Thursday, March 06, 2008

mortage foreclosure - forbearance agreement - statute of frauds

Strausser v. PRAMCO - Superior Court - March 3, 2008

An agreement to forbear from foreclosure represents an interest in land, such that the agreement is subject to the statute of frauds and must be in writing, signed by the party to be charged and sufficiently indicating the terms of the oral agreement so that there is no serious possibility of consummating fraud by its enforcement.

multiple documents - The writing requirement of the statute of frauds can be satisfied by an amalgam of several documents, any number of which can be taken together to make out the necessary written terms of the bargain, provided there is sufficient connection made out between the papers, without the aid of parol evidence, further than to identify papers to which reference is made, but not to supply a material term of the contract.

part performance - Payment and acceptance of regular monthly payments does not constitute part performance and does not take the alleged agreement out of the purview of the statute of frauds. The relevant "case law is very explicit as to the requirements which must be met to take an oral contract for real estate out of the statute. The terms of the contract must be shown by full, complete, and satisfactory proof. The evidence performance or part performance...which could not be compensated in damages, and such as would make rescission inequitable and unjust....Appellant has not cited any case involving a contract to forbear foreclosure that was taken out of the statute of frauds by part performance and we are aware of none....The part performance advanced here by appellant, monthly payments of $300, is compensable in damages. We see no merit here."

promissory estoppel - The doctrine of estoppel cannot be invoked against the operation of the Statute of Frauds. Borrello v. Lauletta, 455 Pa. 350, 317 A.2d 254 (1974); Target Sportswear, Inc. v. Clearfield Foundation, 474 A.2d 1142 (Pa.Super. 1984).

support - modification - retroactive award - concealment of income

Krebs v. Krebs - Superior Court - March 5, 2008
The trial court should have awarded support for period prior to custodial parent's petition to modify, back to time when non-custodial parent first began to actively conceal the substantial increases in his income.

Under 23 Pa. C.S. sec. 4352(e) - "modification may be applied to an earlier period if the petitioner was precluded from filing a petition for modification by reason of a significant physical or mental disability, misrepresentation of another party or other compelling reason and if the petitioner, when no longer precluded, promptly filed a petition."

Moreover, 23 Pa. C.S. sec. 4353 requires a party to a DR proceeding to report material changes in in her/his circumstances.

The custodial parent had no duty to ask for an earlier review of the support order, without then having any knowledge of the other party's change of circumstances or misrepresentation.