Nicholas Malfitano Aug. 25, 2015, 8:34am


PHILADELPHIA – A state appeals court has refused the appeal of a woman who blames her incarceration for a default judgment against her that would result in the selling of her house.

In a decision filed Aug. 19, the Superior Court affirmed a 2014 decision by the Philadelphia County Court of Common Pleas in favor of Bank of New York Mellon, which is attempting to foreclose on the house of defendant Jacqueline Johnson.

Judges Susan Peikes Gantman, John T. Bender and Paula Francisco Ott ruled in this case, with Gantman writing the opinion upholding the decision in favor of Bank of New York Mellon against Philadelphia resident Jacqueline M. Johnson.

Bank Of New York Mellon initiated the mortgage foreclosure action in September 2010, claiming Johnson was in default on a mortgage of property on East Phil Ellena Street in Philadelphia.

For the following two years, Bank Of New York Mellon reported difficulty in serving the complaint upon Johnson, and filed a praecipe for default judgment on Dec. 11, 2011, in the amount of $145,602.28. Six months later, on May 17, 2012, the trial court amended that amount to $168,095.41 through the date of sale, at a rate of 6 percent interest per year.

Johnson filed a motion to postpone the sheriff’s sale of the property and a petition to open the judgment on Aug. 23, 2013, arguing she had been incarcerated during the prior proceedings and could not properly respond.

Though the sheriff’s sale was postponed until Dec. 3, 2013 and later placed in “deferred” status, Johnson’s petition to open the judgment was denied by the trial court on Oct. 29, 2013.

After being reinstated from “deferred” status, Bank of New York Mellon filed a writ of execution on Sept. 5 – to which Johnson responded with a petition to strike the judgment on Oct. 2, because the appellee “had failed to provide proof of service by certified mail; failed to set forth a specific averment of default; failed to attach a promissory note; and that appellee was not the real party of interest in regard to the claim.”

On Nov. 14, the trial court denied Johnson’s petition to strike the judgment, which she appealed one week later.

According to the Superior Court judges, it was their duty to determine whether the Philadelphia County Court of Common Pleas had erred in its decision of finding Bank of New York Mellon properly served process upon Johnson, and that the complaint stated a claim of action for mortgage foreclosure, though no promissory note was included.

The Superior Court did not find favor with Johnson’s first claim of improper service. Gantman cited Pennsylvania Rules of Civil Procedure (PRCP) 403, 405 and 430 in explaining Bank of New York Mellon had used all necessary means to effectuate service of the complaint upon Johnson, including means of alternative service to another of her known addresses.

“Appellee effectuated service pursuant to a special order of the court granting the motion for alternative service. Here, appellee fully complied with the court’s special order,” Gantman said.

“Moreover, the court reasonably calculated the manner of alternative service to give appellant actual notice of the pending litigation and an opportunity to be heard. Therefore, Appellant has not demonstrated a fatal defect in the record, and she is not entitled to relief on her first claim.”

The Superior Court likewise disagreed with Johnson’s second claim that the complaint lacked cause and was missing a promissory note.

Gantman cited PRCP 1147 in explaining Bank of New York Mellon fulfilled its evidentiary mandates by including all relevant information in its mortgage foreclosure complaint, including: “(1) the parties to and the date of the mortgage, and of any assignments, and a statement of the place of record of the mortgage and assignments; (2) a description of the land subject to the mortgage; (3) the names, addresses and interest of the defendants in the action and that the present real owner is unknown if the real owner is not made a party; (4) a specific averment of default; (5) an itemized statement of the amount due; and (6) a demand for judgment for the amount due.”

“Here, the trial court found a complaint in mortgage foreclosure does not need to include the original promissory note. The complaint did make a specific averment that monthly installments were due…and that appellant failed to pay. We agree and emphasize that appellee’s complaint fully complied with Rule 1147. The complaint listed the parties to the mortgage, the date of execution, and the assignment to appellee,” Gantman stated.

Gantman said because the complaint set forth the name, address, and interest of the appellant, included a specific averment of default explaining that appellant had failed to make her required monthly payments since 2005 and provided an itemized statement of the amount due, Johnson was not eligible for relief on her claim.

“Based on the foregoing, we conclude appellant failed to demonstrate a fatal defect on the face of the record as it existed when judgment was entered. Therefore, the court properly denied appellant’s petition to strike the default judgment. Accordingly, we affirm,” Gantman said.

The appellee is represented by Andrew C. Bramblett in Philadelphia; Melissa Cantwell in Langhorne; Allison F. Zuckerman, Daniel G. Schmieg, Tabas Lauren, John Kolesnik, Matthew Brushwood, Adam H. Davis, Paul Cressman, Francis S. Hallinan, Jonathan Etkowicz and Kenya Bates of Phelan Hallinan & Schmieg, in Philadelphia; Robert W. Cusick of Richard M. Squire & Associates, in Jenkintown; and Matthew T. Eyet of Sandelands Eyet, in Bedminster, N.J. 

The appellant is represented by David E. Pearson, in Philadelphia.

The Superior Court of Pennsylvania case 3409 EDA 2014

From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nickpennrecord@gmail.com

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