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Brookshire Equities, LLC v. Montaquiza

January 04, 2002

BROOKSHIRE EQUITIES, LLC, PLAINTIFF-RESPONDENT,
v.
MARCELO MONTAQUIZA, SIMON MONTAQUIZA AND ROSALES CORP., DEFENDANTS-APPELLANTS.
MARCELLO MONTAQUIZA, SIMON MONTAQUIZA AND ROSALES CORP., PLAINTIFFS-APPELLANTS,
v.
DEAN GROUP, LLC, DEFENDANT-RESPONDENT.



On appeal from Superior Court of New Jersey, Chancery Division, Bergen County, F-3477-96 and C-353-00.

Before Judges Petrella, Kestin and Alley.

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

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted December 3, 2001

These two appeals by Marcelo Montaquiza, Simon Montaquiza and Rosales Corp.*fn1

were calendared back-to-back because they are related to the same mortgage foreclosure proceedings. We now consolidate the appeals for purposes of this opinion.

The first appeal is from three orders in Brookshire Equities, LLC v. Montaquiza denying appellants' right to redeem certain real estate, the subject of a mortgage foreclosure action and subsequently sold at a sheriff's sale. The second appeal by the appellants is from the dismissal of their complaint in Montaquiza v. Dean Group, LLC, wherein they sought to impose a constructive trust on the foreclosed property or a transfer of the deed back to the sheriff.

In 1984, the Montaquizas purchased property known as 42 and 54 South Dean Street, Englewood New Jersey, where they conducted an automotive service and repair station. In 1987, they obtained a $400,000 mortgage from Banco Popular de Puerto Rico (Banco Popular). The property was transferred to the Rosales Corp., a close corporation owned by Marcelo and Simon, in 1991. Banco Popular commenced a foreclosure action in 1996 after appellants defaulted on their payments.

The mortgage was assigned to Brookshire Equities, LLC (Brookshire), which on March 9, 1999, obtained a final judgment in the foreclosure action fixing the principal amount owed at $385,986.79. A sheriff's sale was ordered to be held on June 9, 1999, but after the appellants obtained two adjournments, the sale finally took place on July 7, 1999, with Brookshire's bid of $511,000 making it the successful bidder.

On July 15, 1999, Marcelo and Simon Montaquiza filed for bankruptcy under Chapter 13 and Rosales Corp. filed for bankruptcy under Chapter 7. This had the effect of tolling the ten-day redemption period permitted by the Court Rules. Marcelo and the Rosales Corp. withdrew their bankruptcy petitions on September 21, 1999 and November 29, 1999, respectively.

On April 11, 2000, the bankruptcy court vacated the automatic stay in Simon's action. The order was not served on Simon's attorney until May 26, 2000. In April, 2000, Marcelo refinanced his home and obtained funds to pay off all of the liens. The appellants attempted to redeem the property on April 17, 2000, by tendering $416,412.67 to the sheriff. Brookshire refused to accept the funds and the sheriff returned the checks on May 22, 2000.

The appellants then filed a motion on June 5, 2000, objecting to the transfer of the deed and seeking to compel acceptance of the funds. The Chancery Judge denied the motion on July 11, 2000, for the reasons stated in an attachment to his order and ordered the sheriff to transfer the deed to Brookshire or its assignee.

The appellants thereafter obtained a new attorney who submitted a proposed form of order to show cause*fn2 and a motion for reconsideration. The application for an order to show cause was denied on August 4 and the motion for reconsideration was denied on August 18, 2000. Each order had a statement of reasons attached.

A notice of appeal from the July 11, August 4 and August 18 orders was filed on September 12, 2000. A subsequent attempt to obtain an order to show cause was rejected with a notation of the probable lack of jurisdiction as a result of the filed appeal. Emergent applications were denied by this ...


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