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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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

Appellants, 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 1149, 1154 n.6 (Pa. Super. 2009). The caption has been 

revised accordingly.
J. A21018/16

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Drive in Malvern, Pennsylvania to Joye McDonald-Hamer (“McDonaldHamer”) for $745,000.00. McDonald-Hamer funded the transaction with a 

$558,750.00 purchase money mortgage from Long Beach Mortgage 

Company (“Long Beach”),2a $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 Residential 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

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August 6, 2004; (8) McDonald-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 had 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 making 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 priority.

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

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Following the trial, the court concluded that Appellee held a first 

mortgage lien 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 Notice 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 institutional 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 agreement 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 

raise 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

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the holder of the institutional mortgage is a bank, which desired 

a senior position?

Appellants’ Brief at 3.

In reviewing a judgment entered 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., 

Inc. 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. Authority 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 affecting 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

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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 fact 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

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presided at trial, has authored a comprehensive, thorough, and wellreasoned 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 followed 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: 10/18/2016
I~ '~. 

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 

•.· 

.... 

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 flt ~1/ ?;z~ i 

-.- .. - ·~···: .. ...,._ .;{;.·: .. - 

.:,,;.:·-,: "'() 

CJ- .. \ :.:;,;; 

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 AM
v , .' • 

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·-·- .. - ---~-..._ -·-· -~· -· ·--- 

3. Plaintiffs allege that this Court erred by purportedly setting priority based 

on 111) 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 in 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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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 

agreed to hold a second mortgage. • i • ·~ .. 

constitute sufficient evidence of an agreement between the parties that Plaintiffs 

determined, the conduct of the parties and various documents evidencing 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, 20131 

thls Cou1i denied Plalntlffs Motlon for Default Judgment. 

On December 4, 20131 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 

•:;;.•, ;i .. ;~ ~:· {_ 

· ri ;:: • .. :!."; 

:.-: ~... . . ~-- 

. ~ ,,; ( . 

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 KRISHNAN 
2 

were different. Plaintiff could not recall any of the details of the transaction. Plaintiff 

~\ 

The· Plaintiff 'Was questioned about the discrepancy and the circumstances 

surrounding the settlement. Plaintiff testified that he was not sure why the numbers 

. . . 

assist, b) dented that the addenda reflecting the' cash assist was authentic, and ·c) 

denied that his loan plus the aforementioned c~sh assist added up approxlrnately . 

$225,000.00. 

mortgage on the Property In favor of the Plaintiffs. The amount of the mortgage was · 

for $22fS,OOO.OO. Interestingly, at trial no one could explain why the mortgage amount . 

was sig:lificant'ly In exce~s of the loan amount. Wh'en questioned directly by the Court 

on the .fasue that perhaps the mortgage amount was that of the combined loan and 

cash put up by the Plaintiffs, ·Plaintiff denied a). that he had given a· $39,000 cash 

mortgage on the Property in favor of the bank. The mortgage was recorded in the . 

Office for the Recorder of Deeds of Chester County at Book 6248·, P~ge 2323. In 

order to secure the repayment of the Plaintiffs' loan, Hamer executed and delivered a 

. ,• 

Shadow Oak Drive, Malvern, PA 19355 (herelnaft~r the "Property") to J~ye McDonaldHamer (hereinafter "Harner"), for the sum of $745,000.00. The transaction was funded 

as follows: $55°8,750.00 ~$ a loan from Long Beach M.ortgage Compan;; $186,250.00 

loaned by the Plaintiffs; and, $39,389.32 ln cash from the Plaintiffs. See, Exhibit P-16. 

To secure the repayment of the Long Beach loan, Hamer executed and delivered a 

. ij 

On August 6, 2004, the Plaintiffs sold the real property and home located at.1~60 

Defendant's reply, this Court denied Plaintiffs' motion. The matter was set down for a 

trial without a jury on July 9, 2015. 

II. Facts; 

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recording. The Plaintiffs received their paperwork for recording. The Bank's mortgage 

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proposed ··first mortgage in favor of the bank. See, Exhibit P-6. Settlement on tbe 

property-occurred on· August 6, .2004. · 

At-settle'ment, th~ HUDK1 Sheet reflects each of the mortgages. See, Exhibit P16. Fo!lowing the closing, the Bank's paperwork was delivered to :the agent {or 

Both the Plaintiffs and the Bank sought title insurance in connection with their 

mortgages.· The title commitment issued to the Bank did not show a moftgage in favor 

of the Hlaintlffs. See, Exhibit P-5. The title commitment issued to Harri~r ldentltieoa 

See, Exhibit D·B. 

·. . . 

