LASALLE BANK NATIONAL ASSOCIATION v. MARTHA PLATA

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2355-10T4

LASALLE BANK NATIONAL

ASSOCIATION AS TRUSTEE

FOR GSAMP TRUST 2007-HE2

MORTGAGE PASS-THROUGH

CERTIFICATES, SERIES

2007-HE2,

Plaintiff-Respondent,

v.

MARTHA PLATA,

Defendant-Appellant,

and

ISIDRO HERNANDEZ, MRS.

HERNANDEZ, WIFE OF ISIDRO

HERNANDEZ, MR. PLATA, HUSBAND

OF MARTHA PLATA, MORTGAGE

ELECTRONIC REGISTRATION SYSTEMS,

INC.,

Defendants.

_______________________________________

February 29, 2012

Argued January 24, 2012 Decided

Before Judges Yannotti and Espinosa.

On appeal from the Superior Court of New Jersey, Chancery Division, Hudson County, Docket No. F-24794-08.

Michelle Joy Munsat argued the cause for appellant.

Ryan P. Mulvaney argued the cause for respondent (McElroy, Deutsch, Mulvaney & Carpenter, L.L.P., attorneys; Mr. Mulvaney, of counsel and on the brief; Peter Saad, on the brief).

PER CURIAM

Defendant Martha Plata (Plata) appeals from an order entered by the trial court on November 26, 2010, denying her motion to set aside a sheriff's sale. For the reasons that follow, we reverse.

This appeal arises from the following facts. On June 27, 2008, plaintiff instituted foreclosure proceedings against Plata, Isidoro Hernandez (Hernandez) and others, with regard to certain property located on Brown Street in Union City, New Jersey. The court entered an order dated February 17, 2009, striking Plata's answer.

On April 29, 2009, the court entered a final judgment for foreclosure and ordered that the property be sold by the sheriff. On October 9, 2009, counsel for plaintiff wrote to Plata and Hernandez and informed them that the sheriff's sale was scheduled for October 22, 2009. The letter was sent by certified mail, return receipt requested, and by regular mail.

The sheriff's sale was adjourned to March 25, 2010. On the morning of the scheduled sale, Plata filed a voluntary petition in bankruptcy in the United States Bankruptcy Court for the District of New Jersey. The sheriff's sale was adjourned to April 8, 2010. On May 3, 2010, Plata filed a motion in the trial court seeking to set aside the sale, which she believed had taken place on March 25, 2010. She asserted that the sale should not have gone forward due to the pending bankruptcy proceeding.

Plaintiff submitted a response to Plata's motion on June 15, 2010. Plaintiff noted that the sheriff's sale had been postponed from March 25, 2010, to April 8, 2010, to May 20, 2010 and then to May 27, 2010. Plaintiff noted that Plata's bankruptcy petition was dismissed on April 19, 2010, and the bankruptcy proceedings were not a bar to the sale.

Plata submitted a certification to the trial court in which she stated that on March 25, 2010, when she delivered a copy of her bankruptcy petition to the sheriff's office, an employee told her that the sale had already taken place. Plata said that she then filed her motion to set aside the sale. Plata stated that she was told the motion had been adjourned and nothing would be taking place with her property until the court made its decision on the motion.

In her certification, Plata additionally stated that she called the sheriff's office on June 17, 2010, and was informed the sale had taken place on May 27, 2010. Plata said she was never notified the sale would take place on May 27, 2010. Plata stated she was always under the impression that the sale had taken place on March 25, 2010.

On June 23, 2010, plaintiff's attorney provided the court with a copy of a letter, dated April 8, 2010, she had written the Hudson County Sheriff, in which she asked to adjourn the sale to May 20, 2010. The letter indicated that a copy had been sent to Plata. Plaintiff's attorney also provided the court with a letter she had written to Plata, dated April 8, 2010, which stated the sale had been adjourned to May 20, 2010.

The court considered Plata's motion on June 23, 2010. The court noted that it had been provided with copies of the letters dated April 8, 2010, that plaintiff's counsel had written to the sheriff and Plata. Plata's attorney asserted that Plata had not received the letter. Counsel said that Plata was having trouble with her mail. The court pointed out that the October 9, 2009 letter, which informed Plata of the first scheduled sale date, had been sent by certified mail.

Plaintiff's attorney stated that she had checked with the United States Postal Service and was told the certified mail addressed to Plata had been returned unclaimed, but the regular mail was not returned. The court stated that it had some doubt about the veracity of Plata's assertion that she had not received notice of the sheriff's sale.

The court noted that the bank had purchased the property at the sale. The court inquired as to what actions Plata proposed to take in the event the sale was set aside. Plata's attorney said Plata wanted to attempt to do a "short sale" of the property. Counsel stated it was his understanding that some individuals had expressed an interest in acquiring the property. The court asked plaintiff's attorney to present additional information indicating that Plata had been notified that the May 20, 2010 sale had been postponed.

Thereafter, plaintiff submitted to the court a certification from Patricia Gonzalez (Gonzalez), an employee of the Hudson County Sheriff's Office. In her certification, Gonzalez stated that the office maintains a list of properties to be sold at each weekly sale. The list is posted outside the office on Monday, for sales scheduled to take place the following Thursday.

According to Gonzalez, if a sale is adjourned, the adjournment is marked on the sales list and the new sale date is noted on the list. Gonzalez stated that anyone can check the list and will be informed of the new date. In addition, persons who inquire by telephone will be informed of the adjourned date. Gonzalez said that this process is followed every week, without exception.

