U.S. BANK v. MONTESDEOCA
U.S. BANK, N.A., as Trustee for the registered holders of MASTR Asset Backed Securities Trust, 2006-AM1, Mortgage Pass-Through Certificates, Series 2006-AM1, Plaintiff-Respondent,
ANGEL MONTESDEOCA, Defendant-Appellant, and
SINDIA N. LOOR, AAMES FUNDING CORPORATION d/b/a AAMES HOME LOAN, Defendants.
Superior Court of New Jersey, Appellate Division.
Submitted July 12, 2011.
Decided September 1, 2011.
Zucker, Goldberg & Ackerman, LLC, attorneys for respondent (Steven D. Krol, of counsel and on the brief).
Before Judges Sapp-Peterson and Ashrafi.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Defendant Angel Montesdeoca appeals from a July 28, 2010 order of the Chancery Division denying his motion to vacate a sheriff's sale. We affirm.
Defendant was the owner of a three-family home in Union City. He and his family lived in one of the units. He rented the other units to tenants. Defendant had given a mortgage on the home that was assigned to plaintiff bank. He defaulted on the mortgage note, and plaintiff filed a complaint in foreclosure in October 2006. Defendant did not respond to the complaint, and default was subsequently entered. Plaintiff obtained a final judgment of foreclosure on October 22, 2009. The Hudson County Sheriff posted notice of the sheriff's sale at the property on January 6, 2010. The sheriff's sale was eventually scheduled for May 6, 2010, and plaintiff's attorney sent notice of the date of sale to defendant at the address of the subject premises on April 19, 2010. Defendant took no action before the court at that time.
The property was sold to plaintiff at the sheriff's sale on May 6, 2010. Defendant's first appearance before the court was a motion to vacate the sale filed on June 2, 2010. The court heard argument on defendant's motion on July 12, 2010, and extended the post-sale redemption period until July 26, 2010. On July 26, the court heard further argument and ruled from the bench that the motion would be denied. It entered an order to that effect on July 28, 2010, and defendant filed this appeal.
Subsequently, we granted temporary emergent stays of the eviction of defendant and his family and gave him an opportunity to post a supersedeas bond to protect the costs to plaintiff of his continued occupancy. Defendant did not file a bond, and the stay automatically dissolved on January 5, 2011. Defendant and his family were evicted in February 2011. The sheriff's deed was delivered to plaintiff on March 28, 2011, and recorded on March 31, 2011.
Plaintiff acknowledges that a court of equity has the power to set aside a sheriff's sale "by reasons of fraud, accident, surprise, or mistake, irregularities in the conduct of the sale." First Trust Nat'l Assoc. v. Merola, 319 N.J.Super. 44, 49 (App. Div. 1999); see Crane v. Bielski, 15 N.J. 342, 346 (1954); Karel v. Davis, 122 N.J. Eq. 526, 529-30 (E. & A. 1937). Plaintiff argues, however, that defendant provided no ground for vacating the sale. We agree.