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Pa 3129.1 rule question

Discussion in 'Foreclosure, Repossession, Auctions, Short Sales' started by Robert LaBrie, Jan 3, 2016.

  1. Robert LaBrie

    Robert LaBrie Law Topic Starter New Member

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    Jurisdiction:
    Pennsylvania
    When the Pa 3129 form is filled out, does the plaintiff need to notify mortgage lien holders in a senior position as well, or do folks add them as a courtesy?

    Another one: If the state tax department also has a subordinate lien do they have the right of redemption?

    Thanks.
     
  2. Michael Wechsler

    Michael Wechsler Administrator Staff Member

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    Here is an excerpt of the law, important text highlighted. It would appear that lien holders must be notified, at least from the reading of the text of the law. I will post Rule 3129.2 in the post following.

    Rule 3129.1. Sale of Real Property. Notice. Affidavit.

    (a) No sale of real property upon a writ of execution shall be held until the plaintiff has filed with the sheriff the affidavit required by subdivision (b) and the notice required by Rule 3129.2 has been served.

    (b) The affidavit shall set forth to the best of the affiant’s knowledge or information and belief as of the date the praecipe for the writ of execution was filed the name and address or whereabouts of

    (1) the owner or reputed owner of the real property and of the defendant in the judgment; and

    (2) every other person who has any record lien on that property; and

    (3) every other person who has any record interest in that property which may be affected by the sale; and

    (4) every other person who has any interest in that property not of record which may be affected by the sale and of which the plaintiff has knowledge.
    If the name and address or whereabouts of the persons in subparagraphs (1) through (4) cannot be reasonably ascertained, the affidavit shall so state.

    (c) The affidavit required by subdivision (b) shall be substantially in the following form:

    (Caption)
    AFFIDAVIT PURSUANT TO RULE 3129.1
     
  3. Michael Wechsler

    Michael Wechsler Administrator Staff Member

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    Rule 3129.2. Notice of sale; handbills; written notice; publication.

    (a) Notice of the sale of real property shall be given by handbills as provided by subdivision (b), by written notice as provided by subdivision (c) to all persons whose names and addresses are set forth in the affidavit required by Rule 3129.1, and by publication as provided by subdivision (d).

    Official Note

    Where real estate subject to federal liens is sold in execution under a judgment by confession, see the provisions of the Federal Tax Lien Act of 1966 adding sec. 7425(c) to the Internal Revenue Code, 26 U.S.C.A. § 7425(c), providing for notice to the United States.
    As to judgments entered after December 1, 1973, see Rule 236 requiring notice of entry by the prothonotary.

    (b) The handbills shall be posted by the sheriff in the sheriff’s office and upon the property at least thirty days before the sale, and shall include

    (1) a brief description of the property to be sold, its location, any improvements, the judgment of the court on which the sale is being held, the name of the owner or reputed owner, and the time and place of sale, and

    (2) a notice directed to all parties in interest and claimants that a schedule of distribution will be filed by the sheriff on a date specified by the sheriff not later than thirty days after the sale and that distribution will be made in accordance with the schedule unless exceptions are filed thereto within ten days after the filing of the schedule.

    (c) The written notice shall be prepared by the plaintiff, shall contain the same information as the handbills or may consist of the handbill and shall be served at least thirty days before the sale on all persons whose names and addresses are set forth in the affidavit required by Rule 3129.1.

    (1) Service of the notice shall be made

    (i) upon a defendant in the judgment who has not entered an appearance and upon the owner of the property.

    (A) by the sheriff or by a competent adult in the manner prescribed by Rule 402(a) for the service of original process upon a defendant, or

    Note

    See Rule 76 for the definition of ‘‘competent adult.’’

    (B) by the plaintiff mailing a copy in the manner prescribed by Rule 403 to the addresses set forth in the affidavit; or

    (C) if service cannot be made as provided in subparagraph (A) or (B), the notice shall be served pursuant to special order of court as prescribed by Rule 430, except that if original process was served pursuant to a special order of court under Rule 430 upon the defendant in the judgment, the notice may be served upon that defendant in the manner provided by the order for service of original process without further application to the court; and

    (ii) upon the defendant in the judgment who has entered an appearance, by the plaintiff in the manner provided by Rule 440, and

    (iii) upon each other person named in the affidavit by the plaintiff by ordinary mail at the address set forth in the affidavit with the return address of the plaintiff appearing thereon. The plaintiff shall obtain from the U.S. Postal Service a Form 3817 Certificate of Mailing. Service shall be complete upon mailing. If the mail is returned the validity of the service shall not be impaired and the sale shall proceed at the time fixed in the notice.

    (2) The person serving the notice shall file a return of service as provided by Rule 405. If service is made by mail pursuant to subdivision (c)(1)(iii), the return shall include the certificate of mailing and the letter, if returned.

    (3) If service on any person is not made at least thirty days prior to the date of the sale stated in the notice, such notice shall be deemed timely if the sale is stayed, continued, postponed or adjourned in accordance with Rule 3129.3 to a date certain which is at least thirty days after the date of the last required service.
     
  4. Robert LaBrie

    Robert LaBrie Law Topic Starter New Member

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    Thanks for that reply.
     
  5. Robert LaBrie

    Robert LaBrie Law Topic Starter New Member

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  6. Robert LaBrie

    Robert LaBrie Law Topic Starter New Member

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    Any insight to my second question
     
  7. army judge

    army judge Super Moderator

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    Tax authorities don't exercise a right of redemption.

    The tax authorities want money.

    The person selling the property or home against which a lien is placed sells the home to a buyer for $100,000.

    The taxing authority has a lien against the property for $10,000.

    Before the seller can collect the $100,000, she or he must satisfy in full the lien lodged against the property, or convince the tax officials to take the TEN GRAND out of the seller's ONE HUNDRED GRAND.
     
  8. Robert LaBrie

    Robert LaBrie Law Topic Starter New Member

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    What if the property is sold at a sheriff sale under a court order, during foreclosure proceedings? Does the state tax lien get completely wiped out?
    Thanks again.
     
  9. Michael Wechsler

    Michael Wechsler Administrator Staff Member

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    It is extremely rare that government enacts a law allowing one to easily wipe away their debt to the government. A foreclosure sale satisfies the rights of the lien holders before any proceeds are seen by the homeowner. And to make matters worse, the costs of the foreclosure are also deducted. This is why it is almost always better for a homeowner to pursue a short sale rather than allow the property to lapse into foreclosure.
     
  10. army judge

    army judge Super Moderator

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    A chapter 7 bankruptcy can't cleanse the stain of a tax lien.
    The ONLY way to dispose of a tax lien is to pay it in full.
     

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