Is the Sheriff Entitled to a Commission on Real Property Sold Under the Auspices of the Bankruptcy Court?
By Bruce Buechler[i]
The following is a familiar fact pattern for those involved in real estate. A borrower defaults under a mortgage and note. The lender commences a foreclosure action. Once a final judgment of foreclosure is entered, a writ of execution is issued, and the sheriff schedules a sale to sell the real property. Either before or the day of the foreclosure sale, or within the borrower’s time period to exercise its right of redemption of equity, the borrower files for bankruptcy under Chapter 7 or 11 in an attempt to obtain more time to sell the property. Ultimately, the real property is sold pursuant to a bankruptcy court sale process, usually pursuant to section 363 of the Bankruptcy Code. The sheriff then seeks a commission in connection with the bankruptcy court sale of the real property. Question: is the sheriff entitled to a commission?
Today, due to tight budgets and limited revenue sources, one can expect to see the sheriff (and other governmental entities) seeking to more actively exercise their alleged rights in bankruptcy in order to collect revenue. While the fact pattern described above is simple and occurs with some frequency, the sheriff’s entitlement to a commission, if any, is primarily based on the applicable state law where the foreclosure sale was pending. If the sheriff does not actually sell the real property, (i) in certain states, such as Georgia, North Dakota and Virginia, the sheriff would not be entitled to any commission; (ii) in certain states, such as Colorado and Idaho, applicable state law entitles a sheriff to a fixed commission; (iii) in some states, nothing; and (iv) in certain states, such as New Jersey, New York, Hawaii and West Virginia, the statute is ambiguous and courts are split as to the sheriff’s entitlement to a commission and, if so, how much.
By way of example, under New Jersey State law, a sheriff only has a right to a commission pursuant to N.J.S.A. 22A:4-8 “where a sale is made by virtue of an execution….” The statute also states that the sheriff would be entitled to a commission “when the execution is settled without actual sale and such settlement is made manifest to the officer, the officer shall receive 1/2 of the amount of the percentage allowed herein in case of sale.” Mathematically, under N.J.S.A. 22A:4-8, the maximum fee to the sheriff is calculated as follows: 6% of all amounts not exceeding $5,000, and 4% of all amounts exceeding $5,000, plus reimbursement of actual disbursements. Thus, in the fact pattern above, while the sheriff did not sell the real property, as it was sold under the auspices of the bankruptcy court section 363 sale process, the sheriff could assert a commission for 1/2 of the regular commission, which could result in a sheriff’s fee of potentially hundreds of thousands of dollars depending on the sale price of real property.
Interestingly, there is a split in the New Jersey case law as to whether a “settlement” occurs when there is a sale of the real property pursuant to a bankruptcy court sale process and order. Thus, under New Jersey law, the sheriff could only be entitled to a commission if (i) the sheriff sold the property, which it did not in the fact pattern, or (ii) the execution was settled, which is questionable in our fact pattern.
In Jacoby v. Eseo, 329 N.J. Super. 119, 122 (App. Div. 2000), the court had to “determine the Sheriff’s entitlement to fees after a foreclosure sale has resulted in a default by the high bidder and the forfeiture of a deposit.” Id. at 121. The court determined that the sheriff was only “entitled to a commission on the amount of the forfeited deposit rather than the amount bid.” Id. The court held: “we conclude that the Legislature intended that the fees recovered by the Sheriff be related to the sums recovered by the creditor as a result of the sale. Fees calculated on the bid which was never performed failed to meet that intention.” Id. at 124. Thus, the Jacoby court approved of a commission to the sheriff based on the $20,000 deposit posted, not the bid price that was not paid.
In In re Bejjani, 2003 Bankr. LEXIS 2150 (Bankr. D.N.J. September 2, 2003), the bankruptcy court determined that the sheriff had no entitlement to a commission based on the sale of the real property pursuant to the bankruptcy court’s sale order. In Bejjani, the debtor filed a voluntary Chapter11 petition in March 2002. Prior to commencing the bankruptcy case, the lender commenced an action in New Jersey state court to foreclose on real estate owned by the debtor. A judgment in foreclosure and writ of execution were issued pre-petition. The sheriff was not notified of the bankruptcy filing, so the sheriff scheduled a foreclosure sale, which was discontinued when the sheriff was advised of the bankruptcy. Thereafter, pursuant to an order of the bankruptcy court, the real property was sold.
