NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-5056-16T2
US BANK NATIONAL ASSOCIATION,
as Trustee for Credit Suisse
First Boston 2005-9,
Plaintiff-Respondent,
v.
SUZANNE D. MACDOWELL,
Defendant-Appellant,
and
MR. MACDOWELL, husband of
SUZANNE D. MACDOWELL, and MORTGAGE
ELECTRONIC REGISTRATION SYSTEMS,
INC., as Nominee for Credit Suisse
First Boston Financial Corporation,
Defendants.
_____________________________________
Submitted June 7, 2018 – Decided June 22, 2018
Before Judges Simonelli and Haas.
On appeal from Superior Court of New Jersey,
Chancery Division, Morris County, Docket No.
F-045203-08.
Barbarula Law Offices, attorneys for appellant
(John M. Barbarula, on the briefs).
Reed Smith LLP, attorneys for respondent US
Bank National Association (Henry F. Reichner,
of counsel and on the brief; Kristy L. Keiser,
on the brief).
Vastola & Sullivan, attorneys for respondent
415 Howard Boulevard, LLC (John J. Sullivan,
Jr., on the brief).
PER CURIAM
In this foreclosure matter, defendant Suzanne D. MacDowell
appeals from the June 14, 2017 Chancery Division order, which
denied her motion to vacate the Sheriff's sale. On appeal,
defendant contends that the failure to include certain property
in the foreclosure complaint constitutes a fatal flaw rendering
the complaint and Sheriff's sale null and void.1 We disagree and
affirm.
By deed dated August 5, 2005, defendant acquired property in
the Borough of Mount Arlington (Borough). The legal description
in the deed described a 100-foot by 50-foot lot designated as Lot
43 and Lot 44, Block 12, and also known as Lot 12 in Block 20, on
1
We decline to address defendant's additional arguments that
Rule 4:50-1 and Rule 4:50-2 should govern the time within which
to file a motion to vacate a Sheriff's sale, plaintiff failed to
comply with the requirements of the Fair Foreclosure Act.
Defendant did not raise these arguments before the trial court and
they are not jurisdictional in nature or substantially implicate
the public interest. Zaman v. Felton, 219 N.J. 226-27 (2014)
(citation omitted).
2 A-5056-16T2
the Borough's tax map (the premises). The deed was recorded with
the Morris County Clerk on August 18, 2005.
On August 5, 2005, defendant executed a note to Credit Suisse
First Boston Financial Corporation (Suisse First) in the amount
of $372,000. To secure payment of the note, defendant executed a
mortgage to Mortgage Electronic Registration Systems, Inc. (MERS),
as nominee for Suisse First, on the property. The mortgage was
recorded with the Morris County Clerk on August 18, 2005. The
legal description of the premises in the mortgage is identical to
the legal description in the deed.
Over one year later, on August 15, 2006, defendant took title
to an adjacent lot known as Lot 5, Block 20 on the Borough's tax
map (the adjacent lot). The deed was recorded with the Morris
County Clerk on September 8, 2006. The adjacent lot was not
subject to the mortgage.
Defendant defaulted on the note on August 1, 2008, and has
made no payment since then. On November 11, 2008, MERS, as nominee
for Suisse Credit, executed an assignment of mortgage to plaintiff.
The assignment was recorded with the Morris County Clerk on January
7, 2009.
On November 13, 2008, plaintiff filed a foreclosure
complaint. The complaint identified the premises as the property
subject to foreclosure. Defendant was properly served, but failed
3 A-5056-16T2
to file an answer or otherwise defend. The court entered default
on January 2, 2009. On October 13, 2009, the court entered a
final judgment and writ of execution.
The proceedings were delayed for several reasons, including
defendant's bankruptcy action. Due to the passage of time,
plaintiff filed a motion to amend the final judgment. On December
31, 2014, the court entered an amended final judgment and amended
writ of execution. The writ of execution described the premises
as the property subject to the writ.
After numerous adjournments, the Sheriff's sale finally
occurred on September 8, 2016. On October 24, 2016, the Sheriff
executed a deed to the successful bidder. The Sheriff delivered
the deed to the successful bidder and it was recorded with the
Morris County Clerk on November 15, 2016.
On March 27, 2017, the successful bidder obtained a writ of
possession for the premises. That same day, defendant filed a
motion to vacate the Sheriff's sale. She argued, as she does on
appeal, that the foreclosure complaint and Sheriff's deed were
defective and void because they did not include the adjacent lot.
In a June 14, 2017 order, the motion judge denied the motion.
In a written statement of reasons, the judge found the motion was
untimely under Rule 4:65-5. Addressing the merits, the judge
found there was no irregularity in the foreclosure proceedings and
4 A-5056-16T2
legal or factual basis to vacate the Sheriff's sale. This appeal
followed.
The power to void a sheriff's sale "is discretionary and must
be based on considerations of equity and justice." First Tr.
Nat'l Assoc. v. Merola, 319 N.J. Super. 44, 49 (App. Div. 1999)
(citation omitted). A motion to vacate a Sheriff's sale is
governed by Rule 4:65-5, which states that any objection to the
sale must be served within the ten days following the sale or
before delivery of the deed, whichever is later. "[O]ur courts
will set aside a sheriff's sale for fraud, accident, surprise, or
mistake, irregularities in the conduct of the sale, or for other
equitable considerations[.]" Merola, 319 N.J. Super. at 50
(citation omitted). However, despite the court's broad discretion
to employ equitable remedies, this power should be "sparingly
exercised" and "a sale so conducted shall be vacated only when
necessary to correct a plain injustice." Id. at 52 (citation
omitted).
Applying the above principles, we discern no abuse of
discretion in the court's denial of defendant's motion and no
"plain injustice" requiring correction. Defendant's motion was
untimely under Rule 4:65-5.
Even if timely, there was no irregularity or deficiency in
the foreclosure proceedings. The complaint, writ of execution,
5 A-5056-16T2
and Sheriff's deed all properly identified the premises as the
property subject to foreclosure and sale. The mortgage did not
include the adjacent lot, and thus, it was not subject to
foreclosure or sale. The adjacent lot is a separate lot and
defendant still owns it without any cloud on title.
Affirmed.
6 A-5056-16T2