SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
A-l076-97T2
EUGENE M. MOONEY and
SHARYN A. MOONEY,
Plaintiffs-Respondents,
v.
THE PROVIDENT SAVINGS BANK,
Defendant,
and
WILLIAM DIOGUARDI and ESTHER
DIOGUARDI,
Defendants-Appellants.
____________________________________________
Argued: January 2l, l999 Decided: February 11, 1999
Before Judges Wallace and Newman.
On appeal from Superior Court of New
Jersey, Chancery Division, Monmouth
County.
W. Peter Ragan argued the cause for
appellants (Ragan & Ragan, attorneys;
Mr. Ragan and Laura Rienzidiver, on
the brief).
Kathleen R. Wall argued the cause for
respondents.
PER CURIAM
Defendants, William and Esther Dioguardi, appeal from that
portion of the order discharging their mortgage on the property
known as 5l0 West End Avenue, Avon, New Jersey and denying their
motion to dismiss plaintiffs' complaint.
We affirm substantially for the reasons expressed in Judge
McGann's well-reasoned opinion, Mooney v. The Provident Savings
Bank,
308 N.J. Super. 195 (Ch. Div. 1997). We agree that the
equitable considerations found to exist by Judge McGann allowed
him to depart from the warranty of title theory adhered to in Old
Republic Insurance Co. v. Currie,
284 N.J. Super. 57l (Ch. Div.
l995). As noted, defendants here were given notice of the
Sheriff's sale, which they chose not to attend. There was no
competitive bidding at the Sheriff's sale at which plaintiffs
successfully bid on the property. Plaintiffs received a
Sheriff's deed. Plaintiffs did not engage in any fraudulent
conduct in acquiring 5l0 West End Avenue, a residence which they
previously owned, nor had they entered into, by the terms of the
original mortgage given to defendants, any contractual
undertaking to pay off any of the junior encumbrancers. We agree
on these facts, there is no equitable basis for reviving
defendants' levy on the property, which was extinguished in
plaintiff's bankruptcy discharge and subsequently acquired by
plaintiffs at the Sheriff's sale.
The order discharging the mortgage is affirmed.