NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P

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1 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P NATIONAL CITY MORTGAGE COMPANY IN THE SUPERIOR COURT OF PENNSYLVANIA ALBERT TIDMAN III AND LINDA D. TIDMAN AND CHRISTOPHER E. FALLON APPEAL OF: ALBERT TIDMAN III AND LINDA D. TIDMAN v. No EDA 2013 Appeal from the Order April 5, 2013 in the Court of Common Pleas of Bucks County Civil Division at No.: BEFORE: SHOGAN, J., STABILE, J., and PLATT, J. * MEMORANDUM BY PLATT, J.: FILED JUNE 24, 2014 Appellants, Albert Tidman III and Linda D. Tidman (the Tidmans), husband and wife, appeal from the order of April 5, 2013, which denied their petition to set aside a sheriff s sale. Appellee National City Mortgage Company (National City) held the mortgage in this action, while Appellee, Christopher E. Fallon (Fallon), purchased the property in question at the sheriff s sale. For the reasons discussed below, we affirm. The underlying facts and procedural history are as follows. National City filed a complaint in mortgage foreclosure against the Tidmans on July * Retired Senior Judge assigned to the Superior Court.

2 19, 2007, for the premises at 74 Goodturn Road, Levittown, Bucks County. In the complaint, National City alleged that the Tidmans had failed to make payments on the mortgage since January 1, 2007 and that the total amount owing on the mortgage was $90, (See Complaint, 7/19/07, at unnumbered page 5). The Tidmans filed an answer to the complaint on September 4, National City filed a motion for summary judgment on September 21, The Tidmans did not file a response and, on November 30, 2007, the trial court granted summary judgment. On December 17, 2007, the sheriff set a date for sheriff s sale of March 14, The sheriff personally served notice of the sale on Linda Tidman on January 22, On March 14, 2008, counsel for National City adjourned the sheriff s sale to May 9, 2008, because it had entered into a forbearance agreement with the Tidmans. The sheriff publicly announced the adjournment on March 9, 2008 at the place in the Bucks County Courthouse fixed for the sale. (See Trial Court Opinion, 9/07/13, at 11). However, the sheriff did not cancel the sale. (See id.). The forbearance agreement [Agreement] provided that the Tidmans, upon execution of the Agreement, pay $1, in the form of Certified Funds or Money Order to Udren Law Offices, at the address listed in the agreement. (Agreement, 3/10/08, at unnumbered page 1 1). The Agreement further stated that after the initial $1, payment for the - 2 -

3 execution of the forbearance agreement, beginning on April 1, 2008 and continuing through November 1, 2008, the Tidmans shall pay $1, per month, due on the first day of the month, in the form of a certified check or money order at an address listed in the Agreement. (Id. at unnumbered page 1 3, see id. at unnumbered page 2 5). If National City did not receive payment before the fifteenth day of the month, late charges would accrue. (See id. at unnumbered pages 1-2, 3). The Agreement stipulated that, until National City s counsel received an executed copy of the Agreement along with the initial $1, payment, foreclosure proceedings would continue. (See id. at unnumbered page 2 6). Further, so long as the Tidmans complied with the Agreement in a timely fashion, National City would not take any further action on the foreclosure. (See id. at unnumbered page 2 7). However, if the Tidmans failed to comply in every way with the terms of the Agreement, National City could proceed with the foreclosure. (See id. at unnumbered page 2 9). Linda Tidman testified at her deposition that the initial payment made under the Agreement was by personal check, payable to National City, and she sent it to National City on March 10, (See Deposition of Linda Tidman, 4/27/09, at 30-32, 49-51). However, she stated that National City would not accept the personal check, so she sent cash funds to Western Union. (See id. at 37). A receipt dated March 13, 2008, shows that Linda Tidman electronically transferred funds of $1, less a service fee to - 3 -

