J-A19020-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

WELLS FARGO BANK, N.A., S/B/M TO 

WELLS FARGO HOME MORTGAGE, INC., 

F/K/A NORTHWEST MORTGAGE, INC.

IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

PHYLLIS R. GILROY

Appellant No. 1216 WDA 2014

Appeal from the Order Entered July 17, 2014

In the Court of Common Pleas of Crawford County

Civil Division at No(s): AD 2008-1903

 EX-2013-203

BEFORE: BENDER, P.J.E., JENKINS, J., and MUSMANNO, J.

MEMORANDUM BY JENKINS, J.: FILED JULY 22, 2015

Phyllis Gilroy appeals from an order denying her petition to set aside a 

sheriff’s sale in this mortgage foreclosure action. We affirm.

The record reveals the following: on December 20, 1996, Gilroy 

executed a promissory note in favor of Norwest Mortgage, Inc. (“Norwest”) 

in the principal amount of $59,900.00. The note was secured by a purchase 

money mortgage on a residence situated on about one acre of land in 

Crawford County. Norwest recorded the mortgage in the Crawford County 

Recorder of Deeds. Thereafter, Norwest changed its name to Wells Fargo 

Home Mortgage, Inc., which then merged into Wells Fargo Bank, N.A.1

____________________________________________

1 We will refer to the mortgagee as “Wells Fargo”.
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The first page of the mortgage includes a notice providing that: “THIS 

LOAN IS NOT ASSUMABLE WITHOUT THE APPROVAL OF THE DEPARTMENT 

OF VETERANS AFFAIRS OR ITS AUTHORIZED AGENT.” The mortgage 

includes a Veterans Affairs (“VA”) Guaranteed Loan and Assumption Policy 

Rider which was executed by Gilroy and recorded with the Recorder of 

Deeds. The rider provides that “if the indebtedness secured hereby is 

guaranteed or insured under Title 38, United States Code, such Title and 

Regulations issued thereunder and in effect on the date hereof shall govern 

the rights, duties and liabilities of Borrower and Lender.” [Emphasis added] 

Similarly, with respect to the guaranty of the loan by the VA, the rider 

provides:

Should the Department of Veterans Affairs fail or 

refuse to issue the guaranty in the full amount within 

60 days from the date that this loan would normally 

become eligible for such guaranty, committed upon 

by the Department of Veterans Affairs under the 

provision of Title 38 of the U.S. Code, the Mortgagee 

may declare the indebtedness hereby secured at 

once due and payable and [proceed to] foreclosure 

immediately. 

The Rider defines an “assumption” as “an authorized transfer ... of the 

property.”

In June 2008, Gilroy defaulted on her obligations under the note and 

mortgage. Wells Fargo sent Gilroy notice of intention to foreclose pursuant 

to Act 91, but Gilroy failed to cure her default.
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On November 3, 2008, Wells Fargo commenced a mortgage 

foreclosure action against Gilroy via complaint with a notice to defend. 

Paragraph 1 of the complaint averred that the plaintiff was “Wells Fargo 

Bank, N.A., s/b/m to Wells Fargo Home Mortgage, Inc. f/k/a Norwest 

Mortgage, Inc.” Paragraph 6 of the complaint set forth an itemized list of 

the liquidated amounts that Wells Fargo claimed were due under the 

mortgage. Included in this list was the amount of $1,250.00 for attorneys’ 

fees. Wells Fargo averred that the total amount due under the mortgage, 

including attorney fees, was the liquidated sum of $54,002.49. Paragraph 7 

of the complaint averred that the attorneys’ fees requested were in 

conformity with the mortgage and Pennsylvania law. Paragraph 9 of the 

Complaint averred that any notices required under Act 6 of 1974 (“Act 6”), 

Notice of Homeowner’s Emergency [Mortgage] Assistance Program pursuant 

to Act 91 of 1983 (“Act 91”), as amended in 1998, and/or Notice of Default 

as required by the mortgage, as applicable, had been sent to Gilroy. 

Paragraph 10 of the complaint averred that Act 6 did not apply to the 

foreclosure action because the original mortgage amount exceeded the 

dollar amount provided in the statute.

