in this post-confirmation judicial challenge to the tax sale.3 3 Contrast the facts in First Horizon Loan Corporation v. Adams County Tax Claim Bureau, 847 A.2d 774 (Pa. Commw. 2004). -3- 05-6758 CIVIL TERM PROCEDURE Respondents maintain that Household's amended petition must be dismissed because they did not seek permission nunc pro tunc to file objections or exceptions to the tax sale. The Real Estate Tax Sale Law at Section 5860.607(a.1)(1) provides that notice shall be given by the Tax Claim Bureau within thirty days of the actual sale to each owner of the property: that the property was sold and that the owner may file objections or exceptions with the court relating to the regularity and procedures followed during the sale no later than thirty (30) days after the court has made a confirmation nisi of the consolidated return. (Emphasis added.)' Subsection 607(a.1)(2) sets forth the actual warning to be provided to the owner in this notice. Subsection 607(b.1), provides: If notice is given under subsection (a.1)(2), proof that notice under subsection (a.1)(1) was not received by the owner shall not defeat a sale nor invalidate title to property. If the mailed or published notice required under this section is defective or was served in an untimely manner, the court shall enter an order nunc pro tunc for cause and, upon proof of prejudice, shall grant the owner leave to file objections and exceptions. (Emphasis added.) ' Section 102 of the Real Estate Tax Sale Law contains the following definition: "OWNER," the person in whose name the property is last registered, if registered according to law, or, if not registered according to law, the person whose name last appears as an owner of record on any deed or instrument of conveyance recorded in the county office designated for recording and in all other cases means any person in open, peaceable and notorious possession of the property, as apparent owner or owners thereof, or the reputed owner or owners thereof, in the neighborhood of such property; as to property having been turned over to the bureau under Article VII by any county, "owner" shall mean the county. -4- t a 05-6758 CIVIL TERM In In re The Property of Continental Motels, Inc., 32 Pa. Commw. 429 (1977), an owner of property sold at a tax sale filed a petition for leave to file objections and exceptions nunc pro tunc after the sale was confirmed and made absolute and a deed was transferred to the purchaser and recorded. The trial court granted the petition, and exceptions and objections were filed. The court then found the notice requirements had not been met, and an order was entered pursuant to Section 607(g), setting aside the sale. On appeal, the Commonwealth Court of Pennsylvania stated: The first issue before us is whether the use of a petition and rule to show cause is an improper procedure for the challenging of the validity of a tax sale after confirmation and recording of the tax deed. We note that here the petition and rule were not used to challenge the validity of the sale; rather, they were used simply to obtain leave to file the objections and exceptions by which such challenge was made. Nor do we find error in the lower court's permitting the property owner to file its objections and exceptions nunc pro tunc. While section 607(g) of the Law, 72 P.S. §5860.607(g), establishes generally the invulnerability of sales confirmed absolutely, that subsection expressly excepts allegations "as to the giving of notice as required by the act ..." and permits them to be heard after confirmation. The allegations here clearly fall within that exception. In the present case, the petition of Household is not brought under Section 607(b.1) which allows an owner leave to file objections and exceptions if published notices are defective or were served in an untimely manner in which case the court shall enter an order nunc pro tunc for cause and, upon proof of