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HomeMy WebLinkAbout21-2004-10 Orphans' IN RE: ESTATE OF GERALDINE MAE HOCKLEY IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA ORPHAN'S COURT DIVISION NO. 21-04-10 IN RE: PETITON TO SATISFY MORTGAGES OF DECENDENT'S ESTATE BEFORE OLER, J. OPINION and ORDER OF COURT OLER, 1., April 9, 2007 The Petitioner, Sammy Eugene Hockley, in his capacity as executor in the estate of Decedent Geraldine Mae Hockley, through his counsel, Karl E. Rominger, Esq., has filed a Petition To Satisfy Mortgages of Decedent's Estate. The facts alleged in the Petition To Satisfy Mortgages can be summarized as follows: The Decedent died on December 25, 2003, and to date Petitioner's counsel has been attempting to complete the administration of the estate. 1 The decedent's property was subject to several outstanding mortgages, which the Petitioner believes were paid and which need to be satisfied of record prior to settlement of the estate? Petitioner's counsel has attempted, without success, to contact the holders of the mortgages.3 No creditors to date, including the record Mortgagees, have made a claim against the estate.4 1 Petitioner's Petition To Satisfy Mortgages of Decedent's Estate, paras. 1-2, filed February 6, 2007 (hereinafter Petition To Satisfy). 2 Petition To Satisfy, para. 3. 3 Petition To Satisfy, paras. 4, 8-10. 4 Petition To Satisfy, para. 14. DISCUSSION Counsel for the Petitioner seeks to act pursuant to 21 P.S. 9 688 to secure satisfaction on the record of the mortgages. This statute reads as follows: In all cases where the legal presumption of the payment of mortgages shall exist from lapse of time, and no satisfaction appears on the record thereof, it shall be lawful for the owner or owners of the mortgaged premises to apply by petition to the court of common pleas of the county where the mortgaged premises are situate, setting forth the premises, and also the name of the holder or holders of the mortgage, if known, and if not known then stating that fact, whereupon the said court shall direct the sheriff of the said county to serve a notice, stating the facts set forth in the petition, on the holder or holders of the said mortgage, if to be found in the said county, and, in case the parties aforesaid cannot be found in the said county, then the said sheriff shall give public notice as aforesaid, in one or more newspapers published within or nearest the said county, once a week for four weeks successively prior to the then next term after the petition as aforesaid shall have been presented, requiring said parties to appear at said term and answer the petition as aforesaid at which term, should any person or persons appear, claiming to be the holder or holders of the said mortgage, the said court shall enter a rule on the person or persons claiming to sue out a writ of scire facias to the next quarterly or monthly return day, to which it shall be lawful for any party to appear and defend as is now authorized by law, as to writs of scire facias, and in default of a compliance with the said rule, and in the event of a nonappearance of any person to answer the said petition as aforesaid, the said court, being satisfied of the truth of the said petition, are hereby authorized and required, at the same or any subsequent term of the said court, to decree and direct that satisfaction shall be entered on the record of the said mortgage by the recorder of the proper county, on payment of the costs due relative to the entry of said mortgage or any proceedings thereon; which said satisfaction so entered shall forever thereafter discharge, defeat and release the same, and shall likewise bar all actions brought or to be brought thereon, as fully and effectually to all intents and purposes as if the satisfaction had been entered 2 by the legal holder or holders of the said mortgage. When a mortgage contains no fixed date of maturity or date of payment, it shall be deemed, for the purpose of having satisfaction entered on the record under the provisions of this act because of a legal presumption of payment from lapse of time, to have matured and the payment thereof to have become due one year from the date of acknowledgment of such mortgage. However, pursuant to Pennsylvania Rule of Civil Procedure 1068, 21 P.S. 9 688 has