On appeal from the Superior Court of New Jersey, Chancery Division, Hudson County, Docket No. F-24794-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued January 24, 2012 --
Before Judges Yannotti and Espinosa.
Defendant Martha Plata (Plata) appeals from an order entered by the trial court on November 26, 2010, denying her motion to set aside a sheriff's sale. For the reasons that follow, we reverse.
This appeal arises from the following facts. On June 27, 2008, plaintiff instituted foreclosure proceedings against Plata, Isidoro Hernandez (Hernandez) and others, with regard to certain property located on Brown Street in Union City, New Jersey. The court entered an order dated February 17, 2009, striking Plata's answer.
On April 29, 2009, the court entered a final judgment for foreclosure and ordered that the property be sold by the sheriff. On October 9, 2009, counsel for plaintiff wrote to Plata and Hernandez and informed them that the sheriff's sale was scheduled for October 22, 2009. The letter was sent by certified mail, return receipt requested, and by regular mail.
The sheriff's sale was adjourned to March 25, 2010. On the morning of the scheduled sale, Plata filed a voluntary petition in bankruptcy in the United States Bankruptcy Court for the District of New Jersey. The sheriff's sale was adjourned to April 8, 2010. On May 3, 2010, Plata filed a motion in the trial court seeking to set aside the sale, which she believed had taken place on March 25, 2010. She asserted that the sale should not have gone forward due to the pending bankruptcy proceeding.
Plaintiff submitted a response to Plata's motion on June 15, 2010. Plaintiff noted that the sheriff's sale had been postponed from March 25, 2010, to April 8, 2010, to May 20, 2010 and then to May 27, 2010. Plaintiff noted that Plata's bankruptcy petition was dismissed on April 19, 2010, and the bankruptcy proceedings were not a bar to the sale.
Plata submitted a certification to the trial court in which she stated that on March 25, 2010, when she delivered a copy of her bankruptcy petition to the sheriff's office, an employee told her that the sale had already taken place. Plata said that she then filed her motion to set aside the sale. Plata stated that she was told the motion had been adjourned and nothing would be taking place with her property until the court made its decision on the motion.
In her certification, Plata additionally stated that she called the sheriff's office on June 17, 2010, and was informed the sale had taken place on May 27, 2010. Plata said she was never notified the sale would take place on May 27, 2010. Plata stated she was always under the impression that the sale had taken place on March 25, 2010.
On June 23, 2010, plaintiff's attorney provided the court with a copy of a letter, dated April 8, 2010, she had written the Hudson County Sheriff, in which she asked to adjourn the sale to May 20, 2010. The letter indicated that a copy had been sent to Plata. Plaintiff's attorney also provided the court with a letter she had written to Plata, dated April 8, 2010, which stated the sale had been adjourned to May 20, 2010.
The court considered Plata's motion on June 23, 2010. The court noted that it had been provided with copies of the letters dated April 8, 2010, that plaintiff's counsel had written to the sheriff and Plata. Plata's attorney asserted that Plata had not received the letter. Counsel said that Plata was having trouble with her mail. The court pointed out that the October 9, 2009 letter, which informed Plata of the first scheduled sale date, had been sent by certified mail.
Plaintiff's attorney stated that she had checked with the United States Postal Service and was told the certified mail addressed to Plata had been returned unclaimed, but the regular mail was not returned. The court stated that it had some doubt about the veracity of ...