EDWIN L. SIEGEL, Plaintiff-Appellant,
v.
LEONARD BLASUCCI, Defendant.No. A-0998-12T3. Superior Court of New Jersey, Appellate Division.
Argued September 11, 2013. Decided February 21, 2014.
Arnold G. Shurkin argued the cause for appellant.
Robert L. Grundlock, Jr., argued the cause for respondent Venkat Gourkanti (Rubin, Ehrlich & Buckley, P.C., attorneys; Mr. Grundlock, on the brief).
Before Judges Grall, Nugent and Accurso.
Arnold G. Shurkin argued the cause for appellant.
Robert L. Grundlock, Jr., argued the cause for respondent Venkat Gourkanti (Rubin, Ehrlich & Buckley, P.C., attorneys; Mr. Grundlock, on the brief).
Before Judges Grall, Nugent and Accurso.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
PER CURIAM.
Plaintiff Edwin L. Siegel appeals from the denial of his application pursuant to Rule 4:59-1(d)(1) for an order permitting the sale of real property for satisfaction of a judgment debt. The property he desired sold no longer belonged to the judgment debtor, Leonard Blasucci, but to Venkat Gourkanti, who acquired it from sellers who purchased the property at sheriff's sale following foreclosure of Blasucci's mortgage. We affirm.
The essential facts are undisputed. Blasucci and his wife took title to the residential property in 1976. The Blasuccis gave a first mortgage to First Fidelity Bank in 1986 and a second mortgage to Washington Savings Bank in 1987. Washington Savings instituted a foreclosure action against the Blasuccis in May 1990 and obtained final judgment of foreclosure the following October. First Fidelity and Washington Savings subsequently assigned their mortgages to Martin Tave and the Sylvia T. Cohen Revocable Trust (Tave and Cohen). The property was sold at sheriff's sale in June 1994 to Tave and Cohen, who took subject to the First Fidelity mortgage which they held and subsequently discharged. Tave and Cohen conveyed the property to Gourkanti in October 1997.
Siegel did not obtain his default judgment against Blasucci until July 1992, almost two years after the entry of the foreclosure judgment. Siegel claims that his judgment, docketed in July 1992 and revived in November 2011, was a lien against Blasucci's real property that was not extinguished by the
October 1990 foreclosure judgment and subsequent sheriff's sale. He contends that either Washington Savings or Tave and Cohen was required to amend the foreclosure complaint to include him as a subsequent encumbrancer in order to bind him to the foreclosure judgment. We disagree.
We addressed this issue in Morsemere Fed. Sav. & Loan Ass'n v. Nicolaou, 206 N.J. Super. 637 (App. Div. 1986). Morsemere, a foreclosing mortgagee, obtained final judgment of foreclosure against Nicolaou. Id. at 640-41. After entry of the foreclosure judgment, DiPrima obtained a default judgment against Nicolaou. Id. at 641. DiPrima subsequently purchased the property at sheriff's sale. DiPrima then filed a motion to intervene in the foreclosure action and for payment of surplus funds. Ibid.
We held that a lien claimant such as DiPrima cannot be made a party to a foreclosure suit after entry of final judgment. Morsemere, supra, 206 N.J. Super. at 641-42. We reasoned that N.J.S.A. 2A:50-30, which operates to bind the holders of unrecorded interests existing at the filing of the foreclosure to the judgment and allows those holding such interests to intervene as of right upon recording, did not apply "because DiPrima's lien did not exist `at the time of the filing of the complaint' or even at the time the foreclosure judgment was entered." Ibid. Instead, we held that N.J.S.A. 2A:50-37 was controlling, and thus a creditor who obtains a money judgment subsequent to entry of the foreclosure judgment "may participate in any surplus after prior claiming lienholders (at the time of the foreclosure judgment) have been paid or satisfied." Morsemere, supra, 206 N.J. Super. at 642-43.
Siegel, who obtained his judgment after Washington Savings obtained its foreclosure judgment against Blasucci, is in the same position as was DiPrima in Morsemere. The lien of his judgment only allowed him to participate in any surplus remaining after sheriff sale. The holding is in accord with the general rule "that surplus funds take on the character of the land, at least with respect to junior encumbrancers whose liens existed at the time of the foreclosure." Ibid.