In its prayer for relief, Wells Fargo demanded judgment against Gilroy 

in the amount of $54,002.49. On November 12, 2008, Wells Fargo served 

the complaint on Gilroy through the sheriff. On December 30, 2008, Wells 

Fargo filed a praecipe for entry of default judgment against Gilroy due to her 

failure to answer the complaint.
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Gilroy filed for bankruptcy, but her bankruptcy case was dismissed. 

Wells Fargo began execution proceedings, and on February 7, 2014, the 

property was sold at sheriff’s sale. On February 27, 2014, over five years 

after entry of default judgment, Gilroy filed a petition “to set aside the 

sheriff’s sale.” On July 17, 2014, the trial court denied Gilroy’s petition. 

Gilroy filed a timely notice of appeal, and both Gilroy and the trial court 

complied with Pa.R.A.P. 1925.

Gilroy raises four issues in this appeal:

1. Do VA foreclosure laws and regulations trump 

state laws on the same?

2. Does the record negate the presumption that 

Wells Fargo was entitled to enforce the Note?

3. Does the failure to provide Ms. Gilroy the required 

VA notice constitute a fatal defect? 

4. Can only an Article V court determine an 

unliquidated amount and direct it to be included into 

a judgment (i.e., does a Prothonotary lack authority 

to determine and add an unliquidated amount to a 

judgment)?

At the outset, we observe that Gilroy should have filed her petition in 

the trial court as a “petition to strike the judgment” instead of a “petition to 

set aside the sheriff’s sale.” We raise this point because we apply a different 

standard of review to petitions to strike than to petitions to set aside.

A petition to set aside the sheriff’s sale is a request by an interested 

party to set aside a sheriff’s sale “upon proper cause shown” where relief is 
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“just and proper under the circumstances.” Pa.R.Civ.P. 3132. This petition 

seeks equitable relief, Bornman v. Gordon, 527 A.2d 109, 111 

(Pa.Super.1987), and we review an order deciding this petition for abuse of 

discretion. Blue Ball Nat. Bank v. Balmer, 810 A.2d 164, 167 

(Pa.Super.2002).

A petition to strike a judgment, on the other hand, alleges that there is 

a fatal defect or irregularity on the face of the record. EMC Mortgage, LLC 

v. Biddle, 114 A.3d 1057, 1063 (Pa.Super.2015). If the defect is 

jurisdictional in nature, the judgment is void and may be stricken at any 

time. M & P Management, L.P. v. Williams, 937 A.2d 398, 400 

(Pa.2007). If the defect is non-jurisdictional, the judgment is voidable, and 

“the application to strike off must be made within a reasonable time, or the 

irregularity will be held waived.” Id. A petition to strike does not involve 

the discretion of the court; thus, we review an order denying a petition to 

strike to determine whether the record is sufficient to sustain the judgment. 

Wells Fargo Bank, N.A. v. Lupori, 8 A.3d 919, 920 (Pa.Super.2010). We 

will not consider matters outside the record, and if the record is selfsustaining, the judgment will not be stricken. Id.

In both the trial court and this Court, Gilroy claims that there are fatal 

defects on the face of the record. Because these claims are tantamount to a 

motion to strike the judgment, the standard of review governing motions to 

strike applies to this appeal.
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We address Gilroy’s first and third arguments together, because they 

involve the same subject. Gilroy contends that VA foreclosure law “trumps” 

Pennsylvania law, and therefore Wells Fargo had the duty to send Gilroy a 

pre-foreclosure notice that complied with VA foreclosure laws and 

regulations. Wells Fargo’s failure to send Gilroy a pre-foreclosure notice that 

satisfied VA laws and regulations, Gilroy argues, is a “fatal defect” in the 

record. Brief For Appellant, p. 13; see also id., p. 10 (absence of VA notice 

is “fatal irregularity”). 

Gilroy failed to raise this issue in the trial court. The question thus 

becomes whether Wells Fargo’s alleged failure to send a pre-foreclosure VA 

notice is a jurisdictional (and thus non-waivable) defect or a nonjurisdictional (and thus waivable) defect. M & P Management, L.P., 937 

A.2d at 400. While there is no decision directly on point, several factors 

persuade us that this alleged defect is non-jurisdictional, and thus waivable. 