The issue before the court was whether the sheriff was entitled to a statutory commission.
The bankruptcy court held:
The parties’ actions did not produce a settlement or resolution of the foreclosure action. A settlement under the statute applies to the situation where a plaintiff and defendant settle the action and satisfy the writ of execution absent an actual auction sale by the sheriff. The statute has no application to a sale approved by order of the Bankruptcy Court after a bankruptcy petition has been filed. The Court-ordered sale of the Property did not constitute a settlement for purposes of N.J.S.A. 22A:4-8. The Sheriff’s cross-motion is denied to the extent it seeks a commission. To rule differently would reward the Sheriff an impermissible windfall from the bankrupt estate.
In summary, the Bankruptcy Court-approved sale of the Property by the Trustee did not constitute a settlement under N.J.S.A. 22A:4-8, thereby precluding the Sheriff’s entitlement to a statutory commission. The Sheriff’s Cross-Motion for Turnover of Funds is, therefore, denied. However, the Sheriff is to be reimbursed $266.00 in actual out-of-pocket expenses for actions taken after the bankruptcy filing but before receiving notice of the filing.
Id. at 13-14.
A different New Jersey bankruptcy judge faced with the same issue reached the opposite conclusion. In In re Smith (Dobin v. Golden), ___ B.R. ___, 2019 WL 1590077 (Bankr. D.N.J. April 9, 2019), the Chapter 7 trustee commenced an action against the sheriff and the secured lender asserting that the sheriff had no right to a commission because the trustee sold the debtor’s real property pursuant to a bankruptcy court order. The bankruptcy court denied the trustee’s motion and held that the bankruptcy sale was a settlement within the meaning of N.J.S.A 22A:4-8 entitling the sheriff to receive one-half of the statutory commission, which commission was calculated based on the amount of the foreclosure judgment, and directed that the commission be paid by the bankruptcy estate effectively as part of the secured lender’s costs. The facts of the Smith case are as follows: the bank obtained a final judgment of foreclosure in New Jersey state court on January 4, 2017 on real property in the amount of $307,632.33. The sheriff’s sale was then scheduled and adjourned several times. Before the sheriff’s sale could be conducted, the debtor filed for bankruptcy. The bankruptcy court approved of the trustee’s sale of the real property for $1,015,000. The sale closed on November 1, 2018. From the sale proceeds, the bank was paid $335,232.90. The sheriff sought a statutory commission. The bankruptcy court held that the sheriff was entitled to one-half of the commission based on the amount of the foreclosure judgment.
It is submitted that the Smith decision was wrongly decided because of the improper reliance it placed on the 1859 decision of Sturges v. Lackawanna & Western Railroad Co., 27 N.J.L. 424 (Sup. Ct. 1859), that a “settlement” within the meaning of N.J.S.A. 22A:4-8 should be broadly defined. Sturges was not a real estate foreclosure action, as the plaintiff directed to the sheriffs of three counties to levy on personal property. Subsequently, the plaintiff “withdrew the executions.” Id. The Sturges court’s broad statement must be tempered by is holding allowing “the sheriffs may lawfully claim the percentage on the value of the goods by them respectively levied on. If the value of the goods exceed the amount due on the execution, then they may each, in proportion to the value of the property levied on.” Id. at 427. The key is the sheriffs levied on personal property and thus incurred costs to safeguard the personal property entitling them to a commission before the plaintiff decided to withdraw the executions.
Additionally, the New Jersey Appellate Division in Regency Savings Bank. v. Southgate Corporate Office Center, 388 N.J. Super. 420 (App. Div. 2006), certif. denied, 189 N.J. 429 (2007), noted that while a subsequent New Jersey Supreme Court decision “cites Sturges with approval, it certainly did not accept [it] as applicable in the context of a mortgage foreclosure sale settlement….” 388 N.J. Super. at 428. Thus, Sturges is of questionable support in a real estate mortgage foreclosure.
