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FORECLOSURE PRACTICE – WHO’S ON FIRST!

The foreclosure process, whether it’s a mortgage foreclosure or tax sale certificate foreclosure is strictly governed by statute and the procedure must be exact in order to clear the title and enter Final Judgment. In addition, the foreclosure section of the Superior Court is very particular when it comes to processing your file. Everything you do must meet their standards.

Before the complaint is filed, you must establish the proper defendants to be named in the foreclosure action. Upon receipt of the county and upper court searches, you will determine the correct parties to be named as defendants. In addition to the defendant mortgagor(s) or assessed owner(s), there are the following parties that could be possible defendants, depending on your set of facts:

Guarantors on the note or mortgage

Spouses, if title is not in their name

Present owner of the property if not current mortgagor

Heirs, devisees and personal representatives of mortgagor or owner. If the mortgagor or owner is deceased you will have to check the surrogate’s records to determine the status of the estate.

Tenants and persons in possession (options to purchase, unrecorded interests, leasehold interest)

Lienholders: judgments, subsequent mortgages

Civil recognizance, filiation bonds, sheriff’s bonds

State of New Jersey:
     corporate franchise tax
     inheritance tax
     unemployment compensation
     other liens of the State
     ABC taxes
     criminal recognizance and judgments

United States of America:
     income tax liens
     other liens including VA judgments, SBA mortgages
     HUD mortgages, etc.

Institutional liens

County Welfare Boards

Unrecorded interests, unrecorded assignments of mortgage

The above is a list of possible defendants depending on the circumstances of your particular case. What is most important, is that you don’t leave anyone out who might have an interest and challenge the foreclosure process after it has been completed. It is always better to name those you are not sure of, rather than leave them out only to find halfway through the procedure, that they should have been named. You would then have to amend the complaint and serve the additional defendants.

Once you have determined the defendants and prepared and filed the complaint, the next step is finding and serving the defendants, but that is a story for another newsletter!

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