Neither Rain, Nor Sleet, Nor Snow . . . Will Allow You To Set Aside A Sheriff’s Sale!

 by:  Peter J. Gallagher (@pjsgallagher)

Although the snow is (hopefully) gone for a few months, the Appellate Division recently handed down a decision that brings us back to one of the many snowstorms we had to endure this winter. In Weiss v. Porchetta, homeowners moved to vacate the sheriff's sale of their home because they claimed that a major snowfall on the day of the sale deterred a bidder from attending. The homeowners claimed that they had been working with the snow-bound bidder on a deal that would have allowed them to stay in their home. Apparently they did not have the same deal with the winning bidder at the sale. The trial court denied the motion and the Appellate Division affirmed.



The details of the underlying loan, mortgage, and foreclosure were not entirely clear to the Appellate Division, but the weather on the day of the sheriff's sale was. The Appellate Division acknowledged that a "major snowfall" began on January 21, 2014, the date of the sale. The homeowners claimed that this snowfall made it impossible for their preferred bidder to travel from his home in Lakewood Township to the sheriff's sale in Somerset County. However, none of the evidence the homeowners offered in support of this argument was enough to persuade the Appellate Division to vacate the sale:

  • The homeowners cited a New York Times article, issued at 12:54 on the day of the sale, reporting on the storm. But, the Appellate Division observed that the article: gave no specifics regarding the conditions in Somerset County; indicated that the brunt of the storm would arrive overnight; and reported that up to four inches of snow were expected to fall by the evening rush hour, which suggested that much less had fallen at the time of the article.
  • The homeowners also relied on the fact that the Governor issued an executive order at 2:31 pm on the day of the sale, declaring that a state of emergency existed. This evidence was also unavailing because the order: did not "illuminate the nature of travel conditions when the sale occurred;" was issued 30 minutes after the start time of the sheriff's sale; did not order that roads be closed; and did not require that State or other governmental offices be closed.

In addition to rejecting the homeowners’ evidence, the Appellate Division pointed to the following facts that supported the trial court’s decision: the homeowners contacted the sheriff’s office and were told the sale was going to go on as planned; the winning bidder had no problem traveling to the sale; the snow did not deter a sheriff's sale in Monmouth County that same day (this was presumably relevant because Monmouth County is adjacent to Ocean County, where the allegedly deterred bidder lived); and the Supreme Court did not issue any order "suspend[ing] the conduct of judicial business" on the date of the sale (although courts were closed the next day). Based on all of this, the trial court and the Appellate Division found that there was no irregularity or unfairness, notwithstanding the inclement weather, that would justify vacating the sale.

Trial courts generally have discretion to vacate sheriff’s sales, but they do so “sparingly,” and only when there is fraud, accident, surprise, or irregularity in the sale that makes confirmation of the sale inequitable or unjust to one of the parties. The party seeking to vacate the sale has the burden of proving that it should be vacated. In Weiss, the Appellate Division indicated that it found “no case in which a Court of our State [ ] set aside a sale because of weather.” In fact, it noted that this argument had been raised and rejected, albeit more than 100 years ago, in Del., Lackawanna & W. R.R. v. Scranton. In that case, a party claimed that various parties could not attend the sale because “the weather was almost, if not quite, the hottest of the season” on the day of the sale, and therefore “various persons whom he requested to attend the sale, while they expressed their willingness to attend, yet declared their inability to do so . . . because of the weather and their intended absence at watering-places.” Nonetheless, in that case, like in Weiss, the court held that the sale was conducted fairly and therefore would not be vacated.

Finally, the Weiss court noted that courts in other jurisdictions have held that “extremely inclement weather” might be enough to vacate a sheriff’s sale, but only when accompanied by evidence that the property did not sell for a fair price at the sale.  While no New Jersey court has ever adopted this approach, the Appellate Division held that, even if it were to do so, the homeowners’ motion would still fail because there was no evidence in the record that the price the winning bidder paid at the sheriff’s sale, $1.35 million, was not a fair price. Notably, the Appellate Division observed that the bidder who allegedly could not make it to the sale did indicated that he would have paid more for the property but did not certify what price he was willing to pay or present competent proof of his financial capacity to pay.

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