SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2092-17T1

PENNYMAC LOAN

SERVICES, LLC,

Plaintiff-Respondent,

v.

DINA A. CRUZ, her heirs,

devisees, and personal

representatives and his/her,

their, or any of their successors

in right, title and interest, MR.

CRUZ, husband of DINA CRUZ,

his heirs, devisees, and personal

representatives and his/her, their,

or any of their successors in right,

title and interest, CHRISTOPHER

KOHATSU, his heirs, devisees, and

personal representatives and his/her,

their, or any of their successors in 

right, title and interest, MRS. KOHATSU, 

wife of CHRISTOPHER KOHATSU, 

her heirs, devisees, and personal 

representatives, and his/her, their, or any of

their successors in right, title and interest,

Defendants.

____________________________________

Submitted November 27, 2018 – Decided

NOT FOR PUBLICATION WITHOUT THE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.

February 28, 2019
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A-2092-17T1

Before Judges Rothstadt and Natali.

On appeal from Superior Court of New Jersey, 

Chancery Division, Passaic County, Docket No. F032997-16.

Kenneth A. Wanio, attorney for appellant Mohamed 

Aly.

Blank Rome, LLP, attorneys for respondent (Matthew 

M. Maher, on the brief).

PER CURIAM

Appellant Mohamed Aly was a successful bidder at a sheriff's sale that the 

Chancery Division ordered in this foreclosure action filed by plaintiff PennyMac 

Loan Services, LLC. Aly, however, did not complete the purchase of the subject 

property because of a mistake. He now appeals from the Chancery Division's 

October 4, 2017 order holding him responsible for the deficiency between his 

bid and the property's ultimate sales price and its November 30, 2017 order

denying his motion for reconsideration.

On appeal, Aly contends that the orders were entered in error as he was 

not a defaulting buyer and therefore should not held liable for damages. We 

disagree and affirm substantially for the reasons stated by Judge Thomas J. 

LaConte in his oral decisions addressing Aly's motions.
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The facts are not disputed and are summarized as follows. The property 

Aly bid on was a residential two-family home. At the sheriff's sale, when Aly 

bid $156,000 to purchase the property, it was his understanding that he was 

bidding on the entire property. As it turned out, the property consisted of two 

condominium units, and the foreclosure and resulting sheriff's sale only related 

to one of the units. According to Aly, had he known the foreclosed property

was only one unit, he would not have bid.

Aly filed a motion to vacate the bid, explaining his mistake in a supporting 

certification. He stated that looking at the notice of sale's description of the 

property and photographs of the building on it, there was no way to discern that 

only one unit was being auctioned, although he conceded that "there [was] 

language that might indicate a condominium feature to th[e] property[.]" He 

also stated that he "underst[ood] that there may be costs associated with [his] 

mistake." Plaintiff opposed the motion to relieve Aly of his obligations by 

arguing that he did not establish his entitlement to relief and, even if he did, Aly 

should be held liable for any deficiency after a subsequent sale.

On October 4, 2017, Judge LaConte considered the parties' oral arguments 

and written submissions before vacating Aly's bid but holding him liable for any 

deficiency. In his oral decision, the judge acknowledged that Aly made a good 
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faith mistake. He next addressed the issue of Aly's monetary liability, noting 

that Aly himself recognized there would be costs associated with his error. Aly's

counsel deferred to the judge on the issue and waived any argument about the 

proposed form of order being submitted by plaintiff's counsel for the judge's 

entry at that time.

Judge LaConte entered two orders at the conclusion of the hearing. The 

first order was in the form proposed by Aly that stated he was "released from 

his bid," which was "vacated." The second order, which is the subject of this 

appeal, was the one proposed by plaintiff's counsel. That order stated that the

sheriff's sale of the property at which Aly bid was "set aside," and a new sale 

would be scheduled. The order also addressed Aly's liability by stating that after

the new sale, the sheriff would be able to deduct from Aly's bid deposit "all costs 

and expenses incurred from said sale, and [the sheriff] shall also deduct and pay 

to the Plaintiff any deficiency between the bid at the second sale and the bid at 

the first sale." The remainder of Aly's deposit, if any, was to be returned to him. 

The order also barred Aly from bidding at the new sale.

Aly immediately filed a "motion for reconsideration or clarification." His

motion was supported by a letter from counsel in which counsel stated that he 

and Aly were "under the impression" that Aly was only to reimburse plaintiff 
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through Aly's deposit for costs associated with running the property from the 

date of the original sheriff's sale to the new one, but not for any deficiency 

"between [Aly's] bid and whatever the second bid may be." Counsel contended 

Aly was not a "defaulting buyer" because he was relieved from his bid due to a 

mistake and, in any event, "there must be some minimum upset price in the 

second sale to prevent unfair bidding or non-bidding by the Plaintiff at their 

option." Plaintiff opposed Aly's motion, arguing that regardless of Aly's good 

faith error, he remained a defaulting buyer, justifying the earlier order's entry.

