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GE Capital Mortgage Services, Inc. v. Weisman

OCN-F-8083-99 (N.J. Super. Ch. Div. 2001) (Unpublished)

FORECLOSURE; NOTICE—Where there is an issue as to whether proper notice has been sent before commencing a residential foreclosure, a court may retain jurisdiction and adjourn the matter so that notice can be given and the requisite statutory time period can pass.

Under the Fair Foreclosure Act, before a residential mortgage owner may “commence” a foreclosure action, it must first serve, by registered or certified mail, a notice of intention to file such proceedings. Such a notice would trigger a 30-day period within which the mortgagor may commence cure of the default. In a foreclosure action, a mortgagor alleged that no Notice of Intent had ever been sent. The mortgagee certified that it was its customary practice to mail the notice in accordance with the statute before referring the matter to its attorney. It was able to produce an internal copy of the notice, but unable to produce the certified mail receipt, or return receipt, or contemporary certification of mailing. The Court found no reported New Jersey decision dealing with this specific issue. Therefore, it looked to other states; in particular, to Pennsylvania. It found one line of Pennsylvania cases that categorized the deficiency as jurisdictional and dismissed such actions. It also found a line of cases that gave the mortgagee the right to correct the deficiency, postponing the proceedings, and requiring the mortgagee to give the notice to its borrower. In a second line of Pennsylvania cases, the courts relied on a court rule that allowed the Court to construe rules “to secure the just, speedy and inexpensive determination of every action ... .” This rule is analogous to New Jersey Rule of Court 1:1-2. As a consequence, the Court, in this case, directed the mortgagee to forward the notice within ten days by certified mail, return receipt requested, and to give the mortgagor 30 days from the mailing of the notice to reinstate the mortgage without liability for costs and attorney’s fees. The Court did not dismiss the action because it felt that the resultant additional expense and delay would be inconsistent with its mandate to do justice.


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