LAKEVIEW LOAN SERVICING, LLC v. JOLIE BATTISTA

NOT FOR PUBLICATION WITHOUT THE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 NOS. A-0068-20
                                                                     A-1918-20

LAKEVIEW LOAN
SERVICING, LLC,

          Plaintiff-Respondent,

v.

JOLIE BATTISTA,

     Defendant-Appellant.
_______________________

                   Submitted September 20, 2021 - Decided November 22, 2021

                   Before Judges Accurso and Rose.

                   On appeal from the Superior Court of New Jersey,
                   Chancery Division, Middlesex County, Docket No. F-
                   018407-18.

                   Jolie Battista, appellant pro se.

                   McCabe, Weisberg & Conway, LLC, attorneys for
                   respondent (James A. French, of counsel and on the
                   brief).

PER CURIAM
      In these two appeals, which we consolidate for purposes of this opinion,

defendant Jolie Battista, self-represented, challenges two final orders entered

roughly thirteen months apart, denying her motion to set aside the same

sheriff's sale. Finding defendant presented no evidence of any irregularity in

the sale, which generated surplus funds that remain on deposit with the

Superior Court, we affirm.

      The procedural history of these appeals is a morass, caused by

defendant's failure to alert this court, as well as the trial court, of related

pending matters and plaintiff's failure to ever advise either court of the

problem.

      In a nutshell, we affirmed the final judgment in this contested

foreclosure action last May. See Lakeview Loan Servicing v. Battista, No. A-

1558-19 (App. Div. May 13, 2021) (slip op. at 2). In that opinion, we noted

the property had been sold to a third-party purchaser at sheriff's sale, that

defendant's motion to vacate the sale was denied on January 16, 2020, and her

motion for reconsideration was denied on March 18, 2020. Id. at 4. Defendant

did not, however, raise an issue regarding the sale in A-1558-19,

notwithstanding her merits brief in that case was filed months after the trial

court denied her motions objecting to the sale. Plainly, defendant should have


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timely amended her notice of appeal in A-1558-19 to raise her challenge to the

sheriff's sale, thereby permitting us to resolve all issues relating to the

foreclosure in one opinion and avoid these two subsequent piecemeal appeals.

See Brundage v. Estate of Carambio,  195 N.J. 575, 599 (2008) (noting the

"general policy against piecemeal review of trial-level proceedings").

      Instead, about the time she filed her merits brief in A-1558-19,

defendant filed a new appeal out-of-time, A-0068-20, challenging the denial of

her first motions objecting to the sale, and failing to advise of the pending

related matter in A-1558-19. Making matters worse, while those two matters

were pending here, defendant filed another motion to challenge the sheriff's

sale in the trial court, raising the same issues she raised in her prior two

motions objecting to the sale. That motion, grossly out-of-time, see Rule 4:65-

5 (providing that objections to a sheriff's sale must be filed within ten days

after the sale, or at any time thereafter before delivery of the sheriff's deed)

was denied by a different judge on the record on February 19, 2021.

      When defendant appealed the February 2021 order in A-1918-20, she not

only failed to advise the Clerk's Office of her two related pending appeals, she

also advised there was no verbatim record of the judge's decision. As the

second judge's February 19, 2021 order states the court's findings were placed


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                                         3
on the record on the date of the order, we secured the CourtSmart recording of

the proceeding, which included the judge's decision.

         After cutting through the procedure to get at the substance of the

appeals, we find nothing there. As already noted, the property was offered at

sheriff's sale and struck off to a third-party purchaser. Defendant filed a

timely motion objecting to the sale, claiming she had "reason to believe" the

sale was not conducted by the Sheriff of Middlesex County, the property was

not sold to a third-party bidder for $267,000, the bidder never paid the balance

due on his bid, and thus the highest and best price was not obtained by judicial

sale, creating "an issue or irregularity with the sale."

         Defendant based her belief on the sheriff's apparent failure to respond to

her Open Public Records Act (OPRA) request seeking all documents relating

to the "sheriff sale [that] took place on December 11, 2019." Defendant

contended that because she disputed the sheriff sold the property in accordance

with her published "Conditions of Sale" and no officer or employee of the

Middlesex County Sheriff's Office proved otherwise, the sale should be set

aside.

         Included in defendant's appendix in A-1918-20, however, are documents

that appear responsive to defendant's OPRA request, including the sheriff's


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                                          4
office's internal handwritten records pertaining to the sale, including the

bidding, the identity of the purchaser, the purchaser's acknowledgement, and a

letter from the sheriff to the purchaser acknowledging his $55,000 deposit and

a balance due of $212,000 in certified funds or bank check in accordance with

the conditions of sale. Defendant's appendix also contains a copy of Sheriff

Mildred S. Scott's "report, statement & return of execution" to the General

Equity part of the Superior Court in which she attests under oath that the

property was purchased at sale for $267,000, which after the judgment amount

of $227,640.16 plus fees of $11,884.84, left a surplus of $27,475, as well as a

copy of the sheriff's deed to the purchaser, recorded on December 27, 2019.

We have confirmed with the Superior Court Clerk's Office that $27,475

remains on deposit after defendant's motion to obtain same was denied without

prejudice based on her failure to perfect her papers. 1

      Defendant reprises on appeal the same arguments she made to two

different trial judges a year apart, both of whom rejected her claims as without

proof. We likewise reject her claims and find them without sufficient merit to

warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).


1
  The order explained why the motion was denied and provided detailed
instructions as to how defendant could correct the deficiencies and obtain the
surplus funds due her.
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      Although the chancery court has the power to vacate a sheriff's sale, its

exercise is limited to situations where there is "fraud, accident, surprise,

irregularity in the sale, and the like, making confirmation inequitable and

unjust to one or more of the parties." Crane v. Bielski,  15 N.J. 342, 346 (1954)

(quoting Karel v. Davis,  122 N.J. Eq. 526, 530 (E. & A. 1937)). Because

defendant failed to demonstrate such circumstances here, and her motion

objecting to the sale in A-1918-20 was grossly out of time, we affirm the

denial of her motions to vacate the sale in both appeals before us.

      Affirmed.




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