On appeal from Superior Court of New Jersey, Chancery Division, Warren County, Docket No. F-13283-03.
The opinion of the court was delivered by: Fisher, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Wefing, Payne and C.S. Fisher.
While we would have thought our recent decision in Bankers Trust Co. of Calif., N.A. v. Delgado, 346 N.J. Super. 103 (App. Div. 2001) provided all the guidance required to decide the questions presented, we are unfortunately required to reiterate that neither a judge nor a sheriff possesses the discretion to refuse to adjourn an execution sale of foreclosed property when requested by or with the consent of the judgment creditor. Because the order in question contradicts that principle and interferes with the goals of the Fair Foreclosure Act, N.J.S.A. 2A:50-53 to -68, we reverse.
Plaintiff Wells Fargo Home Mortgage, Inc., the holder of a mortgage on a Phillipsburg home owned by defendant Kevin Stull, commenced this foreclosure action upon his default and obtained an uncontested judgment of foreclosure on May 10, 2004. A writ of execution was issued by the Clerk and an execution sale scheduled for July 19, 2004.
The sale was adjourned to August 16, 2004 at Wells Fargo's request because the parties had entered into a forbearance agreement. When the Sheriff rejected a later application, Wells Fargo sought and obtained from the Chancery judge a second adjournment for a period of six weeks. The order of August 16, 2004 that memorialized this ruling further stated that "the Sheriff should consider any further adjournment requests made by" Wells Fargo. In addition, the order stated that any "further monitoring of this matter shall be the responsibility of the Foreclosure Unit of the Superior Court." These provisions raised concerns that the Chancery judge may have erroneously transferred her obligation to rule upon any further adjournment requests to the Sheriff or the Office of Foreclosure, or that she had abdicated any further role in these proceedings.
Justifiably concerned that its control over the scheduling of the execution sale would be subjected to the whim of the Sheriff, Wells Fargo moved for reconsideration. In an oral decision on September 24, 2004, the Chancery judge explained her intentions in entering the earlier order:
On August 16, this [c]court ordered a 6-week adjournment because it's the public policy of this [S]tate that homeowners be given every opportunity to pay their home mortgages and that lenders will be benefited when residential mortgage debtors can cure their defaults and return defaulted residential mortgage loans to performing status. A literal reading of [N.J.S.A. 2A:17-36] suggests that a Sheriff may make two discretionary adjournments, and no more, and that only a Court Order may permit additional adjournments. There is no guidance that we could find with respect to unlimited plaintiff's adjournments which the plaintiff in this particular matter is requesting, and also wants to have the unlimited adjournments without explanation.
For the reasons argued by Warren County counsel in terms of the problems to the Sheriff and to the public, the Court does not believe that plaintiff should have unfettered adjournments without anyone's permission. But I think there is some confusion as to what the Court originally intended.
The handwritten notation on the Order that said the Sheriff "shall consider" was not intended to grant full discretion to the Sheriff as to whether or not there could be an adjournment. It was intended to mean that he was to consider the request, and if all parties were in agreement, the plaintiff and the Sheriff's Department, then the adjournment would be granted without the Court's involvement. However, if there is an objection to the adjournment, the parties would need to return to court to have the Court decide whether the case should be adjourned or not.*fn1
With that, the motion for reconsideration was denied and Wells Fargo appealed.
We initially consider whether the appeal has been rendered moot. This possibility is generated by the fact that Wells Fargo requested no further adjournments. As a result, the procedure adopted by the Chancery judge was never put into effect in this case. However, Wells Fargo contends, and the Sheriff does not dispute, that the adjournment practice in Warren County as outlined in the August 16 order and the Chancery judge's oral decision remains unchanged and has inhibited, or may inhibit in the future, meritorious requests for adjournments in other foreclosure actions. Considering that the parties agree that the order in question is representative of the manner in which other adjournment requests are being handled in Warren County, we choose to decide the issues raised because they are of substantial importance and are likely to reoccur but are also capable of evading review. Zirger v. General Acc. Ins. Co., 144 N.J. 327, 330 (1996); Bankers Trust, supra, 346 N.J. Super. at 106 n.1. In this regard, our concern is heightened by the fact that the order in question has an undeniable chilling effect on the availability of adjournments that a judgment creditor in Warren County may request or ...