First, we held in United National Bank of Little Rock v. Cobbs, 567 A.2d 

719 (Pa.Super.1989), that a mortgagor “may raise the Bank’s failure to 

comply with the servicing provisions of the VA Lenders Handbook as an 

equitable defense in the Bank’s mortgage foreclosure action.” Id. at 723 

(emphasis added). “Equitable” defenses can and often do raise important 

concerns, but they are not jurisdictional in nature. Therefore, they can be 

waived. See, e.g., In Re Estate of Trowbridge, 920 A.2d 901, 906 

(Pa.Cmwlth.2007) (defendant waived equitable defense of laches). Cobbs’
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use of “equitable” suggests that VA regulations are waivable. Second, we 

can locate no decision, state or federal, that the requirement of a preforeclosure VA notice is jurisdictional and non-waivable. To the contrary, 

one recent decision holds that a mortgagor can waive his rights under VA 

mortgage foreclosure regulations. See Bulmer v. MidFirst Bank, FSA, 59 

F.Supp.3d 271, 280-281 (D.Mass.2014) (mortgagor waived condition to 

mortgage assignee exercising its power of sale that it comply with VA 

regulations requiring holder of loan guaranteed or insured by Secretary to 

maintain loan servicing program and make reasonable effort to establish 

realistic and mutually satisfactory arrangement for curing default, where 

mortgagor accepted forbearance agreement from assignee instead of 

asserting his rights under VA regulations). Third, we find guidance from a 

recent decision by our Supreme Court that the failure to send a preforeclosure notice under the Homeowner’s Emergency Mortgage Act (Act 

91), 35 P.S. §§ 1680.401c et seq., is a mere procedural, and thus waivable, 

defect. See Beneficial Consumer Discount Co. v. Vukman, 77 A.3d 547 

(Pa.2013). Vukman held that a cause of action for mortgage foreclosure 

[does not] include a mortgagee’s compliance with 

Act 91’s requirements. A cause of action is ‘a factual 

situation that entitles one person to obtain a remedy 

in court from another person.’ Black’s Law Dictionary 

235 (8th ed. 2004). In foreclosure, this factual 

situation includes a mortgagor’s default on a duly 

executed mortgage. See Pa.R.C.P. 1147(a)

(itemizing factual averments required in mortgage 

foreclosure complaint). The cause of action does not 

include the procedural requirements of acting on that 
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cause. Appellee’s overarching assertion that Act 91 

imposes jurisdictional prerequisites on mortgage 

foreclosure actions is unsupportable.

Turning to the definitions of ‘procedural law’ and 

‘procedure,’ the Act 91 notice requirements appear 

to fit comfortably in the procedural realm as they set 

forth the steps a mortgagee with a cause of action 

must take prior to filing for foreclosure. See Black’s 

Law Dictionary 1241 (8th ed. 2004) (Procedural law: 

‘The rules that prescribe the steps for having a right 

or duty judicially enforced, as opposed to the law 

that defines the specific rights or duties themselves.’ 

Procedure: ‘1. A specific method or course of action. 

2. The judicial rule or manner for carrying on a civil 

lawsuit or criminal prosecution.’). Contrary to 

appellee’s argument, the Act 91 notice requirements 

certainly do not sound in jurisdiction as they do not 

affect the classification of the case as a mortgage 

foreclosure action. See In re Melograne, [812 A.2d 

1164,] 1167 [Pa.2002] (citation omitted) 

(‘Jurisdiction relates solely to the competency of the 

particular court or administrative body to determine 

controversies of the general class to which the case 

then presented for its consideration belongs.’). 

Moreover, the lack of explicit language in Act 91 

prescribing that such requirements are jurisdictional 

cautions against this Court treating them as such.

Id. at 552-53 (emphasis added). We see no reason (nor does Gilroy provide 

any) for treating VA notices differently than our Supreme Court treats Act 91 

notices in Vukman.

In the absence of persuasive precedent that VA foreclosure regulations 

are non-waivable, we conclude that these regulations are procedural, nonjurisdictional requisites that mortgagors such as Gilroy can waive. Gilroy 

waived any protections available under VA foreclosure regulations by waiting 
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five years after entry of judgment before filing her petition to strike. M & P 

Management, L.P., 937 A.2d at 400 (non-jurisdictional irregularities are 

waived if not raised within reasonable time). In addition, Gilroy waived this 

issue by failing to raise it in her petition or supporting memoranda. 

