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Jacoby v. Eseo

March 13, 2000

ANDREW JACOBY AND CAROLYN JACOBY, PLAINTIFFS-RESPONDENTS,
v.
BENIGNO ESEO, EVELYN ZARIS, INDIVIDUALLY AND AS EXECUTRIX OF THE LAST WILL & TESTAMENT OF LOUIS ZARIS, DECEASED, CESAR ISAGA AND LETICIA ISAGA, AND CITIBANK SOUTH DAKOTA, DEFENDANTS, AND ATLANTIC COUNTY SHERIFF, INTERVENOR-APPELLANT, AND CHARLENE LOO, RESPONDENT.



Before Judges King, Carchman and Lefelt.

The opinion of the court was delivered by: Carchman, J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted February 9, 2000

On appeal from Superior Court of New Jersey, Chancery Division, Atlantic County.

The opinion of the court was delivered by

This appeal requires us to interpret a provision of N.J.S.A. 22A:4-8 (the statute) and determine the Sheriff's entitlement to fees after a foreclosure sale has resulted in a default by the high bidder and forfeiture of a deposit. We conclude, as did Judge Gibson in the Chancery Division, that the Sheriff is entitled to a commission on the amount of the forfeited deposit rather than the bid amount.

The facts are not in dispute. Plaintiffs Andrew Jacoby and Carolyn Jacoby sold real property located in Atlantic City to defendant Benigno Eseo who executed a first purchase money mortgage and note securing the principal amount of $150,000. Eseo subsequently defaulted. Plaintiffs initiated a foreclosure proceeding, and after entry of judgment and execution, the property was listed for a Sheriff's sale. The sale generated bidding, and Charlene Loo and Mee Ding Loo Ting successfully bid $186,000. Consistent with the conditions of sale, Loo and Ting deposited $20,000 with the Sheriff. *fn1 They, too, defaulted and failed to tender the balance due of $166,000. After a new writ of execution was issued, the property was relisted for another Sheriff's sale at which time plaintiffs bid $100. There were no other bidders.

Plaintiffs filed an application in the Chancery Division seeking a turnover of the deposit less $575 representing the statutory commission on $20,000; the Sheriff claimed a commission of $4,725 based on the original bid price of $186,000. Judge Gibson held that since no sale was consummated, the Sheriff was only entitled to statutory fees based on the deposit. We agree.

The Sheriff's authority to collect fees after a sale pursuant to a writ of execution is derived from N.J.S.A. 22A:4-8 which provides in relevant part:

When a sale is made by virtue of an execution the Sheriff shall be entitled to charge the following fees: On all sums not exceeding $5,000.00, 4%; on all sums exceeding $5,000.00 on such excess, 2½%; the minimum fee to be charged for a sale by virtue of an execution, $20.00.

In interpreting this provision, we have enunciated some basic principles that are relevant to our present inquiry. In International Brotherhood of Electrical Workers, Local No. 1470 v. Gillen, 174 N.J. Super. 326, 328 (App. Div. 1980), we stated: "The right of a Sheriff to compensation for his services is derived from statute and must be strictly construed." More broadly, we recently reiterated that we must read statutes to "'effectuate the legislative intent in light of the language used and the objectives sought to be achieved.'" In re the Adoption of N.J.A.C. 7:1I, 149 N.J. 119, 127-28 (1997) (quoting Merin v. Maglaki, 126 N.J. 430, 435 (1992)) (internal quotations omitted). Moreover, "the inquiry in the ultimate analysis is to determine the true intention of the law; and to this end, the particular words are to be made responsive to the essential purpose of the law." Jimenez v. Baglieri, 152 N.J. 337, 351 (1998) (quoting Wollen v. Borough of Fort Lee, 27 N.J. 408, 418 (1958)). Ultimately, statutes "are to be read with a modicum of common sense to insure that the purpose of the Legislature is upheld and preserved." Friends of Dinky Woods v. Township of West Windsor, 291 N.J. Super. 325, 333 (Law Div. 1996).

[Gallo v. Lawrence Township, N.J. Super. ___ (App. Div. 2000) (slip op. at 9).]

Applying these principles to this matter, we cannot conclude that a "sale" was effectuated entitling the Sheriff to commissions on the bid price.

The Sheriff relies on the language contained in the "conditions of sale" which provide that he is obligated to deliver the deed to the purchaser "within 30 days from date of sale." While the Sheriff has fixed the conditions of sale in a manner that he deems appropriate to describe the transaction, it is the language of the statute and intent of the Legislature that governs rather than conditions of sale prepared by the Sheriff. The conditions obligate the purchaser to complete the transaction or be liable for "all losses, expenses or deficienc[ies] therein." The conditions of sale may well create liability on a defaulting bidder and ...


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