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Homeside Lending, Inc. v. Giwa

3A-2284-0455 (N.J. Super. App. Div. 2005) (Unpublished)

FORECLOSURE; NOTICE—The requirement that notice of a foreclosure sale be posted on the subject property is waived by the property owner if it knew of a failure to post the notice but didn’t complain until after the sale.

Homeowners “repeatedly took steps to block a [foreclosure] sale by seeking relief under the Bankruptcy Code. When those efforts failed, [they] used [a relative] as a straw person in order to do what [they] could not do – invoke the automatic stay under [the Bankruptcy Code] and block the sale of the property.” Eventually, the foreclosing lender “provided notice of the sale to the [homeowners] by ordinary mail and by certified mail, return receipt requested. A signed receipt for the certified mail was returned to [the foreclosing lender].” The sale took place as scheduled and the property was sold. After losing all of their bankruptcy-related claims, the homeowners argued that the foreclosing lender failed to provide them “with notice ten days prior to the sale and failed to post a notice on th property as required by” court rules. The Appellate Division was “satisfied that there [was] no merit in the [homeowners’] assertion that they were not provided with [proper] notice.” It was undisputed that the notice was timely mailed and the homeowners signed receipt for the mailed notice. The homeowners argued that the notice was deficient because it was received only six days before the sale, but the Court, in rejecting that argument, pointed out that the court rule only requires that “notice must be served ten days prior to the date of sale. Service is complete on mailing, not receipt.” Further, there was no indication that the foreclosing lender ever led the homeowners to believe that the house would not sold. Instead, the foreclosing lender “provided actual knowledge of the sale” to its borrower. Under New Jersey law, “‘actual knowledge’ of the sale is ‘dispositive.’” As to the allegation that notice should have also been posted on the property, the Court pointed out that “a mortgagor waives his right to posting under [the applicable court rule] if he is aware of the deficiency prior to the sale and fails to enter a timely objection.” Here, the homeowners “were living in the premises and knew that notice had not been posted on the property. They failed to complain that notice had not been posted on the property until after” the property was sold.

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