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Borromeo v. DiFlorio

406 N.J. Super. 124, 976 A.2d 388 (App. Div. 2009)

FORECLOSURE — A writ of execution addressed to the sheriff of the wrong county cannot be cured by means of a corrective writ and the foreclosing party must begin the foreclosure sale process again by obtaining a properly addressed writ.

A judgment creditor delivered a writ of execution to the Somerset County Sheriff to levy against a debtor’s personal property and real property located within that county. The writ, however, named the Sheriff of Mercer County instead of the Somerset County Sheriff. Nonetheless, the Somerset County Sheriff scheduled a sheriff’s sale for September 5, 2006. The record owner sought to delay the sale, but her request was denied.

Prior to the sale date, the judgment creditor was contacted by the Somerset County Sheriff who notified him that the writ of execution incorrectly listed the Mercer County Sheriff. The creditor obtained a corrective writ of execution and faxed it to the Somerset County Sheriff’s office on September 1, 2006. The original corrective writ of execution was received and endorsed by the Somerset County Sheriff on September 5, 2006. Several days before the corrective writ was served upon the Somerset County Sheriff, the debtor filed for bankruptcy protection. After the debtor was discharged, the Chancery Division continued its administration of the suit and denied the record owner’s motion to vacate the writ of execution. The lower court found that the original writ of execution was voidable since it was directed to the wrong county sheriff. However, it found that once the writ was corrected, execution based on the correct writ was proper. The Somerset County Sheriff then scheduled another sale date and levied on the property. The record owner appealed and the sale was stayed.

The Appellate Division reversed, holding that the writ of execution was not proper and that the sale could not proceed. The Court rejected the lower court’s finding that the error in the first writ was curable. It noted that, pursuant to N.J.S.A. 2A:17-1, a sheriff’s authority to sell real property within its own county to satisfy a judgment is solely through the delivery of a writ of execution. The writ must be directed to the correct sheriff’s office and the misdirection of the writ to a different sheriff is a material deviation that deprives the proper sheriff of authority to execute the levy. It is more that a clerical error. It goes to the authority of the sheriff to carry out the writ. The Court found that the writ of execution directed to the Mercer County Sheriff, but sent to the Somerset County Sheriff for execution on property located within Somerset County, was void and not merely voidable. Therefore, the error in the writ could not be cured by means of a corrective writ that would permit the sale to proceed. Even a sheriff’s authority to schedule a sale must be based on a writ of execution. Thus, if a writ of execution is invalid, then the whole process must start again once a new, correct writ is issued.

The Court also rejected the judgment creditor’s argument that writ was cured when it faxed a corrective writ, noting that the writ must be delivered to, and endorsed by the sheriff to be effective. Here, the corrective writ was not endorsed until after the debtor filed his bankruptcy petition. Therefore, the judgment creditor’s judgment was not a perfected lien and was discharged when the debtor was discharged in bankruptcy.

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