OCWEN FEDERAL BANK, FSB v. KATHIE CAMERON

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3617-04T23617-04T2

OCWEN FEDERAL BANK, FSB,

Plaintiff-Respondent,

vs.

KATHIE CAMERON,

Defendant-Appellant.

__________________________________

 

Submitted: March 13, 2006 - Decided March 28, 2006

Before Judges Cuff, Lintner and Gilroy.

On appeal from the Superior Court of New Jersey, Chancery Division, Hudson County, Docket No. F-4190-99.

Miller, Meyerson, Schwartz & Corbo, attorneys for appellant (David P. Lipari and Gerald D. Miller, on the brief).

Zucker, Goldberg & Ackerman, attorneys for respondent (Janine A. Getler and Richard P. Haber, of counsel and on the brief).

PER CURIAM

In this appeal, we review the January 21, 2005 order confirming the Sheriff's sale and denying defendant Kathie Cameron's motion to vacate the Sheriff's sale. We affirm.

A final judgment of foreclosure was entered on July 23, 2001. Thereafter, defendant filed successive petitions in bankruptcy. Following the dismissal of the third bankruptcy petition, the Bankruptcy Court entered an order on April 19, 2004, that provided that any future bankruptcy filings would not trigger the automatic stay provision of section 362(a) of the Bankruptcy Code. 11 U.S.C.A. 362(a).

The Sheriff scheduled a sale of the property for August 26, 2004. Ocwen's prior counsel forwarded notice of the sale to defendant by certified and regular mail. Notice of the adjourned sale date of September 2, 2004, was also sent to defendant by the same means. On August 24, 2004, defendant recorded a deed with the Hudson County Register's Office that purported to transfer a 10% interest in the property to her sister, who promptly filed a Chapter 13 petition in bankruptcy.

Without knowledge of the transfer of interest or the bankruptcy filing, the property was sold on the adjourned date for the Sheriff's sale. Defendant filed a motion to vacate the sale on two grounds. First, that the sale violated the automatic stay provisions of the bankruptcy code and second, that she had no notice of the sale. Prior to the return date of the motion, United State Bankruptcy Judge Stern issued an order vacating the stay nunc pro tunc and validating the sale. Faced with solely the issue of notice, Judge Olivieri found that the direct and circumstantial evidence demonstrated that defendant had proper notice of the sale. Judge Olivieri denied defendant's application for a stay pending appeal, as did this court.

While this appeal was proceeding, plaintiff substituted counsel and then filed a motion to supplement the record. We remanded the matter to the General Equity judge for consideration of plaintiff's motion pursuant to Rule 4:50-1. The remand was sought to allow the General Equity judge to review documents that provided further evidence of adequate and timely notice of the August 26, 2004 Sheriff's sale and the adjourned September 2, 2004 Sheriff's sale. By order dated October 11, 2005, Judge Olivieri amended his January 21, 2005 findings in accordance with his October 11, 2005 oral decision.

On appeal, defendant argues that she did not have actual notice of the sale and that the sale must be vacated. We disagree. Our review of the record demonstrates that Judge Olivieri's original and supplemental findings of fact are well-supported by the record. In short, we are satisfied that defendant had the notice she was due of the originally scheduled sale on August 26, 2004, and the adjourned sale of September 2, 2005. We affirm substantially for the reasons expressed by Judge Olivieri in his January 21, 2005, and October 11, 2005 oral opinions.

Affirmed.

 

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A-3617-04T2

March 28, 2006