### J. A21018/16

NON - PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 MOHAN KRISHNAN AND : IN THE SUPERIOR COURT OF VASANTHALLAZMI KRISHNAN, : PENNSYLVANIA : Appellants :

: v. : : DEUTSCHE BANK NATION AL TRUST : COMPANY, AS TRUSTEE, : : Appellee : No. 3713 EDA 2015 Appeal from the Order Entered December 3, 2015 In the Court of Common Pleas of Chester County Civil Division at No.: 2013
- 07246 - RC BEFORE: BENDER, P.J.E. , DUBOW, J., and MUSMANNO, J. MEMORANDUM BY DUBOW, J.: FILED OCTOBER 18, 2016 App ellants, Mohan Krishnan and Vasanthallazmi Krishnan, plaintiffs below, appeal from the December 3, 2015 Order entered in the Chester County Court of Common Pleas following a bench trial in this quiet title action. 1 

### We affirm on the basis of the trial court’s Opinion. The relevant facts, as gleaned from the trial court’s July 30, 2015 Decision and the certified record, are as follows. On August 6, 2004, Appellants sold the real property and home located at 1360 Shadow Oak

1 

### Appellants purport to appeal from the November 4, 2015 Order denying their Post
- Trial Motion. Orders denying Post
- Trial Motions are interlocutory and generally not appealable; rather, the subsequent Order entering Judgment is appealable. Prime Medica Associates v. Valley Forge Ins. Co. , 970 A.2d 114 9, 1154 n.6 (Pa. Super. 2009). The caption has been revised accordingly.

### J. A21018/16

- 2 -

Drive in Malvern, Pennsylvania to Joye McDonald
- Hamer (“McDonald
Hamer”) for $745,000.00. McDonald
- Hamer funded the transaction with a $558,750.00 purchase money mortgage from Long Beach Mortgage Company (“Long Beach”), 2 

### a $186,250.00 purchase money mortgage from Appellants, and a $39,389 .32 cash assist from Appellants. Closing occurred, and the HUD
- 1 settlement statement reflected each of the mortgages. Appellants and Long Beach recorded their purchase money mortgages in the Chester County Recorder of Deeds Office on the same date and at the same time: at 2:11P.M. on August 11, 2004. Numerous documents compiled in connection with the sale indicated that Appellants’ purchase money mortgage was second in lien priority. These included: (1) McDonald
- Hamer’s August 6, 2004 Uniform Residentia l Loan Application; (2) Long Beach Mortgage Company’s broker loan submission dated July 30, 2004; (3) Long Beach Mortgage Company’s underwriting approval sheet; (4) Long Beach Mortgage Company’s pre
- defined underwriting conditions worksheet; (5) the title commitment issued on August 4, 2004, indicating a first mortgage in favor of Long Beach; (6) McDonald
- Hamer’s USAA homeowner’s insurance policy dated January 7, 2007; (7) Long Beach Mortgage Company’s verification of recording dated

2 

### Long Beach Mortgage Company was a subsidiary of Washington Mutual Bank. Washington Mutual Bank failed, and both JPMorgan Chase and Deutsche Bank serviced the loan. Here, Appellee Deutsche Bank is trustee for Long Beach Mortgage Company.

### J. A21018/16

- 3 -

August 6, 2004; (8) McD onald
- Hamer’s attorney’s preliminary certificate and report on title dated August 4, 2004; and (9) the attorney’s final certificates dated August 23, 2004. These documents, to which Appellants never objected, explicitly stated that Long Beach’s mortgage h ad first priority. After McDonald
- Hamer defaulted on Appellants’ mortgage, Appellant called Long Beach’s successor at the time, Washington Mutual, four times during the period from June of 2005 to December of 2006 to determine whether McDonald
- Hamer was ma king payments on that mortgage. Each time Appellant identified himself as the holder of a second mortgage on the property. In August of 2007, Deutsche Bank (“Appellee”) instituted a mortgage foreclosure action in Chester County Court of Common Pleas. On August 22, 2008, Appellants instituted their own mortgage foreclosure action. They subsequently obtained a Judgment by consent, entered on September 17, 2009, in the amount of $260,542.51. At a Sheriff’s Sale of the property on June 27, 2011, Appellants bid successfully and obtained title to the property. Appellants then commenced the instant quiet title action, claiming that Appellee’s mortgage should have been divested at the Sheriff’s Sale pursuant to 42 Pa.C.S. § 8152 because it was not first in prior ity. At the bench trial, Appellant Mohan Krishnan testified. The court admitted into evidence the documents listed supra showing that Appellants were second in lien priority.

