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WELLS FARGO BANK v. KLARA PALL


November 29, 2010

WELLS FARGO BANK, N.A. AS TRUSTEE FOR OPTION ONE MORTGAGE LOAN TRUST 2006-3 ASSET-BACKED CERTIFICATES SERIES 2006-3, PLAINTIFF-RESPONDENT,
v.
KLARA PALL, DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Chancery Division, Mercer County, Docket No. F-22380-07.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted November 8, 2010 - Decided Before Judges Lisa and Alvarez.

Defendant, Klara Pall, appeals from the Chancery Division order of July 14, 2009 denying her motion to vacate a sheriff's sale conducted in the mortgage foreclosure proceeding against her home. She argues that the court erred in denying her motion because she was not provided with the notice of sale pursuant to Rule 4:65-2, and thus, she has been deprived of her due process rights. We reject this argument and affirm.

The record reveals that on July 31, 2006, defendant incurred a debt with plaintiff's predecessor in the amount of $391,000, which was secured by a mortgage. Defendant defaulted by failing to make payments since May 1, 2007. The foreclosure action began and final judgment was entered on September 9, 2008, entitling plaintiff to the sum of $418,245.94, plus interest and costs. The sheriff's sale was initially scheduled for November 12, 2008. Defendant received notice of the sale and availed herself of the automatic postponements to which she was statutorily entitled, through the sheriff's office. Accordingly, the sale was rescheduled for December 10, 2008. However, on December 9, 2008, defendant filed for bankruptcy, causing the sale to be further rescheduled until January 28, 2009. The sale occurred on that date, and plaintiff was the purchaser.

On March 9, 2009, defendant filed a motion to vacate the sheriff's sale. She certified that she had not received ten days written notice of the adjourned sale date as required by Rule 4:65-2. In a written decision of July 14, 2009, Judge Sypek found that plaintiff failed to provide proof of service of the required notice by registered or certified mail. The judge further found that defendant was obviously aware that the sale was pending, as evidenced by her obtaining of her statutory postponements and filing bankruptcy on the eve of the December 10, 2008 sale. Nevertheless, finding that defendant failed to provide sufficient justification upon which to vacate the sheriff's sale, the judge exercised her equitable authority by granting defendant an additional twenty days to redeem. The judge therefore entered an order denying defendant's motion to vacate the sale but ordering the extended time allowed for redemption.

In circumstances such as these, involving a technical irregularity, the court has the discretion to either set aside the sale or allow an additional period of time for redemption. Orange Land Co. v. Bender, 96 N.J. Super. 158, 164 (App. Div. 1967); see also United States v. Scurry, 193 N.J. 492, 506 (2008). We have no hesitancy in concluding that Judge Sypek reasonably exercised her discretion in choosing the latter option as an appropriate remedy in the circumstances of this case. We have no occasion to interfere with that appropriate exercise of discretion.

Affirmed.

20101129

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