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)

2 2015 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 Mortgage Basics 3 Definitions; Introduction and Basics; Priorities Office of Foreclosure 3 Fair Foreclosure Act 25 Fair Debt Collection Practice Act 58 Related Practice 65 Default, Acceleration; Accrual of Right to Foreclose; Joinder of Claims and Parties 82 Condominium Association Lien Foreclosures; Homeowners Association Liens 126 Commencement of Action; Service of Process; Answers 130 Procedure for Judgment; Writs Execution/Possession; Post-Judgment Advances; Environmental 204 Foreclosure Sale; Sheriff s Practice 261 Post-Sale Redemption 288 Title of Purchaser After Delivery of Deed; Possession; Eviction 300 Surplus Moneys 308 Strict Mortgage Foreclosure; Optional Procedure 310 Deficiency Actions; Actions on the Note 327 Vacant and Abandoned Properties 335 Property Legal Description / Metes and Bounds Description 353 Amount Due Schedule 355 Verification Count I and Proof of Amount Due Schedule 359 Verification Count III 362 Order to Show Cause Summary Vacant & Abandoned Residential Mortgage Foreclosure Action 363 Motion to Proceed Summarily Vacant & Abandoned Residential Mortgage Foreclosure Action 369 Certificate in Support of Motion to Proceed Summarily Vacant & Abandoned Residential Mortgage Foreclosure 373 Certificate in Support of Motion to Proceed Summarily Vacant & Abandoned Residential Mortgage Foreclosure 375 Certificate in Support of Motion to Proceed Summarily Vacant & Abandoned Residential Mortgage Foreclosure Verification Count I and Proof of Amount Due Schedule 377 Order to Proceed Summarily Vacant & Abandoned Residential Mortgage Foreclosure 381 Order Denying Summary Foreclosure 384 Mortgage Foreclosure Judgment Vacant & Abandoned Residential Property 385 Write of Execution Vacant & Abandoned Residential Property 389

4 Sample Forms 391 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 Certification of Verification 415 7A Substitution of Attorney Notice of Lis Pendens 417 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 455

5 37 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 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 Proof of 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 507

6 73 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 A 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 536 Optional Procedure Forms 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 569

7 107 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) Certification of Mailing of Notice of Deposit of Excess Funds With the Superior Court of New Jersey (No-Equity Only) 581 Verified Complaint Vacant & Abandoned Residential Property Mortgage Foreclosure 582 About the Panelists 595