J-A11004-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

JORDAN FUNK, MICHAEL RESSLER, 

AND BRIAN RESSLER

v.

CHRISTY L. BRADLEY 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1771 MDA 2019

Appeal from the Order Entered October 1, 2019

In the Court of Common Pleas of Lancaster County 

Civil Division at No(s): CI-18-01146

BEFORE: PANELLA, P.J., McLAUGHLIN, J., and STEVENS, P.J.E.

MEMORANDUM BY PANELLA, P.J.: FILED: JUNE 8, 2020

Christy Bradley appeals from the order entered in the Court of Common 

Pleas of Lancaster County, which denied her petition to set aside the sheriff’s 

sale of a property on Pinch Road, Manheim, Lancaster County, Pennsylvania 

(“the Property”). Following extensive review, we affirm.

Bradley obtained a mortgage on the Property from Jordan Funk, Michael 

Ressler, and Brian Ressler (collectively, “the Appellees”). As identified in the 

mortgage’s corresponding note, in exchange for a loan amount of $200,000, 

Bradley agreed to an interest rate of 15% per annum and a monthly payment 

of $2,500. Shortly thereafter, the mortgage was recorded at the Office of the 

Recorder of Deeds in Lancaster County. 

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 Former Justice specially assigned to the Superior Court.
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Less than one year after the mortgage’s execution, Appellees filed their 

complaint in mortgage foreclosure, alleging that Bradley failed to make the 

required payments under the note. The Appellees sought the mortgage’s 

principal amount, the amount that Bradley had failed to pay under the monthly 

payment scheme, all additional available charges collectible under the note 

and mortgage, and attorney’s fees.

Although she was properly served, Bradley did not respond to Appellees’ 

complaint. Eventually, a default judgment was entered in favor of the 

Appellees in the amount of $238,092.18. Thereafter, Appellees filed a praecipe 

for writ of execution on the judgment, which was issued. Additionally, a notice 

of sheriff’s sale and corresponding affidavit were filed, and in that notice, a 

date was set for the Property’s sale. A subsequent notice of sheriff’s sale was 

also filed, but maintained the same sale date. At the sheriff’s sale, the 

Appellees purchased the Property.

Approximately one month later, Bradley filed a petition to set aside the 

sheriff’s sale alleging various notice- and delivery-based defects. Furthermore, 

Bradley contested the upset bid price predicated on: 1) her assertion that the 

interest rate contained within the note was a product of fraud; 2) her being 

saddled with exorbitant attorney’s fees; 3) Appellees and the court failing to 

take into account money she had previously paid to the Appellees. 

Upon the petition’s submission, the trial court issued a rule to show 

cause, Appellees filed an answer, and both parties had the opportunity to 

extensively brief their respective positions. Ultimately, the court denied 
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Bradley’s petition. In response, Bradley filed a timely notice of appeal. At the 

trial court’s direction, Bradley filed a timely Pa.R.A.P. 1925 statement of 

matters complained of on appeal. Afterward, the trial court issued its Pa.R.A.P. 

1925 opinion, largely relying on the opinion affixed to its initial order denying 

Bradley’s petition. Accordingly, the appeal is properly before this Court. 

Bradley poses the following question for our review:

1) Did the trial court err as a matter of law in denying Bradley’s petition 

to set aside the sheriff’s sale when 1) the sheriff’s sale featured 

insufficient notice and 2) at least one element of the mortgage and 

note were obtained by way of fraud?

See Appellant’s Brief, at 4, 10, 12.

The intended purpose of a sheriff’s sale in a mortgage foreclosure 

proceeding is to realize the debt, interest, and costs due to the judgment 

creditor. See Merrill Lynch Mortg. Capital v. Steele, 859 A.2d 788, 792 

(Pa. Super. 2004). Nevertheless, “[a] sale may be set aside upon petition of 

an interested party where upon proper cause shown the court deems it just 

and proper under the circumstances.” Id. (citation and internal quotation 

marks omitted).

“A petition to set aside a sheriff's sale is grounded in equitable principles 

and is addressed to the sound discretion of the hearing court.” GMAC Mortg. 

Corp. of Pa. v. Buchanan, 929 A.2d 1164, 1167 (Pa. Super. 2007).

The burden of proving circumstances warranting the exercise of 

the court's equitable powers rests on the petitioner, as does the 

burden of showing inadequate notice resulting in prejudice, which 

is on the person who seeks to set aside the sale. When reviewing 

a trial court's ruling on a petition to set aside a sheriff's sale, we 
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recognize that the court's ruling is a discretionary one, and it will 

not be reversed on appeal unless there is a clear abuse of that 

discretion.

Id. (citation omitted).

“An abuse of discretion is not merely an error of judgment, but if in 

reaching a conclusion the law is overridden or misapplied, or the judgment 

exercised is manifestly unreasonable, or [the judgment is] the result of 

partiality, prejudice, bias or ill-will, as shown by the evidence of record, 

discretion is abused.” National Penn Bank v. Shaffer, 672 A.2d 326, 328 

(Pa. Super. 1996). Further, even if we might have reached a different 

conclusion, that determination, in isolation, is not enough to find an abuse of 

discretion. See id. 

