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G.E. Capital Mortgage Services, Inc. v. Marilao

June 20, 2002

G.E. CAPITAL MORTGAGE SERVICES, INC. PLAINTIFF-RESPONDENT,
v.
NARCISO S. MARILAO, JR. DEFENDANT-APPELLANT.



On appeal from Superior Court of New Jersey, Hudson County, Chancery Division, F-1703-97.

Before Judges King, Wecker and Winkelstein.

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

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted May 22, 2002

Defendant, Narciso S. Marilao, acting pro se, and by timely notice of objection, sought to vacate a Sheriff's foreclosure sale of his residential property located at 104 Garrison Avenue in Jersey City. Defendant contended that the Sheriff did not comply with the statutory requirement that notice of the foreclosure sale be posted on the subject property in advance of the sale. See N.J.S.A. 2A:61-1; R. 4:65-2.

The purchaser at the Sheriff's sale was given notice of defendant's motion and appeared at the oral argument, represented by counsel, who contended that Marilao's appearance at the sale and his participation in the bidding constituted his consent thereto. Defendant's application to vacate the sale was denied on May 25, 2001, on the ground that Marilao had waived the posting on his property. After the Sheriff's deed was delivered to the third-party purchaser on July 5, 2001, defendant moved for reconsideration. *fn1 That motion was denied on August 22, 2001. We now affirm.

N.J.S.A. 2A:61-1 provides, in pertinent part:

When any sheriff, coroner, master, executor, administrator, guardian, commissioner, auditor or other officer or person is authorized or required by any public statute or the direction of any court of competent jurisdiction in this State to make sales of real estate, he shall, unless otherwise specially directed or authorized by law, before making the sale, give notice of the time and place of the sale by public advertisement, signed by himself, and set up in the office of the sheriff of the county or counties where the real estate is located and at the premises to be sold, at least 3 weeks before the time appointed for the sale. . . . Such officer or person shall also cause the notice to be published 4 times, at least once a week, during 4 consecutive weeks, in two newspapers, to be by him designated [from among those published within a specified area]. [Emphasis added.]

Consistent with the statute, R. 4:65-2 provides, in pertinent part:

If real or personal property is authorized by court order or writ of execution to be sold at public sale, notice of the sale shall be posted in the office of the sheriff of the county or counties where the property is located, and also, in the case of real property, on the premises to be sold, but need not be posted in any other place. The party who obtained the order or writ shall, at least 10 days prior to the date set for sale, serve a notice of sale by registered or certified mail, return receipt requested, upon . . . the owner of record of the property as of the date of commencement of the action . . . . [Emphasis added.]

The underlying rationale for all three requirements is to attract a competitive market for the property, to ensure that the owner is not unfairly deprived of his equity or subjected to a deficiency action, nor a junior lienholder deprived of the opportunity to satisfy its lien, and to guard against fraud in the process. See New Brunswick Sav. Bank v. Markouski, 123 N.J. 402, 422, 423 (1991); Owen v. Owen, 88 N.J. Eq. 353, 354-55 (E. & A. 1917); 47 Am. Jur. 2d Judicial Sales § 65 (1995). There is, of course, an interest as well in protecting the rights of innocent third-party purchasers at the Sheriff's sale, see New Brunswick Sav. Bank, 123 N.J. at 425-26, and in the finality of the sale. See Fidelity Union Bank v. Trim, 210 N.J. Super. 476, 480 n.2 (App. Div. 1986).

There is no dispute that the Sheriff complied with the requirements for posting in his office and for newspaper advertising of the sale. The initial factual dispute between the parties was whether the notice of the sale date ever was posted on the property. Plaintiff's opposition to defendant's motion to vacate the sale relied upon a certification supplied to plaintiff by Sheriff's Officer John Butranavage to establish that the required posting was accomplished. The judge correctly noted that the Sheriff's certification was entitled only to a rebuttable presumption of accuracy, which was overcome here by Marilao's certification and that of another resident on the property, each stating that notice of the April 5 sale had never been posted on the property. Thus plaintiff was required to offer proof of posting, and plaintiff's counsel admitted that he had not subpoenaed any witness who could supply such proof. *fn2 Because we agree that defendant waived the posting of notice of sale, the factual dispute is not material.

The record supports the following facts. A writ of execution issued on December 12, 2000. *fn3 Sheriff's Officer Butranavage personally served a copy of that writ upon Marilao at 104 Garrison Avenue on January 18, 2001. The writ was accompanied by a letter from the Foreclosure Unit of the Sheriff's office, advising defendant that the Sheriff had received the writ and had been directed to sell the property at 104 Garrison Avenue, and that "[o]ur next step is to advertise in two local newspapers for four consecutive weeks and then sell your property to the highest bidder at a public sale. You will receive a copy of the newspaper advertisement after it is first published." The writ does not include a date for the intended sale.

In a "Certification of Sheriff's Officer in Opposition to Defendant's Motion to Vacate Sale," prepared by plaintiff's counsel and dated May 3, 2001, Butranavage certified to these facts: The property was sold to a third party for $131,000 at a Sheriff's sale on April 5; public announcement of the sale was posted in the Sheriff's Office on March 13, 2001; and newspaper advertisements of the sale published appeared "on March 13, 2001, March 19, 200l, March 26, 2001, and April 2, 2001." Butranavage also certified: "In addition to following the guidelines set forth by statute and court rules, I also personally served the defendant, Narciso Marilao, with a copy of the public advertisement on January 18, 2001. See Return of Service attached hereto." The record does not include the referenced "Return of Service." Butranavage also ...


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