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____________________________________ * Retired Senior Judge assigned to the Superior Court. NON - PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
CITIZENS BANK

v.
GLORIA A. GUTIERREZ,

Appellant. : : : : : : : : : IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 1100 EDA 2018
Appeal from the Order Dated, April 13, 2018, in the Court of Common Pleas of Philadelphia County,

Civil Division at No(s): 130401613.

BEFORE: LAZARUS, J., KUNSELMAN, J., and STRASSBURGER*, J. MEMORANDUM BY KUNSELMAN, J.: FILED JUNE 25, 2019 Gloria A. Gutierrez appeals from the order denying her motion to set aside the sheriff’s sale of her property based upon allegations of fraud . Upon review, we affirm

. In 2005, Gutierrez executed a promissory not e with Citize ns Bank of Pennsylvani a in the amount of $ 150,500.00. The promissory n ote was secured by a mortgage on the property located at 1010

- 12 Ashburner Street, Philadel p hia , Pennsylvania. In September 2012, Gutierrez defaulted on the promissory note and mortgage . Citizens Bank filed a complaint in mortgage foreclosure against her. In 2015, u pon Citizens Bank’s motion and Gutierrez’s failure to file a
respon se , the trial court gran t ed summary judgment in favor of Citizens Bank,J

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and entered an in rem judgment against the property in mortgage foreclosure

. Gutierrez did not appeal

. In April 2016, Gutierrez endeavored to satisfy the judgment. Gutierrez gave a note to Citizens Bank from WeRe Bank promising to pay $185,598.06 to Citizens Bank. Shortly thereafter , on May 23, 2016, Citizens Bank advised Gutierrez that the note was not honored by WeRe Bank, and that she needed

an alternative payment method ; Gutierrez made no other payment

. S ubsequently, on June 2, 2016, Citizens Bank informed Gutierrez that the loa n had been paid off. 1 The ju dgment, however, was not marked satisfied on the docket. In fact, no payment had actually been made. In 2017, u pon Citizens Bank’s praecipe, a writ for sale of the property was issued. Notice of the sale was served upon Gutie rrez. After several postponements, the property was ultimately scheduled for sale on March 6,
2018. The day before the sheriff’s sale was to take place, Gutierrez presented a motion to continue the sale; a hearing was scheduled for the morning of sale. G utierrez also filed a motion to set aside /request to vacate the

_________________ __________ ______ ____ _______ 1 We note that neither the trial court nor counsel for Citizens Bank addressed why Citizens Bank sent this l etter to Gutierrez. However, after this letter was sent, counsel for Citizens Bank, by correspondence dated June 6, 2016, addressed the validity of the payment Gutierrez sent, thereby evidently negating this letter, as Citizens Bank continued to move forward with the sale process. Although this letter may have created confusion, the fact remains, as discussed below, that the loan was not paid off.J

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judgment

. Her motion to continue was denied for lack of prosecution ; no decision was rendered on her motion to vacate /set aside the judgment

. On March 6, 2018, the Philadelphia Sheri f f’s Office sold the property. Shortly thereafter, Gutierrez petitioned the trial court to set aside the sheriff’s sale for fraud

. T he trial court denied her motion. 2 Gutierrez timely appealed. On appeal, Gutierrez raises ten issues

. We observe, however, that t he essence of her appeal is whether the trial court abused its discretion in denying her motion to set aside the sheriff’s sale on the basis of fraud

. 3

_________________ __________ ______ ____ _______ 2 As is evident from the record, this case has been ongoing for many years. Gut i errez has taken every opportunity to avoid the sale of her property due to her failure to pay her mortgage . We further note that, over the course of this litigation, the trial court gave Guiterrez multiple opportunit ies to make her case through her many motions and requests.

3 Initially, we note that Gutierrez , who is, albeit, pro se in this matter, has failed to conform to several rules governing appeals to this Court. Firs t, Gutierrez did not concisely set forth her statement of questions involved contra ry to Pa.R.A.P. 2116. Instead, Gutierrez rambles at length to the point that this Court cannot understand what she is asking us to address. Additionally, Gutierrez has no t complied with the briefing r equirements under Pa.R.A.P. 2119

. Gutierrez failed to set forth a meaningful and developed argument or analysis in h er brief. Commonwealth v. Kane , 10 A.3d 327, 331

- 32 (Pa. Super. 2010) , appeal denied , 29 A.3d 796 (Pa. 2011). Additionally, she did not provide citation to applicable law. Finally, her a rgument is not d ivided into parts. For these reasons, we could dismiss Gutierrez ’s appeal pursuant to Pa.R.A.P. 2101. However, we decline to do so. We also note that in issue number two, Gutierrez references an order from January 2018 rendering her motion to stay moot

. She also makes arguments regarding the summary judgment order in her brief. However, because she did not appeal from th ese order s , any matters pertainin g thereto are waived. Finally, we note that Gutierrez attempted to hire counsel to assist with this appeal after Citizens Bank had filed its brief. As a courtesy, we grantedJ

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Gutierrez first argues that she made payment in full to satisfy the judgment prior to the sheri ff’s sale, rendering the need for the sale moot. 4 Despite this, Citizens Bank refused to accept her payment and proceeded to execute upon her property at a sheriff’s sale

. By doing so, she claims Citizens Bank committed fraud. See Gutierrez’s Brief at 7

. Gutierrez further argues that Citizens Bank mishandled her payment and made misrepresentations to the trial court regarding the validity of her payment. Thus, she alleges Citizens Bank committed fraud , and, the trial
court erred in failing to set aside the sheriff’s sale of her property. Id. at 7

- 8. We disagree. “A petition to set aside a sheriff’s sale is grounded in equitable principles[.]” GMAC Mortg. Corp. of Pa. v. Buchanan , 929 A.2d 1164, 1167 (Pa. Super. 2007). The burden of establishing grounds for relief rests with the petitioner. Id

.

