U.S. Bank Trust National Association, v. Harry E. Whisler and Joann L. Whisler

Civil Action-Real Property Law-Mortgage Foreclosure-Amendment of Pleadings-Pa.R.C.P. Rule 1033-Prejudice-Death of a Party-Heirs-Pa.R.C.P. Rule 1144

U.S. Bank Trust National Association (“Plaintiff”), the current assignee to a mortgage executed to secure property deeded to Harry E. Whisler and Joann L. Whisler as tenants by the entireties as to one-half (1/2) interest and Herbert C. Rhoads, Jr., as a tenant in common as to the other one-half (1/2) interest, filed an action in mortgage foreclosure against Harry E. Whisler and Joann L. Whisler (“Defendants”), alleging nonpayment since October 1, 2020.  Herbert C. Rhoads, Jr., who passed away on August 31, 2014, is survived by sons Kerby Rhoads and Andrew Aller.  On December 25, 2023, Joann L. Whisler passed away.  Plaintiff filed a Motion to Amend the Complaint to remove Joann L. Whisler as a party and to add the heirs of Herbert C. Rhoads, Jr., as parties, including unknown heirs. 

1.  Pa.R.C.P. Rule 1033 provides that a party either by filed consent of the adverse party or by leave of court may at any time change the form of an action, add a party, correct the name of a party or otherwise amend the pleadings.

2.  An amendment should be allowed liberally except where surprise or prejudice to the other party would result or the amendment is against a positive rule of law.

3.  Prejudice results when the amendment compromises the opposing party’s ability to present its case.

4.  Pa.R.C.P. Rule 1144 provides that in a mortgage foreclosure action, a plaintiff must name as defendants: (1) the mortgagor; (2) the personal representative, heir or devisee of a deceased mortgagor; and (3) the real owner of the property or the grantee in the last recorded deed if the real owner is unknown.

5.  Where Herbert C. Rhoads, Jr., was survived by sons Kerby Rhoads and Andrew Aller, Rule 1144 requires amendment of the Complaint to name them as parties, as they are the known heirs of the deceased mortgagor Herbert C. Rhoads, Jr.

6.  Since unknown heirs are not required parties to a mortgage foreclosure action, unknown heirs will not be added as a party.

7.  In light of the fact that Rule 1144 requires the naming of parties if known and the interest of Joann L. Whisler passed to her husband upon her passing, the request to remove her name as a party to the Complaint will be granted.

L.C.C.C.P. No. 2022-01614, Opinion by Donna Long Brightbill, Judge, February 6, 2025.  

IN THE COURT OF COMMON PLEAS OF LEBANON COUNTY, PENNSYLVANIA

CIVIL DIVISION

U.S. BANK TRUST NATIONAL      :        NO. 2022-01614

ASSOCIATION,          :

            Plaintiff,            :

               :       

            v.            :       

               :

HARRY E. WHISLER and    :

JOANN L. WHISLER,           :

            Defendants.       :       

ORDER OF COURT

AND NOW, to wit, this ___ day of February 2025, upon consideration of Plaintiff’s Motion to Amend Complaint and Brief filed in support thereof, the Order of this Court is as follows:

1. Plaintiff’s Motion to Amend Complaint is GRANTED in part and DENIED in part.
2. Plaintiff may amend its Complaint to name Kerby Rhoads and Andrew Aller as the known heirs of deceased mortgagor Herbert C. Rhoads, Jr.
3. Plaintiff’s request to name the “unknown heirs, etc.” of Herbert C Rhoads, Jr., is DENIED. If Plaintiff becomes aware of additional heirs or devisees, Plaintiff may petition the Court for leave to amend the Complaint.
4. Plaintiff may amend its Complaint to remove Defendant Joann L. Whisler. 
5. Plaintiff must correct the proposed Amended Complaint to either name the present real owner as a defendant, or to state that the present real owner is unknown.
6. Plaintiff shall have thirty (30) days from the date of this Order to file an amended complaint in accordance with this Order and attached Opinion.