### J. A21018/16

- 4 -

Following the trial, the court concluded that Appellee held a first mortgage lie n on the property. The court also concluded that the evidence showed that Appellants had never objected to the documents supporting the sale to McDonald
- Hamer, which indicated Long Beach had priority and that Appellants’ mortgage was a secondary lien. 3 

### See Trial Court Decision, dated 7/30/15, at 5. Appellants filed a Post
- Trial Motion, which the trial court denied on November 4, 2015. On December 3, 2015, the trial court entered Judgment in favor of Appellee. On December 3, 2015, Appellants filed a Notic e of Appeal. Both Appellants and the trial court complied with Pa.R.A.P. 1925. 4 

### Appellants present the following issue for our review: In the face of contrary language in: i) the final HUD
- 1 [settlement statement], ii) the title insurance policy, and iii) the single communication, from an institutional lender to an individual lender, addressing priority; and, where no actual evidence of any agreement to subordinate exists, may a Court, nevertheless, assume an agreement and promote the priority of an instit utional lenders’ Purchase Money Mortgage, over that of an individual lenders’ Purchase Money Mortgage, simply because
3 

### In its Pa.R.A.P. 1925(a) Opinion, the court observed: “I will note only that I cited to the apparent agreement between the parties establishing that [Appellants] held the second mortgage. Such a greement was demonstrated by the evidence presented at trial, including testimony, that when faced with evidence, such as the title commitments or the homeowner's insurance, that the [Appellants] held a second mortgage, they did not protest, object or rais e any concern.” Trial Court Opinion, dated 1/14/16, at 3.
4 

### The trial court’s Pa.R.A.P. 1925(a) Opinion dated January 14, 2016, incorporated and attached its July 30, 2015 Decision.

### J. A21018/16

- 5 -

the holder of the institutional mortgage is a bank, which desired a senior position? Appellants’ Brief at 3. In reviewing a judgment ente red in a quiet title action, this Court is limited to determining “whether the findings of fact are supported by competent evidence, whether an error of law has been committed, and whether there has been a manifest abuse of discretion.” Regions Mortg., In c. v. Muthler, 889 A.2d 39, 41 (Pa. 2005) (citation and quotation marks omitted). This Court “will not reverse a determination of the trial court in a quiet title action absent an error of law or capricious disregard of the evidence.” Birdsboro Mun. Auth ority v. Reading Co. and Wilmington & Northern R.R. , 758 A.2d 222, 225 (Pa. Super. 2000) (citations and quotation marks omitted). A sheriff’s sale of an encumbered property affects mortgage liens on the property as follows: § 8152. Judicial sale as affect ing lien of mortgage
* * * (c) Sale on prior lien.
— A judicial or other sale of real estate in proceedings under a prior ground rent, or in foreclosure of a prior mortgage, shall discharge a mortgage later in lien. 42 Pa.C.S. § 8152(c). See also Public Federal Sav. & Loan Ass’n v. Neumann , 483 A.2d 505, 507 (Pa. Super. 1984) (stating sale of real property does not affect lien if mortgage is prior to all other liens on property).

### J. A21018/16

- 6 -

42 Pa.C.S. § 8141 governs the priority of competing purchase money mortgage liens against real property. See 42 Pa.C.S. § 8141 (entitled, “Time from which liens have priority”). “The priority of liens as they appear on record is prima facie evidence of the manner in which the proceeds are to be distributed.” Farmers Trust Co. v . Bomberger, 523 A.2d 790, 792 (Pa. Super. 1987). See also First Citizens Nat. Bank v. Sherwood , 879 A.2d 178, 182 (Pa. 2005) (stating recording of mortgage serves as constructive notice of mortgage to subsequent purchasers). In determining the rights of parties to a dispute, the trial court must consider “not only [] the recorded documents, but also [] any agreement by the parties which affects lien priorities between them.” Farmers Trust, supra at 793 (citations omitted). Here, Appellants aver that the trial court improperly concluded Appellants’ lien was secondary to Appellee’s lien. Appellants’ Brief at 11
- 12, 17 - 29. Appellants argue that the trial court ignored some evidence while improperly crediting other evidence when finding the existence of an “agreement to subordinate.” Appellants’ Brief at 11
- 12. They essentially reargue their case and conclude that the trial court erred in reaching its conclusion. Our review of the record and the relevant law indicates that the trial court’s findings of fac t are supported by competent evidence and the trial court did not err as a matter of law. The Honorable Jeffrey R. Sommer, who

