EMIGRANT MORTGAGE COMPANY, INC v. GINA GENELLO
Annotate this CaseNOT 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-1297-16T2
EMIGRANT MORTGAGE
COMPANY, INC.,
Plaintiff-Respondent,
v.
GINA GENELLO and FRANK
GENELLO,
Defendants-Appellants,
and
PALISADE COLLECTION,
Defendant.
________________________________
Submitted March 13, 2018 – Decided June 1, 2018
Before Judges Hoffman and Gilson.
On appeal from Superior Court of New Jersey,
Chancery Division, Essex County, Docket No.
F-045130-08.
Dunne, Dunne & Cohen, LLC, attorneys for
appellants (Frederick R. Dunne, III, of
counsel and on the brief).
Knuckles Komosinski & Manfro, LLP, attorneys
for respondent (John E. Brigandi, on the
brief).
PER CURIAM
Defendants Gina and Frank Genello (defendants) appeal from
an October 21, 2016 Chancery Division order denying their motion
to vacate the sheriff's sale of their home, which occurred on
September 13, 2016. Because they did not receive notice of the
adjourned date of the sheriff's sale, defendants argue the trial
court decision constituted an abuse of discretion and resulted in
"a miscarriage of justice." We affirm.
On May 31, 2007, Gina Genello executed a promissory note to
plaintiff Emigrant Mortgage Company (Emigrant) for $383,500, and
defendants secured the loan with a non-purchase money mortgage on
their home in West Caldwell. Beginning in June 2008, defendants
stopped making their monthly payments under the note and mortgage.
Emigrant filed a foreclosure action on November 13, 2008, after
defendants failed to cure their default. Defendants filed an
answer and counterclaim.
On September 16, 2010, the parties entered into a forbearance
agreement, whereby defendants withdrew their answer and
counterclaim with prejudice, allowing the foreclosure to proceed
uncontested in exchange for a six-month stay of the foreclosure
proceedings. The agreement provided for an additional three-month
stay if defendants found a buyer for their home. The agreement
did not require defendants to make regular monthly payments, only
2 A-1297-16T2
monthly escrow payments. Thereafter, the court dismissed the
case, assuming it had settled.
Emigrant then filed a motion to restore the action.
Defendants opposed the motion, which the court granted on March
21, 2016, but on the condition that Emigrant not seek default
interest when it applied for final judgment.
On December 4, 2014, Emigrant filed a motion for final
judgment. On July 22, 2015, the court entered final judgment
against defendants for $673,220.99 and ordered the sale of the
property. Defendants filed a motion for reconsideration, which
the court denied on August 7, 2015. Defendants appealed from the
final judgment and order denying reconsideration, and we affirmed.
Emigrant Mortg. Co. v. Genello, No. A-0292-15 (App. Div. Dec. 2,
2016).
On May 26, 2014, Emigrant sent correspondence to defendants
advising of the sheriff's sale date. Defendants requested two
adjournments pursuant to
N.J.S.A. 2A:17-36, which postponed the
sale until July 5, 2016. On that date, defendants filed a Chapter
7 bankruptcy petition, resulting in another postponement of the
sheriff's sale. A lack of supporting documentation lead to the
dismissal of defendants' bankruptcy proceeding, and the
rescheduling of the sheriff's sale for September 13, 2016.
Emigrant did not notify defendants of the new sale date.
3 A-1297-16T2
On September 13, 2016, Emigrant purchased the property at the
sheriff's sale for $100. Upon learning of the sale, defendants
filed a motion to vacate the sale on September 22, 2016, arguing
the sale was unfair and prejudicial absent further notice by
Emigrant. The judge denied defendants’ motion but extended their
redemption period to November 1, 2016. Defendants now appeal on
the same grounds.
On appeal, defendants seek reversal of the order denying
their motion to vacate the sheriff's sale, arguing that our
decision in First Mutual Corp. v. Samojeden,
214 N.J. Super. 122
(App. Div. 1986) requires this result. In Samojeden, we held that
our court rules, "as a matter of fundamental fairness[,] . . .
must be construed as entitling interested parties to actual
knowledge of the adjourned date upon which the sale actually takes
place." Id. at 123.
We review the trial court's denial of defendants' motion to
vacate the sheriff's sale under an abuse of discretion standard.
U.S. Bank Nat'l Ass'n v. Guillaume,
209 N.J. 449, 467 (2012).
The Court finds an abuse of discretion when a decision is "made
without a rational explanation, inexplicably departed from
established policies, or rested on an impermissible basis."
Iliadis v. Wal-Mart Stores, Inc.,
191 N.J. 88, 123 (2007) (quoting
Flagg v. Essex Cty. Prosecutor,
171 N.J. 561, 571 (2002)).
4 A-1297-16T2
We recognize that a court of equity may set aside a sale and
provide the defendant with notice of another sheriff's sale. First
Trust Nat'l Ass'n v. Merola,
319 N.J. Super. 44, 49 (App. Div.
1999). "The general rule is that when insufficient notice of a
sheriff's sale is given, the preferred remedy is that which
restores the status quo ante to the greatest extent possible."
New Brunswick Sav. Bank v. Markouski,
123 N.J. 402, 425 (1991).
The court may void the sale if the party promptly seeks relief,
was unaware of the pending sale, and no innocent third parties
would be prejudiced. Ibid. (citation omitted).
However, the remedy to void the sale requires "some evidence
of actual prejudice to an interested party." G.E. Capital Mortg.
Servs., Inc. v. Marilao,
352 N.J. Super. 274, 283 (App. Div. 2002).
The power to void the sale is "discretionary and must be based on
considerations of equity and justice." First Trust Nat'l Ass'n,
319 N.J. Super. at 49. We defer to that exercise of discretion,
absent a mistake of law or an abuse of discretion. Ibid.
Independent of statutes or court rules, the court may grant
equitable relief to set aside a sheriff's sale or to order
redemption when irregularities occur in the conduct of the sale,
such as fraud, accident, mistake or surprise. Orange Land Co. v.
Bender,
96 N.J. Super. 158, 164 (App. Div. 1967). While we held
in Samojeden that fundamental fairness entitles all "interested
5 A-1297-16T2
parties to actual knowledge of the adjourned date upon which the
sale actually takes place," we did not hold that the absence of
such notice requires the court to vacate the sale in every case.
214 N.J. Super. at 123.
Here, the trial court carefully exercised its discretion by
crafting a remedy of extending the redemption period by ten days
rather than vacating the sheriff's sale. The court balanced the
equities of the parties, noting the lengthy history of this matter,
where defendants had not made any mortgage payments in over eight
years, while Emigrant "paid the taxes . . . paid the insurance,"
without "access to the collateral" securing its mortgage loan. In
addition, the court noted, "There's no . . . evidence to indicate
. . . there was going to be a purchase at the sale or [that] some
modification . . . was underway." The court further noted that
defendants were effectively on notice that the sheriff's sale
would be rescheduled after the bankruptcy court dismissed their
petition. In essence, the court found that Emigrant's failure to
provide formal notice did not prejudice defendants. Indeed, the
court gave defendants ten days to redeem the property, but they
failed to make the redemption. On this record, we find no abuse
of discretion in the trial court's decision.
Affirmed.
6 A-1297-16T2
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
