[226 NJSuper Page 474] Pursuant to Final Judgment in Foreclosure and a Writ of Execution duly issued thereon, the Sheriff of Monmouth County advertised for sale premises owned by the defendants Shatto located in West Long Branch, New Jersey. The sale was held on June 15, 1987. After active bidding on the property it was
struck off to Gertie Lutzger for $117,000.00. On June 24, 1987, the defendants Shatto filed a motion objecting to the sale pursuant to R. 4:65-5. Notice of it was given to all interested parties. The return date was July 17, 1987. At 8:45 a.m. on July 17, they tendered to the Sheriff of Monmouth County their attorney's trust account check for $24,456.17 "for the purpose of redeeming the subject property from the foreclosure." It is agreed that that amount would have entitled the Shattos to redeem the property prior to the sale, and indeed, within 10 days after the sale, under authority of Hardyston Nat. Bank v. Tartamella, 56 N.J. 508 (1970).
R. 4:65-5 provides as follows:
A sheriff who is authorized or ordered to sell real estate shall deliver a good and sufficient conveyance in pursuance of 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. Notice of the motion shall be given to all persons in interest and the motion shall be made returnable not later than 20 days after the sale, unless the court otherwise orders. On the motion, the court may summarily dispose of the objection; and if it approves the sale and is satisfied that the real estate was sold at its highest and best price at the time of the sale, it may confirm the sale as valid and effectual and direct the sheriff to deliver a conveyance as aforesaid.
The issue before the court is whether, having filed a timely motion objecting to the sale, the Shattos are entitled to redeem beyond the 10 day period under the authority of the Hardyston decision. The foreclosing first mortgagee and the successful bidder argue that the filing of the motion was a sham; that it was a stalling tactic used to allow the Shattos more time to gather funds for redemption and that as a matter of policy they are not entitled to the unique relief accorded in that regard by the Hardyston case.
In Hardyston, the Supreme Court in affirming the trial court's ruling that there was an unqualified right to redeem within the 10 day period after sale, held, as a matter of public policy that "the just course is to permit the mortgagor 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." Hardyston, 56 N.J. at 513.
On its merits the Shattos' motion objecting to the sheriff's sale is baseless. Just as there is a stated public policy favoring the mortgagor's right of redemption, so is there a public policy upholding the validity of the actions of public officials in the regular performance of their duties. Karel v. Davis, 122 N.J. Eq. 526, 529 (E. & A.1973); Froelich v. Walden, 66 N.J. Super. 390, 395 (Ch.Div.1961).
In order to set aside a judicial sale there must be a showing of fraud, accident, surprise or mistake, irregularities in the sale and the like. Karel v. Davis, 122 N.J. Eq. at 528. The burden of proof rests with the objector. 30 N.J.Practice (Cunningham & Tischler, Law of Mortgages) § 365, at 313. The power to set aside a foreclosure sale is to be exercised with great care and only when necessary for compelling reasons. Id.
The only proof offered by the objectors was their joint certification setting forth the following:
In January 1987 they received a copy of the Sheriff's notice of the foreclosure sale. The date listed for sale was March 2, 1987. They went to a lawyer, Epstein. He called the attorney representing the foreclosing bank. The attorney was not in his office. Epstein spoke to the attorney's secretary. He asked what liens encumbered the property. He was told (say the Shattos) that there was due on the first mortgage approximately $23,000; about $100,000 or $110,000 on the second, and about $100,000 on a third. The Shattos believed that $150,000 was the approximate fair market value ...