act-1998-0-144•Pennsylvania Act 1998-144 — JUDICIAL CODE (42 PA.C.S.) - AMEND COMMENCEMENT OF ACTIONS
Pennsylvania Act 1998-144 — JUDICIAL CODE (42 PA.C.S.) - AMEND COMMENCEMENT OF ACTIONS
act-1998-0-1441998 Pa. Act 144Law
Act text
JUDICIAL CODE (42 PA.C.S.) - AMEND COMMENCEMENT OF ACTIONS
Act of Dec. 21, 1998, P.L. 1082, No. 144 Cl. 42
Session of 1998
No. 1998-144
SB 1262
AN ACT
Amending Title 42 (Judiciary and Judicial Procedure) of the
Pennsylvania Consolidated Statutes, further providing for
actions that must be commenced within six months and for
deficiency judgments.
The General Assembly of the Commonwealth of Pennsylvania
hereby enacts as follows:
Section 1. Sections 5522(b)(2) and 8103 of Title 42 of the
Pennsylvania Consolidated Statutes are amended to read:
§ 5522. Six months limitation.
* * *
(b) Commencement of action required.--The following actions
and proceedings must be commenced within six months:
* * *
(2) A petition for the establishment of a deficiency
judgment following [sale of the collateral of the debtor
under] execution and delivery of the sheriff's deed for the
property sold in connection with the execution proceedings
referenced in the provisions of section 8103 (relating to
deficiency judgments).
* * *
§ 8103. Deficiency judgments.
(a) General rule.--Whenever any real property is sold,
directly or indirectly, to the judgment creditor in execution
proceedings and the price for which such property has been sold
is not sufficient to satisfy the amount of the judgment,
interest and costs and the judgment creditor seeks to collect
the balance due on said judgment, interest and costs, the
judgment creditor shall petition the court [having jurisdiction]
to fix the fair market value of the real property sold. The
petition shall be filed as a supplementary proceeding in the
matter in which the judgment was entered.
(b) Effect of failure to give notice.--Any debtor, obligor,
guarantor, mortgagor, and any other person directly or
indirectly liable to the judgment creditor for the payment of
the debt, and any owner of the property affected thereby, who is
neither named in the petition nor served with a copy thereof or
notice of the filing thereof as prescribed by general rule,
shall be deemed to be discharged from all personal liability to
the judgment creditor on the debt, interest and costs, but any
such failure to name such person in the petition or to serve the
petition or notice of the filing thereof shall not prevent
proceedings against any respondent named and served.
(c) Action on petition.--
(1) If no answer is filed within the time prescribed by
general rule, or if an answer is filed which does not
controvert the allegation of the fair market value of the
property as averred in the petition, the court shall
determine and fix as the fair market value of the property
sold the amount thereof alleged in the petition to be the
fair market value.
(2) If an answer is filed controverting the averment in
the petition as to the fair market value of the property, but
no testimony is produced at the hearing supporting such
denial of the fair market value, the court shall determine
and fix as the fair market value of the property sold the
amount thereof alleged in the petition to be the fair market
value[, and thereupon enter a decree directing the judgment
creditor to file release of the debtors, obligors, guarantors
or any other persons directly or indirectly liable for the
debts, to the extent of the fair value so fixed, whereupon
execution may be issued for the balance of the debt].
(3) If an answer is filed alleging as the fair market
value an amount in excess of the fair market value of the
property as averred in the petition, the judgment creditor
may agree to accept as the fair market value of the property
the value set up in the answer and in such case may file a
stipulation releasing the debtors, obligors and guarantors,
and any other persons liable directly or indirectly for the
debt, and the owners of the property affected thereby, from
personal liability to the judgment creditor to the extent of
the fair market value as averred in the answer, less the
amount of any prior liens, costs, taxes and municipal claims
not discharged by the sale, and also less the amount of any
such items paid at distribution on the sale.
(4) If an answer [shall be] is filed and testimony
produced setting forth that the fair market value of the
property is more than the value stated in the petition, the
court shall hear evidence of and determine and fix the fair
market value of the property[, which shall in no event exceed
the amount of the debt, interest, costs, taxes and municipal
claims] sold.
