Attorneys May Be Liable For Improper Judgment Execution
Written by: Alan Nochumson
In a warning shot to attorneys who represent judgment creditors in Pennsylvania, the United States District Court for the Eastern District of Pennsylvania in Grillo v. BA Mortgage, LLC refused to dismiss a Section 1983 claim against a law firm that improperly facilitated the sale of a family home at a sheriff’s sale.
In the late 1980s, Mary and Samuel Grillos purchased their house in Bucks County, Pennsylvania. When the Grillos failed to make timely mortgage payments, BA Mortgage, LLC, the mortgage holder at the time, obtained a judgment in foreclosure in the amount of $153,910.86. Afterwards, BA Mortgage, LLC issued a writ of execution scheduling the home for sheriff’s sale.
Two days before the sale, the Grillos’ counsel, hand delivered a certified check to Spear & Hoffman, the law firm representing BA Mortgage, LLC, for the amount indicated on the face of the writ. In addition to the check, Spear & Hoffman was provided with a letter demanding cancellation of the sale and satisfaction of the judgment and mortgage. A day later, after receiving no response from the letter sent the previous day, the Grillos’ counsel sent another letter to Spear & Hoffman reasserting their demands.
On the day of the sale, Spear & Hoffman hand delivered the certified check back to the Grillos’ counsel, with a letter stating that the check was insufficient to satisfy the judgment and mortgage. In the letter, Spear & Hoffman noted that the judgment amount had increased as a result of the accrued interest and costs associated with the litigation. According to Spear & Hoffman, the amount to satisfy the judgment and mortgage was $191,887.46. By the time the Grillos received the letter, the home had already been sold at the sheriff’s sale to BA Mortgage, LLC.
Subsequently thereafter, the Grillos received an eviction notice from the Federal Home Loan Mortgage Corporation (Fannie Mae), which purchased the home from BA Mortgage, LLC after the sheriff’s sale. On the same day, the Grillos filed a petition to stay eviction and to set aside the sheriff’s sale of the home.
The contentious litigation lasted for several years. At the trial level, the petition was denied. On appeal, the Superior Court of Pennsylvania reversed the trial court’s decision and granted the petition. After the Supreme Court of Pennsylvania refused to hear BA Mortgage LLC’s appeal, the Grillos sent a check for the amount indicated on the face of the writ to Fannie Mae in satisfaction of the judgment and mortgage.
COMMENCEMENT OF ACTION
Several months later, the Grillos filed a complaint in federal court against Spear & Hoffman alleging a violation of 42 U.S.C. Section 1983. Under their theory of the case, Spear & Hoffman violated the Grillos’ constitutional right to procedural due process by unilaterally increasing the amount of the writ without obtaining judicial approval or giving the Grillos the opportunity to be heard.
Spears & Hoffman thereafter filed a motion to dismiss the complaint challenging the validity of the Section 1983 claim. In addition to responding to the motion to dismiss, the Grillos filed a motion for leave to file an amended complaint. In its opposition to that motion, Spear & Hoffman argued that the amended complaint was futile because the Grillos still failed to state a valid claim under Section 1983.
In order to establish a prima facie case under Section 1983, a plaintiff must show that: an individual deprived the plaintiff of a constitutional or statutory right; and the individual who deprived the plaintiff of that right acted under color of the law.
The court in Grillo rejected Spear & Hoffman’s attempt to dismiss the Section 1983. The court believed that the claim was supported by both a long line of cases from the Superior Court of Pennsylvania and by analogy from a Third Circuit decision on confessed judgments.
PROCEDURAL DUE PROCESS
The court first discussed the state appellate court cases finding that unilateral increases in a writ of execution violate the due process clause of the Fourteenth Amendment to the United States Constitution.
In Union National Bank of Pittsburgh v. Ciongoli, the Superior Court chastised a county foreclosure practice allowing increases to the face amount of a writ in mortgage foreclosure actions. In Allegheny County, a judgment creditor was allowed to unilaterally increase the amount simply by issuing a letter or affidavit to the sheriff. Under local practice, the judgment creditor was then permitted to proceed with the foreclosure sale unless the increased amount was tendered by the judgment debtor. The Superior Court held that such practice violated the due process clause of the Fourteenth Amendment because the practice was “tantamount to a prejudgment execution.” In Ciongoli, the Superior Court concluded that the judgment creditor should have been obligated to petition the court to amend the judgment prior to executing on an amount that was not judicially approved.
