139 Amendment of rules governing the sale of real property upon execution; proposed recommendation no. 210

PART I. GENERAL

[231 PA. CODE CH. 3000]

Amendment of Rules Governing the Sale of Real Property upon Execution; Proposed Recommendation No. 210

[36 Pa.B. 386]

   The Civil Procedural Rules Committee is proposing the amendment of Rule of Civil Procedure 3129.3 and the promulgation of new Rule 3129.4 governing the sale of real property upon execution. The proposed recommendation is being submitted to the bench and bar for comments and suggestions prior to its submission to the Supreme Court of Pennsylvania.

   All communications in reference to the proposed recommendation should be sent not later than March 1, 2006 to:

Harold K. Don, Jr.,
Counsel
Civil Procedural Rules Committee
5035 Ritter Road, Suite 700
Mechanicsburg, Pennsylvania 17055

or E-Mail to
[e-mail]

   The Explanatory Comment which appears in connection with the proposed recommendation has been inserted by the Committee for the convenience of the bench and bar. It will not constitute part of the rules of civil procedure or be officially adopted or promulgated by the Court.

Annex A

TITLE 231. RULES OF CIVIL PROCEDURE

PART I. GENERAL

CHAPTER 3000. JUDGMENTS

Subchapter D. ENFORCEMENT OF MONEY JUDGMENTS FOR THE PAYMENT OF MONEY

Rule 3129.3.  Postponement of [sale; new notice] Sale. New Notice. Failure of Plaintiff to Attend Sale.

*      *      *      *      *

   (b)  If the sale, notice of which was given as provided by Rule 3129.2, is stayed, continued, postponed or adjourned to a date certain within [one hundred] one hundred thirty days of the scheduled sale, and public announcement thereof, including the new date, is made to the bidders assembled at the time and place [originally] fixed for the sale, no new notice as provided by Rule 3129.2 shall be required, but there may be only [one such stay, continuance, postponement or adjournment] two such stays, continuances, postponements or adjournments without new notice.

   (c)  If the plaintiff or a representative of the plaintiff is not present at the sale, the real property shall not be sold. The sheriff shall return the writ of execution to the prothonotary and file a return pursuant to Rule 3139 indicating that the real property was not sold because the plaintiff or a representative of the plaintiff was not present at the sale. Thereafter, the writ may be reissued pursuant to Rule 3106.

Rule 3129.4. Sale of Real Property. Motion to Divest Subordinate Lien When Required Notice Not Given.

   (a)  As used in this rule,

   ''owner'' means the plaintiff or plaintiff's successor in title when the property is sold in execution to the plaintiff or the buyer or the buyer's successor in title when the property is sold in execution to a third party, and

   ''required amount'' includes the amount of the plaintiff's judgment, interest on the judgment through the date of the execution sale, costs and taxes in the amount paid from the proceeds of the sale, and other municipal obligations

   (b)(1) After the sale of real property, the owner may file to the court and number of the execution, a proceeding to divest the lien of any person who had a lien on the real property which was subordinate to the lien held by the plaintiff but who was not served with notice of the sale pursuant to Rule 3129.2(c)(1)(iii). The proceeding shall be commenced by filing a Motion under Rule 3129.4(b) for an order requiring tender of the required amount.

   (2)  The motion shall begin with a notice to answer within twenty days after service and shall

   (i)  identify the parties to the motion,

   (ii)  describe the real property which was sold at execution and set forth the date of the sale,

   (iii)  identify the lien which is sought to be divested and set forth that the lien is subordinate to the plaintiff's claim, and

   (iv)  state the required amount.

   (c)(1)  The motion shall be served on all parties to the action and on

   (I)  each lienholder whose address is known, by first class mail, as provided by Rule 3129.2(c)(1)(iii), and

   (II)  each lienholder whose address is unknown, by publication in accordance with Rule 430.

   (2)  The owner shall file a return of service as provided by Rule 3129.3(c)(2).

   (d)(1)  If the lienholder does not file an answer to the motion, the owner shall request that the court enter an order as provided by subdivision (d)(3).