### J. A21018/16

- 7 -

presided at trial, has authored a comprehensive, thorough, and well
reasoned opinion, citing to the record and relevant case law in addressing Appellants’ challenge. We affirm on the basis of the trial court’s Opinion. See Trial Court Opinion, dated 1/14/16, at 3
- 5 (incorporating the detailed analysis of the 7/30/15 Decision, and concluding that: (1) the trial court properly foll owed 42 Pa.C.S. § 8141 in determining mortgage priority and the trial court did not “greatly expand any basis for revising lien priority[;]” (2) the evidence at trial, including testimony from Appellant, established that Appellants held a second mortgage; (3) Appellants had not protested, objected, or raised any concern at the time of the McDonald
- Hamer transaction when presented with documentary evidence that Appellants held a second mortgage; and, accordingly, (4) an agreement existed between the parties that set the statutory lien priority schedule). The parties are instructed to attach a copy of the trial court’s January 14, 2016 Opinion and the July 30, 2015 Decision to all future filings. Order affirmed. Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary Date: 10/18/2016I~ '~. reference. The ' relevant facts have been set forth at length in my Decision pursuant to Pa.R.C.P ! 1038, a copy of. which is attached hereto and incorporated herein' 

## t?y

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### .... IL Facts: determlnntlon. Concise Statement on December 22, 2015. The matter is now ready for Statemer t of Matters Complained Of on Appeal. Plaintiffs timely submitted their Orr December 3, 2015, an Order was issued directing Plaintiffs to file a Concise "Bank"). on December 3, 2015, was from the Order entered on November 4, 2015, denying Plalntlff\ Post-Trial Motion following trial on Plaintiffs' action to quiet title whereby judgment was entered in favor of Defendant, Deutsche Bank National Trust Co., as Trustee for Long Beach Mortgage Loan Trust 2004-6 (hereinafter "Long Beach" or Mohan Krlshnan and Vasanthalaxmi Krishnan (hereinafter "Plalntlffs"), The appeal, filed

~ :!- Procedural History Th.s matter has come before me as a result of a Notice of Appeal filed by J. 0 C."J 

### .. . ... - 

### .. ·:; Sommer, J. January I 

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.. \ :.:;,;; OPINION PURSUANT TO Pa.R.A.P. 192~:~· 1 ,- .r,,,,~<''': ~· DEUTSCHE BANK NATIONAL TRUST NO. 13-07246 CO., as 1 rustee for LONG BEACH MORTGAGE LOAN TRUST 2004-6 CIVIL ACTION

vs. IN THE COURT OF COMMON PLEAS

CHESTER COUNTY, PENNSYLVANIA MOHAN KRISHNAN and VASANTHALAXMI KRISHNAN 1- .-- Circulated 09/30/2016 11:00 AMv , .' • • '\, i I



## ·-·-.. 

### - -- - ~-..._ 

### -·-· -~· -· · --- 3. Plaintiffs allege that this Court erred by purportedly setting priority based
on 11 1) documents created 

### by third parties such as Insurance pollcles: 2) the fact-that Plaintiff (an octogenarian, whose first language is not Engtish) seemed to hesitate and answer questions relating to the legal Impact of documents i n an evasive manner; 3) testimony by a convicted felon to the effect that his wife, the buyer of the property, told Long Beach Mortgage that the Krishnan mortgage was intended to be a second mortgage; 4) testimony that Long Beach Mortgage had an underwriting policy. that required their mortgages to be in a first position; 5) testimony of the Pliantiff that he identified himself to a representative of JPMorgageChase [sic} as the holder of a second mortgage, after that representative refused to speak to him unless he so identified himself; 6) disregarding the fact that the 

