HOME LOAN AND INVESTMENT BANK, FSB v. MARGARET CUMMINGS, et al.

(NOTE: The status of this decision is published.)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5695-05T35695-05T3

HOME LOAN AND INVESTMENT

BANK, FSB,

Plaintiff-Respondent,

v.

MARGARET CUMMINGS, Her Heirs,

Devisees and Personal

Representatives, and Hers,

Theirs, or any of their

Successors in Right, Title

and Interest,

Defendant,

AND

JOANN JONES, ADMINISTRATRIX OF

THE ESTATE OF MARGARET CUMMINGS,

Defendant-Appellant.

________________________________________________________________

 

Submitted June 26, 2007 - Decided

Before Judges Parker and Seltzer.

On appeal from the Superior Court of New Jersey, Chancery Division, Essex County, Docket No. F-20523-04.

JoAnn Jones, appellant pro se.

Law Office of Frank J. Martone, attorneys for respondent Home Loan and Investment Bank, FSB (Nicholas J. Purcell, of counsel and on the brief).

Evan W. Zwillman, attorney for respondent Petti, Petti & Campbell, joins in the brief of respondent Home Loan and Investment Bank, FSB.

PER CURIAM

Defendant JoAnn Jones, administratrix of the estate of her mother, defendant Margaret Cummings, appeals from an order entered on April 24, 2006 denying her motion to vacate the Sheriff's Sale of her deceased mother's home.

The facts relevant to this appeal are as follows. On May 21, 1993, Margaret Cummings executed a fifteen-year note and mortgage to Gibraltor Savings Bank, SLA. The note, in the amount of $28,000, had an initial interest rate of 10.59 percent per annum. The mortgage secured the loan on Mrs. Cummings's home at 149 Vassar Avenue in Newark. The mortgage was subsequently assigned to plaintiff, Home Loan Investment Bank, FSB (Home Loan). Mrs. Cummings died some time before October 3, 2001 and her daughter, JoAnn Jones, was appointed administratrix of her mother's estate.

In July 2004, the mortgage fell into default. On November 30, 2004, Home Loan filed a complaint in foreclosure. On February 4, 2005, Ms. Jones filed an answer in the form of a letter, which stated in its entirety:

Dear Superior Court of New Jersey,

I am herewith submitting a "pro se" answer in response to the summons served on 12/31/04!

You should see what they have done to our home in the interim!! It's horrendous!!

I'm still counter-suing the Plaintiffs (HL&IB) for attempted theft of my chemically deceased mother's/our home, and for aggravated harassment, emotional distress and depraved indifference for my humanity, etc.!

I would also like to know[] why - what looked like my last "pro se" response was returned to me in the self-addressed envelope[] you instructed to be submitted, without explanation accompanying it for the $135.00 fee that was paid?

At what point do you issue a "court date" so that we all appear before you?

Sincerely,

JoAnn Jones

(eldest daughter)

Ms. Jones's answer was deemed non-contesting because she failed to deny the allegations or to plead any defenses. Accordingly, on September 26, 2005, final judgment was entered in the amount of $16,811.97. A writ of execution was issued to the Essex County Sheriff.

Sale of the property was scheduled for December 20, 2005 pursuant to the writ of execution. On November 10, 2005, notice of the sale was sent to Ms. Jones by certified mail, return receipt requested, at 149 Vassar Avenue, Newark. On December 20, 2005, Ms. Jones made her first request for a statutory adjournment of the Sheriff's Sale. The sale was postponed to January 3, 2006. On that date, the property was sold to Petti, Petti and Campbell, LLC, for $158,000.

On January 13, 2006, Ms. Jones moved to extend the time for redemption, claiming that she needed additional time to redeem the property. She also claimed that she did not have notice of the January 3, 2006 sale. The Chancery Division granted Ms. Jones's motion and extended the redemption period for two weeks.

On January 25, 2006, Ms. Jones moved for a stay of the redemption period, scheduled to expire on January 27, 2006, pending resolution of her objection to the Sheriff's Sale. In her affidavit supporting the motion, Ms. Jones attested in pertinent part:

4. Having knowledge that the property was pending sale pursuant to the referenced foreclosure sale, I enlisted the aid of Michele Christie, a realtor at ReMax, Llewellyn Realtors of West Orange, New Jersey, to assist with the process of securing the interests of the estate. Ms. Christie introduced me to investors and mortgage financing professionals toward my effort to retain the property.

