When you own a property that collects rent in New Jersey, and you go into foreclosure, is the bank or lender entitled to that rent? And if they are, how do they go about collecting it? Can you stop them?
In New Jersey, the procedure to appoint a rent receiver (one who collects rent for the lender from the property during a foreclosure action) is done typically by motion through the lender’s attorney. This is called a Motion to Appoint a Rent Receiver. This motion must be served 16 days before the return date on a motion day, which in New Jersey is every other Friday. The return date is set by the attorney filing the motion, not the Court unless there is a conflict. The motion calendar for the state can be found here.
The opposition to the motion must be served and filed eight days before the designated return date. The moving party can request an oral argument (lender’s lawyers), and if it is waived, the responding party may seek to argue in Court. Oral arguments are granted at the Court’s discretion. If the lender’s lawyers meet their burden, which is “the necessity of a receiver to protect the mortgagee’s
security over time,” than a receiver should be appointed.
The power of a rent receiver will be set forth in the order signed by the judge, but they can be broad. They are typically allowed to take all actions needed to fulfill their responsibility as a receiver. This means to take possession of the rentable premises, rent it, and collect the income. They can also conduct repairs, change locks, and complete other functions of a property manager. During this time the borrower does not have access to the premises and if they attempt to enter, they will be in violation of a court order and are subject to arrest. The powers of the rent receiver can be challenged when opposing the motion, so it’s important that an attorney reviews how to respond in these situations.
The chances in a standard foreclosure case for a lender to seek a rent receiver is not likely. Generally, when a bank initiates a foreclosure action, they seek to complete the foreclosure case as soon as possible. Rather than submit a motion to the court, which can take upwards of two months for a lender to be heard, lender’s attorneys would rather seek to obtain a final judgment and sale as soon as possible. There are situations however that a rent receiver will be sought. Particularly if rental income is substantial and/or there will be expected delays. If there are multiple actions, for instance from a condo association and a bank for the same property, the junior lienholder may seek to obtain a rent receiver while the senior lien moves forward in foreclosure or vice versa.
This blog is a general discussion of rent receivers and is not intended as legal advice. If you wish to speak with a New Jersey foreclosure lawyer, meet with one of our attorneys today in Jersey City for free. Patel & Soltis can be reached at 973-200-1111 or [email protected]