been suspended indefinitely. The note following Rule 1068 states that the statute was suspended. It would appear that, depending on when the mortgages were allegedly satisfied, Petitioner should have proceeded by an independent action pursuant to 21 P.S. 9681 or the Mortgage Satisfaction Act of 2002, 21 P.S. 9 721-1 et seq. If the mortgages were satisfied prior to the February 7, 2003 effective date of the Mortgage Satisfaction Act of 2002, Section 681 would apply; if not, Sections 721-1 et seq. would apply. Section 681 provides: Any mortgagee of any real or personal estates in the Commonwealth, having received full satisfaction and payment of all such sum and sums of money as are really due to him by such mortgage, shall, at the request of the mortgagor, enter satisfaction either upon the margin of the record of such mortgage recorded in the said office or by means of a satisfaction piece, which shall forever thereafter discharge, defeat and release the same; and shall likewise bar all actions brought, or to be brought thereupon. Section 721-4 provides a similar process for satisfying mortgages: Every mortgagee shall, upon receipt of payment of the entire mortgage obligation and tender of all required satisfaction and recording costs, present for recording in the office where the mortgage is recorded a duly executed satisfaction piece in substantially the form set out in section 5 and acknowledged as provided by law. The satisfaction piece when recorded shall forever thereafter discharge, defeat and release the lien and debt of the mortgage. 3 Section 721-6 reqUIres that a mortgagor send notice to the mortgagee requesting that a satisfaction piece be entered in a similar fashion to the terms of section 681. Where service can not be made in a conventional manner, a special order in the context of the suit regarding service may be sought. One legal problem which may arise in the attempted satisfaction of the mortgages is that the Petitioner is not the actual "Mortgagor" as is required in both Section 681 and 721-6. The Superior Court in Noel v. First Financial Bank, 2004 Pa. Super. 278, 855 A.2d 90 (2004), recently held that the "Mortgagor" had to be the party who fully paid the mortgage. This issue has also recently been addressed in this county by Judge Guido in Lyons v. Wachovia Bank National Association, No. 2002-5032 Civ., Slip Opinion (Cumberland County Ct. of Common Pleas June 21, 2006). In Lyons, the plaintiff was a subsequent purchaser of property and thus under Noel, lacked standing because the plaintiff, not the party who paid the mortgage in full as required by section 681. The present case however, would appear to be distinguishable from Lyons, because here it is the personal representative of the payor/mortgagor who is attempting to secure record satisfaction, whereas in Lyons it was a subsequent purchaser of the property. F or the foregoing reasons, the following order of court will be entered: ORDER OF COURT AND NOW, this 9th day of April, 2007 upon consideration of Petitioner Sammy E. Hockley's Petition To Satisfy Mortgages of Decedent's Estate, and for the reasons stated in the accompanying opinion, the relief requested will be denied without prejudice the Petitioner's right to utilize the procedures delineated in either 21 P.S. 9 681 or the Mortgage Satisfaction Act of 2002, 21 P.S. 9 721-1 et seq., as the case may be. 4 Karl E. Rominger, Esquire 155 South Hanover Street Carlisle, P A 17013 Attorney for Petitioner BY THE COURT, s/ 1. Wesley Oler, Jr. 1. Wesley Oler, Jr., 1. 5 6 IN RE: ESTATE OF GERALDINE MAE HOCKLEY IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA ORPHANS' COURT DIVISION NO. 21-04-10 IN RE: PETITON TO SATISFY MORTGAGES OF DECENDENT'S ESTATE BEFORE OLER, J. ORDER OF COURT AND NOW, this 9th day of April, 2007 upon consideration of Petitioner Sammy E. Hockley's Petition To Satisfy Mortgages of Decedent's Estate, and for the reasons stated in the accompanying opinion, the relief requested will be denied, without prejudice the Petitioner's right to utilize the procedures delineated in either 21 P.S. 9 681 or the Mortgage Satisfaction Act of 2002, 21 P.S. 9 721-1 et seq., as the case may be. BY THE COURT, 1. Wesley Oler, Jr., 1. Karl E. Rominger, Esquire 155 South Hanover Street Carlisle, P A 17013 Attorney for Petitioner