BY THE COURT:

____________________________, J.

Donna Long Brightbill

cc:       M. Troy Freedman, Esquire//133 Gaither Drive, Suite F, Mount Laurel, NJ 08054

            Harry E. Whisler//360 North Mechanic Street, Fredericksburg, PA 17026

Kerby Rhoads, as heir of Herbert C. Rhoads, Jr.//41 Summer Mountain Road 41, Bernville, PA 19506

Andrew Aller, as heir of Herbert C. Rhoads, Jr.//111 Walton Street, Lebanon, PA 17042

            Court Administration

            Lisa Halsell//Judges Chambers

            Law Clerk

IN THE COURT OF COMMON PLEAS OF LEBANON COUNTY, PENNSYLVANIA

CIVIL DIVISION

U.S. BANK TRUST NATIONAL      :        NO. 2022-01614

ASSOCIATION,          :

            Plaintiff,            :

               :       

            v.            :       

               :

HARRY E. WHISLER and    :

JOANN L. WHISLER,           :

            Defendants.       :       

APPEARANCES:

M. Troy Freedman, Esquire                                                    For Plaintiff

Robertson, Anschutz, Schneid,

Crane & Partners, PLLC                                           

Harry E. Whisler and                                                              Unrepresented Litigants

Joann L. Whisler

OPINION, LONG BRIGHTBILL, J., FEBRUARY 6, 2025

Before this Court is Plaintiff’s, U.S. Bank Trust National Association, Motion to Amend Complaint in a mortgage foreclosure action commenced by Plaintiff against Defendants, Harry E. Whisler and Joann L. Whisler.

FACTUAL AND PROCEDURAL HISTORY

On April 19, 2001, Harry E. Whisler, Joann L. Whisler, and Herbert C. Rhoads, Jr., executed and delivered a mortgage securing the property known as 551 Beagle Road, Myerstown, Pennsylvania, 17067 (“Property”). The mortgage was payable to Chase Manhattan Mortgage Corporation and was recorded by the Lebanon County Recorder of Deeds on April 25, 2001. The mortgage was later assigned to Federal National Mortgage Association, then to Nationstar Mortgage, LLC, and finally to U.S. Bank Trust National Association (“Plaintiff”). All assignments were duly recorded by the Lebanon County Recorder of Deeds. The final assignment to Plaintiff was recorded on February 22, 2024.

When the mortgage was executed, title to the Property was held by Harry E. Whisler and Joann L. Whisler (husband and wife), as tenants by the entirety as to one-half interest, and by Herbert C. Rhoads, Jr. (single), as tenant in common as to the other one-half interest. Herbert C. Rhoads, Jr. died on August 31, 2014, survived by two sons, Kerby Rhoads and Andrew Aller.

Beginning October 1, 2020, the monthly payments of principal and interest due under the mortgage were no longer tendered. On December 8, 2022, Nationstar Mortgage, LLC, which was then the assignee, filed an action in mortgage foreclosure, naming Harry E. Whisler and Joann L. Whisler as defendants. Subsequently, on December 25, 2023, Joann L. Whisler died, and her interest in the Property automatically vested in her surviving spouse, Harry E. Whisler, as the surviving tenant by the entirety.

On April 26, 2024, Plaintiff, the current assignee to the mortgage, filed a Praecipe for Voluntary Substitution of Party Plaintiff pursuant to Pa.R.C.P. 2352, and the docket was amended accordingly. Plaintiff now seeks to amend the Complaint to remove Joann L. Whisler and add the known heirs of Herbert C. Rhoads, Jr. (Kerby Rhoads and Andrew Aller), as well as any unknown heirs, successors, assigns, and all persons, firms, or associations claiming right, title, or interest from or under Herbert C. Rhoads, Jr.

STANDARD OF REVIEW

A party, either by filed consent of the adverse party or by leave of court, may at any time change the form of action, add a person as a party, correct the name of a party, or otherwise amend the pleading. Pa.R.C.P. 1033. Although the allowance of an amendment to a pleading is a matter of judicial discretion, such amendments should be liberally permitted except where surprise or prejudice to the other party will result, or where the amendment is against a positive rule of law. Berman v. Herrick, 227 A.2d 840, 841 (Pa. 1967). Prejudice does not arise from fact that the opponent may lose his case on the merits if the amendment is allowed; rather, prejudice results when the amendment compromises the opposing party’s ability to present its case. Bata v. Cent.-Penn Nat. Bank of Philadelphia, 293 A.2d 343, 357 (Pa. 1972); Robinson v. Fye, 192 A.3d 1225, 1237 (Pa. Commw. Ct. 2018). Although a court is not required to sua sponte order a party to amend his pleading, a court may, on its own motion, permit or require amendment of a complaint or other pleading. Werner v. Zazyczny, 681 A.2d 1331, 1338 (Pa. 1996); Delgrosso v. Gruerio, 389 A.2d 119, 121 (Pa.Super. 1978).