4 National City Mortgage Co.. (See id. at Exhibit D-9). National City claims that it did not receive this payment until March 31, (See [National City s] Response to [the Tidmans ] Petition to Set Aside Sheriff s Sale, 6/09/08, at unnumbered page 2 5). Believing that the Tidmans were in default of the Agreement, National City sent a letter to them dated April 9, That letter informed the Tidmans that they had broken the Agreement. (See id. at Exhibit A). The letter also noted that National City had been unable to reach them by telephone, and asked the Tidmans to contact them. (See id.). Finally, it warned that if the Tidmans did not do so by April 23, 2008, [they] will have no other alternative but to close [the Tidmans ] workout file and continue collection and possible foreclosure. (Id.). On April 14, 2008, the Tidmans went to Western Union to make the first (April) monthly payment under the Agreement. (See Deposition of Linda Tidman, 4/27/09, at 37-38). On May 13, 2008, the Tidmans went to Western Union to make their second (May) monthly mortgage payment. (See id. at 40). At that time, an employee at Western Union advised them that National City refused to accept the April mortgage payment. (See id.). The Tidmans did not attempt to make the payment through any other means, did not contact National City, and did not attempt to make any further payments under the Agreement. (See id. at 41-43)

5 On May 9, 2008, the sheriff s sale took place and Fallon purchased the premises for $120, On May 22, 2008, the Tidmans filed a petition to set aside the sheriff s sale and stay the proceedings. National City filed a response on June 9, On June 20, 2008, the Tidmans filed a supplemental petition to set aside the sheriff s sale. The trial court denied the petitions on April 30, On May 10, 2010, the Tidmans filed a motion for reconsideration. On May 26, 2010, a different judge than the one who heard the original petition granted reconsideration and set aside the April 30, 2010 order. Subsequently, Fallon filed a petition to intervene, which the trial court granted. On March 8, 2013, the Tidmans filed a new brief in support of their petition to set aside the sheriff s sale. On April 5, 2013, the trial court denied the petition to set aside the sheriff s sale. The Tidmans filed a motion for reconsideration on April 24, The trial court denied the motion on May 2, The instant timely appeal followed. On May 3, 2013, the trial court ordered the Tidmans to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). See Pa.R.A.P. 1925(b). The Tidmans filed their concise statement on May 28, That same day, the trial court issued an opinion averring that the Tidmans did not timely file their Rule 1925(b) statement. (See Trial Court Opinion, 5/28/13, at 8). By Order of September 13, 2013, this Court found that the Tidmans had timely filed their Rule 1925(b) statement and remanded the matter for the filing of - 5 -

6 a supplemental Pa.R.A.P. 1925(a) opinion. The trial court filed the supplemental opinion on September 17, 2013, and the matter is now before us. On appeal, the Tidmans raise the following questions for our review: 1. Did [the Tidmans] breach a forbearance agreement by: (a) making mortgage payments via Western Union Quick Collect electronic fund transmission service rather than by certified check or money order mailed to an address in Ohio, and (2) making the April 2008 payment on April 14, 2008, within the 15-day grace period afforded by the agreement? 2. Was the adjournment of the sheriff s sale from March 14, 2008 to May 9, 2008 publicly announced? (The Tidmans Brief, at 4). On appeal, the Tidmans claim that the trial court erred in denying their petition to set aside the sheriff s sale. Pennsylvania Rule of Civil Procedure provides: Setting Aside Sale Upon petition of any party in interest before delivery of... the sheriff s deed to real property, the court may, upon proper cause shown, set aside the sale and order a resale or enter any other order which may be just and proper under the circumstances. Pa.R.C.P Thus, the relevant inquiry is whether the petitioner has shown proper cause to set aside the sheriff s sale. The decision to set aside a sheriff's sale is within the sound discretion of the trial court. See Merrill 1 Pennsylvania Rule of Civil Procedure 3181(a)(8) makes Rule 3132 applicable to mortgage foreclosure actions