In Regency, the sheriff sought a statutory commission in a mortgage foreclosure where the parties settled after the judgment of foreclosure and writ of execution were issued, but before the sheriff conducted a sale. The settlement, which the court stated was “complex,” essentially required the defendant to pay Regency a nonrefundable payment of $250,000 to cancel the sheriff’s sale and provided the defendant with 90 days to refinance the property. The Appellate Division, affirming the trial court, held that the sheriff’s commission was based only on the $250,000 settlement payment, nothing more. The court stated:
Therefore, we hold that when a sheriff’s sale pursuant to a mortgage foreclosure is cancelled by the plaintiff because of a settlement with defendant, the sheriff’s percentage fee under N.J.S.A. 22A:4-8 must be based, not on the amount of the judgment or the value of the property, but on the amount of the settlement.
Id at 429. The Regency case makes clear that the term “settlement” within the meaning of N.J.S.A. 22A:4-8 means exactly that, a settlement between the parties, not a sale of the real property authorized by another court. Thus, a sheriff should not be entitled to any commission based on a sale of the real property and sold pursuant to a bankruptcy court sale process.
N.J.S.A. 22A:4-8 states that “when the execution is settled without actual sale and such settlement is made manifest to the officer….” In our typical case, there was no sale effectuated by the sheriff. The sheriff in no way aided in the sale of the real property pursuant to the bankruptcy court sale order or in the debtor’s efforts to locate the buyer. There was no settlement between the debtor and lender. As noted by the New Jersey Supreme Court in Sturges, a commission is due the sheriff for a sale of personal property “if anything is done between them by which a sale is rendered unnecessary, that must be considered a settlement within the meaning of the act.” 27 N.J.L. at 426. That did not happen in our hypothetical case. There was no agreement between the debtor and lender that rendered the sheriff’s sale unnecessary. The sheriff, if allowed the commission, would be receiving a windfall. Thus, the law should follow the decision in Bejjani which denied the sheriff a commission.
In sum, whether the sheriff is entitled to a commission in a real property foreclosure sale when the property is sold under the auspices of the bankruptcy court will depend very much on the jurisdiction where the foreclosure action was pending in. This is an issue parties and counsel should be very aware of because if a commission is due, it could possibly result in hundreds of thousands of dollars being owed to the sheriff that could reduce the amount to be received by the secured lender in the event the property was underwater or may result in the bankruptcy estate having to pay additional claims in light of the foreclosure action, thereby reducing the amount of funds available for other creditors under the Bankruptcy Code’s distribution waterfall. Thus, all parties should be forewarned that the sheriff may come looking for money.
[i] Bruce Buechler is a partner and vice chair of the Bankruptcy, Financial Reorganization and Creditors’ Rights Department of Lowenstein Sandler LLP. He can be reached at [email protected]. The views expressed in this article are solely those of the author and do not reflect those of Lowenstein Sandler LLP or any of its clients. Mr. Buechler thanks Raymond Cooper, a summer associate, for his assistance on this article.
For lenders: 5 reasons for losing a customer
By Matt Cockayne, Chief Commercial Officer at Yapily
Businesses of all sizes are battling the ongoing effects caused by the pandemic, and there’s no denying that the UK economy is perhaps worse than it has ever been before. As local lockdowns make their way across the country, businesses are in dire need of extra financial support.
The government-backed loan schemes have been a lifeline for many. But as the demand for financial aid continues to grow, many businesses are not receiving funds quickly enough, and lenders are bearing the brunt of this scrutiny. Indeed, there are those who suggest that lenders are fully aware of the current urgency, so should be doing more to respond to their customers’ needs.
No one could have predicted the detrimental impact Covid-19 has had on the global economy. For lenders, this has left them with no choice but to enforce stricter rules, and add more stringent criteria to manage this influx of loan applications.
