CIVIL PROCEDURE

Default Judgment • Petition to Open • Petition to Strike • Fatal Defect on Face of Record

Deutsche Bank v. Adamson, PICS Case No. 14-0145 (C.P. Monroe Dec. 23, 2013) Zulick, J. (8 pages).

Default judgment in mortgage foreclosure action stricken where judgment entered against nonparty. Motion granted.

Plaintiff filed an action in mortgage foreclose against defendants. Defendants opted to participate in the mortgage foreclosure reconciliation program, but, after two conferences, were denied relief under the program. Plaintiff entered a default judgment against defendants on Oct. 2, 2013. On Oct. 22, 2013, defendants moved to set aside default judgment.

The court of common pleas struck the judgment, analyzing the pro se motion as both a petition to strike and a petition to open default judgment.

A petition to open judgment is a matter of judicial discretion. The tradition criteria for opening a default judgment require that a petition: (1) be promptly filed; (2) state an adequate excuse why a timely answer was not filed; and (3) show a meritorious defense. Here, defendants filed their petition 20 days after the entry of default judgment. While there is no precise rule governing the timeliness of a petition to open, it appears that 20 days is within the generally accepted time frame for such petitions. Therefore, the petition is timely.

As to why they failed to timely answer the complaint, defendants stated that, when they entered the mortgage diversion program, they thought they had answered the complaint. They did not realize, upon being removed from program that an additional answer had to be filed. Here, defendants attended every hearing before the court and were actively involved in the case, filing discovery up to and even after entry of default. Clearly, defendants’ conduct was neither dilatory nor a deliberate decision not to defend. Thus, defendants were deemed to have met the second prong of the test.

Finally, defendants alleged a meritorious defense, i.e., that plaintiff was not the proper owner of the mortgage. The likelihood of defendant success in proving that allegation was not relevant when considering a petition to open; defendant need only plead a defense which, if proved at trial, would justify relief. Moreover, defendant’s failure to attach an answer to the petition as required under Rule 237.3(a) is excused. (See Boatin v. Miller, 955 A.2d 424 (Pa. Super. 2008) (rejecting failure to attach an answer as a basis to deny relief)).

Even if the petition to open was improvidently granted, the default judgment must still be stricken. A petition to strike a default judgment should be granted where a fatal defect or irregularity appears on face of record. A petition to strike does not involve the discretion of the court. Here, defendants allege the default judgment was entered against “Oliver P. Viray,” the wrong party. Oliver P. Viray is not a party to this action. As judgment was entered against a nonparty, it is fatally defective.