7 Lynch Mortgage Capital v. Steele, 859 A.2d 788, 791 (Pa. Super. 2004), appeal denied, 872 A.2d 1199 (Pa. 2005). [A] petition to set aside a sheriff s sale is based on equitable principles. National Penn Bank v. Shaffer, 672 A.2d 326, 329 (Pa. Super. 1996) (citation omitted). The burden of proving circumstances warranting the exercise of the court s equitable powers is on the petitioner, and the request to set aside a sheriff s sale may be refused due to insufficient proof to support the allegations in the petition. Kaib v. Smith, 684 A.2d 630, 631 (Pa. Super. 1996) (citation omitted). Sheriff s sales have been set aside where the petitioner challenges the validity of the sale proceedings, a deficiency pertaining to the notice of the sale exists, or where misconduct occurs in the bidding process. See Blue Ball Nat l Bank v. Balmer, 810 A.2d 164, 166 (Pa. Super. 2002), appeal denied, 820 A.2d 702 (Pa. 2003). This court will not reverse the trial court s decision absent a clear abuse of discretion. See Kaib, supra. at Prior to reaching a determination on the merits of this matter, this Court must determine whether the appeal is properly before us. Fallon and National City argue that the appeal is moot because the sheriff conveyed the deed to the property and the Tidmans are no longer in possession of it. (See Fallon s Brief, at 8-11; National City s Brief, at 10-11). The question of mootness is a threshold issue because this Court cannot decide moot or abstract questions, nor can we enter a judgment or - 7 -

8 decree to which effect cannot be given. In re L.Z., --- A.3d ---, 2014 WL at *3 (Pa. Super. April 29, 2014) (en banc) (citations omitted). This Court has stated that: As a general rule, an actual case or controversy must exist at all stages of the judicial process, or a case will be dismissed as moot. An issue can become moot during the pendency of an appeal due to an intervening change in the facts of the case or due to an intervening change in the applicable law[.] In that case, an opinion of this Court is rendered advisory in nature. In re R.D., 44 A.3d 657, 680 (Pa. Super. 2012), appeal denied, 56 A.3d 398 (Pa. 2012) (citations and quotation marks omitted). Fallon and National City argue that this Court s decision in Deutsche Bank National Company v. Butler, 868 A.2d 574 (Pa. Super. 2005), renders the instant matter moot. (See Fallon s Brief, at 9-10; National City s Brief, at 10-11). However, Deutsche Bank is distinguishable, and we find that this Court s earlier decision in Jefferson Bank v. Newton Associates, 686 A.2d 834 (Pa. Super. 1996), compels our holding that the matter is not moot. In Jefferson Bank, Newton Associates owned eleven condominium units at the Middletown Place Townhomes. See Jefferson Bank, supra at 836. Jefferson Bank held the first mortgage on all eleven units. See id. Middletown filed a successful civil action against Newton based upon its failure to pay certain condominium fees. See id. at 837. Rather than attempting to collect the judgment through the enforcement of liens it had filed on the units, Middletown filed a civil action against Jefferson Bank - 8 -

9 alleging that it was a mortgagee in possession during the time period at issue and thus liable for the action. See id. During the pendency of that action, Jefferson Bank filed six mortgage foreclosure actions against Newton, obtained a judgment against it and sought to sell the six condominiums at a sheriff s sale. See id. Before the sheriff s sale, Jefferson Bank assigned its judgment award to a newly incorporated enterprise, Shell Real Estate. See id. In consideration for the transfer, Shell agreed to re-sell the units and use the proceeds to pay the balance of the mortgage loans. See id. Prior to the sheriff s sale, Shell entered into agreements with third parties to re-sell the units to them at the sale, and the sheriff would issue title directly to the third parties. See id. At sheriff s sale, Shell was the successful buyer and the sale extinguished Middletown s liens. See id. Middleton sought unsuccessfully to set aside the sheriff s sale based on fraud, claiming that Shell was an alter ego of Jefferson Bank and incorporated solely for acting as Jefferson Bank s agent at the sale. See id. On appeal, Shell and Jefferson Bank argued that the appeal was moot because the sheriff had transferred titles for all the condominiums to third parties. See id. at This Court disagreed, finding Shell and Jefferson Bank s argument to be specious. Id. at 838. We noted that it was Shell and Jefferson Bank that transferred the properties after Middletown filed the appeal. See id. We stated that Pennsylvania Courts have never held that an adverse party may create mootness through - 9 -