While shutting up shop to new customers is an easy route for lenders to take, it’s not forward thinking, and the current market, we hope, is only temporary. As such, growing a customer base is equally as important as retaining existing accounts – especially as there are still lots of businesses in need of support.
We are already seeing innovative lenders, who are spotting this opportunity to grow their customer base, however there are still some who are missing this possibility to expand.
Below are 5 reasons to why lenders may be losing customers, and how best to fix this:
1. Limited personalisation
Standardised loan options mean customers are limited to how they can respond to the current market and thrive in a post-covid world. But every business is different, so they need personalised options best suited to them.
Services like Open Banking allow lenders to distribute hyper-personalised solutions to their customers. By harnessing real-time transaction and account data, lenders can make much fairer and faster decisions based on a business’ actual financial position, not estimates.
2. Manual, outdated processes
Traditional lending processes take time, and in this current climate – time is money. Not only do manual, paper-based loan procedures take far too much time, they also increase the chance of inefficiencies. By relying on outdated information, lenders are not in the best position to offer businesses the optimal lending options.
Through innovation, the speed and efficiency of lending will drastically improve. Instant access to up-to-date financial information via Open Banking APIs, means lenders can speed up all mandatory approval processes and businesses can receive funds directly into their bank accounts, reducing the delay in receiving loans..
3. No sense of transparency
A lack of transparency for providing loan terms or rejecting loan applications, creates an element of doubt, which ultimately drives customers away.
Lenders need to over-communicate with their customers, explaining in detail how they have reached their solution. This process is made easier through harnessing services like Open Banking. Decisions are based solely around an individual’s financial situation, using real-information instead of generalised data sets, meaning lenders can give transparent feedback to the business in question.
4. Lack of security
Out-dated systems, and long manual processes not only cause inefficiencies, increasing the chance of human error or fraud. For example, human error led CitiGroup to mistakenly transmit $900 million earlier this year.
By harnessing Open Banking, lenders are able to access fast, and highly secure data transfers – customers get to decide who accesses their financial data, and how long they’d like it to be shared for. As processes go digital, there is a significantly lower chance of human error or loopholes opening the door to fraudsters.
5. Substandard lending decisions
Unmanageable application checks are exposing businesses to risk, and causing a holdup for loan distributions – and in these challenging times, it’s not an option for money and time to be wasted.
Open Banking means lenders can develop an accurate picture of their customers’ financial position using up-to-date information. Combined with deep-learning technology and real-time data, lenders can access spending patterns, income, debt and identity verification to build a customer profile and personalise their lending options.
It’s time for lenders to do everything they can to support businesses’ survival. By digitising their lending cycles and harnessing services like Open Banking, lenders can act fast to determine customers’ borrowing options, fairly and efficiently. Not only will this help attract new customers to grow their base, but it will assist in a speedy economic recovery, and help many more businesses as we head into a post-covid world.
Eight Benefits of International Financing
By Luigi Wewege is the Senior Vice President, and Head of Private Banking of Belize based Caye International Bank
Lending is one of the key elements of any international banking strategy. Just as you would carefully select an offshore bank to provide essential services like checking, term deposit, and savings accounts, it makes sense to learn a bit about the lending options. As you compare loan options, there are several advantages that you’ll notice about many international loan offerings.
Here are a few of the significant benefits that you’re likely to encounter.
Broader Range of Lending Options
The diverse options for international loans are one of the first things that many people notice. You’ll find all the loan types that you’re used to encountering in a domestic setting. If one of those happens to work well for you, that’s great. If not, you’ll find other approaches that are more to your liking.
Exactly how the different loan options compare to one another will vary. Some will be different in terms of how the interest rate is applied to the loan balance. In some cases, the fees that are assessed on the front end or during the life of the loan will be different. Some may require a deposit that you must leave with the lender, while others will require nothing more than paying fees.
In each case, you can compare the terms and costs, settle on the loan type that works for you, and hopefully receive an approval.