_________________ __________ ______ ____ _______ counsel’s request for additional time to file an amended brief on behalf of Gutierrez and gave counsel thirty days to do so. Counsel, instead, requested more time, which we denied. To date, counsel has not filed an amended brief. Thus, our decision is based on Gutierrez’s pro se brief.

4 Gutierrez argues that she raised this issue in her motion to vacat e the judgment, but the trial court failed to address the matter prio r to the sale. Although this is true, Gu tierrez filed it the day before the sale. Simultaneously therewith, she filed a motion to continue the sale. Howe ver, she failed to app ear for the hearing scheduled the morning of the sale. Because she did not appear, the court had no basis to continue the sale. The trial court u ltimately denied the motion , n otwithstanding that Gutie r rez had already filed this appeal. Regardless, Guti errez raises the same claims involving a payoff prior to the sale which we will address in this appeal.J

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“ The decision to set aside a sheriff’s sale is within the sound discretion of the trial court, and we shall not reverse its decision on appeal absent a clear abuse of discretion. ” Merrill Lynch Mortg. Capital v. Steele , 859 A

. 2d 788, 791 (Pa. Super. 2004). “An abuse of discretion is not merely an error of judgment, but if in reaching a conclusion the law is overridden or misapplied,
or t he 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) (ci tation omitted). Generally, a court may only grant such a petition “when [it] is filed before the sheriff’s delivery of the deed. ” Mortgage Elec. Registration Sys., Inc. v. Ralich , 982 A.2d 77, 79 (Pa. Super. 2009) (citations omitted), appeal denied , 992 A.2d 889 (Pa. 2010); Pa.R.C.P. 3132. Prior to the deed, a trial court may, upon the petition of any interested party, set aside a sheriff’s sale for proper cause. Pa.R.C.P. 3132. After a sheriff’s deed has been delivered, however, a trial court may set aside a sherif f ’s sale only if the sale was based on fraud or the sheriff lacked the authority to mak e the sale. Ralich , 982 A.2d at 80. As the trial court observed , the record does not indicate whether the sheriff’s deed was delivered before or after G utierrez pe t ition ed the trial court to set aside the s ale. 5 Regardless, although she references in her motion the

_________________ __________ ______ ____ _______ 5 In its brief, Citizens Bank indicates that the deed was recorded on April 18, 2018, which was after Gutierrez filed her petit i on.J

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need to set aside the sale for just cause , Gutierrez argues that the basis for setting aside the sheriff’s s ale was fraud. Therefore , this Court may proper ly consider th is matter. Nonetheless , we conclude that Gutierrez’s claims of fraud lack merit. To set aside a sheriffs’ sale for fraud, a petition must a v er that
repre s entations made by the alleged defrauder were false and that fraud was intended or achieved. Marine Bank v. Huhta , 420 A.2d 1066, 1070 (Pa. Super. 1980). Allegations that a sheriff’s sale was based on fraud must be
set forth with particularity. Ralich , 982 A.2d at 80. Vague allegations of fraud, alone, are insufficien t to justify setting aside a sheriff’s sale. Id.
Gutierrez did not set forth her allegations of fraud with the requisite particularity. Beyond general allegation s , she does not state wh ich representations Citizens Bank made that form the basis of her claim or what it falsely represented to her or the court. Her claims lack the requisite detail of who said what to whom and when

. Moreover, the trial court concluded , there w as no allegation that the f raud was intended or achieved in this matter. Trial Court Opinion, 8/23/18,
at 4. Gutierrez did not allege that any of the information given to her by
C itizens Bank was in fact false, or fraudulent, or that any fraud was intended or achieved by its conduct

. In c oncluding that there was no allegation that fraud was intended or achieved, t he tri a l court explained: In this case, [Gutierrez] contends that she tried to pay Citiz e ns Bank but the bank refused to “ [t]ender . . . ‘ full payment.’” She contends that her effort s to pay Citizens Bank satisfied theJ

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judgment in full before the sheriff’s sale. [Gutierrez ] , however , attempted to pay citizens Bank an d satisfy the mortgage foreclos ure judgment with a purported ban k note [from WeRe Bank] that merely constituted a ‘promise to pay’ . Citizens Bank refused to accept the bank note and informed [Gutierrez] that it was unable to process her payment

. . . . T he mortgage judgment was not satisfied and Citizens Bank was entitled to proceed with execution of the mortgage fo reclosure judgment.
Id. at 4

- 5. For these reasons, contra r y to Gutierrez’s argument, the need for the sale was not moot, and Citizens Bank did not act fraudulently when it executed on its judgment through the sheriff’s sale. 6
Likewise , Gutierrez’s cl ai m that Citizens B ank made misrepres e nt at ions to the trial court regarding the validity of her payment warrants no relief. Again, as the trial court noted, Gutierrez made no payment , only a promise to pay which Citizens Bank refused

. W e , therefore, conclude that the trial court did not abuse its discretion in refusing to grant Gutierrez’s petition t o set aside the sheriff's sale on the basis of fraud. Order affirmed.

_________________ __________ ______ ____ _______ 6 We note that corre spondence from WeRe Bank which Guitterrez relied upon in support of her position appears spurious itself. I t is signed by “Peter of England” and claims that “WeRe Bank does NOT need to be regulated ‘What’s good for the goose is good for the gander as they say!’” As noted, Citizens Bank did not accept this questionable promise to pay as satisfaction of the judgment.J

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 6/25/19