Skip to main content

GE Capital Mortgage Services, Inc. v. Miller

A-5672-00T3 (N.J. Super. App. Div. 2003) (Unpublished)

MORTGAGES; FORECLOSURE; NOTICE—Even if a foreclosure proceeding has been dragged out by the borrower for ten years, failure to give the borrower notice of the date of an adjourned sheriff’s sale constitutes a breach of due process and any sale held must be set aside.

According to the Appellate Division, “[t]his foreclosure action has been ongoing for over a decade. It does not end with this opinion.” In 1987, a husband and wife executed a mortgage and note. In 1992, the lender filed a foreclosure action. By that time, the husband had moved out and never participated in any aspect of the subsequent litigation. For three years, the borrower prevented the foreclosure action from going forward. Eventually, before the judgment was entered, an initial sale was scheduled for October, 1996. It was adjourned. It was then scheduled and adjourned approximately ten times over the next four years. Most of the adjournments were triggered by the filing of six bankruptcy petitions, all of which were eventually dismissed. In fact, a sale took place in September, 1999 only to be subsequently vacated when it was learned that the mortgagor had filed yet another petition in bankruptcy prior to the sale. Eventually, a sheriff’s sale was scheduled for December 12, 2000. It was adjourned, but finally took place on January 9, 2001. The lender was the only bidder. The mortgagor moved to vacate the sale alleging, among other things, “that she had not been properly noticed.” Even though the mortgagor’s pro se “arguments on appeal [were] a conglomeration of assertions and legal citations that for the most part [had] absolutely no merit,” the Appellate Division was concerned that notice of the eventual Sheriff’s Sale was not properly given by the lender. The original sale was properly advertised and notice was given for the original date. When the lender requested that the sale be adjourned, it did not appear that a specific date was set for the adjourned sale. “As a matter of fundamental fairness, [the Court Rules], ‘must be construed as entitling interested parties to actual notice of the adjourned date upon which’ the Sheriff’s Sale is to be held. ... Mere notice of the fact of adjournment is insufficient. An owner and junior encumbrances cannot be expected to attend the sale if they are not told when it will take place.” Even though the Appellate Division appreciated the lender’s frustration over having foreclosure proceedings extend out over a ten-year period, especially where the mortgagor had apparently resided on the premises without any significant payment of money, it still held that the lender was obligated to follow proper procedures “even in the face of conduct by [the mortgagor] that appear[ed] to be abusive of the legal system.” The sale was vacated.

66 Park Street • Montclair, New Jersey 07042
tel: 973-783-3000 • fax: 973-744-5757 •