Preliminarily, despite the fact that Bradley poses one question in her 

brief, her argument section covers two discrete topics, notice and fraud. 

Moreover, she intermingles discussion on the validity of attorney’s fees and 

the court’s apparent failure to consider an amount she had already paid to 

Appellees. Accordingly, her brief does not conform to the Pennsylvania Rules 

of Appellate Procedure. See Pa.R.A.P. 2119(a) (providing that an “argument 

shall be divided into as many parts as there are questions to be argued.”). 

However, even though this deviation has hampered our review, we will 

address notice and fraud in the order they appear in her brief and then 

conclude with a brief discussion on the ancillary matters. 

First, Bradley asserts that two of the Appellees, Michael Ressler and 
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Brian Ressler, as parties in interest to the sheriff’s sale, were not notified in 

accordance with Pa.R.C.P. 3129.2. Bradley is correct insofar as “[n]otice of 

the sale of real property shall be given by handbills ... by written notice ... to 

all persons whose names and addresses are set forth in the affidavit required 

by Rule 3129.1.” Pa.R.C.P. 3129.2. The affidavit requires the affiant to, inter 

alia, set forth the owner of the real property and “every other person” who 

has any record lien, record interest, or interest that is not of record. Pa.R.C.P. 

3129.1.

However, Bradley misconstrues the meaning of “every other person.” 

Specifically, Bradley fails to distinguish between who is required to give notice, 

and who is required to receive notice: 

The notice requirements of Pa.R.C.P. 3129.1, 3129.2, and 3129.3 

were intended to protect fundamental rights of due process by 

insuring that persons with an interest in real estate would receive 

adequate notice before being deprived of their property. Because 

notice is the most basic requirement of due process, [it] must be 

reasonably calculated to inform interested parties of the pending 

action, and the information necessary to provide an opportunity 

to present objections. The form of notice required depends on 

what is reasonable considering the interests at stake and the 

burdens of providing notice.

First Eastern Bank, N.A. v. Campstead, Inc., 637 A.2d 1364, 1366 (Pa. 

Super. 1994) (citations and quotation marks omitted).

All three Appellees were identified as plaintiffs in the foreclosure action 

against Bradley and continue to be represented by the same counsel. 

Therefore, the Appellees collectively constitute affiants within the meaning of 

Pa.R.C.P. 3129.1(b) and cannot additionally be other interested persons, 
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which, if so, would trigger their inclusion on the affidavit as well as notice. 

Accordingly, there is no requirement that any of the Appellees had to have 

been specifically listed as an interested party on the affidavit or provided with 

notice, even though, in fact, one was.1 See Appellees’ Brief, at 4. 

At a minimum, the Appellees, as the initiators of the action against 

Bradley, do not fall within the intended target of Rules 3129.1 and 3129.2 nor 

do they risk being deprived of property, as they are the individuals seeking to 

compel the mortgage foreclosure and sale of the Property.

As logic would dictate that Appellees/affiants cannot, too, be “every 

other person” within the meaning of Rules 3129.1 and 3129.2, none of them 

needed to have been included on the affidavit nor provided with corresponding 

notice of that affidavit. More importantly, it strains credulity, based on the 

circumstances, that all three Appellees, as bidders and the ultimate winners 

of the property, were not wholly apprised of the sheriff’s sale. As such, 

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1 The trial court noted that:

The Rule 3129.1 affidavit which was prepared on [Appellees’] 

behalf by [Appellees’] counsel gave a single address for all 

[Appellees]. This was the same mailing address given for 

[Appellees] in the complaint. Counsel’s certificate of service stated 

that notice of the sale was sent to that address, albeit in the name 

of only one [Appellee].

Trial Court Opinion, 10/28/19, at 5 (citation omitted).
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Bradley’s first argument fails.2

Second, on the issue of fraud, Bradley avers that “[t]he terms of the 

loans were changed and presented to [Bradley] at the time of closing when 

she was already under duress, committed to [the] process and in need of the 

loan.” Appellant’s Brief, at 8-9. In short, “the terms were not as originally 

discussed.” Id., at 9.

Fraud entails the following elements: 1) a misrepresentation; 2) the 

misrepresentation must be material to the transaction at hand; 3) an intent 

to induce reliance; 4) justifiable reliance; and 5) damage. See Kit v. Mitchell, 

771 A.2d 814, 819 (Pa. Super. 2001). Fraud “consists of anything calculated 

to deceive whether by single act or combination, or by suppression of truth, 

or suggestion of what is false whether it be by direct falsehood or by innuendo, 

by speech or silence, word of mouth, or look or gesture.” Delahanty v. First 

Pennsylvania Bank, N.A., 464 A.2d 1243, 1251 (Pa. Super. 1983) (citation 

omitted). Moreover, fraud must be averred with particularity and must be 

demonstrated by specific facts and not merely innuendo. See Pa. R.C.P. 1019 

(b); Presbyterian Med. Ctr. v. Budd, 832 A.2d 1066, 1072 (Pa. Super. 