   (2)  If the lienholder files an answer to the motion, the motion shall proceed pursuant to Rule 208.1 et seq. and any local rules promulgated thereunder.

   (3)  If the court determines that the averments of the motion required by this rule are true or uncontested and sets the required amount, the court shall enter an order that the lienholder shall have the right to acquire the property sold upon tender of the required amount within thirty days of the date of the order but that, upon failure to tender the required amount within the thirty day period, the court upon motion under subdivision (e) shall order the lien divested.

   (e)  If the court enters an order pursuant to subdivision (d) and the lienholder does not tender the required amount within thirty days of the date of the order, the owner shall file a Motion under Rule 3129.4(e) to divest the lien. The motion shall set forth the entry of the order, notice of the order to the lienholder and the failure of the lienholder to tender payment.

   Official Note:  The motion to divest must be served upon every other party to the action. See Rule 440(a)(1).

   (f)  The Notice required by subdivision (b)(2) shall be in the following form:

NOTICE

   You have been sued in court to divest a lien or other interest in real property as described in the attached motion. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this motion and notice are served, by entering a written appearance personally or by attorney and filing in writing with the court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and the court may enter an order against you without further notice requiring you to tender within thirty days a ''required amount of money'' or the lien will be divested. You may lose money or property or other rights important to you.

   YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER.

   IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE.

_________________
(Name)

_________________
(Address)

_________________
(Telephone Number)

   Official Note:  The office shall be that designated by the court under Rule 1018.1(c).

Explanatory Comment

   Recommendation No. 210 addresses three issues with respect to the execution sale of real property.

I.  Rule 3129.3(b)--Postponement of sale

   Rule 3129.3(b) presently provides for the ability to postpone a sale of real property one time to a date within one hundred days of the scheduled sale without giving new notice of sale required by Rule 3129.2. The proposed amendment would permit two postponements within one hundred thirty days of the scheduled sale without giving new notice. The proposal provides flexibility where more than one postponement is needed, saving time and expense. New notice under Rule 3129.2 is required when additional postponements of the sale are required.

II.  Rule 3129.3(c)--Failure of plaintiff to appear at sale

   The present execution rules do not provide for the instance when the plaintiff, whether in person or by representative, does not attend the sale of real property. New subdivision (c) of Rule 3129.3 addresses this issue. Subdivision (c) provides that, if the plaintiff is not present at the sale, ''the real property shall not be sold.'' In such a case, the sheriff is directed to ''return the writ of execution to the prothonotary and file a return pursuant to Rule 3139.'' The plaintiff may again seek to have the property sold but must recommence the proceedings by having the writ of execution reissued pursuant to Rule 3106 and giving new notice under Rule 3129.2.

III.  Rule 3129.4--Divesting a subordinate lien when required notice is not given

   The rules governing execution upon a money judgment contain no procedure to divest a lien subordinate to the lien held by the plaintiff when notice of the sale required under Rule 3129.2 has not been given to the lienholder. New Rule 3129.4 supplies this procedure.

   Subdivision (b) of the new rule provides for a proceeding to divest such a lien which is to be commenced by a motion which is filed to the court and number of the execution proceeding. The content of the motion and the requirement of service are set forth in subdivisions (b) and (c) of the rule.

   The rule requires the court to enter two orders. The first order under subdivision (d)(3) provides ''that the lienholder shall have the right to acquire the property sold upon tender of the required amount within thirty days of the date of the order but that, upon failure to tender the required amount within the thirty day period, the court upon motion under subdivision (e) shall order the lien divested.'' ''Required amount'' is a term defined by subdivision (a) of the rule.

   If the first order is entered under subdivision (d)(3) and the lienholder does not tender the required amount, the lienholder will file a Motion under Rule 3129.4(e) to divest the lien. The court will enter an order divesting the lien where appropriate.

By the Civil Procedural Rules Committee

R. STANTON WETTICK, Jr.,   
Chair

[Pa.B. Doc. No. 06-139. Filed for public inspection January 27, 2006, 9:00 a.m.]