prejudice, grant the owner leave to file objections and exceptions. Rather, Household brought its petition, for which a rule was entered under Section 607(g), after the tax sale was confirmed absolutely. Section 607(g) limits relief "except with respect to the giving of notice under the act, to the time of holding the sale, or to the time of petitioning the court for an order -5- VT'Nt 05-6758 CIVIL TERM of sale." There is no time limit in Section 607(g) for seeking relief judicially, in equity or by civil proceedings. While the Commonwealth Court in In re The Property of Continental Motels, Inc., supra, concluded that a petition and rule to show cause was a proper procedure for challenging the validity of a tax sale after confirmation and recording of the tax deed, that procedure was not used to challenge the validity of the sale but was "used to simply obtain leave to file the objections and exceptions by which such a challenge was made." Notwithstanding, we are satisfied that Household's petition for a rule under Section 607(g) to judicially set aside this tax sale, even though it did not petition for leave to file objections and exceptions, is not precluded because there is no time limit under the Section for seeking relief. Household's judicial challenge is limited to the type of relief allowed under Section 607(8) after final confirmation and the Tax Bureau's transfer of the deed to Halkias, i.e., relief based on a claim of inadequate notice under the Real Estate Tax Sale Law. Therefore, no petition to proceed nunc pro tunc is required and Household is not limited to seeking relief in equity or in another civil proceeding such as an action to quiet title. PETITION TO SET ASIDE TAX SALE Until 1827 Ritner Highway was sold to the mortgagee MERS at the Sheriff's sale on December 7, 2005, the owners were the Nenningers. Household and respondents agree that the issue Household now raises pursuant to Section 607(g) as to "the giving of notice under the act," involves any notice that was required to be given to MFRS. In Parkton Enterprises, Inc. v. Krulac, 53 Cumberland L.J. 84 (2003), the Sheriff of Cumberland County, on September 4, 2002, sold the property of Torres and Malave in -6- IistT " " 05-6758 CIVIL TERM foreclosure to the first mortgagee and executing creditor. On September 26, 2002, the property was sold at an upset tax sale to the Krulacs, to whom a deed from the Cumberland County Tax Claim Bureau was recorded on December 2, 2002. The Tax Claim Bureau knew that the property was listed for a Sheriff's sale but did not check before the tax upset sale to determine if it was sold by the Sheriff. The Tax Claim Bureau did not provide the purchaser at the Sheriff sale with any notice of the tax sale. We concluded that even though the purchaser had knowledge that taxes were owed and overdue on the property, such knowledge did not equate to implied actual notice of the tax sale. We held that it was incumbent upon the Tax Claim Bureau, having received notice of a pending Sheriff sale, to use common sense business practices to make inquiry of the Sheriff before the tax upset sale on September 26, 2002, to determine if the property was sold. A check by the Tax Claim Bureau would have disclosed the sale by the Sheriff twenty-two days before the upset tax sale. We held that "[a]lthough the Tax Claim Bureau served all of the notices on the record owner within the timeframes required by the Real Estate Tax Law, the Bureau was constitutionally required to give notice to any new owner if reasonably ascertainable, which Parkton was." An order setting aside the tax sale was entered. The Commonwealth Court affirmed, stating: Certainly, as the trial court stated, it would have been reasonable for the Bureau to contact the Sheriff prior to the tax sale to determine whether there was a new owner of the Property. Because the Bureau failed to make a reasonable effort to discover the identity