Citizens Bank of PA. v. Rim, D.
760 EDA 2016
| Pa. Super. Ct. | Sep 8, 2017Background
- Young Woon Rim mortgaged a residential Ambler, PA property; loan defaulted and Citizens Bank initiated foreclosure in Feb 2015. Young Woon Rim died June 2014; Dong M. Rim was appointed administrator and listed a Philadelphia address (2200 Arch St.).
- Citizens sent an Act 91 notice by certified mail to 2200 Arch St.; Citizens later filed a foreclosure complaint and the return of service stated process was served on March 17, 2015 at 2200 Arch St. on the “Manager/Clerk of place of lodging in which Defendant resides.”
- Rim did not respond; Citizens filed a praecipe and a default judgment was entered April 23, 2015. A sheriff’s sale was scheduled; Nationstar later filed a separate foreclosure against Rim in June 2015.
- Rim filed a petition to open the default judgment in October 2015, alleging improper service (he no longer lived at 2200 Arch St. and the return did not name the person served), lack of actual notice, and meritorious defenses; he did not attach a proposed answer or conduct discovery after a Rule to Show Cause.
- The trial court treated Citizens’ factual averments as admitted under Pa.R.C.P. 206.7 because Rim did not rebut them by discovery or pleadings, concluded service was proper under Rule 402(a)(2)(ii), and denied the petition to open; Rim appealed.
Issues
| Issue | Citizens' Argument | Rim's Argument | Held |
|---|---|---|---|
| Was service of the foreclosure complaint valid? | Return shows service at Rim’s listed residence to manager/clerk — valid under Pa.R.C.P. 402(a)(2)(ii); Citizens produced corroborating evidence. | Service defective because the return did not name the individual served and Rim no longer resided at 2200 Arch St. | Service was proper; court had jurisdiction because Rim failed to rebut Citizens’ averments with discovery/evidence. |
| Should the default judgment be opened because of lack of actual notice? | Rim’s claim of lack of actual notice contradicted evidence (Act 91 certified receipt signed, property records, postmaster cert.) and was not shown by discovery. | Rim argued he learned of the case only from Nationstar’s suit and promptly filed to open after retaining counsel. | Denied: Rim did not present admissible evidence establishing lack of notice or a reasonable excuse for delay. |
| Did Rim timely and adequately seek relief to open judgment? | Rim delayed: he had contact with Citizens’ counsel in July 2015 and did not file the petition until October 2015; he also failed to pursue discovery ordered by the court. | Delay was reasonable given time to consult counsel and prepare petition; foreclosure stakes justify leniency. | Denied: filing was not prompt under circumstances and Rim failed to use discovery to support his claims. |
| Did Rim show a meritorious defense to the foreclosure? | Rim offered only conclusory, unverified assertions and failed to attach a proposed answer as required by Pa.R.C.P. 237.3. | Rim asserted defenses (improper service, contest default, denial of Act 91 receipt, challenge to note ownership) but did not attach a proposed answer. | Denied: because Rim did not satisfy the first two prongs (service and excuse), court did not reach or accept his unsupported meritorious-defense claims. |
Key Cases Cited
- Cintas Corp. v. Lee’s Cleaning Servs., Inc., 700 A.2d 915 (Pa. 1997) (if service is invalid, judgment must be opened; trial court may consider matters outside the original record when assessing service)
- Duckson v. Wee Wheelers, Inc., 620 A.2d 1206 (Pa. Super. 1993) (standard of review for opening default judgments — abuse of discretion and equitable considerations)
- Am. Exp. Co. v. Burgis, 476 A.2d 944 (Pa. Super. 1984) (three-part test for opening default judgments: prompt filing, excuse for default, meritorious defense)
- Myers v. Wells Fargo Bank, N.A., 986 A.2d 171 (Pa. Super. 2009) (failure to satisfy any one prong of the three-part test mandates denial of petition to open)