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HomeMy WebLinkAbout2002-107 Civil COUNTRYWIDE HOME LOANS, INC. F/K/AAMERCIA'S WHOLESALE LENDERS, INC., Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. CIVIL ACTION-LAW ETHEL GARRETT A/K/ A ETHEL EILEEN GARRETT, Defendant NO. 2002-107 CIVIL TERM IN RE: DEFENDANT'S PRELIMINARY OBJECTIONS TO PLAINTIFF'S EXCEPTIONS TO SCHEDULE OF DISTRIBUTION FROM SHERIFF'S SALE BEFORE OLER, J. ORDER OF COURT AND NOW, this 28th day of April, 2006, upon consideration of Defendant's preliminary objections to Plaintiff s Exceptions to Sheriff s Sale Distribution, following a hearing held on March 2, 2006, and for the reasons stated in the accompanying opinion, it is ordered and directed as follows: 1. Defendant's preliminary objections to Plaintiff s Exceptions to Sheriff s Sale Distribution are denied. 2. Nothing herein is intended to preclude any interested party from advancing the position at the hearing scheduled below that the burden of any financial loss arising out of the procedure employed by Plaintiff should fall upon Plaintiff; and 3. A hearing on the merits of Plaintiff s exceptions is scheduled for Wednesday, July 12, 2006, at 3:00 p.m., in Courtroom No.1, Cumberland County Courthouse, Carlisle, Pennsylvania. Michele M. Bradford, Esq. Phelan, Hallinan & Schmieg, LLP One Penn Center at Suburban Station 1617 John F. Kennedy Blvd. Suite 1400 Philadelphia, PA 19103-1814 Attorney for Plaintiff Grace E. D'Alo, Esq. Mid-Penn Legal Services 8 Irving Row Carlisle, P A 17013 Attorney for Defendant Clayton W. Davidson, Esq. McNees, Wallace, & Nurrick P.O. Box 1166 100 Pine Street Harrisburg, P A 17108-1166 Attorney for PNC Bank Borough of Mechanicsburg West Strawberry @ North Market Street Mechanicsburg, P A 17055 Cumberland County Sheriff s Office BY THE COURT, 1. Wesley Oler, Jr., 1. COUNTRYWIDE HOME LOANS, INC. F/K/AAMERCIA'S WHOLESALE LENDERS, INC., Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. CIVIL ACTION-LAW ETHEL GARRETT A/K/ A ETHEL EILEEN GARRETT, Defendant NO. 2002-107 CIVIL TERM IN RE: DEFENDANT'S PRELIMINARY OBJECTIONS TO PLAINTIFF'S EXCEPTIONS TO SCHEDULE OF DISTRIBUTION FROM SHERIFF'S SALE BEFORE OLER, J. OPINION and ORDER OF COURT OLER, 1., April 28, 2006. In this mortgage foreclosure action in which the mortgaged property was subjected to a sheriff s sale, Plaintiff mortgagee has filed exceptions to the Sheriff s proposed schedule of distribution and Defendant mortgagor has filed preliminary objections to the exceptions on the basis of untimeliness. 1 A hearing was held on the preliminary objections on March 2, 2006. For the reasons stated in this opinion, Defendant's preliminary objections will be denied. STATEMENT OF FACTS For the purpose of Defendant's preliminary objections, the facts of this case may be summarized as follows: Plaintiff Countrywide Home Loans, Inc., held a mortgage on property owned by Defendant Ethel Garrett at 409 Alison Avenue, Mechanicsburg, Cumberland County, 1 Preliminary Objections to Plaintiffs Motion To Stop Payment and Plaintiffs Exceptions to Sheriffs Sale Distribution, filed February 3, 2006. Defendant's preliminary objections to Plaintiffs motion to stop payment are subsumed by the preliminary objections to Plaintiffs exceptions and will be deemed disposed of in accordance with the disposition of the obj ections to the exceptions. Pennsylvania, l7055? Defendant defaulted on her mortgage payments, resulting in Plaintiff s initiation of the instant foreclosure action. 3 The property was ultimately sold to a third party by the Sheriff of Cumberland County on December 7, 2005.4 On January 6, 2006, the Sheriff s Office filed a proposed distribution schedule from the sale proceeds generated by Defendant's property, including payment to Plaintiff of $79,259.20 and payment to Defendant of $50,016.57.5 The deadline for filing exceptions to the schedule was January 17,2006.6 The following events transpired regarding the filing of exceptions. According to the testimony of J ody Smith of the real estate division of the Sheriff s office, a proposed distribution schedule was posted and mailed to all interested parties on January 6, 2006.7 On January 18, 2006, prior to distribution of the sale proceeds, Smith checked with the Prothonotary's Office to determine if exceptions had been filed; in this regard, she testified as follows: I accessed their docket entries that mornmg. There was nothing listed on the docket entries for this case, for exceptions being filed. I telephoned the office, but I do not remember who I spoke to, and they confirmed that there were no exceptions filed. 