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Indymac Bank, F.S.B. v. Burnett

A-3529-09T3 (N.J. Super. App. Div. 2011) (Unpublished)

FORECLOSURE; NOTICES — A foreclosing mortgagee does not have a duty to give its mortgagor notice when the sheriff adjourns the sale because of bad weather because the mortgagee has no control over the decision or timing of that adjournment and the mortgagee could have learned about it from the sheriff’s office.

A homeowner refinanced her mortgage by taking a $400,000 loan. Subsequently, she defaulted on the refinanced mortgage. The mortgagee’s successor filed for foreclosure. The owner did not file an answer or appear, and a final judgment of foreclosure was entered. The owner did not appeal or otherwise move for relief. Several months later, a certified mail notice was sent to advise the owner of a sheriff’s sale. The notice was returned as unclaimed, but the owner acknowledged she saw the posting of the notice at the property. The owner and lender then entered into an agreement wherein, if the owner paid in accordance with a schedule, the lender would forebear from selling the home. The owner only made the first three payments. The lender proceeded with the foreclosure. Each time, notices of scheduled and adjourned sheriff sale dates were mailed to the owner sheriff’s sale was scheduled. It was postponed for bad weather. A week later, the lender purchased the property. The owner had not been noticed of the weather adjournment.

The owner applied to vacate the sale, alleging its lender’s failure to provide notice of the actual date of the sheriff’s sale. The lower court took testimony from the lender’s attorney. He testified as to his firm’s procedures when mailing notices of sheriff’s sales. An employee of the firm certified that he knew of no sheriff’s sale notices and adjournments that had not been mailed in the course of his eight years of employment. The lower court denied the application.

The owner appealed, arguing the sale should have been set aside because the lender didn’t provide proper notice of the date of the adjourned sale. The lender argued that its only burden was to prove that a notice had been sent and not that it had been received. The Appellate Division held that a presumption exists that properly addressed, stamped, and posted mail is received by the party to whom it was addressed. It found that the lender had presented ample evidence of the process by which notices of sale adjournments were generated, addressed, stamped, and mailed from its lawyer’s office.

The Court also rejected the owner’s argument that the lender had a duty to give her notice when the sheriff adjourned the sale for one week because of bad weather. The lender had no control over the decision or timing of that adjournment, and the owner would have learned about it from the sheriff’s office if she had made contact with the office before the originally scheduled date.


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