of the new owner of the -7- EXHIBIT `B" rti 1 i 05-6758 CIVIL TERM Property, i.e., Parkton, we conclude that the trial court properly set aside the Tax Upset Sale and quieted title in Parkton.s In the case sub judice, 1827 Ritner Highway was sold by the Sheriff in foreclosure to MERS on December 7, 2005. The next day, December 8, 2005, the property was sold at the upset tax sale to James Halkias. Although the Cumberland County Tax Claim Bureau was not under any legal obligation to give any pre-sale notice to MERS as the mortgagee, 6 it nevertheless, having been involved in the Parkton case, and anticipating that the property might be sold to MERS at the Sheriff sale, sent MERS notice on October 6, 2005, of the tax sale scheduled for December 8, 2005, by two letters. One letter was sent to the address in Flint, Michigan, which is its address on the mortgage assignment to MERS recorded at Miscellaneous Book 689, Page 330. The Tax Bureau also sent MERS a notice at another address in Elmhurst, Illinois. Each was sent by certified mail. The letter sent to Flint, Michigan, was signed for and delivered on October 9, 2005, and the one sent to Elmhurst, Illinois, was signed for and delivered on October 11, 2005. Each letter described the property at 1827 Ritner Highway, North Newton Township, Cumberland County, Pennsylvania, the owner as Steve L. and Susan E. Nenninger, and stated: The above property is scheduled for an Upset Tax Sale for the collection of delinquent real estate taxes on December 8, 2005. To avoid said sale, the following amount must be paid to the Tax Claim Bureau 5 Parkton Enterprises, Inc. v. Krulac, 865 A.2d 295 (Pa. Commw. 2005). 6 Properties sold at an upset tax sale are conveyed "subject to the lien of every recorded obligation, claim, lien, estate, mortgage, ground rent and Commonwealth tax lien not included in the upset price with which said property may have or shall become charged or for which it may be come liable." 72 P.S. § 5860.609. -8- B Tay 05-6758 CIVIL TERM before the date of sale at the above address: Tax parcel no. 30-11-0304-001 $4,610.03 If you have any questions regarding these matters, please contact the Cumberland County Tax Claim Bureau at (717) 240-6366. Enclosed please find a copy of your mortgage. On December 9, 2005, the Cumberland County Tax Bureau sent MERS a post- sale notice that the property had been sold on December 8, 2005. Notice was sent to the Flint, Michigan, address and signed for and delivered on December 15, 2005; to the Elmhurst, Illinois, address and signed for and delivered on December 11, 2005; and to another address at 1270 Northland Drive, Suite 200, Mendota Heights, Minnesota, which was signed for and delivered on December 16, 2005. In each letter the 1827 Ritner Highway property was set out with a parcel number, and the notice, pursuant to Section 607(a.1)(2) of the Real Estate Tax Sale Law, set forth: WARNING "THE ABOVE PROPERTY HAS BEEN SOLD AT A TAX UPSET SALE DECEMBER IN O CURRED N THE MUNICIPALITY OF NORTH DELINQUENT TAXES NEWTON TOWNSHIP, CUMBERLAND COUNTY, PENNSYLVANIA YOU MAY FILE OBJECTIONS OR EXCEPTIONS TO THE SALE IMMEDIATELY BUTNOLATER OF THE THIRTY (30) DAYS BY THE COURT. THE COMFIRMATIO [S] NISI IF YOU HAVE ANY QUESTIONS PLEASE CALL YOUR ATTORNEY, THIS TAX CLAIM BUREAU AT THE FOLLOWING TELEPHONE NUMBER (717) 240-6366, OR THE COUNTY LAWYER REFERRAL SERVICE." Household now argues that the tax sale should be set aside because the pre- sale notice sent to MERS was not in the form required by Section 602(g) of the Real -9- rrr°a° t 05-6758 CIVIL TERM Estate Tax Sale Law, which provides: All notices required by this section other than the newspaper notice and notice in the legal journal shall contain the following provision which shall be conspicuously placed upon said notices and set in at least 10- point type in a box as follows: WARNING "YOUR PROPERTY IS ABOUT TO BE SOLD WITHOUT YOUR CONSENT FOR DELINQUENT