The trial court considered Plata's motion again on November 15, 2010. The court determined that Plata had the benefit of numerous stays of the sale and the sheriff's office had followed its regular procedure with regard to all of the adjournments. The court found that it did not believe Plata's right to notice of the sale had been violated. The court denied the motion to set aside the sale and entered an order dated November 26, 2010, memorializing its decision.

On appeal, Plata argues that the trial court erred by concluding that Plata was not entitled to receive actual notice of each of the adjourned dates of the sheriff's sale. Plata contends that there was insufficient evidence before the court to establish that the letters dated April 8, 2010, from plaintiff's attorney had actually been mailed. Plata additionally contends that she was entitled to notice that the May 20, 2010 sale date had been postponed to May 27, 2010.

Rule 4:65-2 provides that when the court authorizes the sale of real or personal property at a public sale, "notice of the sale shall be posted in the office of the sheriff of the county or counties where the property is located, and also, in the case of real property, on the premises to be sold[.]" The rule additionally provides that the party who obtained the order authorizing the sale "shall, at least [ten] days prior to the date set for sale, serve a notice of sale by registered or certified mail, return receipt requested" upon certain persons, including the owner of record of the property. Ibid.

Here, the record indicates that the sheriff's office initially scheduled the sale of the property for October 22, 2009. The sale was thereafter adjourned to March 25, 2010. It is undisputed that Plata was aware that the sale had been postponed to that date. The record establishes that plaintiff satisfied the requirements of Rule 4:65-2 by providing actual notice to Plata of the original sale date. The record also establishes that Plata had notice that the sale was postponed to March 25, 2010.

As we stated previously, Plata filed her bankruptcy petition on March 25, 2010. Plata states she was told the sheriff's sale had taken place on that date. The record indicates, however, that the sale was postponed to April 8, 2010, to May 20, 2010, and then to May 27, 2010. Plata argues that she was not provided with notice of these adjournments and, for this reason, the court should have set aside the sale. In First Mut. Corp. v. Samojeden, 214 N.J. Super. 122 (App. Div. 1986), we stated that, while the court rules do not expressly require the giving of notice of adjourned sheriff's sales, the rules implicitly require that "actual knowledge of the effective sale date" be afforded to persons "whose interests would be irrevocably affected by the sale[.]" Id. at 126. We observed that interested parties are not obligated to inquire as to all adjourned dates for the sheriff's sale or ascertain whether the foreclosing party intends to proceed with the sale on any particular date. Ibid.

We pointed out in Samojeden that thirteen months had passed between the initial sale date and the actual sale. Id. at 124-25. We also pointed out that, in that period, the property owner had continued to make monthly payments on the mortgage and assumed that no sale would occur while those payments were being made. Id. at 125. We stated that under these circumstances, the property owner and other interested parties were not required "to continuously monitor [the bank's] intentions respecting a sale by making periodic inquiry" of the foreclosing party or the sheriff's office. Id. at 128.

We held that the formal notice requirements of Rule 4:65-2 need not be employed to inform the property owner and other interested parties that the sheriff's sale had been adjourned and the date upon which the sale is to occur. Id. at 128. Nevertheless, we stated that the foreclosing party must make "some reasonable communication" informing the property owner and other interested parties that the sale has been adjourned and the actual date of the sale. Ibid.

We agree that, under the circumstances presented in this case, the trial court erred by refusing to set aside the sale. We note that Plata was aware that the sale was scheduled for March 25, 2010. Plata filed her bankruptcy petition on that date and it appears that the sale did not go forward as scheduled because of the bankruptcy filing. Plata was not told, however, that the sale was postponed. Indeed, she asserts that someone from the sheriff's office told her that the sale had, in fact, taken place.

Plaintiff's attorney stated on the record that she wrote to Plata on April 8, 2010, and informed her that the sale had been adjourned to May 20, 2010. Plaintiff's attorney also said that she provided Plata with a copy of a letter to the sheriff's office dated April 8, 2010, requesting postponement of the sale. However, plaintiff did not provide the trial court with a certification or affidavit setting forth sufficient facts to support a finding that Plata received these letters.

"The law recognizes a presumption may arise that mail properly addressed, stamped, and posted was received by the party to whom it was addressed." State v. Eatontown Borough, 366 N.J. Super. 626, 639 (App. Div. 2004) (citing SSI Med. Servs., Inc. v. State, Dep't of Human Servs., 146 N.J. 614, 621 (1996)). The party seeking to invoke the presumption must show that: "(1) the mailing was correctly addressed; (2) proper postage was affixed; (3) the return address was correct; and (4) the mailing was deposited in a proper mail receptacle or at the post office." Ibid. (citing Lamantia v. Twp. of Howell, 12 N.J. Tax 347, 352 (Tax 1992)). Plaintiff did not furnish the court with a certification or affidavit setting forth facts sufficient to establish the presumption of receipt.

Even if plaintiff had established that it provided notice to Plata that the sale had been adjourned to May 20, 2010, plaintiff never informed Plata that the sale was adjourned to May 27, 2010. The trial court appears to have assumed that Plata was obligated to either go to the sheriff's office to see the posted list of adjournments or to inquire as to whether the sale had been postponed.

Our decision in Samojeden makes clear, however, that the obligation is on the foreclosing party to provide the property owner and other interested parties with "some reasonable communication" advising that the sale had been postponed and the new date for the sale. Samojean, supra, 241 N.J. Super. at 128. Here, plaintiff did not establish that it notified Plata that the sale had been adjourned to May 20, 2010, or that it had been again adjourned to May 27, 2010.

We are therefore convinced that, because the property was sold to the bank and there was no evidence before the court that innocent third parties had any interest in the property, the court should have granted Plata's motion and vacated the sale.

Reversed and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.