10 deliberate factual manipulation. Id. Lastly, we stated that Middletown had maintained its position throughout the litigation and that it had not taken any action that would divest it of a real interest in the outcome of these proceedings and [Shell and Jefferson Bank s] unilateral action to that effect will not result in a finding of mootness. Id. In Deutsche Bank, the plaintiff bank foreclosed and the sheriff offered the property at a sheriff s sale. See Deutsche Bank, supra at 576. A third party bid at a price well below the upset price and counsel for the bank mistakenly failed to increase the bid, so the sheriff sold the property to the third-party bidder. See id. The trial court granted the bank s petition to set aside the sheriff s sale and the third-party bidder appealed. See id. at After filing the notice of appeal, the third-party bidder petitioned the trial court to stay the sheriff s sale and offered to post a bond pursuant to Pennsylvania Rule of Appellate Procedure See id. at 577. The trial court granted supersedeas but ordered a far larger bond than the third-party bidder had requested. See id. The third-party bidder did not post a bond and the sheriff sold the property at a sheriff s sale during the pendency of the appeal. See id. On appeal, this Court held that the appeal was moot, finding that an order declaring the first sale valid would have no effect since the sheriff sold the property at the second sale and the third-party bidder could not attack the validity of the second sale by pursuing an appeal of the order setting

11 aside the first sale. See id. at Deutsche Bank acknowledged that this Court, in Jefferson Bank, decided a similar issue and found the appeal was not moot but in a brief footnote found Jefferson Bank distinguishable because this Court did not consider the issue of how an appellant s failure to obtain a supersedeas impacts a determination of whether an issue has become moot.... Id. at 578 n.1. Here, the Tidmans filed their petition to set aside the sheriff s sale on May 22, 2008, before delivery of the deed on May 22, 2013, as required by Pennsylvania Rule of Civil Procedure (See Petition to Set Aside Sheriff s Sale, 5/22/08, at unnumbered page 1; Fallon s Brief, at 8; National City s Brief, at 10). Even in Deutsche Bank, this Court reiterated that a trial court could grant a petition to set aside a sheriff s sale so long as it is filed before delivery of the deed. See Deutsche Bank, supra at 578. Further, the Tidmans filed their notice of appeal on May 3, 2013, also before delivery of the deed. (See Notice of Appeal, 5/03/13, at unnumbered page 1). Thus, the situation here is indistinguishable from that in Jefferson Bank, as Fallon and National City unilaterally elected to transfer the property during the pendency of the appeal, thus attempting to manipulate the facts to create mootness. See Jefferson Bank, supra at 838. Further, we see little resemblance to Deutsche Bank wherein the appellant attempted to use a challenge to a first sheriff s sale to set aside the results of a second sheriff s sale. Accordingly, we find the appeal is not moot and

12 we may address the merits of the Tidmans claims. See Jefferson Bank, supra at 838. In their first issue on appeal, the Tidmans claim that the trial court erred in not setting aside the sheriff s sale because they did not commit a material breach of the Agreement. (See Tidmans Brief, at 16-32). We disagree. To give effect to the intent of the parties, we must start with the language used by the parties in the written contract. Generally, courts will not imply a contract that differs from the one to which the parties explicitly consented. We are not to assume that the language of the contract was chosen carelessly or in ignorance of its meaning. Where the language of the contract is clear and unambiguous, a court is required to give effect to that language. Contractual language is ambiguous if it is reasonably susceptible of different constructions and capable of being understood in more than one sense. E.R. Linde Const. Corp. v. Goodwin, 68 A.3d 346, 349 (Pa. Super. 2013) (citations and quotation marks omitted). Further, [i]t is well settled that if a contract contains a condition precedent, the condition precedent must occur before a duty to perform under the contract arises. Keystone Tech. Group v. Kerr Group, Inc., 824 A.2d 1223, (Pa. Super. 2003) (citation omitted). Additionally, our [Pennsylvania Supreme] Court has long recognized the established precept of contract law that a material breach of a contract relieves the non-breaching party from any continuing duty of performance thereunder. It is equally well established, that a party also may not insist upon performance of the contract when he himself is guilty of a material breach of the contract