TAXES. YOUR PROPERTY MAY BE SOLD FOR A SMALL FRACTION OF ITS FAIR MARKET VALUE. IF YOU HAVE ANY QUESTIONS AS TO WHAT YOU MUST DO IN ORDER TO SAVE YOUR PROPERTY, PLEASE CALL YOUR ATTORNEY, THE TAX CLAIM BUREAU AT THE FOLLOWING TELEPHONE NUMBER , OR THE COUNTY LAWYER REFERRAL SERVICE. Household forgets that when the notices of the tax sale scheduled for December 8, 2005, were sent to MERS on October 6, 2005, MERS was a mortgagee and there was no requirement to send it notice. Therefore, Household's position that the tax sale should now be set aside because of the form of the notices is chutzpah. MERS purchased the property at a tax sale on December 7, 2005, one day before the upset tax sale on December 8, 2005. The holding in Parkton, where the foreclosure sale occurred twenty-two days before the tax sale, thus triggering a requirement to send the purchaser notice of the tax sale, cannot realistically be applied here where the foreclosure sale was one day before the tax sale. Furthermore, the Tax Claim Bureau sent MERS a post-sale notice on December 9, 2005, one day after the tax sale, in the form required in Section 607(a.1)(2) of the Real Estate Tax Sale Law. It is inexplicable that MERS, having received pre-sale and post-sale notices, did not protect its interest prior to the final decree of absolute confirmation entered on February 1, 2006. -10- maUerr "W i 05-6758 CIVIL TERM PETITION TO ORDER SATISFACTION OF MORTGAGE Household maintains in this Judicial proceeding to set aside a tax sale, that this court should order the purchaser, James Halkias, to satisfy the MERS mortgage. There is no such remedy. Besides, the Sheriff's sale discharged the lien of MERS' mortgage on 1827 Ritner Highway. See Pennsylvania Company v. Emmons, 338 Pa. 513 (1940).' Therefore, there was no lien of the MERS' mortgage on the property when it was purchased by Halkias and later purchased by the Shirks. AND NOW, this ORDER OF COURT r°? I day of September, 2007, the relief sought by petitioner, Household Realty Corporation, IS DENIED. By the Court, Edgar B. Bayley, J. Alan M. Minato, Esquire Woodcrest Corporate Center 111 Woodcrest Road, Suite 200 Cherry Hill, NJ 08003 For Household Realty Corporation Stephen D. Tiley, Esquire 5 South Hanover Street Carlisle, PA 17013 Solicitor, Cumberland County Tax Claim Bureau ' However, the unpaid mortgage indebtedness continued to exist against the Nenningers. -11- r°a° 05-6758 CIVIL TERM Norman M. Yoffe, Esquire 214 Senate Avenue, Suite 404 Camp Hill, PA 17011 For James P. Halkias Robert Frey, Esquire 5 South Hanover Street Carlisle, PA 17013 For Wayne Z. Shirk and Susan S. Shirk :sal ... 13-77 UDREN LAW OFFICES, P.C. ATTORNEY FOR PLAINTIFF BY: Alan M. Minato, Esquire ATTY I.D. NO. 75860 WOODCREST CORPORATE CENTER 111 WOODCREST ROAD, SUITE 200 CHERRY HILL, NJ 08003-3620 856-669-5400 pleadings4ndren-rom Household Realty Corporation € COURT OF COMMON PLEAS € CIVIL DIVISION Plaintiff Cumberland County v. Wayne Shirk and Susan Shirk NO. 08-394 Civil Term Defendants PLAINTIFF HOUSEHOLD REALTY CORPORATION'S REPLY TO DEFENDANTS, WAYNE AND SUSAN SHIRK'S MOTION FOR SUMMARY JUDGMENT Plaintiff, Household Realty Corporation, by its undersigned attorney, replies to the Defendants' Motion for Summary Judgment in accordance with Pa.R.C.P. 103 et. seq., and respectfully requests that the Motion be denied and in support thereof aver as follows: 1. Admitted. 2. Admitted. 