FEDERAL NATIONAL MORTGAGE ASSOCIATION VS. JOHN J. TOMASELLO (F-029506-15, CAMDEN COUNTY AND STATEWIDE) ( 2019 )

NOT FOR PUBLICATION WITHOUT THE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-2436-17T3
FEDERAL NATIONAL
MORTGAGE ASSOCIATION,
Plaintiff-Respondent,
v.
JOHN J. TOMASELLO and
LINDA B. TOMASELLO,
his wife,
Defendants-Appellants,
and
UNITED STATES OF AMERICA,
AMERICAN EXPRESS TRAVEL
RELATED SERVICES, PRECAST
MANAUFACTURING COMPANY,
SHERMAN CLAY AND CO.,
AMERICAN FIRE AND CASUALTY
COMPANY, and STATE OF NEW
JERSEY,
Defendants.
________________________________
Submitted February 13, 2019 – Decided March 8, 2019
Before Judges Accurso and Vernoia.
On appeal from Superior Court of New Jersey,
Chancery Division, Camden County, Docket No. F-
029506-15.
Weisberg Law, PC, attorneys for appellants (Matthew
B. Weisberg, on the brief).
Stern, Lavinthal & Frankenberg, LLC, attorneys for
respondent (Mark S. Winter, of counsel and on the
brief).
PER CURIAM
Defendants John J. Tomasello and Linda B. Tomasello appeal from a
Chancery Division order denying their motion to vacate a March 2017 sheriff's
sale of property following entry of a final judgment of foreclosure. We affirm.
Plaintiff Federal National Mortgage Association filed a foreclosure
complaint alleging that on July 1, 2010, defendants defaulted on a note and
residential mortgage on property owned by defendants in Sicklerville.
Defendants did not respond to the complaint and on March 3, 2016, the court
entered a final judgment of foreclosure and a writ of execution authorizing the
sale of the property.
On May 24, 2016, plaintiff mailed a notice of a June 22, 2016 sheriff's
sale of the property. The notice was sent to defendants at their Sicklerville
address. Defendants obtained two statutory stays of the sheriff's sale, but on
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July 20, 2016, the property was sold at the sale. It was later discovered that
moments before the July 20, 2016 sale, defendants filed a bankruptcy petition
that was subsequently dismissed.
Four months later, plaintiff moved to vacate the sheriff's sale because it
took place during the pendency of defendants' bankruptcy proceeding. On
December 16, 2016, the court entered an order granting the motion, vacating the
July 20, 2016 sheriff's sale and allowing a second sale without any further
advertisement.
On February 8, 2017, plaintiff's counsel sent notice to defendants that the
sheriff's sale was scheduled for March 1. The notice was sent to defendants at
their address in Sicklerville. Plaintiff subsequently purchased the property at
the sheriff's sale.
Defendants later moved to vacate the sheriff's sale, claiming plaintiff
failed to mail notice of the sale to their Sicklerville address. Defendants' counsel
submitted a certification supporting the motion that in pertinent part asserted
plaintiff failed to serve notice of the sheriff's sale "to the subject New Jersey
property via certified mail as required." Similarly, in defendant John
Tomasello's supporting affidavit, he complained the original complaint was
served at defendants' Florida residence "but not at the subject New Jersey
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property," and that plaintiff had not produced proof of delivery of the notice of
the sheriff's sale to defendants' Sicklerville property address. Neither counsel's
certification nor John Tomasello's affidavit asserted that the sheriff's sale should
be vacated because notice of the sale was not sent to defendants at an address in
Key West, Florida. Plaintiff filed opposition to the motion demonstrating that
notice of the March 1, 2017 sheriff's sale was properly mailed to defendants at
their Sicklerville address.
After hearing argument, the court denied defendants' motion finding
defendants' requests for the two statutory stays established they were aware of
the sheriff's sale. The court further found defendants filed the bankruptcy
petition at the "eleventh hour" and "manage[d] to stay [the sheriff's sale] again."
The court also implicitly rejected defendants' claim that notice of the sale was
not properly sent to defendants at their Sicklerville address, and entered an order
denying defendants' request to vacate the sale. This appeal followed.
We review a court's order denying a motion to vacate a sheriff's sale for
an abuse of discretion. U.S. ex. rel. U.S. Dept. of Agric. v. Scurry, 193 N.J.
492, 502-03 (2008). An abuse of discretion occurs "when a decision is 'made
without a rational explanation, inexplicably departed from established policies,
or rested on an impermissible basis.'" U.S. Bank Nat'l Ass'n v. Guillaume, 209
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N.J. 449, 467-68 (2012) (quoting Iliadis v. Wal-Mart Stores, Inc., 191 N.J. 88,
123 (2007)).
On appeal, defendants abandon their claim the sheriff's sale should be
vacated because notice of the sale was not properly sent to them at their
Sicklerville address. See Jefferson Loan Co. v. Session, 397 N.J. Super. 520,
525 n.4 (App. Div. 2008) (finding that an issue not briefed on appeal is deemed
waived). Instead, defendants rely on a single argument, asserted for the first
time on appeal, that the court erred by failing to find the sale should be vacated
because plaintiff did not serve them with notice of the sale at their address in
Florida.
"Appellate review is not limitless. The jurisdiction of appellate courts
rightly is bounded by the proofs and objections critically explored on the record
before the trial court by the parties themselves." State v. Robinson, 200 N.J. 1,
19 (2009). Defendants' singular contention on appeal was never asserted before
the motion court. We reject the argument because it was not "properly presented
to" the motion court and does not "go to the jurisdiction of the . . . court or
concern matters of great public interest." Id. at 20 (quoting Nieder v. Royal
Indem. Ins. Co., 62 N.J. 229, 234 (1973)).
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Moreover, we discern no abuse of discretion in the court's decision
denying the motion to vacate the sheriff's sale. As noted, defendants do not
dispute that plaintiff properly served them with notice of the sale at their
Sicklerville address. Thus, plaintiff provided notice of the sale to "the owner of
record of the property as of the date of commencement of the action" in
accordance with Rule 4:65-2. That defendants may have also had an address in
Florida at the same time does not render the notice invalid. Indeed, in their
motion to vacate the sheriff's sale, defendants complained that service of the
complaint was invalid because it was sent to their Florida address instead of
their Sicklerville address. In other words, defendants argued before the motion
court that the sale should be set aside because it was not sent to their New Jersey
address.
As we explained in Assoulin v. Sugarman, "noncompliance [with Rule
4:65-2] warrants setting [a] sale aside, 'provided the party entitled thereto has
no knowledge of the pendency of the sale, seeks relief promptly upon learning
thereof, and no intervening equities in favor of innocent parties have been
created in the interim.'" 159 N.J. Super. 393, 398 (App. Div. 1978) (citation
omitted). As the motion court aptly found here, defendants were aware of the
pendency of the sale, sought two statutory stays and filed a bankruptcy petition
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to delay the sale and were served with notice of the adjourned sale at their
Sicklerville address. Under such circumstances, we discern no basis to conclude
the court abused its discretion by denying defendants' motion to vacate the
sheriff's sale.
Affirmed.
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