In a mortgage foreclosure action, the plaintiff must name as defendants (1) the mortgagor; (2) the personal representative, heir, or devisee of a deceased mortgagor; and (3) the real owner of the property, or if the real owner is unknown, the grantee in the last recorded deed. Pa.R.C.P. 1144. The plaintiff is not required to join as defendants either the mortgagor or personal representative, heir, or devisee of a deceased mortgagor if the plaintiff sets forth in the complaint that such person(s) are released from liability. Id. If the real owner is not made a party, the plaintiff must also set forth in the complaint that the present real owner is unknown. Pa.R.C.P. 1147.

DISCUSSION

Plaintiff seeks to amend the Complaint to name as defendants Harry E. Whisler, Kerby Rhoads and Andrew Aller, as the known heirs of Herbert C. Rhoads, Jr., and, because “it is possible that other heirs might exist,” any unknown heirs, successors, assigns, and all persons, firms, or associations claiming right, title, or interest from or under Herbert C. Rhoads, Jr.

The mortgage at issue was executed by Herbert C. Rhoads, Jr., Joann L. Whisler, and Harry E. Whisler. The only surviving mortgagor is Harry E. Whisler. Herbert C. Rhoads, Jr. died prior to the commencement of this action. Upon his death, his one-half interest in the Property, which he held as tenant in common, inured to his heirs or devisees. 20 Pa.C.S.A. 301(b); see also Edel v. Edel, 424 A.2d 946, 948 (Pa.Super. 1981). According to the obituary for Herbert C. Rhoads, Jr., which Plaintiff attached to the Motion to Amend Complaint, Herbert was survived by two sons, Kerby Rhoads and Andrew Aller. Pa.R.C.P. 1144 clearly requires that the plaintiff name as defendant the known personal representative, heir(s) or devisee(s) of a deceased mortgagor (or to expressly release such parties from liability in the complaint, which Plaintiff here has not done). Therefore, pursuant to Pa.R.C.P. 1144, the Complaint should be amended to name Kerby Rhoads and Andrew Aller as the known heirs of the deceased mortgagor, Herbert C. Rhoads, Jr. However, the statute does not require Plaintiff to name any possible unknown heirs or devisees. Therefore, Plaintiff’s request to name the “unknown heirs, etc.” is denied, as unknown heirs are not required parties to a mortgage foreclosure action. If Plaintiff becomes aware of additional heirs or devisees, Plaintiff may again petition the Court for leave to amend the Complaint.

Joann L. Whisler died after the commencement of this action. Upon her death, her husband, Harry E. Whisler, automatically become the sole owner of the one-half undivided interest he had formerly held by the entirety with Joann. See Fazekas v. Fazekas, 737 A.2d 1262, 1264 (Pa.Super. 1999). Plaintiff seeks to remove Joann L. Whisler from the Complaint without naming a personal representative, heir or devisee. Because Pa.R.C.P. 1144 only requires such parties to be named if known, and given that Joann L. Whisler’s interest in the Property automatically passed to her surviving spouse, this Court will grant Plaintiff’s request to remove Joann L. Whisler from the Complaint. 

Finally, the Court notes that in Plaintiff’s original Complaint, Plaintiff alleged that Harry E. Whisler and Joann L. Whisler were the real owners of the Property. Plaintiff’s proposed Amended Complaint does not set forth the identity of the real owner(s) of the Property. Pa.R.C.P. 1144 allows Plaintiff to name the grantee in the last recorded deed if the real owner is unknown, and Plaintiff’s proposed Amended Complaint complies with this requirement. However, Pa.R.C.P. 1147 also requires that the Plaintiff set forth in the Complaint that the present real owner is unknown if the real owner is not made a party. Pa.R.C.P. 1147(3). Therefore, if the present real owner of the Property is unknown, Plaintiff must correct its proposed Amended Complaint to conform to Pa.R.C.P. 1147. Alternatively, if the present real owner is known, Plaintiff must also name the real owner as a party as required by Pa.R.C.P. 1144.

CONCLUSION

For the foregoing reasons, Plaintiff’s Motion to Amend Complaint is GRANTED in part and DENIED in part. Plaintiff may amend its Complaint to name as defendants the known heirs of deceased mortgagor Herbert C. Rhoads, Jr., and may also remove Joann L. Whisler as Defendant. In addition, Plaintiff must either name the present real owner as a defendant, or state that the present real owner is unknown. An Order will be entered consistent with the foregoing.