Judge LaConte considered the matter on the papers submitted and placed 

his decision denying Aly's motion on the record on November 30, 2017. In his 

decision, the judge stated that he considered the law applicable to 

reconsideration motions, found that Aly did not advance any evidence or law 

that the judge overlooked when reaching his October 4 decision, and noted that 

the issue was addressed at the time when he was presented with plaintiff's 

proposed form of order. The judge observed that considering the "the objective 

of [a sheriff's] sale is not only to secure the highest and best price for the 

interested parties, but also to achieve finality in the sale process," and concluded 

that case law confirmed that the order "conform[ed] with the standard measure 
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of damages," to which plaintiff was entitled under the circumstances. This 

appeal followed. 

On appeal, Aly asserts the same argument made to the trial judge. He 

contends that the judge should have reconsidered his decision to hold Aly liable 

because he was not in default and although he could be held liable for costs, he 

should not be liable for any deficiency. We disagree.

We review the court's denial of reconsideration only for abuse of 

discretion. Cummings v. Bahr, 295 N.J. Super. 374, 389 (App. Div. 1996). 

Reconsideration is "a matter within the sound discretion of the Court, to be 

exercised in the interest of justice." Palombi v. Palombi, 414 N.J. Super. 274, 

288 (App. Div. 2010) (quoting D'Atria v. D'Atria, 242 N.J. Super. 392, 401 (Ch. 

Div. 1990)). Governed by Rule 4:49-2, reconsideration is appropriate for a 

"narrow corridor" of cases in which either the court's decision was made upon a 

"palpably incorrect or irrational basis," or where "it is obvious that the Court 

either did not consider, or failed to appreciate the significance of probative, 

competent evidence." Ibid. (quoting D'Atria, 242 N.J. Super. at 401).

Applying our limited standard of review, we conclude that the court did 

not abuse its discretion by denying plaintiff's reconsideration motion because 

Aly did not satisfy his burden by coming forward with any facts or law that the 
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judge overlooked. The judge's October 4, 2017 order was legally correct and its 

entry constituted a proper exercise of the judge's discretion. 

At the outset, we observe that "[a]s a general rule, courts exercising their 

equitable powers are charged with formulating fair and practical remedies 

appropriate to the specific dispute." Kaye v. Rosefielde, 223 N.J. 218, 231

(2015). "While equitable discretion is not governed by fixed principles and 

definite rules, '[i]mplicit [in the exercise of equitable discretion] is conscientious 

judgment directed by law and reason and looking to a just result.'" Ibid. (quoting 

In re Estate of Hope, 390 N.J. Super. 533, 541 (App. Div. 2007)) (alteration in 

original). Courts of equity have the power to vacate foreclosure sales based on 

considerations of equity and justice. Crane v. Bielski, 15 N.J. 342, 349 (1954). 

"[T]he exercise of this power is discretionary. . . ." First Tr. Nat'l Assoc. v. 

Merola, 319 N.J. Super. 44, 49 (App. Div. 1999) (citing Crane, 15 N.J. at 349). 

The power to vacate a foreclosure sale is limited to situations where there 

is "fraud, accident, surprise, irregularity in the sale, and the like, making 

confirmation inequitable and unjust to one or more parties." Crane, 15 N.J. at 

346 (quoting Karel v. Davis, 122 N.J. Eq. 526, 530 (E. & A. 1937)). "[A] 

judicial sale is not ordinarily vacated 'on the ground of mistake flowing from [a 

moving party's] own culpable negligence.'" Merola, 319 N.J. Super. at 49 
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(quoting Karel, 122 N.J. Eq. at 528). A purchaser at a sheriff's sale is bound 

despite his or her mistake because "a foreclosure sale[ continues to be] subject 

to the doctrine of caveat emptor . . . [,]" Summit Bank v. Thiel, 325 N.J. Super. 

532, 538 (App. Div. 1998), except for certain situations involving clouds on 

title. See N.J.S.A. 2A:61-16 (providing relief from a bid if there is a "substantial 

defect in or cloud upon the title of the real estate sold, which would render such 

title unmarketable, or . . . [due to] the existence of any lien or encumbrance" 

which was not appropriately disclosed prior to, or at, the sale). Removing the 

condition of caveat emptor from judicial sales would have a significant effect 

on the mortgage industry, real estate investors, and our county sheriffs. See

Midfirst Bank v. Graves, 399 N.J. Super. 228, 235 (Ch. Div. 2007) (refusing to 

grant a successful bidder relief after it discovered significant vandalism to the 

property upon inspection two days after the sale). 

Here, because a bidder is held responsible for his own mistakes, Aly 

remained a defaulting buyer. Although the judge equitably relieved him of his 

obligation to complete the purchase, he properly exercised his discretion and 

subjected Aly to an equitable remedy. See Inv'rs & Lenders v. Finnegan, 249 

N.J. Super. 586, 592 (Ch. Div. 1991) ("[t]he measure of damages is the 

deficiency between the bid at the second sale and the bid at the first, plus the 
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costs of the first sale including the sheriffs fees for that sale"). There was no 

abuse of the judge's discretion.

Affirmed.