BAC HOME LOANS SERVICING LP v. BARRY J. THOMPSON

NOT FOR PUBLICATION WITHOUT THE
                      APPROVAL OF THE APPELLATE DIVISION
     This opinion shall not "constitute precedent or be binding upon any court."
      Although it is posted on the internet, this opinion is binding only on the
        parties in the case and its use in other cases is limited. R. 1:36-3.




                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-2360-15T2

BAC HOME LOANS SERVICING,
LP, f/k/a COUNTRYWIDE HOME
LOANS SERVICING, LP,

        Plaintiff-Respondent,

v.

BARRY J. THOMPSON,

        Defendant-Appellant,

and

MRS. BARRY THOMPSON, his wife,
ROCHE SURETY AND CASUALTY COMPANY,
INC., PLEASANTDALE NURSERIES,
INC.,

     Defendants.
______________________________________

              Submitted December 11, 2017 – Decided December 22, 2017

              Before Judges Sabatino and Ostrer.

              On appeal from Superior Court of New Jersey,
              Chancery Division, General Equity, Union
              County, Docket No. F-050149-10.

              John T. Doyle, attorney for appellant.

              Stern, Lavinthal & Frankenberg, LLC, attorneys
              for respondent (Mark S. Winter, of counsel and
              on the brief).
PER CURIAM

      Defendant in this mortgage foreclosure action appeals the

trial court's January 8, 2016 order denying his motion to vacate

the sheriff's sale of his residence.             We affirm.

      The factual record is uncomplicated.              In 2006 defendant Barry

J. Thompson obtained a mortgage loan on his Plainfield residence

and signed a promissory note.             After defendant defaulted on his

mortgage payments, plaintiff BAC Home Loans Servicing, L.P., filed

a foreclosure complaint against him in the Chancery Division.                        In

January 2015, final judgment was entered in favor of plaintiff,

and a writ of execution was issued.

      A sheriff's sale was thereafter scheduled, initially for

September 16, 2015.      Plaintiff duly served notice of the sale via

certified    and   regular    mail,   in      accordance    with    Rule   4:65-2.

Defendant obtained the maximum two statutory adjournments of the

sale, pushing back the sale date to October 14, 2015.                      The day

before that adjourned new date, defendant's attorney appeared in

the   Chancery     Division   and    presented     an    Order    to   Show     Cause

requesting    a    further    stay   of    the   sale.      The    court   granted

defendant's application, rescheduling the sale to November 16,

2015 in an order issued that same day.                  The following day, the

court amended the order to adjourn the sale two days more to


                                          2                                   A-2360-15T
2 November 18.    The court indicated in its order that there would

be "no further adjournments" of the sale.

     The sheriff's sale took place, as ordered, on November 18,

2015, at which time plaintiff made a successful bid to acquire the

property.     Neither defendant nor his attorney appeared at the

sale.      Defendant claims that he had no actual notice of the

November 18 adjourned sale date.          He also claims he had been led

to believe he would have a further chance to enter into a loan

modification before the premises were sold.

     After the sheriff's sale, defendant moved to vacate the

transfer of title, arguing that he lacked proper advance notice

of the November 18 sale date.     The trial judge denied the motion.

The judge noted in his bench ruling that defendant's attorney,

acting as his client's agent, had notice of the adjourned date,

and that defendant is imputed with his attorney's knowledge.

     We affirm, substantially for the sound reasons expressed in

Judge Joseph P. Perfilio's January 8, 2016 oral decision.                 Our

case law has not required the formal notice procedures under Rule

4:65-2 to be extended to adjourned foreclosure sales. First Mutual

Corp. v. Samojeden, 
214 N.J. Super. 122, 128-29 (App. Div. 1986).

Instead,    actual   knowledge   of       the   adjourned   sale   date    is

dispositive.    Id. at 128.



                                      3                             A-2360-15T2
     Here, the trial court sensibly treated the actual notice of

the new sale date provided to defendant's attorney – who had

applied for the adjournment – to defendant himself based on agency

principles.   See NPC Litig. Tr. v. KPMG LLP, 
187 N.J. 353, 366

(2006) ("[A] principal is deemed to know facts that are known to

its agent"); see also Stanley v. Chamberlin, 
39 N.J.L. 565, 566

(Sup. Ct. 1877).

     Affirmed.




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