3. Denied as a conclusion of law to which no response is required. The pleadings and documents in the matter referenced at Cumberland County No. 2005-6758 speak for themselves. By way of further reply, the Court's ruling in the case docketed at No. 2005-6758 did not address the relief being sought in the instant case nor are the parties identical. The Court indicated in the matter docketed at No. 2005-6758 that the decision being rendered was limited to proceedings to set aside a tax sale. In relevant part, the court held: "...Household maintains in this Judicial proceeding to set aside a tax sale, that this court should order the purchaser, James Halkias, to satisfy the MERS mortgage. There is no such remedy. Besides the Sheriffs sale discharged the lien of MERS's mortgage on 1827 Ritner Highway." In contrast, in the instant case, first, James Halkias is not a party to the within action and the parties are thus not identical; second, the instant case does not seek to set aside a tax or any other sale; third, Plaintiff's instant Quiet Title action is based upon the competing ownership interests of the parties in the subject property and not the satisfaction of any mortgage lien that may have existed against the property. An action to Quiet Title is the appropriate mechanism to determine the respective rights, titles or interests of parties in land. Pa.R.C.P. 1061; National Christian Conference Center v. Schuylkill TM M., 142 Pa. Cmwlth 308, 597 F.2d 248 (1991). Moreover, in the case No. 2005-6758, counsel therein indicated, ostensibly, that Plaintiff was not without remedy (in the event that the Court denied the Petition to Set Aside Tax Sale) in that it was not prejudiced from seeking remedy by way of Quiet Title in a later proceeding. Counsel herein should be estopped from asserting a position contrary to the prior position. Accordingly, collateral estoppel and res judicata are not applicable to the instant Quiet Title action, at the very least, inasmuch as the core issues to be determined in the instant case, competing ownership of a single property based upon a sheriff s foreclosure sale deed versus claimed ownership of a property by virtue of purchase of the property at an upset tax sale which occurred the day after the sheriff s sale, was not ruled upon by the court in the setting aside tax sale proceeding docketed at No. 2005-6758. The crux of the issues addressed by the Court in the case docketed as No. 2005-6758 were notice issues pertaining to a county tax sale. Thus, as a matter of law in accordance with Pa.R.C.P.1035.1, et. seq., the defendants herein cannot establish that summary judgment is warranted. On the contrary, Plaintiff properly proceeds in the instant matter in accordance with Pa.R.C.P. 1061, et. seq. to seek a determination of the respective "right, lien, title or interest in the land". 4. Denied inasmuch as the Order of the case docketed at No. 2005-6758 speaks for itself. By way of further reply, title to the subject land was not adjudicated and is the crux of the instant Quiet Title proceeding initiated by Plaintiff herein. By way of further reply, see Plaintiff's response to Number 3 hereinabove. 5. Admitted. 6. Denied inasmuch as the pleadings and documents speak for themselves. 7. Denied. On the contrary, the fundamental issue of ownership of the property was not addressed, nor the proper subject of the proceeding docketed at No. 2005-6758. By way of further reply, see Plaintiff's responses to Numbers 3 and 4 hereinabove. 8. Denied. Plaintiff does not seek nullity of the transfer of title to Defendants in the within action. On the contrary, at issue in the instant action to quiet title is the competing transfers of title to the same property which were the result of sherif s foreclosure and upset tax sales occurring within 24 hours of each other. Defendants' attempt to broadly characterize the relief being sought herein, in the context of a quiet title action, as identical to the relief sought in a Petition to Set Aside Tax Sale is misplaced at best and clearly opportunistic. By way of further reply, see Plaintiff s responses to Numbers 3, 4 and 7 hereinabove. 9. Admitted. By way of further reply, see Plaintiff's responses to Numbers 3, 4, 7 and 8 hereinabove. 