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2009 New Jersey Court Rule Changes Affecting Foreclosure Practice

With the growing rate of foreclosures, a number of changes were made to the Court Rules affecting foreclosure practice with the intent to streamline the procedures for foreclosure filings. The set of Rule changes, effective September 2008, were intended to expedite the foreclosure process, while affording Defendants additional protections. The set of Rule changes include the following:

1. R.1:34-6: Office of Foreclosure: This Rule was amended to increase the scope of Orders that the Office of Foreclosure may enter in uncontested foreclosure actions. While contested foreclosures are referred to the Court, administrative tasks related to uncontested foreclosure actions can be addressed by the Office of Foreclosure.
2. R.4:4-5(c): Service by Publication: This Rule was amended in order to provide the absent Defendant with additional information in the Notice of Publication. The Notice of Publication, in addition to being in the form of a Summons without a caption, providing the municipality and street address of the property subject of the foreclosure action, and setting forth the object of the action, the name of the parties, and the basis for joining such parties, the Rule now requires the following additional information: the docket number of the action, the Court, the County of venue, detailed information about the mortgage, tax sale certificate, or condominium or homeowners association liens, including the parties to the instrument, the recording date, and the book and page of the recorded instrument; the Rule further requires that the Notice of Publication also sets forth information regarding the availability of legal services and lawyer referral services along with telephone numbers.
3. R.4:5-1(b): Case Information Statements: This Rule was amended to require that a Case Information Statement be attached as a cover sheet to Foreclosure Complaints. The form of Case Information Statement is as set forth in Appendix XII-B(2).
4. R.4:64-2(b): Affidavit of Amount Due: This is a new paragraph added to R.4:64-2, which specifies the contents of the Affidavit of Amount Due, and provides reference to the form of Affidavit (Appendix XII-J). The new Rule mandates that the Affidavit be in the form as set forth in Appendix XII-J of the Court Rules, which includes a schedule stating the principal due at the time of default. At the bottom of the schedule a notice must be included, which states that there may be surplus money, and must set forth the procedure for claiming such surplus money.
5. R.4:64-2(c): This is another new paragraph added to R.4:64-2, which sets forth the time limitations for filing the Affidavit of Amount Due. Specifically, the amended Rule requires that the Affidavit of Amount Due be signed and sworn to not more than sixty (60) days prior to filing same with the Office of Foreclosure or Court. The Affidavit must be sworn to by the Plaintiff with personal knowledge, and if not by the Plaintiff, then the Affidavit shall also provide that the affiant is authorized to make the Affidavit.
6. R.4:64-3: Procedure for Withdrawing Surplus Money: This Rule was substantially amended and distinguishes between Motions for Surplus Funds filed by parties named in the Complaint, and from those parties who were not named in the Complaint. In the past, all applications for surplus monies were made directly to the Court. The amended Rule provides that those parties originally named in the Complaint, are to now file their Motions for Surplus Funds with the Office of Foreclosure. If such Motion is unopposed, the Office of Foreclosure can recommend a specific Order to the Court; if the Motion is opposed, then the matter is referred to the Court for disposition. Conversely, Motions for Surplus Funds filed by parties who were not named in the Complaint, must be filed directly with the Court, regardless of whether it is a contested or uncontested Motion.
7. R.4:64-9: Motions in Uncontested Matters: This is a new Rule which requires the foreclosing Plaintiff to place the Defendant on notice as to the procedure to follow if he or she wants to oppose a Motion. Specifically, the Rule requires that the Plaintiff notify the Defendant that the Office of Foreclosure does not conduct hearings for uncontested matters, and that all opposed Motions will be referred to a Court. The Notice of Motion filed with the Office of Foreclosure shall state the address of the Office of Foreclosure, that objections to the Motion must be made within ten (10) days after the date of service, that the Office of Foreclosure does not conduct hearings, that a personal appearance will not qualify as an objection, and that if an objection is filed, the case will be sent to a Judge for resolution.
8. R.4:65-2: Notice of Sale: This Rule was amended to require that the Notice of Sale include an advisory that there may be surplus funds to which the Defendant is entitled, and must set forth the procedure for claiming it.

For easy reference, a catalogue of the 2008 amendments affecting foreclosure actions is set forth in comment 4 in R.4:64-1.

Full post as published by New Jersey Law Blog on September 17, 2008 (boomark / email).