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Sunday, October 14, 2012

GASKILL VS. CITI MORTGAGE A-5832-10T2


GASKILL VS. CITI MORTGAGE
          A-5832-10T2
     Plaintiffs sought to cancel a judgment obtained prior to
filing a petition in bankruptcy pursuant to N.J.S.A. 2A:16-49.1.
Although the judgment creditor had not levied on the real
property owned by plaintiffs prior to the bankruptcy filing and
the judgment was eligible for cancellation, plaintiffs had
failed to list the judgment creditor or the judgment in their
petition.  Therefore, the judgment creditor had no knowledge of
the bankruptcy filing or the discharge in bankruptcy and no
opportunity to enforce its judgment post-discharge and before
plaintiffs filed their complaint to cancel the judgment.  We
held that the motion judge properly tolled the period in which
the judgment creditor could seek to enforce its judgment until
one year following conclusion of this litigation.  We reasoned
that the statutory remedy provided by N.J.S.A. 2A:16-49.1
assumes knowledge by the judgment creditor of the bankruptcy
proceedings and the discharge in bankruptcy.  Here, it was
undisputed that the judgment creditor had no knowledge of the
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bankruptcy proceeding before plaintiffs filed to cancel the
judgment. 
09-28-12