Policies and Procedures That Work for You
Another perk of considering international financing is that banking laws and procedures may differ from what you encounter at home. Since some laws vary from one country to the next, it’s possible to find a combination that happens to work in your favor. If so, you could end up saving a significant sum on various fees and charges.
Taking the time to learn about applicable banking laws and procedures is essential. Don’t assume what you know about domestic lending is also valid in a different nation. Work closely with lending officers to ensure you understand how the loans are structured and what obligations you take on if the loan is approved.
Competitive Interest Rates and Terms
One factor that you will find pleasing about international lending is that many types of loans come with interest rates that compare favorably with what you’re used to at home. The terms and conditions are also likely to provide you with more incentive to seek an international loan.
This is especially true in nations that are welcoming to expats. The goal is to encourage expats to invest in the country by taking out loans designed to meet their needs and simultaneously stimulate the economy. To do that, the loan contracts are often structured so that international clients enjoy rates and terms that they may or may not qualify for in their countries of origin.
In other words, you could find more than broader options for loan types and terms. An international lender may be willing to extend financing with terms that a domestic lender would not offer to you.
More Options for Multi-Currency Choices
Have you considered how securing a loan in a different currency could prove helpful? The currency involved could be the local one, or it could be a currency that is currently enjoying an excellent exchange rate with other currencies. By option for that approach, you could conceivably increase the purchasing power that the loan proceeds provide.
Think of what that means if you’re a business professional looking to establish a presence in a given nation. The loan could provide you with funds in local currency to pay suppliers, vendors, or even construction professionals. Even if you’re an expat who’s retiring in a given nation, funds in certain currencies provide what you need to pay necessary bills as well as help cover medical costs not included in medical insurance.
Privacy and Security
You already know that many international financial institutions provide protections that are not always available at home. That applies to loans just as it does to your time deposit or checking account. Obtaining information about the loan terms, payment history, and other essentials will be difficult for anyone who is not authorized to receive the data. It’s one more way that the lender seeks to protect your privacy.
There’s also plenty of security surrounding your personal data. It’s not just a matter of having a password that allows access. The security network of the typical offshore lender contains several measures designed to prevent data theft. That ensures you don’t have to be concerned about your information leaking to anyone who could exploit it for their purposes.
Safety from Political Unrest
Political shifts can and do impact the financial world. That’s true in any nation. You can protect yourself by opting for a country that appears to be politically stable and is unlikely to experience any major upheaval in the future.
Why does this matter? Political shifts do pave the way for possible changes to financial laws and lending. They can also lead to economic changes that may include the onset of a recession or depression. Shifts of this nature can impact all your offshore banking, including any active loans. With loans based in the right nation, you can rest assured that few if any changes will occur during the life of the loan.
Potential Tax Advantages
Depending on the type of loan you’re seeking, there may be tax advantages related to an international loan versus a domestic one. The difference could be mainly in the amount of tax you’ll owe on the loan balance itself. Even a small difference on a loan that will take years to retire could be significant.
The best way to determine what tax advantages exist is to talk with a loan officer. You’ll get a better idea of any taxes that may be assessed by the country where your loan resides. It’s also easier to determine if the banking laws allow the agencies in your country of origin to impose any tax on the international loan. Once you understand what sort of tax burden applies, it will be easier to decide if the international loan is right for you.
Easy to Manage the Loan
How will you go about managing the loan? Just as many offshore banks have full online access to other forms of banking accounts, the same is true for loans. If you have other types of accounts in place with the lender, you can manage everything using a single online account interface.
That makes it easy to check the current loan balance, make payments using funds in a checking account, and even know when the most recent payment is applied to the loan balance. Since the online interface is up and running any time of the day or night, you can manage your loan no matter where you happen to be at the time. As long as you have your login credentials, managing the loan is easy.
Take Advantage of an International Loan Today
Use offshore banking and international lending to your financial advantage. The team at Caye International Bank is ready to help you with all of your banking needs, including personal and business loans.
Contact one of our banking service professionals today and outline what you have in mind. Once you learn more about the various types of options available, one of them is sure to be perfect for your needs.