### Huo~1 clearly identified· the 2 1. Plaintiffs allege that this Court erred by not following the statutory scheme set forth in 

### 42 Pa.C.S.A §8141(a) to determine which mortgage was deflvered first in order to determine priority and then 

### the Court erred by not looking for an a·greement between the parties which might have revised 

### the statutory 

### lien priority. 2. Plaintiffs allege that this Court erred by "greatly expanding the basis for revising l

. en priority to include inquiry into: 1) the policies of a bank, 2) whether or not.a person expecting to receive a purchase money mortgage had a full understanding of the statutory lien priories of purchase money mortgages, 3) the actions of third parties, and numerous other factors well beyond the agreements of the lien holders to modify statutory Hen priority." three alleged errors by this Court, as follows: Plaintiffs' Concise Statement of Matters Complained Of on Appeal consists of Ill. Issues:2. The Court did not greatly expand any basis for revising lien priority 3 to said Decision and respectfully request that the Superior Court affirm my ruling. second mortgage, they did not protest, object or raise any concern. Therefore, I defer as the title commitments or the homeowner's insurance, that the Plaintiffs held· a that Plaintiffs held the second mortgage. Such agreement was demonstrated 

### by· the evidence presented at trial, includlng testimony, that when faced with evldenoe, such 

### My analysis is set forth in great detail in the Decision pursuant to 

### Pa.R:C.P. 1038 and I do not feel that there is any benefit to 'be gained 

### by restating same here. · I will note only that I clted to the apparent agreement between the parties establishing 1. The Court followed 42 Pa.C.S.A §8141(1) and gave aoorooriate consideration to any__Mreement between the parties to determine lien priority 

### V. Rationale: 3., This Court did not err by considering the factors set forth by Appellants; including certain crediblllty factors, as that is the trial court's role. 2. This Court did not err by "greatly expanding" the basis for revising· lien priority. which Plaintiff refers. 1. This Court did not err as it followed the appropriate statutory scheme Io determine mortgage priority and considered, and even cited to, the agreement to IV. Holding: Long Beach Mortgage or its assignees regarding priority." Plaintiff's loan as a purchase money obligation; 7) disregarding the fact that the Plaintiffs mortgage was an exception on Long Beach Mortgage's title insurance policy; and 8) disregarding the fact that there was no actual agreement between Plaintiff and 

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4 holder of a second mortgage, I concluded that Plaintiffs indeed held a second based in part upon Plaintiff's own testimony whereby he identified himself as the not his first language, and evasive on relatively stralqhtlorward inquiries. Moreover, wltnessee at trial, including Plaintiff. Specifically, I found Plaintiff's testimony to be hesitant t.on matters with which he should be famlllar, despite the fact that English Is must be :Jiven great weight by the appellate court. I evaluated the credibility of all and evidence appearing before it, Thus, any credibility determinations of this Court Tf'i,e role of the trial court is to assess and determine credibility of the witnesses 

### s. The Court did not err in considering 

### varlo.u

. s factors. Including credibility 

### of the wltnesses at trial. in making its decision • i • ·~ .. agreed to hold a second mortgage. constitute sufficient evidence of an agreement between the parties that Plaintiffs determined, the conduct of the parties and various documents ev i dencing Plaintiffs' status as a second mortgage holder, and lack of objections by Plaintiffs to that status, presented· a! trial. This can hardly be an error of law. Accordingly, as thls Court and the 1 ; ,teight afforded to each merely amounts to my analysis of all the evidence Plaintiffs highlight a number of factors that this Court erroneously considered,. in making lls determination. However, l believe that any consideration of such factors Plaintiffs have cited to no case law that requires such agreement be written. agreement evidenced that the Plaintiffs agreed to be the holder of a second mortgage. presented, I determined that an agreement did exist between the parties and that such the statutory lien priority. I did so. In my evaluation and consideration of the evidence determine the existence, if any, of an agreement between the parties that might revise As required by existing case law, I was required to examine the evidence to 

### ----· --- ·-·- - ·------ - -------- -- ----------r-------- - ------~ 4__. . . 

### R - ... ...... ._.__ 5 BY THE COURT: All of which is respectfully submitted. pursuant to Pa.R.C.P. 1038 to which I do not feel I cannot further supplement at t~is time. Therefore, I defer to said Decision and respectfully request that the Superior Court affirm my ruling. 