Pa.R.A.P. 302(a) (“issues not raised in the lower court are waived and 

cannot be raised for the first time on appeal”).

Even if Gilroy preserved this issue, the rider in Gilroy’s mortgage 

provides that federal statutes and regulations only apply “if the indebtedness 

secured hereby is guaranteed or insured under Title 38 [of the] United 

States Code.” Nothing in the record indicates that the VA actually insured or 

guaranteed Gilroy’s loan – and without any VA participation in the loan, we 

cannot see how Gilroy is entitled to a pre-foreclosure VA notice.2

____________________________________________

2

In the trial court, and in the body of her brief, Gilroy contended that Wells 

Fargo failed to send her an Act 91 notice and a pre-foreclosure notice under 

Act 6 of 1974, 41 P.S. § 401 et seq. (“Act 6”). Although Gilroy neglected to 

raise these issues in her brief’s Statement of Questions Presented, we 

exercise our discretion to overlook this omission and to review these issues 

on the merits. PHH Mortgage Corp. v. Powell, 100 A.3d 611, 615 

(Pa.Super.2014) (appellant’s failure to comply with appellate rules 

governing, inter alia, statement of questions involved did not preclude 

appellate review of issues identified in brief which appellant supported with 

legal argument).

Gilroy is not entitled to relief under Act 91, because the record reflects that 

Wells Fargo sent Gilroy an Act 91 notice over four months before filing a 

foreclosure action. Wells Fargo’s Answer To Petition To Set Aside Sheriff’s 

Sale, exhibit R. 

Nor does Act 6 protect Gilroy. Act 6 provides: 

(Footnote Continued Next Page)
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In her second issue on appeal, Gilroy argues that Wells Fargo lacks 

standing to enforce the note because it failed to establish that Norwest, the 

original mortgagee, assigned the note to Wells Fargo. Pennsylvania courts 

view the issue of standing as non-jurisdictional and waivable. In re: 

Condemnation of Urban Dev. Auth. of Pittsburgh, 913 A.2d 178, 181 n. 

6 (Pa.2006). Gilroy waived this issue by delaying five years after entry of 

(Footnote Continued) _______________________

Before any residential mortgage lender may 

accelerate the maturity of any residential mortgage 

obligation, commence any legal action including 

mortgage foreclosure to recover under such 

obligation, or take possession of any security of the 

residential mortgage debtor for such residential 

mortgage obligation, such person shall give the 

residential mortgage debtor notice of such intention 

at least thirty days in advance as provided in this 

section.

41 P.S. § 403(a). By its terms, Act 6 only applies to “residential mortgages.” 

Under the current version of Act 6, a residential mortgage is defined as “an 

obligation to pay a sum of money in an original bona fide principal amount of 

the base figure or less, evidenced by a security document and secured by a 

lien upon real property located within this Commonwealth containing two or 

fewer residential units ...” 41 P.S. § 101. Prior to September 8, 2008, the 

base figure was $50,000.00. As of September 8, 2008, the legislature 

increased the base figure to $217,873. Notwithstanding the 2008 

amendment, courts have looked to the bona fide principal amount set at the 

time of the transaction, not at a subsequent date, for determining whether a 

residential mortgage comes under Act 6. In re Harris–Pena, 446 B.R. 178, 

187 (Bankr.E.D.Pa.2009) (acknowledging 2008 amendment to Act 6, but 

applying pre–2008 $50,000.00 principal amount limit for loan that closed in 

2001; under pre-2008 limit, lender was not required to send Act 6 notice to 

mortgagor). We find Harris-Pena persuasive. When Gilroy entered the 

mortgage in 1996, its principal amount of $59,900.00 exceeded $50,000.00, 

the limit then in effect. Thus, Wells Fargo was not required to send an Act 6 

pre-foreclosure notice to Gilroy.
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judgment before filing her petition to strike. M & P Management, L.P.,

937 A.2d at 400. 

Even if Gilroy had preserved this issue, it would not entitle her to 

relief. The Rules of Civil Procedure require a mortgage foreclosure complaint 

to state any assignments of the mortgage. Pa.R.Civ.P. 1147(a)(2). In this 

case, however, there was no assignment. The record establishes that Wells 

Fargo is the successor by merger to Wells Fargo Home Mortgage, Inc., which 

was formerly known as Norwest Mortgage, Inc., the original lender. 

