MORTGAGE FORECLOSURE IN A NUTSHELL

Transcription

1 c MORTGAGE FORECLOSURE IN A NUTSHELL Brian F. Kerins, Esq. Garden State Legal Services Corporation (Lawrenceville) Shari Seffer, Esq. Buckley Madole, P.C. (Iselin) Kathryn Gilbertson Shabel, Esq. Office of Foreclosure, Administrative Office of the Courts (Trenton) S

2 2016 New Jersey State Bar Association. All rights reserved. Any copying of material herein, in whole or in part, and by any means without written permission is prohibited. Requests for such permission should be sent to NJICLE, a Division of the New Jersey State Bar Association, New Jersey Law Center, One Constitution Square, New Brunswick, New Jersey

3 Table of Contents Page Acknowledgment of Myron Weinstein, Esq. 1 Chapter 1 Definitions; Introduction and Basics; Priorities Office of Foreclosure 3 Chapter 2 Fair Foreclosure Act 25 Chapter 3 Fair Debt Collection Practices Act 58 Chapter 4 Related Practice 65 Chapter 5 Default, Acceleration; Accrual of Right to Foreclose; Joinder of Claims and Parties 81 Chapter 6 Condominium Association Lien Foreclosures; Homeowners Association Liens 125 Chapter 7 Commencement of Action; Service of Process; Answers 130 Chapter 8 Procedure for Judgment; Writ Execution/Possession; Post-Judgment Advances; Environmental 203 Chapter 9 Foreclosure Sale; Sheriff s Practice 260 Chapter 10 Post-Sale Redemption 287 Chapter 11 Title of Purchaser After Delivery of Deed; Possession; Eviction 299 Chapter 12 Surplus Moneys 307 Chapter 13 Strict Mortgage Foreclosure; Optional Procedure 309 Chapter 14 Deficiency Actions; Actions on the Note 326 Chapter 15 Vacant and Abandoned Properties 334 Sample Forms Generic Motion Before the Office Foreclose Under Rule 1: Rule 4:64-2(d) Certification of Diligent Inquiry and Accuracy of Foreclosure Documents and Factual Assertions Waiver of Rights Under the Act Notice of Intention to Foreclose (Lender s Letterhead) Complaint Foreclosure Case Information Statement Count in Complaint to Foreclose Security Interest Count in Complaint for Reformation 404

4 7 Certification of Verification 405 7A Substitution of Attorney Notice of Lis Pendens 407 8A Discharge of Notice of Lis Pendens Consent to Amend to Complaint Acknowledgment of Service by Individual Defendant to Be Annexed to Summons Consent to Amend Complaint and Acknowledgment of Service A Order Allowing Filing Amended Complaint Notice of Dismissal of Defendant Stipulation of Dismissal Summons Notice in Lieu of Summons (to State of New Jersey) With Acknowledgment Affidavit of Service (Private Process Server) Acknowledgment of Service by Individual Defendant to Be Annexed to Summons Certification of Inquiry (in Support of In-State Service by Mail) Affidavit of Inquiry in Support of Out-of-State Mailed Service Certification of Inquiry in Support of Service by Publication Inquiry Letter Certification of Service (By Mailing) Notice to Absent Defendants (Publication) Appearance by Defendant Notice of Appearance, Consent to Judgment, and Waiver of Notices Answer Not Disputing Right of Plaintiff (Uncontested) Stipulation Extending Time to Answer Order Extending Time to Answer Summary Judgment as to Defendant and Returning the Action to the Office of Foreclosure Order Striking Answer of Defendant and Retuning the Action to the Office of Foreclosure Request to Enter Default and Certification of Default Notice of Motion for Default Certification in Support of Notice of Motion to Enter Default After 6 Months Order Permitting Entry of Default Where Default Not Entered Within 6 Months Certification of Mailing Filed Default Order Vacating Default Entered by Clerk Order Changing Venue Order Correcting Legal Description Order Substituting Name of Plaintiff Notice of Motion to Substitute Plaintiff Order Correcting Name of Defendant Order Substituting Heirs, Devisees, and Personal Representatives Order Appointing Attorney for Defendant in Military Service Report of Attorney for Defendant in Military Service 450

