MORTGAGES; FORECLOSURE; NOTICES OF SALE; CHANGE OF LOCATION: Foreclosure sale may be set aside at the behest of a potential bidder when the location of the sale was changed from the original location published. Wayman v. Zmyewski, 629 N.Y.S.2d 871 (App. Div. 1995). The potential bidder filed an affidavit indicating that he had appeared at the published time and place was prepared to bid substantially more than the amount paid at the sale. The mortgagee bought at the rescheduled sale and argued that the competing bidder lacked standing to attack it.

Held: The purpose of publication of a foreclosure sale is to give notice to all potential bidders so that a fair value can be realized at the sale. When a change of location frustrates this purpose, the court may exercise equitable discretion to set the sale aside, and it is appropriate for a potential bidder to bring the problem to the attention of the court. "[T]he inquiry should focus on the basis for the court's exercise of its power over judicial sales, not the status of the party who requested that the court exercise its power."

The appeals court obviously is prepared to defer to the discretion of the foreclosure court. Compare, for example, the following recent New York decision:

MORTGAGES; DEFICIENCIES; FAIR VALUE; "COMMERCIAL REASONABLY SALE:" Guarantors of mortgage are liable for deficiency even though notice of sale incorrectly published notice of an adjourned sale date to take place ten days later than the actual sale. Norstar Bank v. LNP Realty Corp., 627 N.Y.S.2d 740 (App. Div. 1995). In this case there was no argument that the sale should be set aside, but given the irregularities of the adjourned sale date, irregularities contained in the foreclosure judgment and the disparity between the appraised value at the time of the initial loan and the foreclosure sale price, the guarantor argued that heightened judicial scrutiny as to the commercial reasonableness of the foreclosure sale should be applied. The Court did not agree.

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