13 LJL Transp., Inc. v. Pilot Air Freight Corp., 962 A.2d 639, 648 (Pa. 2009) (citations, brackets, and quotation marks omitted). Lastly, [w]hen performance of a duty under a contract is due, any nonperformance is a breach. If a breach constitutes a material failure of performance, then the non-breaching party is discharged from all liability under the contract. If, however, the breach is an immaterial failure of performance, and the contract was substantially performed, the contract remains effective. Widmer Eng g., Inc. v. Dufalla, 837 A.2d 459, (Pa. Super. 2003), appeal denied, 852 A.2d 313 (Pa. 2004) (citations and quotation marks omitted). Here, the Agreement contained a condition precedent that required the Tidmans to pay upon execution of the Agreement, $1,300,00 in the form of Certified Funds of Money Order to Udren Law Offices, at the address listed in the agreement, in order for National City to cease foreclosure proceedings. (Agreement, 3/10/08, at unnumbered page 1 1; see also id. at unnumbered page 2 6). The Tidmans did not comply with any of the terms of the condition precedent. (See Deposition of Linda Tidman, 4/27/09, at 30-32, 37, 49-51; see also id. at Exhibit D-9). We see no ambiguity in the language of the condition precedent and thus are required to give effect to the language. See E.R. Linde Const. Corp., supra at 349. Further, because the Tidmans did not perform the condition precedent, National City had no duty under the contract to stop foreclosure proceedings. See Keystone Tech. Group, supra at Lastly, the

14 Agreement itself provided that failure to comply in every way with its terms would allow National City to resume foreclosure proceedings. (Agreement, 3/10/08, at unnumbered page 2 9) (emphasis added). Thus, it is evident that the failure to comply in any way with the condition precedent constituted a material breach of the contract. See LJL Transp., Inc., supra at 648; Widmer Eng g., Inc., supra at Therefore, the trial court did not abuse its discretion in denying the Tidmans petition to set aside the sheriff s sale. 2 In their second issue on appeal, the Tidmans argue that the trial court erred in failing to set aside the sheriff s sale because there was no public announcement of adjournment from the original date. (See The Tidmans Brief, at 32-34). However, the Tidmans do not point to where they raised this issue in the trial court, and our review of the record has not demonstrated that they raised this issue below. (See Petition to Set Aside Sheriff s Sale, 5/22/08, at unnumbered pages 1-3; Statement of Matters Complained of on Appeal, 5/28/13, at unnumbered pages 1-2). It is not this Court s responsibility to comb through the record seeking the factual underpinnings of an appellant s claim. See Commonwealth v. Mulholland, 702 A.2d 1027, 1034 n.5 (Pa. Super. 1997) ( In a record 2 Because we have found that the Tidmans breached a condition precedent to the Agreement, we decline to address their further arguments on this issue. (See The Tidmans Brief, at 22-31)

15 containing thousands of pages, this court will not search every page to substantiate a party s incomplete argument ) (citation omitted). An appellant cannot raise new legal theories for the first time on appeal. See Pa.R.A.P. 302(a); Commonwealth v. Truong, 36 A.3d 592, 598 (Pa. Super. 2012) (en banc), appeal denied, 57 A.3d 70 (Pa. 2012). Commonwealth v. Coleman, 19 A.3d 1111, 1118 (Pa. Super. 2011) (issues raised for the first time in a Rule 1925(b) Statement are waived). Accordingly, Appellants final claim is waived. Order affirmed. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 6/24/