8 2 Complaint in Mortgage Foreclosure, ~~ 1-3, filed January 8, 2002 (hereinafter "Complaint"). 3 See Complaint, ~~ 5-6, filed January 8, 2002; Praecipe for Judgment for Failure To Answer and Assessment of Damages, filed February 28, 2002 (default judgment for $60,126.66 entered February 28, 2002); Praecipe for Writ of Execution (Mortgage Foreclosure) P[a]. RC.P. 3180-3183, filed June 21, 2005 (adding interest and costs to the amount for a new total of$73,741.30). 4 Schedule of Distribution Sale No. 39, filed January 6, 2006. 5 Schedule of Distribution Sale No. 39, filed January 6, 2006. 6 See Pa. RC.P. 3136(d). Both parties agree the deadline fell on January 17, 2006, ten days after the filing of the report with a one day allowance for the Martin Luther King, Jr. holiday on January 16,2006. NT 22-23, Hearing, March 2,2006. 7 NT 6, Hearing, March 2,2006. 8 NT 8, Hearing, March 2,2006. 2 Regarding the reason Smith checked with the Prothonotary, Smith testified: The reason I always double check with the Prothonotary is to make sure that no exceptions were filed and to make sure that there are no exceptions filed in their office in case something like this happens. 9 Smith stated that she had started the practice of checking with the Prothonotary approximately 12 to 18 months prior to this incident because "there's more exceptions being filed recently.,,10 Having been advised by the Prothonotary's Office that no exceptions had been received, and the Sheriff s Office having received no exceptions, Smith issued checks distributing the proceeds of sale on January 18, 2006.11 On January 19, 2006, Smith received Plaintiff's exceptions by regular mail in the Sheriff s Office. 12 Smith then rechecked with the Prothonotary and learned the exceptions had in fact been time stamped January 17th at approximately 1:00 in their [the Prothonotary's] office, and that they did not have them on the docket yet, and they weren't - the person who spoke to me on the 18th wasn't aware that they were in the office, that exceptions were actually filed in the office.13 According to the exceptions, Plaintiff was entitled to a total of $102,087.46 from the proceeds. Additional funds of approximately $22,828.26 were thus requested by plaintiff in the exceptions. 14 9 NT 12, Hearing, March 2,2006. 10 NT 11, 15-16, Hearing, March 2,2006. 11 NT 8, Hearing, March 2,2006. 12 NT 6, Hearing, March 2,2006. 13 NT 14, Hearing, March 2,2006. 14 Exceptions to Sheriffs Sale Distribution Pursuant to Pa. RC.P. 3136(d), ~8, filed January 17,2006 (with the Prothonotary's Office), filed January 19, 2006 (with the Sheriffs Office). This calculation is based on the debt of $102,087.46 as alleged in the exceptions as opposed to the allocation in the sheriffs schedule of distribution of $79,259.20. 3 Plaintiff filed a Motion To Stop Payment on the Sheriffs distribution check to Defendant on January 20,2006.15 The court granted the motion, authorized the Sheriff to "stop payment on its January 18, 2006 check to [Defendant] Ethel Garrett," and required Plaintiff pay any "bank charges associated with the stop payment.,,16 However, one day before this order, on January 19, 2006, Defendant had deposited the Sheriffs check in her PNC Bank account. PNC Bank had, in addition, granted Defendant provisional credit on the check. 17 Defendant filed preliminary objections to the exceptions based on Plaintiff s failure to follow Pennsylvania Rule of Civil Procedure 3136( d), inasmuch as plaintiff had filed the exceptions with the Prothonotary's Office instead of the Sheriffs Office.18 A hearing on these preliminary objections was held on March 2, 2006, at the conclusion of which the matter was taken under advisement. After the March 2, 2006 hearing, the court entered the following interim order in accordance with an agreement of the parties: UPON CONSIDERATION of PNC Bank, N.A.'s objections . . . and stipulation of counsel for PNC Bank, Countrywide Home Loans, Inc. and Ethel Garrett it is hereby ORDERED AND DECREED that the Cumberland County Sheriff shall pay: (a) PNC Bank, N.A. the sum of $13,264.06 from the proceeds of the sheriff s sale of Ethel Garrett's real property conducted on December 7,2005 and (b) $15,424.25 to Ethel Garrett from said proceeds. 19 15 Order of Court, January 20,2006; see Motion to Stop Payment, filed January 19,2006. 16 Order of Court, January 20, 2006. 17 NT 17, Hearing, March 2, 2006; PNC Bank N.A.'s Objection to Countrywide Home Loans, Inc.'s Motion To Stop Payment and Exceptions to Sheriffs Sale, ~~ 5-8, filed February 8, 2006. 