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Bankers Trust Company of California, N.A. v. Delgado

A-716-00T2, 2001 WL 1183267 (N.J. Super. App. Div. 2001)

MORTGAGES; ADJOURNMENTS—A sheriff may not refuse to adjourn a foreclosure sale where both mortgagor and mortgagee consent to an adjournment.

A lender foreclosed on a mortgage and then requested the sheriff to adjourn the foreclosure two times. Prior to the second date, the mortgagor was involved in a bankruptcy proceeding that prohibited the sheriff’s sale. The lender asked the sheriff to adjourn the sale for a third time, but the sheriff advised the lender that New Jersey law required the lender to obtain a court order authorizing an additional adjournment. Nonetheless, the lender and the mortgagee, through counsel, executed a consent order adjourning the sale and further providing that the lender was “entitled to additional adjournments of sale, for such time periods as” the lender might request of the sheriff, “without the necessity of further orders [from the] Court.” The sheriff was not a party to the consent order which was entered in the Chancery Division. Even though the sale eventually took place, the sheriff then filed an appeal contending that it was entitled to notice of the application for adjournment of the sale and that the lender was not entitled to further adjournments without a court order for each. The Appellate Division disagreed with the Sheriff. The statute in question authorized the sheriff to make two adjournments to the sale, and no more, but a court of competent jurisdiction has the right, for cause, to order further adjournments. According to the Appellate Division, “the obvious intent of the statute is to protect the judgment creditor from unjustified adjournments of the sale, thus frustrating the right of the judgment creditor to sell the property in an effort to satisfy the judgment.” The statute, however, was not intended to preclude the parties from consenting to an adjournment of the sale, either or to prevent a judgment creditor alone from further adjourning the sale. Consequently, the Court believed that “[i]t would be in keeping with the apparent intent of the Legislature to regard consent of all interested parties as a surrogate for a court order authorizing an adjournment,” and a sheriff should not deny the request under those circumstances. Further, the statute was not intended to give a sheriff the authority to deny a request from the creditor for an adjournment. It was clearly intended to require a judgment debtor seeking a third or subsequent adjournment, without the consent of the judgment creditor, to seek court approval beyond the two allowed by the statute.

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