Because Siegel's remedy was limited to participation in any surplus funds arising from the sheriff's sale, the trial court correctly denied his motion for sale of Gourkanti's property to satisfy Siegel's 1992 judgment against Blasucci. Siegel's remaining arguments relating to the priority of his judgment and the conduct of the sheriff's sale conducted in 1994 are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
PER CURIAM.
Plaintiff Edwin L. Siegel appeals from the denial of his application pursuant to Rule 4:59-1(d)(1) for an order permitting the sale of real property for satisfaction of a judgment debt. The property he desired sold no longer belonged to the judgment debtor, Leonard Blasucci, but to Venkat Gourkanti, who acquired it from sellers who purchased the property at sheriff's sale following foreclosure of Blasucci's mortgage. We affirm.
The essential facts are undisputed. Blasucci and his wife took title to the residential property in 1976. The Blasuccis gave a first mortgage to First Fidelity Bank in 1986 and a second mortgage to Washington Savings Bank in 1987. Washington Savings instituted a foreclosure action against the Blasuccis in May 1990 and obtained final judgment of foreclosure the following October. First Fidelity and Washington Savings subsequently assigned their mortgages to Martin Tave and the Sylvia T. Cohen Revocable Trust (Tave and Cohen). The property was sold at sheriff's sale in June 1994 to Tave and Cohen, who took subject to the First Fidelity mortgage which they held and subsequently discharged. Tave and Cohen conveyed the property to Gourkanti in October 1997.
Siegel did not obtain his default judgment against Blasucci until July 1992, almost two years after the entry of the foreclosure judgment. Siegel claims that his judgment, docketed in July 1992 and revived in November 2011, was a lien against Blasucci's real property that was not extinguished by the
October 1990 foreclosure judgment and subsequent sheriff's sale. He contends that either Washington Savings or Tave and Cohen was required to amend the foreclosure complaint to include him as a subsequent encumbrancer in order to bind him to the foreclosure judgment. We disagree.
We addressed this issue in Morsemere Fed. Sav. & Loan Ass'n v. Nicolaou, 206 N.J. Super. 637 (App. Div. 1986). Morsemere, a foreclosing mortgagee, obtained final judgment of foreclosure against Nicolaou. Id. at 640-41. After entry of the foreclosure judgment, DiPrima obtained a default judgment against Nicolaou. Id. at 641. DiPrima subsequently purchased the property at sheriff's sale. DiPrima then filed a motion to intervene in the foreclosure action and for payment of surplus funds. Ibid.
We held that a lien claimant such as DiPrima cannot be made a party to a foreclosure suit after entry of final judgment. Morsemere, supra, 206 N.J. Super. at 641-42. We reasoned that N.J.S.A. 2A:50-30, which operates to bind the holders of unrecorded interests existing at the filing of the foreclosure to the judgment and allows those holding such interests to intervene as of right upon recording, did not apply "because DiPrima's lien did not exist `at the time of the filing of the complaint' or even at the time the foreclosure judgment was entered." Ibid. Instead, we held that N.J.S.A. 2A:50-37 was controlling, and thus a creditor who obtains a money judgment subsequent to entry of the foreclosure judgment "may participate in any surplus after prior claiming lienholders (at the time of the foreclosure judgment) have been paid or satisfied." Morsemere, supra, 206 N.J. Super. at 642-43.
Siegel, who obtained his judgment after Washington Savings obtained its foreclosure judgment against Blasucci, is in the same position as was DiPrima in Morsemere. The lien of his judgment only allowed him to participate in any surplus remaining after sheriff sale. The holding is in accord with the general rule "that surplus funds take on the character of the land, at least with respect to junior encumbrancers whose liens existed at the time of the foreclosure." Ibid.
Because Siegel's remedy was limited to participation in any surplus funds arising from the sheriff's sale, the trial court correctly denied his motion for sale of Gourkanti's property to satisfy Siegel's 1992 judgment against Blasucci. Siegel's remaining arguments relating to the priority of his judgment and the conduct of the sheriff's sale conducted in 1994 are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
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