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Wells Fargo Bank, N.A. v. Pall

A-5939-08T3 (N.J. Super. App. Div. 2010) (Unpublished)

FORECLOSURE; NOTICE — Where there has not been strict compliance with an obligation to send written notice of an adjourned foreclosure sale date to a property owner, but where the property owner is obviously aware that the sale is pending, a court can treat the lack of notice as a technical irregularity and has the discretion to either set aside the sale or allow an additional period of time for redemption.

A local court denied a woman’s motion to vacate a sheriff’s sale of her home. She argued that “she was not provided with notice of the sale” pursuant to court rules and thus, “she [was being] deprived of her due process right.”

The sheriff’s sale was initially scheduled, but after the homeowner “availed herself of the automatic postponements to which she was statutorily entitled, through the sheriff’s office,” she “filed for bankruptcy, causing the sale to be further rescheduled.” Eventually, the sale took place and the lender was the successful bidder.

Following the sale, the borrower sought to vacate the sheriff’s sale. Her argument was that “she had not received ten days[’] written notice of the adjourned sale date as required by” the Court Rules. The lower court found that the lender had failed to provide proof of service of the required notice by registered or certified mail. The lower court also found that the woman “was obviously aware that the sale was pending.” Instead of vacating the sale, the lower court, because it found that the woman had “failed to provide sufficient justification upon which to vacate the sheriff’s sale, exercised its “equitable authority by granting [the woman] an additional twenty days to redeem.”

The woman appealed, but the Appellate Division held that the lower court had chosen “an appropriate remedy in the circumstances of this case.” The Court ruled that there was “a technical irregularity,” giving a court “the discretion to either set aside the sale or allow an additional period of time for redemption.”

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