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Wachovia Bank National Association v. Lofty Soliman

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


June 21, 2012

WACHOVIA BANK NATIONAL ASSOCIATION, PLAINTIFF-RESPONDENT,
v.
LOFTY SOLIMAN, DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Chancery Division, Hudson County, Docket No. F-4050-07.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted June 13, 2012 --

Before Judges A. A. Rodriguez and Reisner.

Lofty Soliman appeals from the December 7, 2009, Chancery Division order that denied his motion to vacate the Sheriff's sale in this foreclosure action. We affirm.

These are the relevant facts. On July 3, 2007, plaintiff, Wachovia Bank, N.A. (Wachovia), obtained a final judgment of foreclosure with respect to real property owned by Soliman. A Sheriff's sale was set for April 16, 2009, which was adjourned to May 14, 2009, and again adjourned after Soliman filed a bankruptcy petition. There were several more adjournments. Soliman filed four bankruptcy petitions, which further delayed the Sheriff's sale.

The sale ultimately occurred on October 8, 2009. The property was sold at auction to Wachovia. Soliman immediately moved to vacate the Sheriff's sale. The December 7, 2009, order denying Soliman's motion is the subject of this appeal.

On appeal, Soliman contends that the Chancery Division "erred in its decision to deny [Soliman's] request to vacate the Sheriff's sale because [Soliman] did not receive actual notice of the sale date as required by . . . Rule 4:65-4." Specifically, he argues that he did not receive actual notice of the sale date via regular and certified mail, return receipt requested, and did not receive actual notice of the sale date via posting of the date at the property.

We reject this contention. At the outset, we note the applicable standard, which is very limited. We will set aside the denial of a motion to vacate a Sheriff's sale only when a clear abuse of discretion by the trial court has been shown. R. 4:65-5; U.S. v. Scurry, 193 N.J. 492, 502-03. Thus, we will not substitute our judgment or discretion for that of the trial court of the Chancery Division, unless the trial court has made a decision "without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis." Scurry, supra, 193 N.J. at 504.

Judged against that standard, we conclude that in this matter, we have no warrant to reverse the order. Soliman asserts that he was not notified of the Sheriff's sale. However, he moved out of the house and changed his address, while his spouse continued to reside at the home. This failure on his part cannot be a basis for setting aside the Sheriff's sale.

Soliman had a duty to notify the trial court and Wachovia of any change in his address during the pendency of the foreclosure action. R. 1:4-1(b) ("An attorney or pro se party shall advise the court and all other parties of a change of address or telephone number if such occurs during the pendency of an action.") Wachovia had no legal duty to investigate Soliman's whereabouts. Atlantic City v. Block C-11, Lot 11, 74 N.J. 34, 40 (1977).

Soliman also argues that because "there was no intervening bidder or innocent third-parties whose rights would be affected by vacating the Sheriff's sale, the appropriate remedy is to vacate the sale." We are not persuaded by this argument, which is "without sufficient merit to warrant discussion in a written opinion." R. 2:11-3(e)(1)(E).

Affirmed.

20120621

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