Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Lobsenz v. Micucci Holdings Inc.

Decided: March 30, 1973.

THEODORE A. LOBSENZ, PLAINTIFF,
v.
MICUCCI HOLDINGS, INC., DEFENDANT



Kole, J.s.c.

Kole

The sheriff's sale in this mortgage foreclosure action took place on February 5, 1973. The mortgagee in possession was the purchaser at the sale.

On February 20, 1973 the moving party herein, Sic & Due, Inc., obtained an assignment from the mortgagor of certain items of personal property and "the premises located at 33-35 Monroe St., Garfield, N.J.," the property in question. The consideration stated in the assignment is $5,000.

It is admitted, however, that the payment of the aforesaid $5,000 is contingent upon this court's allowing the assignee to redeem. The mortgagor has received no moneys for the assignment and will receive none unless there is court approval of the relief sought by Sic & Due, Inc. -- i.e. , allowing it to exercise the mortgagor's right of redemption. It should also be noted that the sum of $5,000 is not apportioned between the personal property and the premises in question. The "personal property" consists of several items which, taken together, apparently represent a heating system of indeterminate value on the facts presented but which was apparently 100% financed when installed.

Sic & Due seeks, as assignee of the mortgagor's rights in the subject premises, to stand in the mortgagor's shoes in order to exercise the post-sale right of redemption recognized in Hardyston Nat'l Bank v. Tartamella , 56 N.J. 508 (1970). Under Hardyston the mortgagor is permitted to redeem "within the ten-day period fixed by R. 4:65-5 for objections to the sale and until an order confirming the sale if objections are filed under the rule." (At 513).

R. 4:65-5 directs the sheriff to deliver a deed pursuant to the sale "unless a motion for the hearing of an objection to the sale is served upon him within 10 days after the sale or at any time thereafter before the delivery of the conveyance."

There is a question here as to whether an "objection" was filed under the rule within the meaning of the Hardyston case and, therefore, whether movant is out of time to redeem under the rule and Hardyston. This issue need not be dealt with since the purchaser at the foreclosure sale (who is also the mortgagee), in opposing the redemption in this case, has not raised the issue. In view of the more significant question of policy hereinafter discussed, I shall assume, without deciding, that the movant has acted in time. Again, I shall assume, without deciding, the validity of the assignment of the mortgagor's interest in the real estate to the movant.

In Hardyston the Supreme Court determined, as a matter of policy , that the mortgagor should be permitted to redeem his property after a foreclosure sale. In so holding the court observed:

"The situations are probably rare in which a mortgagor can profitably assert a right to redeem after the sheriff's sale, but the right should be his unless some public interest would be significantly offended."

I, of course, have sympathy for a defaulting mortgagor who will come out $5,000 ahead by being permitted to redeem. But such sympathy should not blind the court to the implications of the contingency type of assignment of the right to redeem here involved.

I conclude that in the present case allowing redemption would significantly offend a public interest -- the exception stated by Hardyston. The principal of Sic & Due was present at the foreclosure sale, but did not bid. Subsequent to the sale he visited the mortgagee who had purchased the property at the sale and obtained information on the approximate rents and some expenses of the premises. Armed with this knowledge Sic & Due's representative apparently considered the property a good investment. Some 15 days after the ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.