### . Any further issues raised by Plaintiffs have been addressed by 

### my Decision including his demeanor at 1rial, and found his credibility to be lacking

. fact-finder and assessor of credibility. I considered Plaintiff's testlmony as a whole, mortgage, Plaintiffs simply do not get to pick and choose which parts of their testimonv I am compelled to believe or disbelieve. That is my role as the judge 

## as the

### ...... : ~ New Matter on March 14, 2014. Plaintiffs filed- their Reply on March 25, 2014. Plaintiffs then filed a Motion for Judgment on Pleadings. Fol!owlng the filing bf



## . . Pleading!,. That motion was withdrawn voluntarily. Defendant filed .its Answer·~nd (hereinafter "Long Beach" or "Bank") on July 25. 2013. On September 26, 2013. Plaintiffs filed a Praeclpe to enter a default judgment against Defendant as a result of the alleged failure to respond to the Complaint. on October 1, 2013, Plaintiff filed a Motion for Default Judgment for failure to respond. On October 7, 2013, Defendant responded and filed a Petition to Open and Strike the default. On October 17, 2013 1 thls Cou1i denied Plalntlffs Motlon for Default Judgment. On December 4, 2013 1 the parties entered into a Stlpulatlon to open and vacate the judgment On Pebruary 18, 2014, Plaintlffs filed a Motion for Judgment on the (hereinafter 1 'Plaintiffs") filing of an Action to Quiet Title against Deutsche Bank National Trust Co., as Trustee for Long Beach Mortgage Loan Trust 2004-6 This matter comes before us as a result of Mohan and Vasanthalaxml Krishnan's 

### I. Procedural Setting:

DECISION PURSUANT TO Pa.R.C.P. 1038 James S. Tupltza, Esquire, on behalf of 1he Plaintiffs Edward J. Hayes, Esquire, on behalf of the Defendant •:;;.•, 

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. ~ ,,; ( . DEUTSCHE BANK NATfONAL TRUST NO. 13-07246 CO., as Trustee for LONG 

### BEACH MORTGAGE LOAN 

### TRUST 2004-6 CIVIL ACTlON

Vs. IN THE COURT OF COMMON PLEAS



### CHESTER COUNTY, PENNSYLVANIA MOHAN KRISHNAN and VASANTHALAXMl KRISHNAN2 w ere di ffe re nt
. Pla i nt i ff cou l d not re call any o f t he d eta ils o f th e t ra ns act i o n . P l a i ntiff ~\ T h e · P l a int i ff 'Was que stio ned abo u t th e d i sc repa ncy a nd the c i rc u m s ta nc es s urroun d ing t he se ttle men t. Pl a intiff t es t i fi e d that h e was n ot s u re why the num be rs . 

### . . a s sist , b ) d e n te d t hat th e a ddend a refl e cting the ' ca sh as sist w a s a u t h e n t i c, a nd · c) denied t hat h i s lo an p l us the aforem e ntion e d c ~s h a ss i s t ad ded up ap p rox lrnat ely

. $225, 0 00.00. m o rtga g e o n the Pro p e rty In favo r of th e Pl a i ntiffs . T h e a moun t o f th e mo rtg a g e wa s · fo r 

### $ 22f S ,O O O. O O. I n te re stin g l y, at t r i al no o n e c o u l d e x pla i n 

### why the mort gage a m o u n t
. was s i g : l i fi can t'l y 

# I n exce~ s of th e l oa n amo unt. W h ' e n que s ti o ned d irectly by th e C ourt
o n the

. fa s ue t hat p e r ha ps t h e m o rt gage amou nt w a s t hat of th e com b in e d lo a n and cas h pu t up 

# by the Pl a inti ffs , · Pl ai ntiff deni e d a)

. th at he h a d given a · $ 3 9,000 ca s h mortg a ge o n th e Property i n favo r o f th e b a n k

