that was not listed in the thirty one twenty nine affidavit and cheese was not properly served with notice of south prior to marshall so and so what happens under pennsylvania law i guess under section thirty one twenty nine if the second lien holder is not given notice of the mortgage foreclosure by a prior in holder the lien of the second lien holder is not the store if you were to get confirmation of that sale is that correct that's correct your honor however however i'm sure the rules of civil procedure are junior and a junior lien holder is only entitled to notice of sale in order to bid to protect its interest at sale in in this instance chase has now attained seem that your first tack should have been ok we messed up before this deed is is is given out before this confirmation before we're stuck with the possibility of a second l holder being in place that if we sell this property we've got to throw off if you want thousand dollars to them of what you should have done was what you did the second time which is hate let's just let's just let's have a do over johner and and we did it by the quote that we would have dared all costs to re deal and to have another marshal sell a property and that would have put all parties back into the position they were and prior to the sale and the only party that would have been prejudiced would have been the appellant in this case who had already agreed to incur all expenses incurred and a lot of this would have been a whole lot easier if you had started were about ninety nine point nine percent of cases start which is foreclosures in state court that's why i pledge what you go to federal court to do it i mean i concede that the erotically it's you have diversity jurisdiction and you can you can do it i used to a lot of this stuff i've never i've never seen a mortgage foreclosure in federal court there isn't all this one the reason that this particular case was filed and middle district of pennsylvania is it would have been filed in monroe in this particular piece yes there was a default judgment but even with the fall judgments it's typical for the sheriff among our county not to hold the sale for eighteen months and that's why in particular cases in monroe county we will file a middle district because of the volume world is that you had diversity jurisdiction the judge let you go forward and then all of a sudden you started bringing up complicated issues of state real estate law and the judge took fifteen steps back and  that it's a law yes you're right he granted the second that he went back and he thought it sort of like oh my goodness i'm getting myself into a real thicket here of of state real estate law that's where they should be to begin with  it that's cracked and because this this case from beginning to conclusion so far within diversity jurisdiction we believe that judge money did air because this isn't a separate title issue this is just a mistake in the execution of the judgment basically said that the mortgage foreclosure action is finished and really what opposing counsel argues that that means is he said wait a minute we no longer have your or is it that the essence of this case is that the district court once the sheriff's sale finished and when you say the sheriff's seal is complete say that the sheriff's sale takes place when the hammer falls does take place when the hammer falls how ireland a marshall said sold to the plaintiff for cost in taxes that's the hammerfall that that's correct however it is routine in pennsylvania state court does the federal court know we're courts of limited jurisdiction do we any longer have jurisdiction when you're fighting over a fifty one thousand dollar junior lien i believe there was still jurisdiction because the case there's still an issue is whether to the case really and was it really concluded was it final because the foreclosure is not finished my client has not been able to realize its foreclosure judgment and the amount of controversy is still the amount that it's trying to obtain through its foreclosure judgment which was over one hundred forty six counts of how these matters to be litigated in state court we attempted to go to stay quit your honor however because this is this was pending well well that's the thing we don't know if jane builders the servicer or the ass any if it's the x any it had a duty to report an assignment so would have been a record and it would have been entitled to know that prior to the sell if it's in a signing and it didn't require it's isn't really your argument that look once you take jurisdiction of a case you have to see it to a finish yes and there are certain times when you like the the supreme court case that dealt with the settlement agreement somebody violated some agreement the supreme or the the crowd court had not retain jurisdiction and therefore that's a new claim that you need to bring separately here i thought the argument was that you have we haven't got the deed we've got issues relating to who gets the money once the confirmation order comes down that's an issue that you the district court having accepted jurisdiction cannot back away from you have to deal with it sorry that's correct your honor but shouldn't have been having vacated the order that because the marshals  that stay quiet under younger paper and i don't think that abstention was appropriate either since judge money did exercise jurisdiction over the entire case and this is part of the foreclosure process and good morning your honour's bryan kelly on behalf of chase manhattan bank dream care dream builders one of the junior entities here i would like to identify for the court what the status of dream builders is so that they can be or why we are here and why we have been involved in this litigation from the very beginning there isn't a record there is an assignment made from chase manhattan residential funding to  care of dream builders that assignment of mortgage exists and is dated after the relevant date of this particular litigation so therefore the dream builders has to rely upon whatever right title and interest might have been vested in chase manhattan residential at the time of the filing of the writ of execution so i like to clear that particular issue if it always is the beneficiary yes you are now the reason i assume that you sought to vacate the order divesting or vacating the sheriff's sale was because you wanted to say that your lien was still in place that is correct your honor we had a prior water of january i'm sorry july third from judge munley indicating that that arlene was not invested very interesting question on behalf of third party purchasers who have not examined the title have not done their homework in advance i have been involved by counsel for lenders that the appropriate remedy is an action to quiet title which would be filed in state court i have yet to take those particular proceeding over the years i so you would have if they go back to state court of monroe county what you're going to say is you can't foreclose because you the state court can't do anything to set aside a say ordered by a federal court and all that you can really do is attempt to quiet title that is correct you're on board at that's that and that puts everybody between a rock all of this relative limit your honor i think judge munley was quite and the court here has correctly put the finger its finger on what transpired here john judge munley did not want to address these particular tighter title issues he is a contemporary of mine i know him well and i understand his reluctance to probably deal with this particular issue and  believe it isn't the problem that once you have jurisdiction and it doesn't go elsewhere for abstention or other reasons and we talk about that you have a quote unflagging obligation close quote to stay it through