In Morgan Guaranty Trust Company v. Mowl, the Superior Court, citing Ciongoli, stated that a judgment creditor’s ex parte attempt to increase the writ figure in a foreclosure action was also procedurally and constitutionally impermissible.
The federal court then pointed to the Superior Court’s pronouncement in the underlying case. In Nationsbanc Mortgage Corporation v. Grillo, the Superior Court held that BA Mortgage, LLC was prohibited from increasing the amount of the writ without petitioning the court for approval and without giving the Grillos notice of the petition and an opportunity to be heard.
Although the Superior Court decisions were not binding on the court, it nevertheless found the reasoning employed by the Superior Court in Ciongoli, Mowl and Nationsbanc to be persuasive. The federal court stressed that the decisions were handed down “by a Pennsylvania appellate court intimately familiar with the Pennsylvania Rules of Civil Procedure and the proper mechanisms for obtaining and executing mortgage foreclosure judgments under Pennsylvania law.”
The court in Grillo believed that “the principles embodied in the Superior Court decisions of Cionogli, Mowl and [Nationsbanc] have been echoed by the Third Circuit in Jordan v. Fox, Rothschild, O’Brien & Frankel.” In Jordan, the Third Circuit confronted a situation where a law firm was sued under Section 1983 for invoking the aid of state officials to execute on a confessed judgment against a judgment debtor by garnishing the debtor’s bank account. The Third Circuit held that the law firm could be liable under Section 1983 because the writ was enforced without giving the plaintiff the means to secure a pre-deprivation hearing or to obtain prompt post-seizure relief. According to the Third Circuit, the due process violation occurred when the law firm used the sheriff to enforce the writ by attaching the funds contained in the bank account.
In the same manner, the federal court in Grillo concluded that Spear & Hoffman’s conduct could be deemed actionable under Section 1983. The federal court pointed out that “Spear & Hoffman unilaterally increased the amount listed on the writ of execution, refused to accept plaintiffs’ tender of the original amount, and caused the sheriff to sell the plaintiffs’ home, even though Spear & Hoffman never petitioned the court to amend the default judgment and the amount entered in the writ of execution prior to rejecting the plaintiffs’ tender.” Moreover, the court noted that the Grillos were not “given a pre-deprivation hearing to contest the execution of the new writ and to prevent the sale of their home.” Taken together, the court concluded that the amended “complaint satisfied the constitutional deprivation element of a section 1983 claim.”
STATE ACTION
The federal court next considered whether the Grillos could satisfy the second prong of the Section 1983 test, in that Spear & Hoffman acted under the color of the law.
The Grillos argued that “the unconstitutional state action was Spear and Hoffman’s enlistment of the ‘compulsive power of the local Sheriff’ after unilaterally and without notice increasing the amount of the default judgment.”
The federal court concluded that their argument was supported by the Third Circuit’s holding in Jordan. In Jordan, the Third Circuit held that a judgment creditor, who uses the Commonwealth’s procedure for executing on a confessed judgment, acts under color of law. The Third Court “reasoned that when the sheriff, on the direct request of defendants, served the writ garnishing plaintiff’s checking account, defendants caused the state to use legal force.” In doing so, the Third Circuit rejected an argument made by the defendant law firm that the attorneys who initiated the proceeding were merely acting as officers of the court and not liable under Section 1983. The Third Circuit found that the attorneys were acting under color of law in invoking Pennsylvania’s procedures for attaching and seizing property on its client’s behalf.
Similar to Jordan, the federal court in Grillo found that Spear & Hoffman functioned as a state actor when the law firm used Pennsylvania law to cause the home to be sold at a sheriff’s sale, which, in turn, necessitated years of litigation to clear title to the residence.
LESSONS LEARNED
Attorneys who represent judgment creditors should tread lightly after discovering that they may be liable under Section 1983 for failing to follow court rules during the execution process. By failing to do so, they may find themselves embroiled in the middle of a messy lawsuit.
Reprinted with permission from the March 28, 2005 edition of The Legal Intelligencer © 2005 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited. For information, contact 877-257-3382, [email protected] or visit www.almreprints.com.