18 N. T. 17, Hearing, March 2, 2006; Preliminary Objections to Plaintiffs Motion To Stop Payment and Plaintiffs Exceptions to Sheriffs Sale Distribution, ~ 4-6,9-11, filed February 3, 2006. 19 Order of Court, March 2, 2006. 4 DISCUSSION According to Pennsylvania Rule of Civil Procedure 1028(a)(2), preliminary objections may be filed on the ground of a "failure of a pleading to conform to law or rule of court." The rule of court applicable to filing exceptions to a sheriff s schedule of distribution in the present context is found in Pennsylvania Rule of Civil Procedure 3136( d), which provides: "The sheriff shall distribute the proceeds of sale in accordance with the proposed schedule of distribution, unless written exceptions are filed with the sheriff not later than ten (10) days after the filing of the proposed schedule." With respect to construction, interpretation, and application of the rules, Pennsylvania Rule of Civil Procedure 126 provides: The rules shall be liberally construed to secure the just, speedy and inexpensive determination of every action or proceeding to which they are applicable. The court at every stage of any such action or proceeding may disregard any error or defect of procedure which does not effect the substantial rights of parties. In the instant case, exceptions were filed within the ten-day period in the wrong office of the courthouse, i.e., the Prothonotary's Office. Two days after the period under Pennsylvania Rule of Civil Procedure 3136( d) had expired, a copy of the exceptions was also received by the correct office, i.e., the Sheriffs Office. Although checks had been issued to distribute the proceeds of the sheriff s sale, Plaintiff filed a motion to stop payment, which resulted in a retrieval of some of the proceeds in question. In appellate situations, when an appeal is filed in the wrong office or tribunal, the appeal will be transferred to the correct office and treated as properly filed. Act of July 9, 1976, P.L. 586, 92, as amended, 42 Pa. C.S. 95103. The policy behind 42 Pa. C.S. Section 5103 is to preserve claims timely filed; "the transfer statute ameliorates 'the hardship on litigants who inadvertently file their action in the wrong place. ", Commonwealth v. Lambert, 765 A.2d 306, 320 (Pa. Super. Ct. 2000) (citation omitted). 5 Citing this provision of the judicial code, the Commonwealth Court has reasoned by analogy that, "if a court case wrongly filed in an administrative tribunal is to be treated as if correctly filed, then an administrative proceeding filed with the wrong tribunal should, a fortiori, be treated as if filed in the correct one." Suburban Cable TV Co. v. Commonwealth, 131 Pa. Commw. 368, 388, 570 A.2d 601, 611 (1990). In the present case, by a similar process of reasoning, and based upon the unique circumstances presented, it appears to the court most consonant with a practical construction of the rules of procedure to deny Defendant's preliminary objections premised solely upon a filing (timely) in an incorrect office of this court, without prejudice to the right of any interested party actually prejudiced by the procedure employed by Plaintiff to argue that the burden of such loss should be borne by Plaintiff. Accordingly, the following order will be entered: ORDER OF COURT AND NOW, this 28th day of April, 2006, upon consideration of Defendant's preliminary objections to Plaintiff s Exceptions to Sheriff s Sale Distribution, following a hearing held on March 2, 2006, and for the reasons stated in the accompanying opinion, it is ordered and directed as follows: 1. Defendant's preliminary objections to Plaintiff s Exceptions to Sheriff s Sale Distribution are denied. 2. Nothing herein is intended to preclude any interested party from advancing the position at the hearing scheduled below that the burden of any financial loss arising out of the procedure employed by Plaintiff should fall upon Plaintiff; and 3. A hearing on the merits of Plaintiff s exceptions is scheduled for Wednesday, July 12, 2006, at 3:00 p.m., in Courtroom No.1, Cumberland County Courthouse, Carlisle, Pennsylvania. 6 Michele M. Bradford, Esq. Phelan, Hallinan & Schmieg, LLP One Penn Center at Suburban Station 1617 John F. Kennedy Blvd. Suite 1400 Philadelphia, PA 19103-1814 Attorney for Plaintiff Grace E. D'Alo, Esq. Mid-Penn Legal Services 8 Irving Row Carlisle, P A 17013 Attorney for Defendant Clayton W. Davidson, Esq. McNees, Wallace, & Nurrick P.O. Box 1166 100 Pine Street Harrisburg, P A 17108-1166 Attorney for PNC Bank Borough of Mechanicsburg West Strawberry @ North Market Street Mechanicsburg, P A 17055 Cumberland County Sheriff s Office BY THE COURT, s/ 1. Wesley Oler, Jr. 1. Wesley Oler, Jr., 1. 7