and this is this is not a new claim this is part of the very same procedure that hasn't been alternately confirmed by a court your honor i believe that the federal court system under rule sixty nine a one which applies where there is an execution on a state judgment the fact that the rules of civil procedure for pennsylvania apply and rule thirty one thirty two of the pennsylvania rules of civil procedure basically the petition to subside a sheriff's sale section of the rules and the case law underneath that particular section is an equitable standard you must have the an equity position in order to be able to sustain that that motion that issue doesn't change even at the at the federal court level so even if we were to answer your question but might but my point is regardless what state law says doesn't the federal judge have to see it through i'm saying that he may be required to do that under sixty nine a one and as i treat in my brief that even if judge munley had addressed those issues he would have discovered a new the pennsylvania law that the plaintiff appellant in this case did not have the equitable jurisdiction because it made its it made a mistake that would be an argument that would be made before him and he would have to resolve i mean you know the first thought that goes through your mind and towards how can i get rid of this you would think of abstention but i can't think of any of the resources but you know the whole or the gap to allow extension it is pretty small once you take take jurisdiction here on i actually believe that the appropriate jurisdiction and then later on that somebody violated that agreement and they came back and they say ok court in force the settlement agreement and what the supreme court said is that is a new claim the claim being that a violation of an agreement and it's not a continuation of the old case which had been closed this case is not a new claim it's the thing that you ordered that you allowed to take place the foreclosure sale tell us how we go about setting settling up in terms of who has leans who doesn't nor do we determine who gets the money and who doesn't before you enter the confirmation order and i would peacock that the ancillary jurisdiction to enforce enhanced or justify a particular verdict had to be against the original judgment that are the original defend house action and here neither chase manhattan residential nor chase manhattan dream builders were original people in as defendants in the cause of action but the point is a and i believe if you if you then go to peacock there is another set up exceptions to that particular rule that it has to be against the original parties and neither of the apple lease were original parties in the foreclosure auction but you said at the beginning here that chase is the beneficiary in any event that is correct your honor now national city national city argues here they argue of a number of different things but the getting into that because there are a number of different questions but they argue essentially that the district court's jurisdiction continued until the deed was the live now i know there's a dispute as to whether or not the liver but th which allows the court to set aside a more martial sailor sheriff's sale for any reason until the deed was delivered why isn't that argument's reason why it's not sound is that because that rule is based upon equitable considerations you must have clean hands when you go into that and utilize that rule to set aside the marshals or sheriff's sale schafer case which is cited in my brief indicates that if you have made a unilateral mistake as a result of bidding as that's what the case was about the bank council made a mistake as far as a bid and they were prejudiced by that bid then you do not have the standing you do not have the equitable grounds to be able to pursue a petition to set aside a share cell and that's essentially what we have here we have some carelessness as the court pointed out that you know going down search was done they had all the information available to them to avoid this particular issue and it it it happened let's and that's why we're here i mean obviously it was mistakes were made but there is a threshold question that must be addressed as to whether or not the petitioner has the equitable right the rule doesn't say no  so it says what it says that you have it's an equitable proceeding but isn't that a separate proceeding that's a separate equitable proceeding in addition to the proceeding that even if there is jurisdiction underneath thirty one thirty two by virtue of sixty nine a one right that the factual pattern of this particular case would prohibit national city from gaining the equitable relief that it is requesting which would be to set aside the sale based upon its unilateral mistake they proceeding under rule sixty nine or are they are they correct your writing that i don't have any dispute with a with the language of the rule it is the language of case law that has been decided underneath titian's to set aside sales in that state the state law level that have indicated that this is an equitable proceeding and to be honest with this court i've been in i've been and that doesn't make any difference whether what is the worst showing proper cause may be courts in pennsylvania ok that that's an affable consideration that you take into account but it still means that you go back to the court that ordered the foreclosure in order to have matters resolved that relate to that  foreclosure so long as you do it before the deed is given over and the nature of my argument is that yes the first part of your statement is correct your honor that you would be required to go back to the original court and have them decide that issue but based upon the facts that we know in the record that we have now that judge munley even after he has all of the facts in front of him it would be a spurious advent in front of him because there is no equitable jurisdiction in favor of national city because of the carelessness that it has already admitted to you've lost me the jurisdictions already there and the court has said before and unflagging obligation to see it through and what we're saying to you is that under thirty one thirty two seeing it through means all the way through at least until you get a deed in delaware it would be to get a confirmation order  why indeed has not been delivered underneath pennsylvania law under those rules of civil procedure the sheriff is required within a twenty day period to begin after the thirty thirty day distribution period has expired to issue a deed it's mandatory under i think it's rule thirty one thirty six the practice in the federal court system with the marshall sale is because they're not equipped to to do deeds and so for this practical matter that sure is left to the successful bidders council who prepares the deed submit it to the sheriff said marshal's office and that and then turn gets executed and recorded so here we have a situation where the to address the if i'm an issue your honor counsel had stated that the simon that has been subsequently record it is actually a fever of mers which stands for mortgage electronic registration systems care of dream yeah i mean whoever this goes to federal or alternately state is going to have to deal with that and it looks like on the state level if you if you end up going back there you're going to be met with the argument that you can't foreclose any longer because a state court can overrule a federal judgment and therefore you have to bring an action a quiet title as opposed to a foreclosure action that all four hundred  some thousand dollars that i'm short for a national city is i just wish this had happened and for whoever has the fifty one thousand dollar holder it's like you this is this going to be like