CHRISTIANA TRUST, ETC. VS. OSCAR E. GOMEZ (F-012416-13, HUDSON COUNTY AND STATEWIDE) ( 2020 )

NOT FOR PUBLICATION WITHOUT THE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-4255-18T3
CHRISTIANA TRUST, a
Division of Wilmington Savings
Fund Society, FSB, as Trustee for
Normandy Mortgage Loan Trust,
Series 2013-19,
Plaintiff-Respondent,
v.
OSCAR E. GOMEZ,
Defendant-Appellant.
____________________________
Submitted March 11, 2020 – Decided April 1, 2020
Before Judges Haas and Mayer.
On appeal from the Superior Court of New Jersey,
Chancery Division, Hudson County, Docket No.
F-012416-13.
Law Offices of Joseph A. Chang, attorneys for
appellant (Joseph A. Chang, of counsel; Jeffrey Zajac,
on the brief).
Matthew W. Lizotte, attorney for respondent.
PER CURIAM
Defendant Oscar E. Gomez appeals from the following orders entered in
favor of plaintiff Christiana Trust, a Division of Wilmington Savings Fund
Society, FSB, as Trustee for Normandy Mortgage Loan Trust, Series 2013-19:
a March 15, 2019 order denying defendant's motion to vacate the sheriff's sale
and a May 10, 2019 order denying reconsideration of the March 15 order. We
affirm both orders.
Plaintiff obtained a final judgment of foreclosure on August 31, 2017,
involving a mortgage on defendant's home in West New York (Property). The
sheriff scheduled the sale of the Property several times in 2018. However, each
sale was adjourned because defendant filed bankruptcy petitions on June 21,
2018 and August 2, 2018. The bankruptcy court dismissed each petition.
Defendant also exercised his statutory right to a stay of the sheriff's sale. The
statutory stay adjourned the sale of the Property to January 10, 2019. Plaintiff
then voluntarily adjourned the scheduled sheriff's sale to January 24, 2019.
On January 10, 2019, plaintiff sent notice of the adjourned date for the
sale of the Property to defendant by regular and certified mail to his home
address. The notice advised the sheriff's sale would occur on January 24, 2019.
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About a week after plaintiff sent defendant notice of the sheriff's sale,
defendant filed another petition for bankruptcy. Defendant's January 18, 2019
bankruptcy filing failed to stay the sale of the Property because it was his third
bankruptcy petition filed within a one-year period and therefore defendant was
not entitled to an automatic stay of the sale. Plaintiff purchased the Property at
the sheriff's sale held on January 24, 2019.
Defendant filed a motion to set aside the sheriff's sale, arguing he was
unaware the Property would be sold on that date. He claimed to have relied on
the Hudson County Sheriff's website, which noted the Property would be sold
on February 14, 2019.
In a March 14, 2019 oral decision, the judge denied defendant's motion to
vacate the sheriff's sale. The judge found plaintiff served defendant and his
attorney with notice of the sheriff's sale by regular and certified mail in
accordance with Rule 4:65-2, and the notice advised defendant that the sale of
the Property was scheduled for January 24, 2019. The notice went to defendant's
home, the mortgaged Property. The judge rejected defendant's reliance on the
Hudson County Sheriff's website for the sale date because defendant and his
attorney had fourteen days' notice that the sale would take place on January 24,
2019. In addition, because defendant filed three separate bankruptcy petitions
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within a one-year period, the judge explained defendant was not entitled to a
stay of the sale. The judge concluded, "since the sale of this property has been
adjourned since February 1, 2018, equity demands that the sale of this property
not be disturbed."
Defendant filed a motion for reconsideration, which the judge denied.
On appeal, defendant argues the judge erred in denying his motion to
vacate the January 24, 2019 sheriff's sale.
We review motions to set aside a sheriff's sale for abuse of discretion.
United States v. Scurry, 193 N.J. 492, 502-03 (2008). Rule 4:65-2 requires
"notice of the [sheriff's] sale . . . be posted in the office of the sheriff of the
county . . . where the property is located, and also, in the case of real property,
on the premises to be sold . . . ." In addition, "at least [ten] days prior to the date
set for sale, [the party obtaining the order or writ shall] serve a notice of sale by
registered or certified mail, return receipt requested," on "every party who has
appeared" and the "owner of record." Ibid. A party objecting to a sheriff's sale
must have a valid basis for the objection, such as "fraud, accident, surprise,
irregularity, or impropriety in the sheriff's sale." Brookshire Equities, LLC v.
Montaquiza, 346 N.J. Super. 310, 317 (App. Div. 2002) (citations omitted).
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We are satisfied the judge did not abuse his discretion by denying the
motion to vacate the sheriff's sale. The record reflects plaintiff served defendant
and defendant's attorney with the notice of the January 24, 2019 sheriff's sale
via "regular and certified mail, return receipt requested." In accordance with
Rule 4:65-2, the notice mailed to defendant was sent to the Property where
defendant resides, and the notice mailed to defense counsel was sent to the law
firm's business address. Defendant cited no legal authority in support of his
reliance on the Hudson County Sheriff's website instead of the duly served
notice of sale.
Affirmed.
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