08-06-09 FRANK BORROMEO VS. DOMINIC DIFLORIO
AND CAROL MIGLIACCIO
A-3979-07T2
In this appeal, we reviewed the statutory requisites for
writs of execution and concluded a misdirection in the command
of a writ, that is, commanding the wrong sheriff to execute on a
debtor's property and misstating the county in which the realty
is located, makes the writ void, not merely voidable. The error
cannot be cured by a corrected writ; a new writ must issue.
Moreover, an execution using a void writ is also void.
Regarding delivery of the writ, strict statutory compliance
is necessary and delivery occurs only when the sheriff stamps
the sealed writ. The date of receipt of a facsimile, which was
not stamped, cannot be considered "delivered" under the statute.
Finally, the debtor's discharge in bankruptcy of a claim
may not discharge the lien if the lien had attached to a legal
interest of the debtor prior to the bankruptcy. However, the
debtor must have held a legal interest subject to attachment,
pursuant to N.J.S.A. 2A:16-1. The matter is remanded for the
trial court to determine whether the debtor's recorded equitable
interest in realty was such an attachable interest.
Chase Smith assistant editor