. T he mortgag e was re corded i n th e . Offi c e fo r the R e co rd er of Deeds o f Ch e ster C oun ty at Boo k 6248 · , P~ge 2 323
. In ord e r to s ec u re the re pay me n t of t he P la in tiffs' l o an, H a mer e x e cu te d a nd de li v e re d a . , • Shadow Oak Dr i ve, M al vern, PA 1 9 355 (herelnaft ~r the "Pro p erty ") 

### to J ~y e McDonald Hamer ( hereinaft e r "Harner") , for the sum of $745 , 00 0 .00
. T he t ransa ction was f u nd ed as follo ws : $ 55 ° 8, 7 50
. 00 ~$ a loan from L o ng Beac h M

. o rt g age Comp an;; $186 , 2 5 0. 00 loane d by the Pl ai ntiffs ; and , $ 39,3 8 9.32 l n cas h fro m the P lai n ti ffs. See, Exh i bit P- 16
. To s ec u re the repayment of the Lo ng B e ach loa n , H am er e x ecu t ed a nd d eliv ere d a . ij O n Au g ust 6, 2004, the Plaintiffs so l d the rea l property a n d home l ocated at.1~60 D e f e n d an t's re ply, t h i s Co u rt d eni ed P lai ntiffs ' m otio n . T h e matt er was se t do w n f o r a tri al w i t h ou t a j u ry o n J u ly 9 , 2 015
. 

### II. Facts ;



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3 record i ng . The Plaintiffs rece i ved th e ir paperwork for recording. The Bank's mortgage ' pro p os e d · ·firs t mort ga ge in favor of the bank

. 

### Se e, E x hibit P-6

. Se tt lement on tbe property- occurred on · August 6 , . 2004
. · At - settle'men t , th~ HUD K 1 Sheet reflects each of the mortgages
. See, 

### Exhibit P16
. F o !l ow i ng the closing, the Bank' s paperwor k was delivered t o 

### : the agen t { or Both t he P l a i ntiffs and the Bank sought t i tle insurance in connection with their mortgages. · T h e title commit m ent issued t o th e Ban k d i d not show a moftgage in favor of the Hlain tl ffs. See, Exhib i t P-5. T h e title commitment issued to Harri~r ldentltieoa See, E x hibit D·B

. · . 

## . . E x h i bit './J J - 6
. The Ban k 's underwr i ting approval sheet Indicates that the mortga g e to Long Beach would · be prtmary and the Plaintiffs would be obtaining a second mortgage. 

## See , E

x hibit 

### D-7. The Ban k's pre-d e fin e d und e rwrltfng cond i tions worksheet states t hat the Pl ai nt i ffs would obtain a second mortgage on the property. subm i ssion which was contained with the Long Beach fi l e states the Bank would ob t a in ei -, , first mortgage and the P l aintiffs would prov i de s e condary financing. See, did 

### not agre e that the Agree m ent of ~ale, wh i ch con t ain e d sev e ra l Addenda ( i nc l uding
a further seller assis t In the amoun t of $39,000) was a n ac c urate reflection of .t he deal : Plaintiff appeared e va s ive arid combative on what were - re l atively straightforward ques ti ons about th e· struct u re of the t ra ns a ction

. -. This e vas i veness also s ur ro u nded the fundamental qu e st i on a b o ut t his tran sa ct i on; what li e n position d i d the 

### p artl s s believe they w e re assuming? '. In the H a mer loan applicati on dated August 61 2004 1 Hame r d l sclo s edlhat she had ag re e d 

### .to a second · m o rtgage with the P l aintiff

. See, Exhi bit D-5, The b roker loan 

## .. , ,



## ---------- - ------ - - - -- -- -- - · - --· ·-·· - ·- - ·--:, 

### . '•



### 4 Common Pleas 2008~9148-CA. On September 17, 2009 , Plaintiffs obtained a judgmeM 

### by consent in the amount of $260, 

### 542.51. After entering the .Judgment, the Plalntiffs exposed. 

### the property to Sheriffs Sale. O'n May 

## 19. 2011, the Plaintiffs were the successful bidders. 

### By deed dated June 27 1 2011, the Sheriff transferred fhe.tltle to the. Plaintiffs. Plaintiffs theri commenced the instant matter seeking to Qulet Title .in i the property. Plaintiffs argue that the Bank's mortgage should have been dlvested ar-the Sheriff's Sale and to leave it in place creates a cloud on their title. The Bank takes the • foreclose on their mortgage. See, Krishnan v . Hemet, Chester County Court of policy, in order to protect their interests. The policy designated the Bank as 

