SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO . A - 5056
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US BANK NATIONAL ASSOCIATION, as T rustee for C redit S uisse F irst B oston 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 N ominee for C redit S uisse F irst B oston F inancial C orporation , 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 - 0 452 03
- 08. Barbarula Law Offices, attorneys for appellant (John M. Barbarula, on the brief s ).

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court . " A lthough 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 bri ef; Kristy L. Keiser, on the brief). Vastola & Sullivan, attorneys for respondent 415 Howard B oulevard , LLC (John J. Sullivan, Jr., on the brief).
PER CURIAM In this foreclosure matter, defendant Suzanne D. MacDowell appeals from the June 14, 2017 Chanc ery Division order, which denied her motion to vacate the Sheriff's sale. On appeal,
defendant contends that the failure to include certain property in th e 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, d efendant 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 al so 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 argument s before the trial court and they are not jurisdictional in nature or substantia lly impl icate the public interest. Zaman v. Felton , 219 N.J. 226
- 27 (2014) (citation omitted).3 A - 5056
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the Borough 's tax map (the premises ). The deed was recorded with the Morris County C lerk on August 18, 2005. On August 5 , 2005, defendant executed a note to Credit Suisse First Bos ton Financial Corporation (Suisse Firs t ) in the amount of $372,000 . To secure payment of the note, defendant executed a mortgage to Mortgage Electronic Registration Systems, I nc. (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 t he premises in the mortgage is identical to the legal description in the deed. Over one year later, o n August 15, 2006, defenda nt took title to an adjacent lot known as Lot 5, Block 20 on the Borough's t ax
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.

D efendant defaulted on the note on August 1, 2008, and has made no p a yment since then. On November 11, 20 08, MERS, as nominee
for Suisse Credit, executed an assignment o f mortgage to plaintiff. The assignment was recorded with the Morris County C lerk 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 failed4 A - 5056
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to file an answer or other wise defend. The court entered default on January 2, 2009 . On October 13, 2009, the court entered a final judgment and writ of execution . The proceeding s were delayed for several reason s , 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 fina l 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, 201 6, 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 C l erk on November 15, 2016.
On March 27, 2 0 17, the successful bidder obtained a writ of possession for the premises . Tha t 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 di d not include the adjacent lot. In a June 14, 2017 order, the motion judge denied the motion. In a written state ment of reasons, t he judge found the motion was untimely under Rule 4:65
- 5. Addressing the merits, t he judge
found there was no irregularity in the foreclosure proceedings and5 A - 5056
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legal or factual basis to va cate 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 R ule 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 (cit ation omitted). However, despite the court's broad discretion to employ equitable remed ies, 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 deni al of defendant's motion and no "plain injustice" requiring correction. Defendant's motion was untimely under Rule 4:65
- 5. Even if timely, t here was no irregularity or deficiency in
the foreclosure proceedings. T he complaint , writ of execution,6 A - 5056
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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 . T he adjacent lot is a separate lot and defendant stil l owns it without any cloud on title . Affirmed.