SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0658-19T3

WELLS FARGO BANK,

N.A.,

Plaintiff-Respondent,

v.

MARVIN HOWARD,

Defendant-Appellant,

and

MRS. MARVIN HOWARD, His

Wife, PAMELA S. HOWARD,

LANCASTER MORTGAGE

BANKERS, LLC, and STATE OF

NEW JERSEY,

Defendants.

_____________________________

Submitted December 14, 2020 – Decided

Before Judges Hoffman and Smith.

On appeal from the Superior Court of New Jersey, 

Chancery Division, Essex County, Docket No. 

F-025273-17.

NOT FOR PUBLICATION WITHOUT THE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.

January 21, 2021
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Marvin Howard, appellant pro se.

Reed Smith, LLP, attorneys for respondent (Henry F. 

Reichner, of counsel and on the brief).

PER CURIAM

Pro se defendant1 Marvin Howard appeals from the September 30, 2019 

Chancery Division order, which denied his motion to vacate a July 9, 2019 

sheriff's sale and confirmed the sale as valid. We affirm. 

On August 5, 2005, defendant executed a note in the amount of $200,000 

in favor of Lancaster Mortgage Bankers. On the same date, defendant and his 

wife, Pamela S. Howard, secured the debt by executing a mortgage on the 

property located at 13-15 Melville Place (the property) in Irvington. The 

mortgage was recorded on August 26, 2005. Lancaster Mortgage Bankers later 

assigned the mortgage to plaintiff Wells Fargo Bank, N.A. (Wells Fargo).

Plaintiff recorded the assignment on April 25, 2017. 

On November 7, 2017, plaintiff filed a foreclosure complaint, alleging the 

loan to be in default due to defendant's failure to make installment payments 

since May 1, 2017. After defendant did not file an answer or otherwise respond 

1

 In this opinion, we refer to Marvin Howard as defendant as he is the only 

appellant. 
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to the complaint, on April 13, 2018, plaintiff requested the clerk enter the 

default. On August 14, 2018, plaintiff moved for entry of final judgment, and 

on September 5, 2018, the Chancery Division granted the motion. 

A sheriff's sale was scheduled for January 8, 2019, but adjourned due to

defendant filing for bankruptcy. The sale was ultimately rescheduled for July 

9, 2019, and on that date, the property sold for $140,000 to a third-party buyer 

identified as 13-15 Melville LLC. 

Six days later, on July 15, 2019, defendant, making his first appearance in 

this action, filed a pro se motion objecting to the sheriff's sale, pursuant to Rule

4:65-5. Defendant's motion challenged the validity of the sheriff's sale and

sought "an Order by Court to confirm the foreclosure sale supported by a 

Sheriff's Report of Sale[.]" 

On September 30, 2019, the motion judge denied defendant's motion and 

ordered the "sale shall remain valid and in full force and effect[.]" In his written 

opinion accompanying the order, the judge first noted defendant's apparent 

failure to notify the third-party buyer of his motion, which Rule 4:65-5 requires. 

Addressing the merits of defendant's objection, the judge rejected defendant's 

two arguments 1) "that the sheriff's sale . . . should be vacated because there is 

nothing in the court records confirming the sale[,]" and 2) "that his motion is 
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meant to 'maintain the integrity of the process to assure the sale was fairly 

conducted.'" The judge explained,

[D]efendant has not presented any legal authority that 

requires the generation of court records in confirmation 

of a valid Sheriff's sale . . . . [D]efendant does not 

produce any argument or information that indicates the 

sale wasn't fairly conducted. Rather the substance of 

defendant's motion essentially challenges the plaintiff 

and the sheriff to provide evidence of a fairly conducted 

Sheriff's sale. However, it is the defendant's burden to 

demonstrate such an issue with the sale. There is no 

burden on the plaintiff or the sheriff to demonstrate the 

validity of the sale. This is particularly true in this 

instance where the defendant fails to articulate any 

specific issue or irregularity with respect to the sale. 

Thus, the judge denied the motion, concluding that defendant "failed to establish 

any basis for vacating the otherwise valid sheriff's sale."

Defendant filed his notice of appeal on October 11, 2019. On November 

22, 2019, the sheriff filed a report of sale for the property dated October 9, 2019.

