February 9, 2013
In Wells Fargo Bank, N.A. v. Lupori, 8 A.3d 919 (Pa. Super. 2010), the court “reverse(d) the trial court’s order denying the [Plaintiff’s] petition to strike the default judgment against them and set aside the sheriff’s sale.”
The court cited U.S. Bank v. Mallory, 982 A.2d 986 (Pa. Super. 2009), which stated “where a fatal defect or irregularity is apparent from the face of the record, the prothonotary will be held to have lacked the authority to enter [a] default judgment and the default judgment will be considered void.” According to Pa.R.C.P. 1147(a)(1), a plaintiff in a foreclosure action shall state in its complaint “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.” The bank in Mallory “stated in its complaint in foreclosure that ‘it was the legal owner of the mortgage and was in the process of formalizing the assignment thereof.’” Mallory held this was sufficient notice to the owner that the bank was the legal owner of the mortgage, despite the assignment still being processed.
Here, however, in its complaint in the foreclosure action, Wells Fargo refers to the assignment from First Franklin to First Franklin Financial Corporation, but does not refer to an assignment to Wells Fargo nor does it allege it was the owner of the mortgage. Thus, the Plaintiff here was not put on notice that Wells Fargo was the legal owner of the mortgage note, and Wells Fargo’s complaint does not comply with Pa.R.C.P. 1147(a)(1).| Permalink