10. Admitted to the extent that final judgment of the merits was entered with respect to the setting aside of a tax sale. Denied that the final judgment of the merits was entered with respect to the competing ownership interests in a property. On the contrary, an Action to Quiet Title pursuant to Pa.R.C.P. 1061, et. seq. is the proper format to determine the competing ownership interests in land. By way of further reply, see Plaintiff's responses to Number 3, 4,7 and 8 hereinabove. 11. Denied as a conclusion of law to which no response is required. By way of further reply, see Plaintiff's responses to Numbers 3, 4, 7, 8 and 10 hereinabove. 1 12. Denied as a conclusion of law to which no response is required. By way of further reply, see Plaintiff's responses to Numbers 3, 4, 7, 8 and 10 hereinabove. 13. Denied as a conclusion of law to which no response is required. By way of further reply, the core issue to be decided in the instant case, ownership of the property, was not the subject of the case docketed at No. 2005-6758. Please also see Plaintiff's responses to Numbers 3, 4, 7, 8, and 10 hereinabove. 14. Denied as a conclusion of law to which no response is required. By way of further reply, the cause of action in the instant case are entirely different from the matter docketed at No. 2005-6758. Please also see Plaintiff's responses to Numbers 3, 4, 7, 8, 10 and 13 hereinabove. 15. Denied as conclusions of law to which no response is required. By way of further reply, see Plaintiffs responses to Numbers 3, 4, 7, 8, 10, 13 and 14 hereinabove. WHEREFORE, Plaintiff, Household Realty Corporation, respectfully requests that Defendants' Motion for Summary Judgment be denied in its entirety with prejudice. Dated: June 6, 2008 Respectfully Submitted, UDREN LAW OF&C-E-S. P.C. By: Alan M. Mina, Attorney for Plai UDREN LAW OFFICES, P.C. ATTORNEY FOR PLAINTIFF BY: Alan M. Minato, Esquire ATTY I.D. NO. 75860 WOODCREST CORPORATE CENTER 111 WOODCREST ROAD, SUITE 200 CHERRY HILL, NJ 08003-3620 856-669-5400 pleadings@udren.com Household Realty Corporation € COURT OF COMMON PLEAS € CIVIL DIVISION Plaintiff Cumberland County V. Wayne Shirk and Susan Shirk NO. 08-394 Civil Term Defendants CERTIFICATE OF SERVICE I, Alan M. Minato, Esquire, counsel for Plaintiff Household Realty Corporation, hereby certify that I served a true and correct copy of Plaintiff s Reply to Summary Judgment by prepaid postage, first class, United States mail to the following: Date Served: June 6, 2008 TO: Robert G. Frey, Esquire 5 South Hanover Street Carlisle, PA 17013 Attorney for the Plaintiff UDREN LAW OFFICES, P.C. By: Alan wire Attorney for Plaints fi?PT t` ? 1`,? PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and submitted in duplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Please list the within matter for the next Argument Court. CAPTION OF CASE Household Realty Corporation Plaintiff No. 08-394 Civil Term VS. Wayne Shirk and Susan Shirk Defendants 1. State matter to be argued (i.e. plaintiff's motion for new trial, defendant's demurrer to complaint, etc.): Defendant's Motion for Summary Judgment 2. Identify counsel who will argue case: (a) for plaintiff: Alan M. Minato, Esquire Address: Wooderest Corporate Center, 111 Wooderest Road, Suite 200 Cherry Hill, NJ 08003-3620 (b) for defendant: Robert G. Frey, Esquire Address: 5 South Hanover Street Carlisle, PA 17013 3. I will notify all parties in writing within two days that this case has been listed for argument. 4. Argument Court Date: February 4, 2008 Dated: November /F , 2008 UDREN LAW OFFICES, P.C. Alan M. MinZali quire A ttorney for E:\WP51\FORECLOS\2005\05040273atg prae.wpd UDREN LAW OFFICES, P.C. ALAN M. MINATO, ESQ. ATTORNEY I.D. NO. 75860 WOODCREST CORPORATE CENTER 111 WOODCREST ROAD, SUITE 200 CHERRY HILL, NJ 08003 (856) 669-5400 Household Realty Corporation Plaintiff ATTORNEY FOR PETITIONER : CUMBERLAND COUNTY, PA : CIVIL ACTION V. Wayne Shirk and Susan Shirk Defendants NO. 08-394 Civil Term CERTIFICATE OF SERVICE I, Alan M. Minato, Esquire, hereby certify that I served true and correct copies of Plaintiff's