February 5, 2013
In Mortgage Electronic Registration Systems, Inc., et al. v. Ralich, 2009 PA Super 163 982 A.2d 77, the Superior Court affirmed the Court of Common Pleas’s holding granting MERS’s motion to strike Appellant’s, Ralich, petition to set aside the sheriff’s sale and to dismiss foreclosure proceedings, because the Appellant’s petitions were untimely and not excused by any exception.
Pursuant to Pennsylvania Rules of Civil Procedure 3135(a) and 3132, a party in interest must petition the court to set aside a sheriff’s sale within 20 days “after the filing of the schedule of distribution or the execution sale” and before the sheriff issues a sheriff’s deed. A court only excuses an untimely petition if the petitioner shows there was either fraud or lack of authority to make the sale.
Here, Appellant’s petition was untimely because it was filed three months after the sheriff issued a deed. Appellant claimed that the untimely petition should be excused because (1) “various procedural irregularities plagued the sale,” (2) there was fraud, and (3) MERS lacked authority to complete the sheriff’s sale. The Trial Court, with the Superior Court affirming, dismissed each of these claims, respectively, stating that (1) a sheriff’s sale cannot be set aside because of procedural deficiencies, (2) Appellant’s failed to state fraud with particularity, and (3) MERS had authority because the mortgage itself “vest(ed) MERS, as nominee, to enforce the loan.”| Permalink