Exhibit './JJ-6. The Bank's underwriting approval sheet Indicates that the mortgage to 

Long Beach would· be prtmary and the Plaintiffs would be obtaining a second 

mortgage. See, Exhibit D-7. The Bank's pre-defined underwrltfng conditions 

worksheet states that the Plaintiffs would obtain a second mortgage on the property. 

submission which was contained with the Long Beach file states the Bank would 

obtain ei-,,first mortgage and the Plaintiffs would provide secondary financing. See, 

did not agree that the Agreement of ~ale, which contained several Addenda (including 

a further seller assist In the amount of $39,000) was an accurate reflection of .the deal: 

Plaintiff appeared evasive arid combative on what were- relatively straightforward 

questions about the· structure of the transaction. -. This evasiveness also surrounded 

the fundamental question about this transaction; what lien position did the partlss 

believe they were assuming?'. 

In the Hamer loan application dated August 61 20041 Hamer dlsclosedlhat she had 

agreed .to a second· mortgage with the Plaintiff. See, Exhibit D-5, The broker 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 271 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 Plaintiffs 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 

.. documents do not reflect a priority. We know that both mortgages "are purchase 

The P"laintiffs' sole support for their contention is that neither mortgage states on its 

face wh~ther. it is a first or a second mortgage. This is true. It is also true that the 

party. Id. 

priorities of competlng liens, this court must give consideration not only to the recorded 

documents but to any agreement by the parties which reflect the llen priorities between 

them. See, Farmers Trust Company, supra. If one of the two competing lienholders 

can establish evidence that It is entitled to prlorlty, then priority will be afforded to that 

Krishnans' mortgage were recorded on the same date. Arguably, they would. hold 

equal lierrpriority under 42 Pa.C.S.A. § 8141. However, when determining respective 

The status of competing liens on the record Is· prime fade evidence of their 

respective priorities. See, Farmers Trust Company v. Baumberger, 362 Pa. Super. 92, 

523 A.2d 790 (1987). The evidence reveals that the Bank's mortgage and the 

v. RATIONALE: 

Yes.the Bank's mortgage was a first mortgage llen on the property. 

IV. HOLDING: 

Whether the Bank's mortgage was a firsh11ortgage lien on the property? · 

Sheriff's Sale by statute. See, 42 Pa.C.S.A. § 8152. Therefore, they are r~quired to 

review the facts to determine Whether the Bank's ~ortgage:·is a first mortgage lien on 

the property .': 

111. ISSUE: 

position that as a first mortgage lien on the property, it is protected from divestiture at a 

• c ' 

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All of the evidence reflects that at the time· surrounding the purchase of and 

settlement on the property, the plaintiffs knew they were taking a second mortgage, 

acceptechthat they were taking a second mortgage, represented that they were taking 

a second mortgage. Only now does the plaintiffs' story equivocate. The court took 

great pains to observe the ·parties as they testified. The Plaintiffs' testimony was 

hesitant and evasive. There were times during questioning that the Plalnfiff .1/f~S 

unnecessary combative and his memory seemed to falter. When asked. dlre'~f!y 

6 

concern. 

that the Plaintiffs· held a second mortgage, they did not protest, _object or raise any 

faced with evidence, such as the title commitments, or the homeowner's insurance, 

accepted a second mortgage, knew that it was a second mortgage, and representedto 

the Bank that it held the second mortgage. The testimony clearly revealed that wt:i~n 

. . . 

second mortgage junior to that of the Bank. 

All of the evidence that was produced at trial revealed that the Plaintiffs 

statements and agreements of the parties. The testimony was clear that the original 

seller of the property, the Plaintiffs, understood and accepted that they would have a 

,- . 

Given tl.at the documents ar~ silent, we then look to give consideration to any 

The priority of liens as they appear on record ls prima 

faoie evidence of the manner in which the proceeds are to 

.be distributed. [citations omitted] However, If th~. 

acceptant can produce evidence he is equitably entitled to 

priority, the order of payment of proceeds of a foreclosure 

will be changed. See, Farmers Trust, Id. 

In revlewlng these types of facts In cases, the Superior Court has held: 

money mortgages. We know that the mortgages were signed at the same time 'anc 

filed on the same date, although the Bank's mortgage was recorded flrst.. 

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J ey~mer . J. 

BY THE 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, it was quite 

the opposite. 

Therefore, we conclude that the Defendant holds a first mortgage. By statutea first 

mortgage Is not divested at a Sheriff'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. Therefore, we find for the Defendant, Deutsche Bank National Trust Co. 

. . . 

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required. to prove his case by a preponderance of the evidence. See, Grace Buifdi!)g : 

In Quiet Title' actions, 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" once they had foreclosed on the Hamers. 

subordi~iate 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 less than forthcoming. 

It is our conclusion that the evidence Is over.whelming. that the Plaintiffs took a 

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