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Jacoby v. Eseo

329 N.J. Super. 119, 746 A.2d 1069 (App. Div. 2000)

FORECLOSURE; SHERIFF; COMMISSIONS—When a bidder at a foreclosure sale fails to complete the sale, the Sheriff’s statutory commission is based upon the amount of the forfeited deposit, not upon the amount of the bid.

The question presented was whether the sheriff’s entitlement to fees after a foreclosure sale had resulted in a default by the high bidder and the deposit was forfeited is based on the amount of the deposit or on the amount of the bid. Here, the successful bidder defaulted and forfeited its $20,000 deposit. The foreclosing parties saw a turnover of the deposit, less a statutory commission on the $20,000; the Sheriff claimed the commission based upon the original bid price. The lower court held that since no sale was consummated, the Sheriff was only entitled to statutory fees based on the deposit. The Appellate Division agreed. The right of the sheriff to compensation is derived from statute “and must be strictly construed.” Reading the applicable statute “with a modicum of common sense to insure that the purpose of the Legislature [was] upheld and preserved,” the Court refused to conclude that a “sale” was effectuated entitling the sheriff to commissions on the bid price. The sheriff argued that the advertisement contained the “conditions of sale” which provided that the sheriff was obligated to deliver the deed to the purchaser “within 30 days of the sale.” To the Court, while these conditions obligated the purchaser to complete the transaction or be liable for “all losses, expenses or deficienc[ies] therein,” such conditions could not impose on the seller additional burdens not contemplated by the statute. Although the sheriff tried to argue that analogous case law would have designated this transaction as a “sale,” the Court refused to give the sheriff a windfall. “The ‘sale’ here was never consummated; the full consideration was not tendered; no deed was delivered for the consideration of $186,000. We conclude that the Legislature intended that the fees recovered by the Sheriff be related to the sums recovered by the creditor as a result of the sale. Fees calculated on [a] bid which is never performed fail to meet that intention.”


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