(5) After the hearing, if any, and the determination by
the court under paragraph (1), (2) or (4) of the fair market
value of the property sold, then, except as otherwise
provided in subsection (f), the debtor, obligor, guarantor
and any other person liable directly or indirectly to the
judgment creditor for the payment of the debt shall be
released and discharged of such liability to the judgment
creditor to the extent of the fair market value of said
property [as previously agreed to by the judgment creditor
or] determined by the court, less the amount of all prior
liens, costs, taxes and municipal claims not discharged by
the sale, and also less the amount of any such items paid at
the distribution on the sale, and shall also be released and
discharged of such liability to the extent of any amount by
which the sale price, less such prior liens, costs, taxes and
municipal claims, exceeds the fair market value as agreed to
by the judgment creditor or fixed and determined by the court
as provided in this subsection, and thereupon the judgment
creditor may proceed by appropriate proceedings to collect
the balance of the debt.
(d) Action in absence of petition.--If the judgment creditor
shall fail to present a petition to fix the fair market value of
the real property sold within the time after the sale of such
real property provided by section 5522 (relating to six months
limitation), the debtor, obligor, guarantor or any other person
liable directly or indirectly to the judgment creditor for the
payment of the debt, or any person interested in any real estate
which would, except for the provisions of this section, be bound
by the judgment, may file a petition, as a supplementary
proceeding in the matter in which the judgment was entered, in
the court having jurisdiction, setting forth the fact of the
sale, and that no petition has been filed within the time
limited by [statute after the sale] section 5522 to fix the fair
market value of the property sold, whereupon the court, after
notice as prescribed by general rule, and being satisfied of
such facts, shall direct the clerk to mark the judgment
satisfied, released and discharged.
(e) Waiver of benefit of section prohibited.--Any agreement
made by any debtor, obligor, surety or guarantor at any time,
either before or after or at the time of incurring any
obligation, to waive the benefits of this section or to release
any obligee from compliance with the provisions hereof shall be
void.
(f) Certain special allocations.--Notwithstanding the
provisions of subsection (c)(5), if the judgment creditor is a
nonconsumer judgment creditor and:
(1) if the judgment has been entered with respect to a
partial recourse obligation, the fair market value of the
property determined as provided in subsection (c) will be
applied first to discharge, as provided in subsection (c)(5),
all liability for the nonrecourse portion of the obligation
before any portion of such value is applied to discharge any
liability for the recourse portion of the obligation; and
(2) if the judgment has been entered with respect to an
obligation of which only a portion is guaranteed, the fair
market value of the property determined as provided in
subsection (c) will be applied first to discharge, as
provided in subsection (c), all liability for the portion of
the obligation which is not guaranteed before any portion of
such value is applied to discharge any liability for the
portion of such obligation which is guaranteed.
(g) Definitions.--As used in this section, the following
words and phrases shall have the meanings given to them in this
subsection:
"Consumer credit transaction." A credit transaction in which
the party to whom credit is offered or extended is a natural
person and the money, property or services which are the subject
of the transaction are primarily for personal, family or
household purposes.
"Judgment." The judgment which was enforced by the execution
proceedings referred to in subsection (a), whether that judgment
is a judgment in personam such as a judgment requiring the
payment of money or a judgment de terris or in rem such as a
judgment entered in an action of mortgage foreclosure or a
judgment entered in an action or proceeding upon a mechanic's
lien, a municipal claim, a tax lien or a charge on land.
"Judgment creditor." The holder of the judgment which was
enforced by the execution proceedings.
"Nonconsumer judgment creditor." Any judgment creditor
except a judgment creditor whose judgment was entered with
respect to a consumer credit transaction.
"Nonrecourse portion of the obligation." The portion as to
which the judgment creditor's recourse is limited to the
mortgaged property or other specified assets of the debtor which
are less than all of such assets.
"Partial recourse obligation." An obligation which includes
both a nonrecourse portion and a recourse portion.
"Recourse portion of the obligation." All of the obligation
except the nonrecourse portion thereof.
Section 2. This act shall apply to all actions and
proceedings pending on the effective date of this act.
Section 3. This act shall take effect immediately.
APPROVED--The 21st day of December, A. D. 1998.
THOMAS J. RIDGE
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