Complaint, ¶ 1 (averring that plaintiff is “Wells Fargo Bank, N.A., s/b/m 

[successor by merger] to Wells Fargo Home Mortgage, Inc. f/k/a [formerly 

known as] Norwest Mortgage, Inc.”). It is well-settled that the surviving 

corporation in a merger succeeds to all assets, liabilities and rights of action 

held by the merged corporation. Seven Springs Farm, Inc. v. Croker, 

748 A.2d 740, 746-47 (Pa.Super.2000) (after merger, surviving corporation 

succeeds to the assets and liabilities of merged corporations); CBS, Inc. v. 

Film Corp. of Am., 545 F. Supp. 1382, 1388 (E.D.Pa.1982) (applying 

Pennsylvania law) (corporation formed by merger of other corporations 

succeeds to all rights of action possessed by companies merged into the 

survivor corporation); see also Mullins v. Wells Fargo Bank, N.A., 2013 

WL 5299181, *13 (E.D.Cal.2013) (“Wells Fargo simply succeeded to World 

Savings Bank, FSB’s interest in plaintiff’s loan,” due to merger). Thus, Wells 

Fargo succeeded to Norwest’s interests in the mortgage by operation of law. 
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No assignment was necessary. See Rice v. v. Wells Fargo Bank, N.A., 

2014 WL 868785, *7 (D.Mass.2014) (Wells Fargo automatically acquired 

ownership at time of merger and “lack of any recorded assignment actually 

undermines plaintiff’s claim to the extent that it suggests the mortgage was 

not transferred to anyone other than [Wells Fargo]”); Toromanova v. 

Wells Fargo Bank, N.A., 2013 WL 6225365, *3 (D.Nev.2013) (“Wells 

Fargo is not a ‘stranger’ to the note but rather a valid, legally noticed 

successor-in-interest”); Suser v. Wachovia Mortgage, FSB, 78 A.3d 1014, 

1016 (N.J.A.D.2013) (rejecting plaintiff’s argument regarding assignment of 

mortgage because “Wells Fargo’s right to enforce the mortgage arises by 

operation of its ownership of the asset through mergers or acquisitions, not 

assignment”).3

In her fourth argument on appeal, Gilroy contends that the judgment 

must be stricken because (1) the amount of attorney fees entered by the 

prothonotary ($1,250) was a flat fee; (2) the court alone has the authority 

to award attorney fees, not the prothonotary; and (3) the court can only 

award reasonable attorney fees instead of the flat fee demanded by counsel 

____________________________________________

3 Gilroy also suggests that the VA is an indispensable party to this action 

because it guaranteed the loan secured by the mortgage. The mortgage 

rider expressly provides that the VA may guarantee the loan but that it is 

not required to do so. There are no facts of record indicating that the VA 

actually guaranteed the loan secured by the mortgage. Absent such facts, 

the record does not support the contention that the VA has any interest in 

this case, let alone that it is an indispensable party. 
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for Wells Fargo. Once again, this is a non-jurisdictional defect that Gilroy 

waived by failing to file a petition to strike until five years after entry of 

judgment. 

Even if Gilroy preserved this issue, it is not a proper ground upon 

which to strike the judgment. “A judgment should only be stricken if the 

record reveals a defect on its face.” EMC Mortgage, supra, 114 A.3d at 

1063. The entire judgment need not be stricken when there is only an 

alleged error on the amount entered. Id. at 1064. The proper remedy in 

this circumstance is to modify the amount of the judgment. Id. In this 

case, no reason exists to modify the amount of the judgment, because 

paragraph 21 of the mortgage expressly permits collection of attorney fees 

upon default by the mortgagor, and the prothonotary entered judgment in 

the precise amount prayed for in the complaint. 

Order affirmed. Motion for leave to submit supplemental authority 

denied as moot.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/22/2015