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Fidelity Union Bank v. Trim

Decided: May 29, 1986.


On appeal from Superior Court of New Jersey, Chancery Division, Monmouth County. Reported at 204 N.J. Super. 434 (Ch.Div. 1985).

Fritz, Brody and Baime. The opinion of the court was delivered by Fritz, P.J.A.D.


This matter involves an execution sale of realty consequent upon a foreclosure judgment. Only one question is raised. May a sheriff at such sale impose a condition that only cash or a certified check will be accepted to satisfy the deposit requirement, without first publishing that condition in the notice of sale? The trial judge answered that question in the negative and set aside the sale. Fidelity Union Bank v. Trim, 204 N.J. Super. 434 (Ch.Div.1985). Although we find no fault with the reasoning of that opinion and believe much common sense underlies the result, our judgment differs from that of Judge McGann respecting the applicable law and so we reverse.

The essential facts are not disputed and are set forth at length in the opinion of the trial judge. Id. at 435-436. No useful purpose will be served by repeating them here.

Neither party challenges the right of a sheriff, declared in the opinion below, id. at 437, to regulate a sale by the imposition of terms and conditions, nor do we. The narrow issue is whether the sheriff must, when he provides notice of the sale by public advertisement, include in the notice of that sale the conditions which he intends to impose.

The duties of a sheriff selling property at an execution sale are ministerial in nature and the officer acts solely by virtue of the statutory authority conferred. Raniere v. I & M

Investments Inc., 159 N.J. Super. 329, 336 (Ch.Div.1978), aff'd "substantially for the reasons given in the trial judge's reported opinion," 172 N.J. Super. 206, 208 (App.Div.1980), certif. den. 84 N.J. 473 (1980). Our search, then, is for the legislative intent respecting the authority conferred and the procedure statutorily required insofar as the notice of sale is concerned. We must "effectuate the legislative goal to the extent permitted by the statutory provisions." State v. Fearick, 69 N.J. 32, 37 (1976).

Our Legislature, presumed to be thoroughly conversant with the law expressly announced in Raniere and set out above, Brewer v. Porch, 53 N.J. 167, 174 (1969), amended N.J.S.A. 2A:61-1 in 1979 to include language relating to the required contents of an advertisement such as the one with which we are here concerned. In an effort to reduce the cost of advertising, said to be, in most cases, "the greatest expense associated with the sale,"*fn1 the Legislature limited the details required in the notice insofar as the site and description of the property are concerned and permitted reference to places and things not appearing in the notice to suffice respecting these features. Also apposite is N.J.S.A. 2A:17-34 which directs that only "the approximate amount of the judgment or order sought to be satisfied by the sale" need be published.

From the foregoing, two propositions are glaringly apparent. First, the Legislature was and is concerned about the cost of advertising these sales and is vitally interested in limiting those costs, so long as there is a source from which further information may be gained once there is notice generally of what is being sold and the size of the debt to be satisfied. Second, the Legislature understood and understands its obligation to provide specifications for the notice from which the selling officer

may not depart and, despite this recognition, has chosen not to require mention respecting sale conditions in the notice.

We are satisfied from this that the Legislature intended to leave to the discretion of the selling officer such procedural matters, previously unannounced, as the nature of the deposit. The legislative silence speaks to us as loudly as its words. In such case, inadequacies must be addressed by the Legislature. It is neither our obligation nor our privilege to interfere. While other jural forces are unquestionably at work, this is a basic matter of protecting the important doctrine of separation of powers. As Justice Cardozo observed in The Nature of the Judicial Process (1957) at 129, quoted in State v. Fearick, supra, 69 N.J. at 37 "[Judges] have the right to legislate within gaps, but often there are no gaps. We shall have a false view of the landscape if we look at the waste spaces only, and refuse to see the acres already sown and fruitful." We are satisfied that while there may be here things unspoken, there are no gaps. Our intrusion in the interest of ...

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