SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5056-16T2

US BANK NATIONAL ASSOCIATION,

as Trustee for Credit Suisse

First Boston 2005-9,

Plaintiff-Respondent,

v.

SUZANNE D. MACDOWELL, 

Defendant-Appellant,

and

MR. MACDOWELL, husband of 

SUZANNE D. MACDOWELL, and MORTGAGE

ELECTRONIC REGISTRATION SYSTEMS,

INC., as Nominee for Credit Suisse

First Boston Financial Corporation,

Defendants.

_____________________________________

Submitted June 7, 2018 – Decided June 22, 2018

Before Judges Simonelli and Haas. 

On appeal from Superior Court of New Jersey, 

Chancery Division, Morris County, Docket No. 

F-045203-08.

Barbarula Law Offices, attorneys for appellant 

(John M. Barbarula, on the briefs).

NOT FOR PUBLICATION WITHOUT THE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.
2 A-5056-16T2

Reed Smith LLP, attorneys for respondent US 

Bank National Association (Henry F. Reichner, 

of counsel and on the brief; Kristy L. Keiser, 

on the brief).

Vastola & Sullivan, attorneys for respondent 

415 Howard Boulevard, LLC (John J. Sullivan, 

Jr., on the brief).

PER CURIAM

In this foreclosure matter, defendant Suzanne D. MacDowell 

appeals from the June 14, 2017 Chancery Division order, which 

denied her motion to vacate the Sheriff's sale. On appeal, 

defendant contends that the failure to include certain property 

in the foreclosure complaint constitutes a fatal flaw rendering 

the complaint and Sheriff's sale null and void.

1 We disagree and 

affirm.

By deed dated August 5, 2005, defendant acquired property in 

the Borough of Mount Arlington (Borough). The legal description 

in the deed described a 100-foot by 50-foot lot designated as Lot 

43 and Lot 44, Block 12, and also known as Lot 12 in Block 20, on

 

1 We decline to address defendant's additional arguments that 

Rule 4:50-1 and Rule 4:50-2 should govern the time within which 

to file a motion to vacate a Sheriff's sale, plaintiff failed to 

comply with the requirements of the Fair Foreclosure Act. 

Defendant did not raise these arguments before the trial court and 

they are not jurisdictional in nature or substantially implicate 

the public interest. Zaman v. Felton, 219 N.J. 226-27 (2014) 

(citation omitted).
3 A-5056-16T2

the Borough's tax map (the premises). The deed was recorded with 

the Morris County Clerk on August 18, 2005. 

On August 5, 2005, defendant executed a note to Credit Suisse 

First Boston Financial Corporation (Suisse First) in the amount 

of $372,000. To secure payment of the note, defendant executed a 

mortgage to Mortgage Electronic Registration Systems, Inc. (MERS), 

as nominee for Suisse First, on the property. The mortgage was 

recorded with the Morris County Clerk on August 18, 2005. The 

legal description of the premises in the mortgage is identical to 

the legal description in the deed.

Over one year later, on August 15, 2006, defendant took title 

to an adjacent lot known as Lot 5, Block 20 on the Borough's tax 

map (the adjacent lot). The deed was recorded with the Morris 

County Clerk on September 8, 2006. The adjacent lot was not 

subject to the mortgage.

Defendant defaulted on the note on August 1, 2008, and has 

made no payment since then. On November 11, 2008, MERS, as nominee 

for Suisse Credit, executed an assignment of mortgage to plaintiff. 

The assignment was recorded with the Morris County Clerk on January 

7, 2009.

On November 13, 2008, plaintiff filed a foreclosure 

complaint. The complaint identified the premises as the property 

subject to foreclosure. Defendant was properly served, but failed
4 A-5056-16T2

to file an answer or otherwise defend. The court entered default 

on January 2, 2009. On October 13, 2009, the court entered a 

final judgment and writ of execution. 

The proceedings were delayed for several reasons, including 

defendant's bankruptcy action. Due to the passage of time, 

plaintiff filed a motion to amend the final judgment. On December 

31, 2014, the court entered an amended final judgment and amended 

writ of execution. The writ of execution described the premises 

as the property subject to the writ.

After numerous adjournments, the Sheriff's sale finally 

occurred on September 8, 2016. On October 24, 2016, the Sheriff 

executed a deed to the successful bidder. The Sheriff delivered 

the deed to the successful bidder and it was recorded with the 

Morris County Clerk on November 15, 2016. 

On March 27, 2017, the successful bidder obtained a writ of 

possession for the premises. That same day, defendant filed a 

motion to vacate the Sheriff's sale. She argued, as she does on 

appeal, that the foreclosure complaint and Sheriff's deed were

defective and void because they did not include the adjacent lot. 

In a June 14, 2017 order, the motion judge denied the motion. 

In a written statement of reasons, the judge found the motion was 

untimely under Rule 4:65-5. Addressing the merits, the judge 

found there was no irregularity in the foreclosure proceedings and 
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legal or factual basis to vacate the Sheriff's sale. This appeal 

followed.

The power to void a sheriff's sale "is discretionary and must 

be based on considerations of equity and justice." First Tr. 

Nat'l Assoc. v. Merola, 319 N.J. Super. 44, 49 (App. Div. 1999)

(citation omitted). A motion to vacate a Sheriff's sale is 

governed by Rule 4:65-5, which states that any objection to the 

sale must be served within the ten days following the sale or 

before delivery of the deed, whichever is later. "[O]ur courts 

will set aside a sheriff's sale for fraud, accident, surprise, or 

mistake, irregularities in the conduct of the sale, or for other 

equitable considerations[.]" Merola, 319 N.J. Super. at 50 

(citation omitted). However, despite the court's broad discretion 

to employ equitable remedies, this power should be "sparingly 

exercised" and "a sale so conducted shall be vacated only when 

necessary to correct a plain injustice." Id. at 52 (citation 

omitted).

Applying the above principles, we discern no abuse of 

discretion in the court's denial of defendant's motion and no 

"plain injustice" requiring correction. Defendant's motion was 

untimely under Rule 4:65-5. 

Even if timely, there was no irregularity or deficiency in 

the foreclosure proceedings. The complaint, writ of execution, 
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and Sheriff's deed all properly identified the premises as the 

property subject to foreclosure and sale. The mortgage did not 

include the adjacent lot, and thus, it was not subject to 

foreclosure or sale. The adjacent lot is a separate lot and

defendant still owns it without any cloud on title. 

Affirmed.