Praecipe for Argument and Certificate of Service upon the following persons named herein at their last known address or their attorney of record. xxxxxx Regular First Class Mail Certified Mail Other (certificate of mailing) Date Served: November ! ,f , 2008 TO: Robert G. Frey, Esq. 5 S. Hanover Street Carlisle, PA 17013 Attorney for Wayne & Susan Shirk UDREN LAW OFFICES, P.C. By: Alan M. Minato, Esquire- Attorney for Plaintiff C7- -3 -n ;7 sti: ' T HOUSEHOLD REALTY CORPORATION, PLAINTIFF IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. WAYNE SHIRK AND SUSAN SHIRK, DEFENDANTS : 08-0394 CIVIL TERM IN RE: MOTION OF DEFENDANTS FOR SUMMARY JUDGMENT BEFORE BAYLEY, J. AND EBERT, J. ORDER OF COURT AND NOW, this Lnt- day of February, 2009, the motion for summary judgment of defendants, Wayne Shirk and Susan Shirk, against Household Realty Corporation, IS GRANTED. Household Realty Corporation is forever barred, by virtue of deed into it dated February 7, 2006 and recorded February 8, 2006, from asserting any right, title and interest in a property known as 1827 Ritner Highway, North Newton Township, Cumberland County, Pennsylvania, which property is titled into and owned by Wayne Z. Shirk and Susan S. Shirk by a deed dated and recorded March 20, 2006, from James Halkias. l J Ul) Y,j ?.. ? -? i U it- ?+• . s?+ v z CYO .+,_.?'l 4I j N 08-0394 CIVIL TERM an M. Minato, Esquire Woodcrest Corporate Center 111 Woodcrest Road, Suite 200 Cherry Hill, NJ 08003 For H usehold Realty Corporation ji6bert Frey, Esquire 5 South Hanover Street Carlisle, PA 17013 For Wayne Z. Shirk and Susan S. Shirk :sal -2- HOUSEHOLD REALTY CORPORATION, PLAINTIFF IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. WAYNE SHIRK AND SUSAN SHIRK, DEFENDANTS 08-0394 CIVIL TERM IN RE: MOTION OF DEFENDANTS FOR SUMMARY JUDGMENT BEFORE BAYLEY, J. AND EBERT, J. OPINION AND ORDER OF COURT Bayley, J., February 17, 2009:-- On July 27, 2008, plaintiff, Household Realty Corporation, filed a complaint against defendants, Wayne Shirk and Susan Shirk, to quiet title in favor of plaintiff for a property at 1827 Ritner Highway, North Newton Township, Cumberland County. Defendants filed a motion for summary judgment which was briefed and argued on February 4, 2009. The following facts are not in dispute. Steve L. Nenninger and Susan E. Nenninger were the owners of 1827 Ritner Highway, North Newton Township, Cumberland County, Pennsylvania. They were in default of a mortgage on the property for which an action in foreclosure was filed on May 3, 2005 by the holder of the mortgage, Mortgage Electronic Registration Systems (MERS). On December 7, 2005, the property was sold in foreclosure to MERS by the Sheriff of Cumberland County. The next day, December 8, 2005, the property was sold for the upset price at a tax sale to James Halkias. On January 30, 2006, the Tax Claim Bureau executed a deed, which was recorded on February 13, 2006, to James Halkias. The Sheriff of Cumberland County, by a deed executed on February 7, 2006, and recorded on 08-0394 CIVIL TERM February 8, 2006, conveyed the property to Household Realty Corporation, the assignee of MERS. On March 20, 2006, for the consideration of $65,000, James Halkias executed and recorded a deed to the property to Wayne Z. Shirk and Susan S. Shirk. On July 12, 2006, as amended on December 29, 2006, Household Realty Corporation filed a petition that sought inter alia: an "Order that the tax sale Deed to James P. Halkias, recorded on February 13, 2006, at Book 273, Page 698 be stricken of record," and an "Order that any recorded Deed from James P. Halkias to Wayne Z. Shirk and Susan S. Shirk, be stricken of record." A hearing was conducted on July 16, 2007. On September 18, 2007, an order was entered, supported by a written opinion, denying the relief sought by petitioner Household Realty Corporation.' That order is now final. The purpose of an action to quiet title is to resolve a conflict over an interest in property. National Christian Conference Center v. Schuylkill Township, 142 Pa. Commw. 