Defendant raises the following argument on appeal:

THE APPELLATE DIVISION MUST DECIDE 

WHETHER THE TRIAL COURT FAILED TO SET 

ASIDE THE SHERIFF’S SALE WHEN NO 

ADMISSIBLE EVIDENCE PROVE[D] THE SALE 

WAS AUTHORIZED BY THE STATUTE AND WAS 

CONDUCTED BY SHERIFF AND WHEN THE 

DOCKET RECORD EVIDENCE SHOWED THAT 

THE SALE WAS NOT PROPER, AS MATTER OF 

LAW.
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We review a trial court's denial of a motion to vacate a sheriff's sale under 

an abuse of discretion standard. U.S. Bank Nat'l Ass'n v. Guillaume, 209 N.J. 

449, 467 (2012). 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." Iliadis v. Wal-Mart Stores, Inc., 191 N.J. 

88, 123 (2007) (quoting Flagg v. Essex Cnty. Prosecutor, 171 N.J. 561, 571 

(2002)).

Rule 4:65-5 governs motions to vacate a sheriff's sale, allowing persons 

to "motion for the hearing of an objection . . . within 10 days after the sale or at 

any time thereafter before the delivery of the conveyance." Rule 4:65-5 requires 

that "[n]otice of the motion shall be given to all persons in interest[.]" The trial

court's power to void a sheriff's sale "is discretionary and must be based on 

considerations of equity and justice." First Trust Nat'l Ass'n. v. Merola, 319 

N.J. Super. 44, 49 (App. Div. 1999). A court may grant equitable relief to set 

aside a sheriff's sale when irregularities occur in the conduct of the sale, such as 

fraud, accident, mistake, or surprise. Orange Land Co. v. Bender, 96 N.J. Super. 

158, 164 (App. Div. 1967). 

However, in response to a motion to vacate a sheriff's sale, "the court may 

summarily dispose of the objection; and if it approves the sale and is satisfied 
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that the real estate was sold at its highest and best price at the time of the sale, 

it may confirm the sale as valid and effectual[.]" Rule 4:65-5. Indeed, when a 

timely objection is made to a sheriff's sale, the law requires "the entry of a formal 

order confirming the sale[.]" Hardyston Nat'l Bank v. Tartamella, 56 N.J. 508, 

511 (1970). 

Rule 4:65-6(a) requires sheriffs "selling lands to pay debts" to "file with 

the court a report of any sale made, verified by affidavit, stating the name of the 

purchaser and the price and terms of sale." However, this rule does not impose 

upon sheriffs a deadline for filing reports of sale or accompanying affidavits. 

Nor do the rules require a court's confirmation of a sheriff's sale be based on the 

sheriff's report of sale. 

Defendant argues that the motion judge abused his discretion by 

confirming the sheriff's sale without sufficient proof that the sale occurred. He 

contends that upon his objection to the sale, the other parties should have 

produced evidence of the sale, such as a sheriff's report of sale, a contract of 

sale, an affidavit from the sheriff, an "affidavit of publication of advertisement", 

or an "affidavit of Proof of Posting". He frames this alleged inadequate proof 

as an irregularity that requires the sale be vacated. Finally, because he contends 

no evidence established the sale's validity, he argues the motion judge's 
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conclusion that the sale was valid lacked factual support, deviating from the 

requirements of "fundamental due process." 

We reject these arguments and affirm, for substantially the same reasons 

expressed by the motion judge. Defendant failed to identify any irregularity in 

the sheriff's sale justifying an order vacating the sheriff's sale. Defendant made

no allegation of fraud, accident, mistake, lack of notice, or improper service. 

The burden of producing evidence of an improper sale was on defendant, and 

not on plaintiff to prove a validly conducted sale. See E. Jersey Sav. & Loan 

Ass'n v. Shatto, 226 N.J. Super. 473, 476 (Ch. Div. 1987). Therefore, plaintiff's 

purported failure to offer sufficient proof of the sale was not a reversible 

irregularity. Because no rule conditions the validity of a sheriff's sale on the 

filing of a report of sale, the motion judge's confirmation of the sale before 

receiving the sheriff's report likewise cannot be considered such an irregularity. 

In any event, defendant's own motion challenging the subject sheriff's sale 

included sufficient evidence of the sale's occurrence and validity. In a 

supporting certification, defendant attached as Exhibit A "a true copy of the 

Sales Listing Detail Essex County, NJ," which listed plaintiff and defendant, 

described the property, listed the upset price, and stated that on July 9, 2019, 

13-15 Melville LLC purchased the property for $140,000. Thus, the record 
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clearly contained sufficient factual support for the entry of the judge's order 

denying defendant's motion. 

We are satisfied that the motion judge did not abuse his discretion when 

he denied defendant's motion and confirmed the sheriff's sale of defendant's 

property. 

Affirmed.