### the first mortgag~ and the Pla i ntiffs as the second mortgage. The declaration page was delivere,1 to the 

### Plalntiffs. At no time dld they protest these designatlons. Harner was eventually sued in the Chester County Court of Common Pleas 

### by the Bank in a mortgage foreclosure action. Upon receiving notlce, the Plaintiffs began calling the Bank to determine the status of the action. The business records kept contemporaneously with the events show that on June 27, 2005, June 12, 2006; June 13, 2006 and December 13, 2006 the Plaintiff telephoned the Bank and identified himself as 

### the holder of a second mortgage on the Hamer property. See, Exhibit 0~23. 

## On August 22, 2008 Plaintiffs commenced an action. against Hamer seeking kl 

## .. Each party required Hamer to name them on the horneowner's insurance mortgage was recorded first. recorded at Book 6248, Page 2334. The date and time stamps show that the Bank's was recorded Immediately at Book 66.19, Page 2030. The Plaintiffs' mortgage was. ·· · . l ,

5 

# .. d oc um en ts do not re fl ect a p rior i ty
. W e k n ow th at bot h mo rt gages " are pu rc h ase Th e P "la intiffs ' s o le sup p o rt for th e ir co ntent i on i s t hat n e i t h e r m ort g age s tate s on 

### its fa c e wh ~ t he r. 

### it is a first or a secon d mortgag e . T his i s t r u e. It is a l so tr u e that t h e party
. Id. pr i ori ti e s o f comp e tln g lien s, th i s co urt m u st gi ve con s i d e rati on no t on ly t o t h e reco rde d d ocu m e n ts but to any ag re e me nt by th e pa rti e s w h i c h re fl ect th e l len pri ori tie s b etwe en them

. Se e, F

a rm e r s Trust Company

, s upra. If on e of th e two com pe ti n g lienhol d ers ca n e stabli s h evi den c e th at I t i s entitled t o prlorlty , the n p r i ori ty w ill b e afforded t o that Kr i s h n a n s ' m ortga ge w e re reco rd e d on the s a me d at e. Argu abl y , t hey woul d. hol d eq ual li e rr pr io rity und e r 

### 42 Pa

. C.S. A

. 

### § 81 41
. Ho we v er , w hen d e t erm in i n g respective The statu s of competin g liens o n the re c ord I s · prim e f a d e evidence of th e ir re s p ecti ve pri o r i ti e s . See, F a rme r s Trus t Compa ny v

. Ba umbe r

ger, 3 62 Pa

. S u p e r. 92 , 5 23 A. 2d 7 90 (1 98 7 )

. Th e ev ide n ce reve a ls t h at t he Ban k' s m ort ga ge and th e

RATIO N ALE : 

## v. Y e s. t he Bank 's m o rtgage wa s a first mortgag e ll e n on t h e p rop e rty
. IV. HOLDING: Wheth e r the Bank's mortgage was a firs h 11ortga g e li e n on th e p rop erty? · Sheri ff' s Sa le by statut e . 

### Se e, 42 Pa.C

. S.A

. 

### § 815 2. Therefore , 

### t hey are r ~ qu i red to re v i e w the f acts to det e rm i ne Whether the Bank ' s ~ o rtgage : ·is a first mortgag e lien on t h e property
. ': 111. ISSUE : po sitio n t hat as a fi rst m ortg age li en on th e property , 

### it i s protecte d fro m dive st i tu re at a • c ' I I ~ fl. . .. 

### , ,

All o f th e evid e nce reflects that at the time · surrou nd ing th e p u rch ase of an d
s e tt l em en t o n the property, the plaintiffs k n ew th e y were t a king a se c o nd mortgag e, accep t e c h th at t h e y were taking a se co nd mortgage, re pre sen t ed 