5. Thereafter, I received notice that the property was scheduled for sale by the Essex County Sheriff on December 20, 2005. I also made Ms. Christie aware of the pending date and I thus applied for and obtained my first adjournment of this matter. The sale was adjourned by the Essex County Sheriff to January 3, 2006.

6. All the while I continued to work with Ms. Christie toward my effort to retain the property. I likewise made her aware of the upcoming sale date and she assured me that she would take care of it. Further she indicated I would hear from her no later than the morning of January 3, 2006 toward her effort to obtain the second adjournment and apprise me of the latest in her negotiations with various investors and lending agents.

7. I did not hear from her. Believing that I had until the end of the day to obtain the adjournment, I traveled to the Essex County Sheriff's Department to inquire about Ms. Christie's efforts. Upon my arrival I was greeted by one of the clerks who informed me, much to my surprise, that the auction was in progress. I expressed my desire to adjourn the sale, she thus rushed into the auction area only to inform me that the property had been sold.

8. It was my every intention to exercise my statutory right to a second adjournment toward my effort to retain my interest on behalf of the estate and its heirs. I unfortunately was misled by a realtor.

9. I was also under the impression that I at least had until the end of the day to obtain the adjournment.

[Emphasis added.]

On January 26, 2006, Ms. Jones filed an amendment to her pending motion seeking a stay of the redemption period and to vacate the Sheriff's Sale. On January 26, 2006, the Chancery Division granted Ms. Jones's motion to extend the redemption period to March 10, 2006.

On February 1, 2006, Ms. Jones filed a second amendment to the motion seeking to vacate the Sheriff's Sale. In response to Ms. Jones's second amended notice of motion, plaintiff submitted a certification from Michele Christie, the realtor that Ms. Jones claimed she retained to secure an adjournment of the January 3, 2006 Sheriff's Sale. The certification states in pertinent part:

2. I have reviewed the Affidavit of defendant [JoAnn] Jones dated January 25, 2006.

3. Ms. Jones never signed a listing agreement with me or my firm for the sale of mortgaged property known as 149 Vassar Avenue, Newark, New Jersey.

4. I submitted an offer to Ms. Jones on January 3, 2006 on behalf of an investor, a copy of which is annexed as Exhibit A.

5. Ms. Jones rejected this offer. She indicated that she was entertaining other offers including one from a contractor.

6. I advised Ms. Jones that my client had mentioned that he would consider increasing the offer, but wanted to make sure that there were no other outstanding liens on the property.

7. I informed Ms. Jones that my client had ordered a title search on the property to identify any outstanding liens, and informed her that it could take up to ten days to receive the results of the title search.

8. The title work became available after the date of the Sheriff's Sale.

9. Ms. Jones never asked me to procure an adjournment of the Sheriff's Sale on her behalf.

10. I never offered to procure an adjournment of the Sheriff's Sale on behalf of Ms. Jones, as she alleges at paragraph six of her Affidavit.

11. I never told Ms. Jones that she would hear from me no later than the morning of January 3, 2006 with regard to a second adjournment of the Sheriff's Sale, as Ms. Jones alleges at paragraph six of her Affidavit.

12. I never told Ms. Jones that I would apprise her of the latest of further negotiations with various investors and lending agents, as she further alleges at paragraph six of her Affidavit.

13. On January 3, 2006, at 9:32 [a.m.], Ms. Jones sent me an e-mail that indicates that she was well aware of the Sheriff's Sale adjournment process, and that "today is the last day of the Sheriff's Sale's adjournment of the house." A copy of this e-mail is annexed as Exhibit B.

14. On January 11, 2006, I sent an e-mail to Ms. Jones advising her that my client was willing to pay the amount due at the Sheriff's Office to redeem plaintiff's mortgage, but that he needed to talk to her about the contract and the terms of the agreement. A copy of this e-mail is annexed as Exhibit C.

15. On January 18, 2006, I sent an e-mail to Ms. Jones advising her that my client had called me about the mortgaged property that day, advising that my client was willing to pay her cash to send in the paperwork to stop the sale. A copy of this e-mail is annexed as Exhibit D.

