Submitted: November 18, 2019
Plaintiff's Motion for Reconsideration of
Commissioner's Order and Confirmation of the
Sheriff's Sale. GRANTED.
Charles E. Butler Judge.
Court is asked to review a ruling by a Superior Court
Commissioner setting aside a sheriffs sale. After de
novo review, the Court reverses the Commissioner's
ruling. The sale is confirmed.
Kenneth McCollister was in default of payment of the condo
fees to 1800 Superfine Lane Condominium Association
("Superfine") Unit 35 ("Unit") for a long
time. Superfine filed a lien on the Unit in 2013 due to the
fees owed. Thereafter, McCollister filed personal bankruptcy.
The matter was stayed for years while that issue worked its
way through bankruptcy court. The property lien was not
discharged in the bankruptcy. McCollister then transferred
ownership of the unit to his wife, Beverly McCollister.
Finally, in 2019, Superfine elected to foreclose on its lien
against the property. Acting pro se, Kenneth
MCollister attempted to halt the auction, but his motion was
filed too late and on April 9, 2019, the Unit was sold at
sheriffs auction to One Pie Investments LLC as the winning
Thereafter, the motion to halt the foreclosure was converted,
through counsel for Kenneth McCollister, into a motion to
reject confirmation of the sheriffs sale. A Superior Court
Commissioner decided the sale should not be confirmed,
finding two errors in the sheriffs auction process: lack of
notice to Beverly McCollister, the record deed holder, and
incorrect amounts of the debt listed in the notice of
Superior Court Civil Procedure Rule 69(g), governs notice of
a sheriffs sale of real estate. The Rule requires that at
least seven days before the sale, the plaintiff must send
notice of the auction sale, via certified mail, return
receipt requested to all interested parties, including
tenants, and record owners. The Rule further requires the
notice shall be posted on the address of the property that is
to be auctioned. Finally, the Rule requires that interested
parties be notified "at the last known available or
reasonably ascertainable" address.
While proof of sending notice is required, proof of
actual notice is not. And why is that, one might
ask? The logical explanation is that actual notice, or proof
thereof, could be thwarted by a debtor who simply refuses to
open his mail, or avoids service of process, or moves away to
avoid the pending eviction. Debtors are often in denial and
refusing to acknowledge realities is apparently baked into
the Rule. Thus, it is proof of notice sent that complies with
the rule; not proof of notice received.
Superfine produced copies of the notices of sale sent via
certified mail, return receipt requested to occupant/tenant
at 1880 Superfine Lane Apt 35, Kenneth McCollister at that
address, Beverly McCollister (record owner) at 205 East
13thStreet, TKT&T Real Estate Investing, LLC
at West 22nd Street and a P.O. Box, 1800 Superfine
Lane Condominium Association. The notice further stated when
the auction was to be held, and a contact to obtain an
updated payoff amount.
Court is satisfied that certified mailings were sent to all
interested parties of the sale, including the record address
for Mrs. McCollister, any additional tenant/occupants at the
residence, and a posting on the door of the residence.
Indeed, Beverly McCollister is not even before the Court
arguing that she did not receive notice. This is
thus not a case in which the debtor challenges the sale on
grounds of no or defective notice to the
debtor. The Court has no reason to doubt that
Beverly McCollister received notice. She is not before the
Court to protest that she did not, and Superfine's
paperwork indicates notice was properly sent to her pursuant
to the rules established to effect notice.
Kenneth McCollister further faults the auction sale over the
amount needed to satisfy the lien. Kenneth McCollister says
the alleged lien of over $10, 000 was reduced substantially
before the auction, and the auction improperly inflated the
amount needed to clear the lien.
is true that the Alias Praecipes issued stated a judgment
debt of some $16, 000 "together with accruing fees,
assessments, interest at the contractual rate of five and
75/100 percent (5.75%), collection costs, attorney's fees
and the Sheriffs costs incurred in connection with this levy
and sale." The problem with McCollister's
argument is that Rule 69(g) has no requirement to identify
the amount in controversy in the Notice of Sheriff s sale.
Interested parties are invited to inquire of the ...