This is a Sponsored Feature
Luigi Wewege is the Senior Vice President, and Head of Private Banking of Belize based Caye International Bank, a FinTech School Instructor and the published author of The Digital Banking Revolution – now in its third edition.
You can follow his posts on trends shaping the banking and financial services industry on Twitter: @luigiwewege
How the UK’s tax system could change to recover from COVID-19
By Finn Houlihan, Director at ATC Tax
The economic impact of the COVID-19 pandemic on the British economy continues to be profound. In October, national debt surpassed 100% of GDP, causing Chancellor Rishi Sunak to stress the books needed to be balanced. In order to so, the Government will almost inevitably turn to tax increases as a core part of the long-term recovery effort.
And, with the Office for Budget Responsibility estimating that tax increases of £60bn are needed to restore the UK’s public finances to stability, and avoid a return to austerity, the UK’s tax policies could be set to undergo significant reform.
Already it looks like the Chancellor will begin tax reformation by raising taxes for the wealthy, with a review of capital gains tax ordered in July. There are various ways capital gains tax could be reformed to raise funds. Removing or reducing the annual exemption or losses relief, currently standing at £12,300 would be the obvious way forward. However, while this would apply to a lot of people, it wouldn’t generate a significant amount of funds, although it would most likely win cross-party support.
Inheritance tax has also been discussed in being one of the first types of tax to be reformed. Last year, the Office for Tax Simplification published plans to streamline inheritance tax rules to limit the number of exemptions. While the report hasn’t been put into practice yet, the Government could return to the plans to raise funds.
With the focus on increased taxes on the wealthy, the calls for a new wealth tax have grown and opinion polls indicate general public backing for one. Implementing a wealth tax would ensure those with the most assets carry the brunt of the financial load, while also raising a significant amount to shore up public finances.
However, the tax would require the creation of a huge administrative framework to deal with the declaration of assets from millions of Brits. The complexity of doing so would likely dissipate some of the public support while would take a long time, given government departments are already overwhelmed with responding to the crisis. A compromise could be found with a one-off wealth tax which would not require the same level of administration while still raise funds in the short-term.
Other new forms of tax have been put forward, including a new tax on goods solid online to prevent the potential collapse of the high street, which is being considered by The Treasury. This tax would involve a 2% levy on goods sold online and a mandatory charge on consumer deliveries. With the Chancellor recently deciding to abolish tax-free shopping for tourists in the UK, it’s clear retail is a main focus of the Government’s tax policy, so this could well become reality.
Another new tax policy considered by the Treasury is the “Capital Values Tax”. This would replace current business rates and be based on the value of land and the buildings on it, with the tax paid by the property owner, rather than the business leasing it.
Another avenue the Government could go down is what has gone before in times of crisis. During both world wars, the Treasury issued war bonds to encourage investment while reduce inflation and remove money from circulation. To aid the economic recovery effort, the Government could introduce COVID-19 bonds to have a similar effect and help businesses recover.
The recovery plan from the 2008 recession will also be on the minds of the Government, particularly as many would have been in the government setup then. However, with Prime Minister Boris Johnson effectively ruling out a return to austerity, it’s likely the Government will do everything they can to avoid the return of unpopular taxes such as the “bedroom tax” which came into effect then.
As the COVID-19 pandemic continues to reshape Britain’s economy, so too must its tax policy change with it. Funds will need to be raised in order to reduce debt and this will inevitably involve tax increases and it’s likely the Chancellor will employ a range of methods to create the new tax regime.
Early signs indicate taxes will be raised for the wealthy more than other demographics, with capital gains tax and inheritance tax likely to be targeted. Additionally, new forms of taxes relevant to the changed landscape will likely be put in place, particularly the online sales of goods tax to reflect the digital age. The Government may even look to previous crises, including the world wars and 2008 recession, to see what was done then.
Regardless, there can’t be any doubt that we’re about to enter a new stage of the pandemic response, which focuses around how to emerge from the crisis economically, and tax rises will be one of the first things to come into play.
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