16. Ms. Jones did not contact me in response to either of my e-mails on January 11, 2006 or January 18, 2006.

The text of the January 11, 2006 e-mail from Ms. Christie to Ms. Jones states in its entirety:

JoAnn:

Please contact me as soon as possible. [T]he property sold at the sheriff['s] sale last [T]uesday and you only have until Friday to satisfy the debt. Please call me because Jacques is willing to pay the amount at the Sheriff's Office on Friday, but needs to talk to you about the contract and the terms of the agreement. Call me collect if need be 973-432-6293.

Also, I would like to stop by to pick up the mailings. Talk to you soon.

Michele

The e-mail sent to Ms. Jones by Ms. Christie on January 18, 2006 reads in its entirety:

JoAnn:

Jacques called me today about the house. He knows the person who bought it at the sheriff['s] sale for $150,000. Apparently, you can still stop the title transfer because the new owner does not want the house for that price. You can still make some money off this. If not, the new owner will take possession within [thirty] days. Call me as soon as possible. I would really hate to see you lose out on this. You should at least make something. Jacques is willing to pay you cash to send in the paperwork to stop the sale.

Please don't make the mistake of not doing anything. I see this happen all too often.

Best wishes,

Michele

973-432-6293

To the extent we understand Ms. Jones's argument, she contends that she "had no idea that the Sheriff's Sale would take place on January 3, 2006." She notes parenthetically that "(If Pathmark advertised a sale from December 20, 2005 to January 3, 2006 and you went there on January 3, 2006[,] you would expect the sale to still be going on, wouldn't you?)" This was not an extended sale period, however. The Sheriff's Sale was specifically noticed for January 3, 2006. Indeed, Ms. Jones's affidavit, dated January 25, 2006, states in paragraph five: "[t]he sale was adjourned by the Essex County Sheriff to January 3, 2006." (Emphasis added). We can give no other interpretation to the statement that the sheriff's sale "was adjourned to January 3, 2006" than that the sale would be held that day.

We note further that the mortgage on the property fell into arrears in July 2004, two and a-half years after Ms. Jones was appointed administratrix of her mother's estate. The complaint in foreclosure was filed on November 30, 2004. Thus, Ms. Jones had notice from the filing of the complaint that the foreclosure was proceeding. The final judgment of foreclosure was entered on September 26, 2005, giving Ms. Jones notice that the property would ultimately proceed to Sheriff's Sale if she failed to redeem it.

Finally, the record demonstrates that Ms. Jones was ultimately granted an extension of time to March 10, 2006 to redeem the property after the Sheriff's Sale on January 3, 2006, but failed to take action, other than moving to vacate the sale. In short, Ms. Jones had well over a year from the time the complaint was filed until the Sheriff's Sale to take whatever steps were necessary to bring the mortgage current or, after the judgment of foreclosure, redeem the property. Moreover, Ms. Christie's undisputed certification indicates that Ms. Jones had several opportunities to redeem the property and sell it to a willing buyer, but she declined to do so.

The Chancery Division's authority to set aside a Sheriff's Sale is discretionary. First Trust Nat'l Assoc. v. Merola, 319 N.J. Super. 44, 49 (App. Div. 1999). "'While deference will ordinarily be given to discretionary decisions, such decisions will be overturned if they were made under a misconception of the applicable law.'" Id. at 49 (quoting O'Neill v. City of Newark, 304 N.J. Super. 543, 550 (App. Div. 1997)). "[F]raud, accident, surprise or mistake, irregularities in the conduct of the sale," are among the reasons to set aside a Sheriff's Sale. Id. at 50. "[I]nadequacy of price is not sufficient alone to justify equitable relief." Id. at 50. Nor will a mistaken belief by the owner that the sale would be postponed when the owner received actual notice of the sale date in time to appear and "protect his interest." Id. at 50-51.

Defendant's motion to vacate the Sheriff's Sale was not based upon allegations of "fraud, accident, surprise or mistake, [or] irregularities in the conduct of sale." Id. at 50. Rather, her sole claim is that she did not know the sale was scheduled for January 3, 2006. Ms. Jones's own affidavit dated January 25, 2006, negates that claim.

We have carefully considered the record in light of defendant's arguments and the applicable law. We are satisfied that the Chancery Division did not abuse its discretion in entering the order of April 24, 2006 denying Ms. Jones's motion to vacate the Sheriff's Sale. The decision was based on findings of fact which are adequately supported by the record. R. 2:11-3(e)(1)(A).

 
Affirmed.

(continued)

(continued)

11

A-5695-05T3

July 12, 2007