Conford, Foley and Leonard. The opinion of the court was delivered by Leonard, J.A.D.
This is an action for the foreclosure of a mortgage on a six-family apartment house in East Orange. Defendant-mortgagor on this appeal contends that the trial court erred in not giving him adequate and sufficient time to redeem and in denying him a hearing on his exceptions to the mortgagee's accounting of rental income, which exceptions if sustained would have allegedly reduced substantially the amount required to redeem.
The background facts follow: Plaintiff-mortgage originally sold the property to defendant-mortgagor in 1960. In a foreclosure action instituted on June 10, 1962 defendant counterclaimed for fraudulent misrepresentation as to the cost of fuel oil for the premises. The Chancery Division therein entered judgment of foreclosure for plaintiff but also found for defendant on his counterclaim in the sum of $4,000. Credit was also given to defendant for net rents of $1,688.33 collected to the date of judgment by plaintiff as mortgagee in possession. Thus the net amount of plaintiff's judgment was $26,087.68.
Defendant appealed to the Appellate Division and on January 28, 1964 we stayed the enforcement of the judgment pending appeal. On September 24, 1965 we affirmed the judgment of the Chancery Division and, on October 24, 1965, we denied a rehearing.
On November 1, 1965 defendant petitioned the New Jersey Supreme Court for certification, which was denied on February 16, 1966. Defendant thereafter petitioned the United States Supreme Court for certiorari and that was likewise denied on June 13, 1966.
On November 3, 1965 plaintiff moved for an ex parte order vacating our stay, which order was granted on November 4, 1965. Defendant asserts he never received a copy of this order from either plaintiff or the clerk of the court -- see R.R. 2:11-3 -- and we find this to be true.
On January 4, 1966 the property was sold at sheriff's sale to plaintiff for $100. It is not disputed that plaintiff did not send defendant the ten-day notice of sale as required by R.R. 4:83-2. Defendant did not become aware of the sale until June 13, 1966, and then only when he called plaintiff's attorney to inquire as to why the property was being painted.
On June 16, 1966 defendant moved to set aside the sale on the ground that he never received the required notice of sale. This motion was partially heard on June 24 and continued to July 1, 1966, at which time plaintiff conceded that such notice was not given. On that day defendant stated that if the sale was set aside he intended to bid at the new sale. However, in the course of a colloquy with the court defendant, an attorney of this State appearing pro se, suggested that there need not be a new sale and sheriff's costs could be saved if he was given time to "pay the mortgage in full." After additional discussion the court ruled that defendant would have 15 days in which to redeem by paying or tendering the full amount, including interest and costs, due on plaintiff's mortgage and due on the second mortgage. However, this ruling was modified later at that hearing and defendant was given the 15 days to deposit in court an "official commitment in writing" that he
would have the necessary funds, and he was given an additional 15 days to close the transaction.
The parties returned to court on Friday, July 15, 1966. They first stated they agreed that the full amount due plaintiff for principal, interest and costs to that date was $31,287.98, and the amount due on the second mortgage was $1,500. Defendant produced a letter commitment from a Samuelson & Company, Newark, in the sum of $20,000, to be secured by a first mortgage on the property, and one from Jersey Realty Finance Corp., Newark, in the sum of $5,000, to be secured by a second real estate and chattel mortgage on defendant's home and personal effects. Defendant stated he would secure the balance needed by selling his holdings in a Sears Roebuck profit-sharing fund, by redeeming U.S. Savings Bonds and by available cash.
However, the court suggested that both parties visit Mr. Samuelson, advise him of the full background of the original litigation and have him in court that afternoon so that he could verify the commitment. After lunch defendant advised the court that they had talked to Mr. Samuelson and "[h]e is disinclined to go along." Defendant stated he was surprised by this refusal and asked for additional time to seek a substitute commitment. After additional discussion the court gave him until 2 P.M. ...