Not Waiting for Gidot

Posted by kevin on January 15, 2012 under Foreclosure Blog | Comments are off for this article

The buzz among foreclosure attorneys is that the NJ Supreme Court was going to issue expeditiously a decision in the Guillaume case, which dealt with whether a Notice of Intent (NOI) to Foreclose could just list the name and address of the servicer as opposed to the name and the address of the lender as specifically provided by the statute.  Although not an issue in the lower court decision since they ruled that the name and address of a servicer was good enough, the second issue that everyone hopes  that the Supremes deal with is what is the remedy for a violation.  Some lower courts have said that the only remedy can be dismissal without prejudice; others say that putting case on hold until new notice is sent out is good enough.  I believe that dismissal without prejudice is the proper remedy.

Oral argument was held in the beginning of December, and more than one Judge told me that the Supremes would issue a decision by December 20.  To date, we do not have a ruling.  In the meanwhile, the presiding chancery judge is Essex  issued a written (but not published) opinion dealing with the NOI.  Once again, the courts have ruled that the name and address  of the lender must be in the NOI.  Just listing the servicer is N.G.  The court did say the it had the right to fashion relief other than dismissal without prejudice, but then dismissed without prejudice subject to an application for restoration on notice within a reasonable time.  Frankly, I do not know what the effect would be of a restoration.   Is it restored at the beginning of the case or at the point of summary judgment?  It is not clear.

In my opinion, the reason that the courts in NJ are struggling with the remedy for NOI violations is two fold: first, the statute is silent on the issue; and second, the opinions are not clearly written.  This latest case is just another example.  Perhaps, when the Supremes come down with their ruling, their opinion will be crystal clear on the issue of remedy.  Clarity would help.