The judge found defendants' reliance upon Rule 4:50-1 in their motion papers to be misplaced since defendant's motion sought to vacate the sheriff's sale, not reopen the final judgment. The judge further noted defendants were time-barred from relief under Rule 4:50-1 because their motion was filed seventeen months after the final judgment was entered on June 24, 2015. This appeal followed. 

On appeal, defendants raise the following arguments: (1) the trial court erred in denying defendants' motion to vacate the sheriff's sale based on lack of notice and irregularities in the sale; (2) defendants lacked actual notice of the sheriff's sale in violation of their right to procedural due process; (3) the foreclosure sale was not properly advertised and was adjourned excessively without proper notice; (4) defendants should not be foreclosed from pursuing all available redemption methods based on their current inability to pay; and (5) defendants furnished sufficient trial payments for a binding loan modification which plaintiff refuses to honor.

"[A]n application to open, vacate or otherwise set aside a foreclosure judgment or proceedings subsequent thereto is subject to an abuse of discretion standard." United States v. Scurry, 193 N.J. 492, 502 (2008) (citing Wiktorowicz v. Stesko, 134 N.J. Eq. 383, 386 (E. & A. 1944)). We find an abuse of discretion when a decision is "made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis." U.S. Bank Nat'l Ass'n v. Guillaume, 209 N.J. 449, 467 (2012) (quoting Iliadis v. Wal-Mart Stores, Inc., 191 N.J. 88, 123 (2007)). It is against that standard that we evaluate the procedural and substantive issues raised by defendants.

Rule 4:65-2 mandates that "notice of the [sheriff's] sale shall be posted in the office of the sheriff of the county . . . where the property is located, and also, in the case of real property, on the premises to be sold[.]" Additionally, "at least [ten] days prior to the date set for sale, [the party obtaining the order or writ shall] serve a notice of sale by registered or certified mail, return receipt requested," on "every party who has appeared" and the "owner of record." R. 4:65-2.

The sheriff "may continue such sale by public adjournment, subject to such limitations and restrictions as are provided specially therefor." R. 4:65-4. The rule does not require notice of adjourned sale dates be served in any particular manner. See First Mut. Corp. v. Samojeden, 214 N.J. Super. 122, 127-28 (App. Div. 1986). Service of the adjournment notices by regular mail is permissible.

Adjournment requests by the plaintiff, "whether or not agreed to by the debtor, are required to be granted by the Sheriff irrespective of any prior adjournments." Pressler & Verniero, Current N.J. Court Rules, cmt. on R. 4:65-4 (2018) (citing Wells Fargo Home Mortg. v. Stull, 378 N.J. Super. 449, 454-55 (App. Div. 2005)). Here, plaintiff adjourned the sale several times for loss mitigation, an appropriate reason to adjourn a sale. Defendants were not prejudiced by the adjournments. On the contrary, they benefitted from the postponements of the sale. Thus, defendants' contention that there were excessive sale adjournments has no merit.

Rule 4:65-5 requires motions for the hearing of an objection to a sheriff's sale to be "served within [ten] days after the sale or at any time thereafter before the delivery of the conveyance." See Mercury Capital Corp. v. Freehold Office Park, Ltd., 363 N.J. Super. 235, 238 (Ch. Div. 2003) (noting that the right to object to the sale "is not finally terminated until the sheriff delivers a deed to the successful bidder"). Here, the property was sold on March 8, 2016, and the deed was delivered to plaintiff's counsel on March 29, 2016. Defendants filed their motion to vacate the sale on January 16, 2017, more than nine months after delivery of the sheriff's deed. The motion judge correctly found defendants failed to move to vacate the sale in a timely fashion.

We are mindful, however, that "as a matter of fundamental fairness, [Rule 4:65-2] must be construed as entitling interested parties to actual knowledge of the adjourned date upon which the sale actually takes place." Samojeden, 214 N.J. Super. at 123. Failure to comply with the rule requiring notice of the sheriff's sale normally requires voiding of the sale. See Assoulin v. Sugerman, 159 N.J. Super. 393, 397 (App. Div. 1978) (quoting Pressler, Current N.J. Court Rules, cmt. on R. 4:65-2 (1978)) (holding that noncompliance with the notice requirements imposed by Rule 4:65-2 "warrants setting the sale aside, `provided the party entitled thereto has no knowledge of the pendency of the sale, seeks relief promptly upon learning thereof, and no intervening equities in favor of innocent third parties have been created in the interim'"); Orange Land Co. v. Bender, 96 N.J. Super. 158, 164 (App. Div. 1967) (explaining that where mortgagor did not receive mandatory notice of sheriff's sale and had no knowledge of sale for five months, chancery court "could properly have set aside the sale or ordered redemption").

The motion judge found the notices sent by plaintiff's counsel to defendants advising of the March 8, 2016 adjourned sale date were mailed to the same address as the prior notices defendants admitted receiving. He further found the notices were not returned by the Post Office as undeliverable. As a result, the judge held there was presumptive good service. "New Jersey cases have recognized a presumption that mail properly addressed, stamped, and posted was received by the party to whom it was addressed." Ssi Med. Servs. v. HHS, Div. of Med. Assistance and Health Servs., 146 N.J. 614, 621 (1996) (citations omitted). The record supports the judge's conclusion that plaintiff complied with its duty to inform defendants of the March 8, 2016 adjourned sale date and that defendants had actual notice of the sale date. Accordingly, the denial of defendants' untimely motion was not an abuse of discretion.

Furthermore, the power to void a sheriff's sale "is discretionary and must be based on considerations of equity and justice." First Trust Nat'l Ass'n v. Merola, 319 N.J. Super. 44, 49 (App. Div. 1999) (citing Crane v. Bielski, 15 N.J. 342, 349 (1954)). To that end, the Court in Scurry applied the "time-honored maxims that the law does not compel one to do a useless act[,] and that equity follows the law." 193 N.J. at 505-06 (alteration in original) (citations omitted). Here, unlike the unique circumstances in Scurry, remanding this matter for a new sale or to permit a reasonable redemption period would be an exercise in futility. The market value of the property is far less than the redemption amount. Thus, defendants have no equity in the property. In any event, defendants concede they do not have the financial ability to cure the arrearages, let alone redeem the mortgage, within a reasonable period time. Therefore, a remand would serve no useful purpose.

Defendants remaining arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).