### th at t h ey we re t ak in g a se c ond mortgage
. On l y n o w do e s the pl ai n tiffs' story e qui v ocate
. The c o urt too k g reat pain s to o bserv e the · parti e s as they tes t i fi ed

. Th e P l ai n ti ff s ' tes ti mo n y wa s h e si t a n t and eva sive

. Th e re w e re t imes du r ing qu e sti oning that th e Pla l n fi ff 

### . 1/f~ S
u nn e c es sary comb at i ve a nd his memory seeme d t o fa l t e r . W h en a s ked

. dlre' ~ f!y 6 conce r n . that the P laintiffs · he l d a second mortga g e, they d i d n o t protest , _object o r ra ise an y f aced wit h ev id ence, such as the titl e commitments , or t he homeown e r ' s ins urance , acc e pted a second m o rtgage, knew th at it was a second mo rt g a ge , a n d re p re sent e dt o the Bank t hat it 

### held the se c ond mortgage
. The te s timony c l early reveale d that wt:i~ n

. . . sec o nd mortgage j unior t o that of the Ba n k

. All of t he e vidence t hat w a s p roduced at tr i a l re v e a l ed that the P l a i nti ff s st at e ments and ag re eme nts o f th e pa rt ies. T h e t estimony was c l ea r that the o ri gin al sel l er of the pro perty , th e P l a intiffs, und erstood and a c cepted t h at t hey wou l d hav e a
, - 

## . Gi ve n t l. at the doc u m en ts a r ~ s ilent, we th e n l ook to give cons i derat io n t o any

The p r i ority of lie n s 

### as the y 

### a p p ear on re c ord ls prima 

### faoie evide n ce o f 

### t he man n er in w h i ch the proceeds are 

### to

. be dist r ibuted

. [ ci tatio n s omitted ] However, 

### If th~

. ac c eptan t ca n p rod uc e evide n ce he is equ i ta bly entitled to pri o rity, the order o f p ayment of proceeds of a f orec l osu r e wi ll b e cha n ged. See , Farmers Trus t , Id

. I n re v lewl n g th es e types o f fact s I n c ase s , th e Superio r Co u rt has h e l d : m o ne y m o rt g a ge s . W e kno w that t he m o rtg age s we re s i g n ed at the sa m e t i me ' anc file d o n t h e s am e d at e, alth o u gh th e B a n k ' s mortga ge was record ed flrst.. · · · ·- 

### - ··· - - - - - -- - --- - --- - - - -- ------- - -

## - -· · · ·· · ·- -· - -- - - - - - -- - - - - - -- ---- - --- - - - - -- - - _:___) 7 

# I

I ! f 

# I · I · >
• 1 ~ ·



### r

. . . · ,'• ; .. . ~· 

### J 

# e y~mer . J
. BY T HE COURT : 

### v . Parohlnsky

, supra .; Moore v. Commonwealth, 566 A.2d 905 {Pa

. Cmwlth. 1989). -The Plaintiffs in the lnstantcasedld not meet that burden of proof. In fact, 

### i t was quite the opp o site. Therefore, we conclude that th e Defendant holds a first mortgage
. 

### By st atutea first mort g a g e Is not divested at a Sher i ff's Sale

. See, 42 Pa.C.S.A. § 8152
. By finding as 

# a fact that the Defendant holds a first mortgage , the Plalntiffs ' action to Quiet 

### Title must 

### fail. There fore , we find for the Defendant, Deutsche Bank National Trust Co

.
. . 

### . i required

. to prove h i s case by a preponderance of the evidenc e . See, Grace Buifdi!)g : In Quiet Title ' act i ons, the burden of proof. ls on the plaintiff. See, .Grace Buildi(Jg 

### .v '.

. Parchlm;ky

, 467 A.2d 94 {Pa. Cmwlth

. 1983)

. The plaintiff in a Quiet Title action is· began to assert this " co - equal status" onc e they had foreclosed on the Hamers

. subordi~ i ate lien position on the property. 

### They did so knowingly, , and Vv'.ithout reservation. They represented this knowledge to others, Including 

### the Bank, and 

## only whether he had represented to the Bank and others that he held a second mortgage, the Plaintiff was evasive and appeared l ess than forthcoming

. It is our conclusion that the evidence Is over.whelming

. that the Plaintiffs took a 

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