308 (1991). In the present case, Household premises this action on its claim that the Shirks "purchased the property subject to [its] ownership in the property;" they "wrongfully maintain possession of the property;" and the deed into them "acts to cloud the title to [its] ownership interests in the property." The Shirks maintain that they are entitled to summary judgment because Household's claims are barred by collateral ' In re: Public Upset Sale of Properties Held by the Cumberland County Tax Claim Bureau on December 8, 2005 Tax Sale Law (1827 Ritner Highway, Shippensburg, PA Tax Parcel #30-11-0304-001), 57 Cumberland L.J. 10 (2007). -2- 08-0394 CIVIL TERM estoppel and res judicata. Collateral estoppel is "issue preclusion" and applies as set forth by the Superior Court of Pennsylvania in Atiyeh v. Bear, 690 A.2d 1245 (Pa. Super. 1997), if: (1) the issue decided in the prior case is identical to the one presented in the later case; (2) there was a final judgment on the merits; (3) the party against whom the plea is asserted was a party or in privity with a party in the prior case; (4) the party or person privy to the party against whom the doctrine is asserted had a full and fair opportunity to litigate the issue in the prior proceeding; and, (5) the determination in the prior proceeding was essential to the judgment. The issue decided in the prior case and the issue raised in this quiet title action is identical; whether there was a legally valid tax sale of 1827 Ritner Highway on December 8, 2005, to Halkias, the predecessor of the Shirks, which tax sale extinguished any claim of ownership of the property to Household by virtue of the sheriff's sale to MERS on December 7, 2005. Household maintained that it was the owner of the property, not the Shirks, the same claim it makes in this case. The relief sought in the prior case, to strike the deeds into Halkias and the Shirks, was denied in a judgment on the merits on September 18, 2007, which is now final.Z Household and the Shirks were parties in the prior case. Household had a full and fair opportunity to and did litigate the issue of ownership in the prior case, and that issue rested on whether the tax sale was valid and passed title to Halkias which he conveyed to the Shirks. The determination in the prior case was essential to the judgment, i.e., that the relief sought of an "Order that the tax sale Deed to James P. Halkias, recorded on February 13, 2 No appeal was taken from that judgment -3- 08-0394 CIVIL TERM 2006 ... be stricken of record," and an "Order that any recorded Deed from James P. Halkias to Wayne Z. Shirk and Susan S. Shirk, be stricken of record," was denied. Accordingly, Household is collaterally estopped from asserting any right, title and interest in 1827 Ritner Highway and the Shirks are entitled to summary judgment in this action to quiet title.3 ORDER OF COURT AND NOW, this I jj' ? day of February, 2009, the motion for summary judgment of defendants, Wayne Shirk and Susan Shirk, against Household Realty Corporation, IS GRANTED. Household Realty Corporation is forever barred, by virtue of deed into it dated February 7, 2006 and recorded February 8, 2006, from asserting any right, title and interest in a property known as 1827 Ritner Highway, North Newton Township, Cumberland County, Pennsylvania, which property is titled into and owned by Wayne Z. Shirk and Susan S. Shirk by a deed dated and recorded March 20, 2006, from James Halkias. 3 This resolution makes it unnecessary to review the Shirks' claim of res judicata. -4- 08-0394 CIVIL TERM Alan M. Minato, Esquire Woodcrest Corporate Center 111 Woodcrest Road, Suite 200 Cherry Hill, NJ 08003 For Household Realty Corporation Robert Frey, Esquire 5 South Hanover Street Carlisle, PA 17013 For Wayne Z. Shirk and Susan S. Shirk :sal -5-