Tuesday, August 10, 2010

sheriff's sale - setting aside

Irwin Union National Bank and Trust v. Famous - Superior Court - August 9, 2010

Pennsylvania Rule of Civil Procedure 3132 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. 3181(a)(1)(8) makes Pa.R.C.P. 3132 applicable to mortgage foreclosure actions.]

The relevant inquiry is whether proper cause has been shown 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. Merrill Lynch Mortgage Capital v. Steele, 859 A.2d 788, 791 (Pa. Super. 2004), appeal denied, 872 A.2d 1199 (Pa. 2005) (table).

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).

“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) (internal citations omitted).

Sheriff’s sales have been set aside where the validity of the sale proceedings is challenged, a deficiency pertaining to the notice of the sale exists, or where misconduct occurs in the bidding process. Blue Ball National Bank v. Balmer, 810 A.2d 164, 167 (Pa. Super. 2002), appeal denied, 820 A.2d 702 (Pa. 2003) (table).

The appellate court will not reverse the trial court's decision absent a clear abuse of discretion. Kaib, supra.