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GFS/Morristown Limited Partnership v. Vector Whippany Associates

April 2, 2009

GFS/MORRISTOWN LIMITED PARTNERSHIP, F/K/A BALCOR/ MORRISTOWN, L.P., PLAINTIFF-RESPONDENT,
v.
VECTOR WHIPPANY ASSOCIATES, DEFENDANT/THIRD-PARTY PLAINTIFF-APPELLANT,
v.
BALCOR INTERNATIONAL REALTY COMPANY, F/K/A BALCOR/SHERSON LEHMAN INTERNATIONAL REALTY COMPANY, AN ILLINOIS CORPORATION, BALCOR MANAGEMENT SERVICES, INC., AND THE BALCOR COMPANY HOLDINGS, INC., A DELAWARE CORPORATION, THIRD-PARTY DEFENDANTS-RESPONDENTS, AND GOODMAN FINANCIAL SERVICES, INC., A WASHINGTON CORPORATION, THIRD-PARTY DEFENDANTSRESPONDENTS/FOURTH-PARTY PLAINTIFF,
v.
SCHINDLER ELEVATOR CORP. AND NICHOLAS JACANGELO, FOURTH-PARTY DEFENDANTS, AND WILLIAM LENTINI AND JOSEPH LENTINI, FOURTH-PARTY DEFENDANTS/ FIFTH-PARTY PLAINTIFFS,
v.
WESTINGHOUSE ELECTRIC CORP. AND SCHINDLER ELEVATOR CORP., FIFTH-PARTY DEFENDANTS.
VECTOR WHIPPANY ASSOCIATES, PLAINTIFF,
v.
MISAWA HOMES CO., LTD, TAO INTERNATIONAL CO., LTD, TAO INTERNATIONAL AMERICA, INC., ZENRO AMEMIYA, INDIVIDUALLY AND AS PRESIDENT OF TAO INTERNATIONAL AMERICA, INC., AND MASARU HANAOKA, INDIVIDUALLY AND AS VICE CHIEF OF TAO INTERNATIONAL CO., LTD., DEFENDANTS.
VECTOR WHIPPANY ASSOCIATES, PLAINTIFF,
v.
WESTINGHOUSE ELECTRIC CORP. AND SCHINDLER ELEVATOR CORP., DEFENDANTS.



On appeal from the Superior Court of New Jersey, Chancery Division, Morris County, Docket No. F-3754-94 and Law Division, Morris County, Docket Nos. L-3373-94 and L-3911-94.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued February 25, 2009

Before Judges Rodríguez, Waugh and Newman.

Defendant/third party plaintiff/cross-respondent, Vector Whippany Associates (Vector) appeals from the order denying relief from a foreclosure judgment under Rule 4:50-1 and challenges the sheriff's sale of the foreclosed property under Rule 4:65. This appeal was heard back to back with Docket No. A-1370-06T3 which addresses the foreclosure action itself and the resulting foreclosure judgment.

We need not recapitulate the facts in detail. Suffice it to say, the property, a commercial office building known as 20 Whippany Road in Morristown, was in foreclosure. Plaintiff-respondent/cross-appellant, GFS/Morristown Limited Partnership, f/k/a Balcor/Morristown L.P. (GFS) held a $27,000,000 mortgage on the property, and including the mortgage amount, had a foreclosure judgment in the amount of $78,856,655.45. The fair market value of the property was estimated to be approximately $18,000,000 in 2006, considerably less than the amount of the mortgage alone. No other bidders participated in the sheriff's sale on May 24, 2007, where the property was acquired by GFS for $100. The sheriff's sale was confirmed by the trial court which ordered the sheriff to deliver a deed to the property on June 15, 2007.

In this appeal, Vector (alleges that the sale price was unconscionably low) and seeks vacation of the foreclosure sale and the deed of conveyance because GFS was the sole bidder. We now affirm.

In ruling on the motion for relief from the judgment under Rule 4:50-1, Judge Langlois who was not the judge that entered the foreclosure judgment, stated:

Th[e] rule is clear that the trial court does not have jurisdiction to modify a judgment or a judgment amount absent request by the appellate division initially by motion for direction of this Court to in some way consider, modify or vacate that order.

That application has not been made. This court does not have jurisdiction under Rule 4:50-1 to in any way modify the judgment, vacate that judgment, or to consider reasons to vacate that judgment absent the appellate division direction to this court to do so.

Vector, since the date of a final judgment, has been on notice that any issues regarding th[e] amount are appealable issues and have to be addressed in the appellate division.

There's no mistake, there's no fraud, there's no manifest error, there's no interest of justice under Rule 4:50-1 that otherwise should not be brought to the appellate division either by issues on appeal and/or by motion to amend their appeal to add to their brief and/or to have this court be directed to consider those issues separately from the appellate division's control and supervision.

The trial court found that there was "no mistake, surprise, fraud or other interest of justice even if this Court went to Rule 4:50-1."

With regard to the sheriff's sale, Vector asserted that the sales price was grossly inadequate and there was a lack of competitive bidding due to the large amount of the foreclosure judgment. Vector claims that the $45,000,000 in interest should not have been included, and that Vector should have been credited with the full amount of rent GFS should have collected from Schindler pursuant to the original lease. Vector insists that this court exercise its original jurisdiction to ...


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