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Little Falls Savings and Loan Association v. Holmberg

Decided: December 20, 1978.

THE LITTLE FALLS SAVINGS AND LOAN ASSOCIATION, A BODY CORPORATE OF THE STATE OF NEW JERSEY, PLAINTIFF,
v.
CHAS. O. HOLMBERG & SONS, INC., A CORPORATION OF THE STATE OF NEW JERSEY; FIRST NATIONAL BANK OF NEW JERSEY, A FEDERAL BANKING ASSOCIATION; UNITED STATES OF AMERICA; NORTHEASTERN WHOLESALE, A DIVISION OF THE MIDLAND PARK LUMBER AND SUPPLY CO., INC., ALSO KNOWN AS MIDLAND PARK LUMBER & SUPPLY, INC., A CORPORATION OF THE STATE OF NEW JERSEY; MACMILLAN BLOEDEL, INC., AN ALABAMA CORPORATION, AUTHORIZED TO DO BUSINESS IN THE STATE OF NEW JERSEY; BLANCHARD LUMBER COMPANY, ALSO KNOWN AS BLANCHARD LUMBER COMPANY, INC., A MASSACHUSETTS CORPORATION AUTHORIZED TO DO BUSINESS IN THE STATE OF NEW JERSEY; JAMCO PRODUCTS, INC., A CORPORATION OF THE STATE OF NEW JERSEY; EDWARD MONCAVAGE AND DIANE MONCAVAGE; CARTER LUMBER DISTRIBUTING CORP., A CORPORATION OF THE STATE OF NEW JERSEY; AND THE STATE OF NEW JERSEY; AND S. FEDERBUSH CO., A CORPORATION OF THE STATE OF NEW JERSEY, DEFENDANTS



Ciolino, J.s.c.

Ciolino

This action involves two notices of motion filed by John L. Soldoveri, purchaser at foreclosure, and plaintiff-first mortgagee Little Falls Savings and Loan Association. Each seeks an order of this court directing payment to it of $1512.67 retained by the Sheriff of Passaic County. While not parties to the litigation, both Soldoveri and the Sheriff have consented to submit to the Court's jurisdiction as indispensable parties. See Battle v. General Cellulose Co. , 23 N.J. 538, 546 (1957); In re Estate of Arlinghaus , 158 N.J. Super. 139, 148 (App. Div. 1978).

The sole issue herein is whether a purchaser at a mortgage foreclosure sale should be required to pay interest on the purchase price for the ten-day period immediately following such sale.

The facts are undisputed. A complaint in foreclosure was filed on May 4, 1977, and final judgment against defendant Chas. O. Holmberg & Sons, Inc. was entered on February 10, 1978. Defendant's premises were subsequently sold by the sheriff on June 6, 1978.

Soldoveri was the successful bidder, having bid $276,000. At the time of sale he paid 10% of the purchase price and tendered the balance on June 26, 1978. On that date Soldoveri also paid to the sheriff interest covering the periods from the date of sale to June 16, 1978, and from that date to June 26, 1978. The former amount was paid under protest.

On receipt of said sums the sheriff tendered the deed. The Passaic County Register however, refused to record it since the deed was not accompanied by a realty transfer fee pursuant to N.J.S.A. 46:15-7.

The sheriff refused to pay such fee and Soldoveri retendered the deed, along with the fee, which he paid under protest. The register then recorded the deed, notified Soldoveri that it did not consider the sheriff's deed exempt from the realty transfer fee, and informed Soldoveri of his right to appeal said determination to the State Division of

Tax Appeals pursuant to Title 18 of the New Jersey Administrative Code.

Soldoveri argues that the sheriff had no authority to demand interest for the ten days immediately following the sale, and therefore the $546.67 paid under protest should be returned to him. Defendant-second mortgagee, First National Bank of New Jersey, contends that Soldoveri should be required to calculate and pay the amount of interest for the pertinent ten-day period only on the remaining unpaid 90% of the purchase price. Plaintiff argues that should it be found that no interest was payable for the pertinent ten-day period, then a sum equal to that amount should be paid to it from the monies held by the sheriff.

I find that no interest was payable for the ten-day period following the sale and order the sheriff to return the monies paid under protest to Soldoveri.

The bidder who is successful at a foreclosure sale is required to purchase the property, but his rights are for most purposes inchoate until the sale is confirmed or until ten days after the sale if no objections to the sale are filed. [30 N.J. Practice (Cunningham and Tischler, Law of Mortgages) , ยง 358 at 295-296 (1975)]

This principle is embodied in R. 4:65-5, requiring a sheriff to deliver good and sufficient conveyance pursuant to a sale unless an objection is served on him within ten days following the sale, or at any time thereafter before delivery of conveyance. Moreover, it is clear that a mortgagor is entitled to redeem his property within ten days following its sale by the Sheriff. N.J.S.A. 2:65-9, saved from repeal by N.J.S.A. 2A:50-16; Hardyston Nat'l Bk. v. Tartamella , 56 N.J. 508, 513 (1970). The Sheriff is therefore forbidden from conveying title to land purchased at a ...


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