5 46 Notice of Motion for Appointment of Guardian Ad Litem for Minor or Alleged Mentally Incapacitated Person and Certification of Service Certification of Appointment of Guardian Ad Litem A Order Appointing Guardian Ad Litem Proof of Mailing Order of Appointment Answer by Guardian Ad Litem on Behalf of Minor or Alleged Incompetent Report of Guardian Ad Litem for Minor or Alleged Incompetent Notice by Defendant for Leave to Proceed (Abandonment Rule Rule 4:64-4) Bankruptcy Certification (Relief from Stay) Certification of Marital Status A Order Permitting Entry of Judgment Against Defendant Designated by Initials Rule 4: Certification in Support of Order Permitting Entry of Judgment Against Defendant Designated by Initials Certification of Inability to Ascertain Defendant s First Name (or Name) Certification of Notice to Defendants by Encumbrancer Seeking to Be Included in Final Judgment Certification of Non-Military Service Certification of Non-Military Service (No Department of Defense Statement Obtainable) Certification of Search Fees Amount Due Affidavit and Schedule Day Notice of Entry of Judgment (Notice to Cure) Notice of Motion for All Final Judgments to Answering or Appearing Parties, Mortgagors and Tenants Certification of Mailing of 14 Day Notice Certification of No Response Certification of Mailing of 14 Day Notice and No Response (Combined) Certification That 14 Day Notice is Not Required Statement by Debtor Combined Certification of Mailing of Various Foreclosure Documents and Non-Military Status Notice of Cure Order of Dismissal Without Prejudice (Where Cure Effected) Final Judgment Proof of Mailing (Copy of Judgment) Consent to Judgment Order Correcting Clerical Error in Final Judgment (Rule 1:13-1) Warrant of Satisfaction (Judgment) Writ of Execution Assignment of Mortgage Foreclosure Judgment (and Note) Writ of Possession (With Anti-Eviction Act Certification) Order Directing Sheriff to Pay Additional Sums to Plaintiff Certification in Support of Order Directing Sheriff to Pay Additional Sums to Plaintiff 495

6 81A Order Appointing Special Master to Sell Order Vacating Judgment Order Vacating Execution and Judgment, Reinstating Bond and Mortgage and Dismissing Proceedings Order to Show Cause for Redemption of Mortgage After Sale, Setting Aside the Sale, Ordering That the Foreclosure Judgment Be Satisfied and Restraining the Sheriff from Delivering Deed Proof of Mailing (Notice of Sale) Concise Statement of Description (N.J.S.A. 2A:61-1) Assignment of Bid at Sheriff s Sale A Motion for Hearing on Objections to Sale Order Ratifying Sale Notwithstanding Defect, Irregularity, or Omission in Proceedings Notice of Motion for Order to Pay Out Surplus Moneys (and Certification of Service) Certification in Support of Application to Pay Out Surplus Order to Pay Out Surplus Moneys 505 Optional Procedure Forms 92 Complaint Optional Procedure Foreclosure Case Information Statement Rescission language Deed in Lieu of Foreclosure Notice of Rescission by Debtor After Deed in Lieu of Foreclosure Day Notice Optional Procedure Certification of Mailing of 14 Day Notice Optional Procedure A Certification of No Response Optional Procedure Certification of Mailing of 14 Day Notice and No Response Optional Procedure (Combined) Statement by Debtor Certification of Election to Utilized Optional Remedy Certification of Abandonment Certification of Non-Rescission Certification of No-Equity Order Fixing the Amount, Time and Place for Redemption Notice to Redeem Request for a Public Sale Certification of Mailing of Order Fixing the Amount, Time and Place for Redemption or Notice Thereof Certification of Publication of Order Fixing the Amount, Time and Place for Redemption or Notice Thereof Notice of Motion for All Final Judgments to Answering or Appearing Parties, Mortgagors and Tenants Certificate of Redemption Certificate of Non-Redemption Judgment Optional Procedure Proof of Mailing (Copy of Judgment) Notice of Deposit of Excess Funds With the Superior Court of New Jersey (No-Equity Only) 547

7 116 Certification of Mailing of Notice of Deposit of Excess Funds With the Superior Court of New Jersey (No-Equity Only) 548 Verified Complaint Vacant & Abandoned Residential Property Mortgage Foreclosure 549 Two Stand-Alone Verifications for Count I and III That, If Used in Place of the Verifications in the Complaint, Must Be Attached to the Complaint When It is Filed 564 Civil Action Verification Count I and Proof of Amount Due Schedule 565 Civil Action Verification Count III 568 Civil Action Order to Show Cause Summary Vacant & Abandoned Residential Property Foreclosure 569 Model Pleadings to Convert a Plenary Foreclosure Action to a Summary Proceeding Pursuant to Rule 4:67-2 (b). 573 Civil Action Motion to Proceed Summarily Vacant & Abandoned Residential Mortgage Foreclosure Action 574 Civil Action Certificate in Support of Motion & Abandoned Residential Mortgage Foreclosure 577 Civil Action Certificate in Support of Motion to Proceed Summarily Vacant & Abandoned Residential Mortgage Foreclosure 579 Civil Action Certificate in Support of Motion to Proceed Summarily Vacant & Abandoned Residential Mortgage Foreclosure Verification Count I and Proof of Amount Due Schedule 581 Civil Action Order to Proceed Summarily Vacant & Abandoned Residential Mortgage Foreclosure 584 Civil Action Order Denying Summary Foreclosure (By the Court) 587 Civil Action Mortgage Foreclosure Judgment Vacant & Abandoned Residential Property 588 Civil Action Write of Execution Vacant & Abandoned Residential Property 591 U.S. Bank National Association v. Curcio 593 Specialized Loan Servicing, LLC, et al. v. Washington 599 About the Panelists 604