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A homeowner residing in Monroeville, Allegheny County, Pa., defaults on her mortgage. Her lender institutes foreclosure proceedings, ultimately tendering the successful bid at sheriff’s sale, a bid it eventually assigns to a different lender. The homeowner, unwilling simply to up and leave her residence, prompts the commencement of an ejectment action. The lender of course is happy to oblige, claiming title by virtue of the sale and ownership via the Allegheny County sheriff’s deed poll, to be recorded as expeditiously as possible (which occurred about two months later, incidentally). Superficially, the instant fact pattern would seem to be a relatively prototypical precursor to an ejectment filing. Moreover, they are the identical facts that very recently confronted the Superior Court on appeal in the Wells Fargo Bank v. Long case. The Allegheny Common Pleas Court eventually granted the lender, Wells Fargo, summary judgment and a writ of possession, concurring with the bank’s obvious claim – as the defaulting mortgagor who lost her house at a sheriff’s sale, Maggie Long simply no longer had the right to remain at the subject property. Notably, Long strenuously disputed Wells Fargo’s position. While it may be true that she defaulted and a successful bid had been tendered, at the time Wells Fargo commenced suit she still very much had the right to possession. Indeed her central contention on appeal was that the lender was not yet entitled to immediate possession, which is indubitably the touchstone of an ejectment action. The right to possession can only accrue upon the acknowledgment and delivery of the deed, which we have already learned did not occur until about two months after the sale. So logically it would follow that ejectment was not ripe at the time of commencement, thereby stripping the lower court of its jurisdiction altogether. Should Wells Fargo really be forced to defend its decision to file at the time it did though, merely based upon a technicality? After all, by the time the trial court actually considered the application, the deed was of record; that court did not even issue its order until about eight months later. Perhaps a brief recitation of an ejectment action’s humble beginnings will shed some light upon the challenge presented by the debtor, help us to determine whether or not Long’s appeal was taken willy-nilly. Firstly, an ejectment claim was not always a real property action. Rather, it began as an action in trespass, with actual or constructive ouster being its chief element. The 18th century British jurist Sir William Blackstone opined that “the remedy by ejectment is in its original an action brought by one who hath a lease for years, to repair the injury done him by dispossession.” Blackstone also refers to the action as one “in which the title of the lessor comes collaterally and incidentally before the court, in order to show the injury done the lessee by this ouster. . . . It has been determined that no ejectment can be maintained where the lessor of the plaintiff has not a legal right of entry; and the heir at law was barred from recovering in ejectment, where there was an unsatisfied term raised for the purpose of securing an annuity, though the heir claimed the estate subject to that charge.” However, as we are all well aware, over time the writ has evolved from merely a tenant’s remedy to one available to fee claimants and all others asserting the right to possession of estates in real property. In Long, Wells Fargo maintained the existence of a right to possession for the purpose of satisfying the most fundamental criterion of the action. Immediate or not, that right that formally vested with the deed’s recording must be said to relate back to the date the property was sold at sheriff’s sale. Any suggestion that its filing was prematurely made should be disregarded as being of no real legal significance. All that should truly matter, in the estimation of a court, was that the deed was ultimately acknowledged and recorded. Incidentally, didn’t the sale itself divest Long of at least some of her property rights and give others to Wells Fargo? The short answer, at least in the eyes of the Long court, is that the sale did, in fact, confer various rights upon the bidder’s assignee. And those rights are commonly referred to as an inceptive, inchoate or equitable estate. The court proceeds to elucidate the scope of these rights, employing numerous precedential decisions to achieve that end. “It is by no means true that a purchaser at a sheriff’s sale gets none of the incidents of ownership until the deed is acknowledged. . . . These estates bestow certain benefits upon the purchaser and, likewise, entail certain liabilities. . . . Nowhere, however, is there any mention that the purchaser is the real owner,” as written in St. Charles B&L Association v. Hamilton. By way of example, a junior lienor cannot acquire title by foreclosure three weeks after a prior lienor had the property knocked down to him but before his deed has been acknowledged ( Hoyt v. Koons). One who became the wife of a debtor subsequent to a sale but prior to the acknowledgement of the deed acquired no right of dower ( Elliott v. Peersall). A debtor has no right to redeem his property by making a tender of the amount of the debt plus costs after the property has been knocked down by the sheriff, but before the deed has been acknowledged ( Young’s App.). For the purposes of defending a landlord tenant action, a purchaser does not become entitled to the rents, as owner and in his own building, until acknowledgment of the deed ( Provident Trust Co. v. Judicial B&L Association). So indubitably, it has been widely held that the formal acknowledgement of the deed is the event that triggers full-fledged ownership, naturally denoting the right to immediate possession. And hence, according to the Long court, as ejectment is a possessory action only, one without a right to immediate possession simply lacks standing to even maintain one. On these facts, then, the Long court took serious issue with what to some might have seemed little more than a triviality. The lower court did in fact lack jurisdiction to consider the merits of the filing. Lastly, Wells Fargo’s belief that its title should relate back to the date of the bid was virtually ignored by the court. There would be no end run around the “time-honored tenets of the law” to fill in a jurisdictional void plaguing a prematurely commenced action. The Long decision is noteworthy not so much for its novel presentation of a hotly debated area of the law but for its vigorous reinforcement of an extremely well-settled legal principle. Until a sale has officially been completed, a bidder intent upon dispossessing a debtor must not commence an ejectment proceeding. To do so, however zealous or ambitious it might seem at the time, would ultimately prove futile in the face of a challenge. HARPER DIMMERMAN represents clients in real estate matters and is the principal of his firm and president of DST Land Transfer, Inc., a title insurance companylicensed in Pennsylvania and New Jersey. He may be reached via e-mail: [email protected] or telephone 215-545-0600. He is co-chairman of the Philadelphia Bar Association’s solo and small firm committee and an executive committee member of the law practice management committee and YLD.

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