2003).

Fraud is a basis for setting a sheriff’s sale aside. See Mortg. Elec. 

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2 The trial court determined that Bradley “lacks standing to assert the lack of 

notice to [Appellees] as a basis for setting aside the sale.” Trial Court Opinion, 

10/28/19, at 5. While we do not expressly decide this issue, it is worth noting 

that Bradley has cited nothing to refute this notion.
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Registration Sys., Inc. v. Ralich, 982 A.2d 77, 80 (Pa. Super. 2009). With 

that said, mere insinuations of improprieties during the loan process are 

insufficient to establish a claim of fraud. See id., at 80-81. 

Bradley proclaims that she was presented with a document at the 

mortgage closing that materially differed from the terms that had been 

discussed and agreed to prior. See Appellant’s Brief, at 12-13. Instead of a 

declining two-step interest rate, she was “surprised with documents that set 

forth an interest rate of 15% for the whole term of the loan.” Id., at 13. In 

addition, Bradley contends that one of the Appellees’ testimonies establishes 

that “the terms at closing were not the same as what had originally been 

discussed.” Id., at 14. Essentially, the only allegation of fraud is that the final 

terms were distinct from some earlier iteration of the negotiated mortgage 

terms, and Bradley was unaware of the change.

Assuming, arguendo, that the interest rate was not what had been 

agreed upon,3that contention, standing alone, is insufficient to ascertain 

fraud. Stated differently, Bradley has failed to identify any particular facts that 

could demonstrate an intent to induce her reliance through any actions 

performed by the Appellees nor has she cited to any authority finding fraud in 

an analogous or identical situation.

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3 The trial court found Bradley’s testimony to be contradictory as to what she 

believed the terms of the transaction to be in contrast with what was 

presented to her in the note and mortgage at closing. See Trial Court Opinion, 

10/28/19, at 7.
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Instead, Bradley was fully informed of the 15% interest rate at closing, 

as evinced by her initials on each page of both the note and the mortgage and 

full signature at the end of both documents. Furthermore, even taking into 

account the respective bargaining positions of the parties and Bradley’s 

precarious financial position, counsel represented her in connection with the 

execution of the note and mortgage, and Bradley’s counsel, less than one 

month prior to closing, endorsed the satisfactory nature of those two 

documents. 

Correspondingly, we find that Bradley was adequately apprised of the 

mortgage and note’s terms and conditions and was not deceived into affixing 

her name to those documents. As a result, Bradley’s second issue does not 

warrant any relief. 

Tangentially, Bradley asserts that the trial court failed to take into 

account certain money that she had already paid to the Appellees and refutes 

the court’s awarding of attorney’s fees. In summation, Bradley states that “an 

$8,200 payment [she made] has been acknowledged and yet was not 

considered for the purposes of the [s]heriff’s [s]ale,” and Appellees’ “attorneys 

[sic] fees were presented without justification.” Appellant’s Brief, at 11. 

As to what Bradley had already paid out, the trial court found that 

Appellees’ attorney acknowledged receipt of an $8,200 payment made by 

Bradley. See Trial Court Opinion, 10/28/19, at 9. However, other than merely 

citing the intended purpose of a sheriff’s sale, Bradley cites to no authority 
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indicating that a sheriff’s sale must be set aside in the event that a mortgagor 

makes a payment toward the mortgage or why that would be relevant to the 

sale itself. Given the discretionary nature of a petition to set aside a sheriff’s 

sale and Bradley’s failure to contest any element of the foreclosure 

proceedings until after a default judgment was taken, we perceive no abuse 

of discretion in the trial court’s decision to deny the petition. Although her 

payment does not prevent the sale of the Property, we emphasize that Bradley

is not prohibited from raising this payment in any kind of subsequent 

deficiency judgment levied against her by the Appellees.

On the issue of attorney’s fees, “a mortgagee is entitled on foreclosure 

to recover reasonable expenses, including attorney’s fees.” Citicorp Mortg., 

Inc. v. Morrisville Hampton Village Realty Ltd. Partnership, 662 A.2d 

1120, 1123 (Pa. Super. 1995) (citation omitted). Still, those fees must be 

reasonable in conjunction with the circumstances of a particular case. See id. 

Here, those fees amounted to approximately 5.1% of the mortgage’s value. 

Other mortgage foreclosure cases decided by our court have found attorney’s 

fees set at five percent to be acceptable. See, e.g., Foulke v. Hatfield Fair 

Grounds Bazaar, Inc., 173 A.2d 703, 704, 706 (Pa. Super. 1961). We see 

no material difference in one-tenth of a percentage point, and other than bald 

assertions, Bradley has offered nothing specific for us to conclude that the fee 

is unreasonable under the particular circumstances of this case. Therefore, 

Bradley’s challenge fails.
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As none of Bradley’s issues are meritorious, we affirm the trial court’s 

order denying her petition to set aside the sheriff’s sale.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 06/08/2020