The Bank of New York Mellon v. Pogonovich, K.
444 WDA 2016
Pa. Super. Ct.Dec 29, 2017Background
- Bank purchased the Smith Township property at sheriff's sale following a 2010 mortgage foreclosure and received a sheriff's deed dated June 16, 2010.
- Defendant Pogonovich occupied the property under an unrecorded installment land contract with the prior owners and admitted defaulting on payments.
- Pogonovich admitted he was personally served with the foreclosure complaint, received notice the property was posted, and received notice of the sheriff's sale; he did not contest the foreclosure or attempt to set aside the sale.
- The trial court conducted a non-jury ejectment trial (Feb. 27, 2014), found Pogonovich had no recorded interest or color of title, and entered judgment of possession for Bank, ordering vacancy by April 20, 2014.
- Pogonovich filed post-trial motions and multiple bankruptcy petitions that delayed enforcement; after relief from stay the trial court denied reconsideration (Mar. 9, 2016) and the Superior Court affirmed.
Issues
| Issue | Bank's Argument | Pogonovich's Argument | Held |
|---|---|---|---|
| Whether Pogonovich had to be named in the original mortgage foreclosure under Pa.R.C.P. 1144(a) | He was not a record owner or mortgagor, so not required to be named | His unrecorded installment land contract made him a real owner/mortgagor requiring naming | Court: Not required to be named; unrecorded contract did not make him the real owner |
| Whether service/notice of the foreclosure and sheriff's sale was proper under Pa.R.C.P. 410 | Service and posting were proper; defendant admitted personal service and notice | Argued lack of proper service/constructive notice and contended procedural defects | Court: Findings that he had actual and constructive notice and was properly served are supported by the record |
| Whether Act 91 (Homeowner's Emergency Mortgage Assistance Act) notice requirements entitled Pogonovich to relief | Bank: Act 91 notice not owed to Pogonovich because he was not the mortgagor and exceptions applied | Pogonovich: He should have received Act 91 protections/notice | Court: Act 91 did not apply to him (not mortgagor; exceptions likely met); issue waived in pleadings anyway |
| Whether trial court's factual findings are supported by competent evidence | Bank: Trial court findings based on defendant's admissions and trial evidence | Pogonovich: Challenges factual findings about notice, service, and ownership status | Court: Appellate review defers to trial court credibility findings; evidence supports the findings |
Key Cases Cited
- Kornfeld v. Atlantic Financial Federal, 856 A.2d 170 (Pa. Super. 2004) (standard of appellate review for non-jury trials: findings must be supported by competent evidence)
- Bonenberger v. Nationwide Mut. Ins. Co., 791 A.2d 378 (Pa. Super. 2002) (appellate courts do not reassess witness credibility)
- Meritor Mortgage Corp.-East v. Henderson, 617 A.2d 1323 (Pa. Super. 1992) (service required on person in possession when seeking possession or foreclosure)
- Commercial Banking Corp. v. Culp, 443 A.2d 1154 (Pa. Super. 1982) (necessary party doctrine: only those whose rights are so connected that decree would impair them must be named)