Nationstar Mortgage, LLC v. Lark
73 A.3d 1265
| Pa. Super. Ct. | 2013Background
- Lark executed a mortgage in 2007 (AAKO, Inc. as original lender); mortgage later assigned to MERS and then to GMAC. Lark defaulted.
- GMAC commenced foreclosure in December 2007; Lark did not answer and default judgment entered. Mortgage later assigned to National Mortgage LLC (NM LLC).
- The Property (Lark’s residence) entered the court’s Mortgage Foreclosure Pilot Program; multiple postponements occurred and the sheriff’s sale took place September 13, 2011.
- Sheriff’s deed was delivered and recorded November 15, 2011; Lark filed a Motion to Set Aside Sheriff’s Sale on November 28, 2011 alleging the Act 91 notice was defective.
- Trial court found the Act 91 notice complied substantively and alternatively that Lark’s claim was untimely. Trial court denied the motion; appellate court affirmed on timeliness grounds under the Homeowner Assistance Settlement Act (35 P.S. §1681.5(2)).
Issues
| Issue | Lark's Argument | NM LLC's Argument | Held |
|---|---|---|---|
| Whether the Act 91 notice was defective for failing to name the original lender and listing GMAC as current lender/servicer before assignment | The notice omitted original lender (AAKO) and incorrectly listed GMAC as current lender because GMAC’s assignment occurred after default judgment | The notice complied with Act 91 (or any defect caused no prejudice); also procedural defenses apply | Court did not reach substantive validity; affirmed because Lark raised the notice defect after delivery of the sheriff’s deed in violation of 35 P.S. §1681.5(2) (untimely) |
Key Cases Cited
- Bank of America, N.A. v. Estate of Hood, 47 A.3d 1208 (Pa. Super. 2012) (describing purpose of sheriff’s sale in foreclosure)
- Provident Nat’l Bank, N.A. v. Song, 832 A.2d 1077 (Pa. Super. 2003) (same)
- Bornman v. Gordon, 527 A.2d 109 (Pa. Super. 1987) (petitioner bears burden to prove circumstances warranting equitable relief to set aside sale)
- Blue Ball Nat. Bank v. Balmer, 810 A.2d 164 (Pa. Super. 2002) (appellate review of setting aside sheriff’s sale is for abuse of discretion)
- Warmkessel v. Heffner, 17 A.3d 408 (Pa. Super. 2011) (abuse of discretion where court misapplies law)
- Wells Fargo Bank, N.A. v. Monroe, 966 A.2d 1140 (Pa. Super. 2009) (discusses prejudice requirement for defective Act 91 notice)
- Beneficial Consumer Discount Co. v. Vukman, 37 A.3d 596 (Pa. Super. 2012) (related treatment of Act 91 defects)
- Ross v. Foremost Ins. Co., 998 A.2d 648 (Pa. Super. 2010) (appellate court may affirm on any valid basis)