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Jersey Shore Savings and Loan Association v. Edelstein

June 12, 1987

JERSEY SHORE SAVINGS AND LOAN ASSOCIATION, A NEW JERSEY CORPORATION, PLAINTIFF,
v.
JACOB EDELSTEIN AND IDELLE EDELSTEIN, HIS WIFE, DEFENDANTS



McGann, Jr., J.s.c.

Mcgann

Plaintiff, Jersey Shore Savings and Loan Association, held a second mortgage on residential property in Neptune Township owned by Claude Collins and Barbara Collins, his wife. Jacob and Idelle Edelstein held the first mortgage. Both mortgages being in default the Edelsteins filed an action to foreclose the first mortgage. Their complaint joined Jersey Shore as a junior lienor. Jersey Shore filed its answer not contesting the Edelstein action but rather joining in the demand for foreclosure and seeking to have its mortgage loan balance reported on in the final judgment. After entry of default as to all other defendants, plaintiffs served a notice of application for final judgment on counsel for Jersey Shore. The notice, mailed December 22, 1983 made the motion returnable on January 13, 1984 before the Clerk of the Superior Court, State House Annex, Trenton. It sought a judgment "for the relief demanded in the . . . Complaint." The notice and supporting papers are stamped "received" by the foreclosure unit as of December 28, 1983. The supporting papers consist of a certification of the amount due ($10,564.05 as of April 1, 1983 together with interest due thereafter at 9 1/2% per annum) signed by plaintiffs; a certification of costs and fees ($239.16) signed by their attorney.

Counsel for Jersey Shore received the notice of motion and prepared an affidavit of amount due on behalf of Jersey Shore. That affidavit together with the original note and mortgage was mailed to the foreclosure unit on January 10, 1984. The affidavit (setting forth the amount due to be $11,255.43) is stamped "Received" by the foreclosure unit on January 19.

Also, on January 10, 1984 counsel for Jersey Shore mailed to the Edelsteins' attorney a letter advising that Jersey Shore intended to bid at the sheriff's sale in order to protect its interest. It is also unquestioned that prior to that date there

had been telephone discussions between those same attorneys concerning the possibility of Jersey Shore paying off the Edelsteins and taking an assignment of their first mortgage. Those discussions foundered on the amount to be paid for such assignment.

It is apparent that after the return date of the motion for entry of final judgment (January 13, 1984) -- and having received no papers from Jersey Shore (they arrived on January 19) the foreclosure unit in the usual course forwarded the Edelstein proofs and final judgment prepared by their attorney to the general equity judge in Mercer County for signature. The judgment was signed on January 20, 1984. Although in its preamble it did recite, among other matters:

And it further appearing that defendant, Keystone Savings and Loan Association (Jersey Shore Savings and Loan Association) has filed herein an answer wherein said defendant avers that it is the holder of a mortgage made by the defendants, Claude Collins and Barbara A. Collins, his wife, and admits that the lien of plaintiffs' mortgage is prior to the lien of its mortgage;

the judgment did not determine the amount due on the Jersey Shore mortgage nor did it direct that the property be sold in order to pay off that debt as well. It provides, rather, as follows:

It is, on this 20th day of January, 1984, ORDERED and ADJUDGED that the plaintiffs are entitled to have the sum of $10,564.05, together with lawful interest from December 10, 1983 and costs of suit to be taxed according to law, including therein a counsel fee in the sum of $255.64, computed pursuant to R.4:42-9(a)(4), raised and paid out of the mortgaged premises;

And it is further ORDERED and ADJUDGED, that plaintiffs are entitled to have their mortgage, together with interest and costs, as aforesaid, raised and paid out of the mortgaged premises described in the Amended Complaint; And it is further ORDERED and ADJUDGED, that so much of said mortgaged premises as will be sufficient to satisfy said mortgage debt, interest and costs, be sold, and that an execution for that purpose duly issue out of this Court, directed to the Sheriff of the County of Monmouth, commanding him to make sale, according to law, of so much of said mortgaged premises as will be sufficient to satisfy said mortgage debt, interest and costs, and to pay from the proceeds of said sale to plaintiffs or their attorney the amount of plaintiffs' mortgage debt, interest and costs, as aforesaid, and that in the event there is a surplus remaining after said sale and said application of the proceeds thereof, the same shall be brought into this Court and deposited with the Clerk of the Court, to be there held subject to the further order of this Court, and that said

Sheriff shall make his report of said sale to this Court, as required by the ...


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