NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-5457-18T3
CITY OF NEWARK,
Plaintiff-Respondent,
v.
BLOCK 5088, LOT 1 (#106) [Claim #1015] Assessed to Antonio F. and Maria Cunha, 343-351 South Street, Newark, NJ,
Defendants-Appellants. _____________________________
Argued telephonically March 18, 2020 — Decided April 8, 2020
Before Judges Koblitz, Whipple and Mawla.
On appeal from the Superior Court of New Jersey, Chancery Division, Essex County, Docket No. F- 025265-15.
Michael T. Stewart argued the cause for appellants (Peri & Stewart, LLC, attorneys; Michael T. Stewart, on the briefs). Elliott Joseph Almanza argued the cause for respondent (Goldenberg Mackler Sayegh Mintz Pfeffer Bonchi & Gill, attorneys; Elliott Joseph Almanza, on the brief).
PER CURIAM
Defendant Maria Cunha appeals from a July 8, 2019 order denying her
motion to vacate a default judgment of foreclosure entered in favor of plaintiff
the City of Newark. We reverse and remand for further proceedings consistent
with this opinion.
Defendant is eighty-one years old and has owned the subject property
since 1996. Two commercial family businesses owned and operated by
defendant's sons and daughter-in-law occupy the property.
In 2009, plaintiff acquired a tax sale certificate at an auction of the
property for unpaid taxes, and water and sewer charges. Plaintiff began a
foreclosure and a search for the property owners revealed multiple potential
addresses for service of process, including the property address itself, and two
addresses on Ann Street in Newark, one of which was defendant's home address.
The postmaster confirmed these addresses were valid and deliverable.
In July 2015, plaintiff filed a foreclosure complaint. The face value of the
tax sale certificate was $13,964.37, but because the certificate went unpaid for
A-5457-18T3 2 eleven years, the redemption amount grew to $154,501.18 as of December 31,
2015.
Plaintiff served defendant with the notice of foreclosure via regular and
certified mail by delivering two sets of the notice to the property, one addressed
to defendant and one to "Owner/Occupant/Tenant"; and sent a second set to
defendant's address. None of the mailings were returned as undeliverable. On
October 25, 2015, an "R. Cuhna" signed for the certified mailings to the
property. The certified mail sent to defendant's address was unclaimed, but the
postal delivery confirmation stated "left notice" on the envelope.
Additionally, plaintiff published the notice of foreclosure on October 2,
2015, in the Star-Ledger. The notice was also posted in the office of the tax
collector, office of the county recording officer, and in three other places in the
municipality.
On October 9, 2015, one of defendant's sons called foreclosure counsel's
office stating he received the notice of foreclosure. Beginning in March 2017,
he contacted plaintiff thirty-two times attempting to ascertain the redemption
amount.
Defendant did not answer the complaint, and the court entered default
judgment on February 4, 2016, which was recorded on March 9, 2016. Plaintiff
A-5457-18T3 3 sent two copies of the final judgment to the property and one to defendant's
home address. None of the mailings were returned as undeliverable.
On January 29, 2019, defendant entered into a contract for sale of the
property. The buyer's counsel ordered a title report, which revealed the
foreclosure judgment. Plaintiff would not permit defendant to redeem the lien
certificate because it now owned the property.
In May 2019, defendant filed a complaint and order to show cause in the
Chancery Division to set aside the final judgment. Pursuant to Rule 4:50-1(d),
she claimed the judgment was void for lack of notice. Defendant, her sons, and
daughter-in-law certified they never received any notice of the foreclosure. She
also argued excusable neglect under Rule 4:50-1(a), due to plaintiff's refusal to
reply to her son's requests for a redemption figure. She argued exceptional
circumstances justified relief under Rule 4:50-1(f), because permitting the
judgment to stand would cause her to lose substantial equity in the property and
generate a windfall to plaintiff, since the property was unencumbered by a
mortgage and under contract for sale at $850,000.
Following oral argument, the judge rendered oral findings concluding
plaintiff effectuated valid service on defendant. The judge concluded
defendant's argument that the judgment was void under Rule 4:50-1(d) for lack
A-5457-18T3 4 of service was "undermined by the papers that were provided by . . . [plaintiff]
establishing that indeed the complaint and notice were served" at the property's
address and defendant's home address.
The judge found no basis for relief under Rule 4:50-1(a) and (f). She
noted defendant exceeded the one-year time limit for relief under Rule 4:50-1(a)
and was negligent for not paying taxes since 2004, or attempting to address the
issue until March 2017, more than one year after the judgment was entered. She
found no exceptional circumstances warranting relief, concluding "in this case
the equities weigh[ed] in favor of . . . [plaintiff]" because the contract for sale
on the property was entered into
more than three years after the final judgment was entered. And defendants have not certified to this [c]ourt that the purchasers in that contract are ready, willing, and able to close the contract.
Although the contract in the amount that is stated would in fact cover the judgment amount due in full to [plaintiff,] there is no guarantee that that contract will go through. . . .
We review a court's determination under Rule 4:50-1 for an abuse of
discretion. Hous. Auth. of Morristown v. Little, 135 N.J. 274, 283 (1994). Rule
4:50-1 states "the court may relieve a party . . . from a final judgment . . . for the
following reasons: (a) mistake, inadvertence, surprise, or excusable neglect; . . .
A-5457-18T3 5 (d) the judgment or order is void; . . . or (f) any other reason justifying relief
from the operation of the judgment or order." "The rule is 'designed to reconcile
the strong interests in finality of judgments and judicial efficiency with the
equitable notion that courts should have authority to avoid an unjust result in
any given case.'" U.S. Nat'l Bank Ass'n v. Guillaume, 209 N.J. 449, 467 (2012)
(citation and internal quotation marks omitted).
In the context of a default judgment "[a] court should view 'the opening
of default judgments . . . with great liberality,' and should tolerate 'every
reasonable ground for indulgence . . . to the end that a just result is reached.'"
Mancini v. EDS ex rel N.J. Auto. Full Ins. Underwriting Ass'n, 132 N.J. 330,
334 (1993) (second and third alteration in original) (quoting Marder v. Realty
Constr. Co., 84 N.J. Super. 313, 319 (App. Div. 1964)). "In the tax sale
certificate foreclosure context considerations of public policy and equity are also
Free access — add to your briefcase to read the full text and ask questions with AI
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-5457-18T3
CITY OF NEWARK,
Plaintiff-Respondent,
v.
BLOCK 5088, LOT 1 (#106) [Claim #1015] Assessed to Antonio F. and Maria Cunha, 343-351 South Street, Newark, NJ,
Defendants-Appellants. _____________________________
Argued telephonically March 18, 2020 — Decided April 8, 2020
Before Judges Koblitz, Whipple and Mawla.
On appeal from the Superior Court of New Jersey, Chancery Division, Essex County, Docket No. F- 025265-15.
Michael T. Stewart argued the cause for appellants (Peri & Stewart, LLC, attorneys; Michael T. Stewart, on the briefs). Elliott Joseph Almanza argued the cause for respondent (Goldenberg Mackler Sayegh Mintz Pfeffer Bonchi & Gill, attorneys; Elliott Joseph Almanza, on the brief).
PER CURIAM
Defendant Maria Cunha appeals from a July 8, 2019 order denying her
motion to vacate a default judgment of foreclosure entered in favor of plaintiff
the City of Newark. We reverse and remand for further proceedings consistent
with this opinion.
Defendant is eighty-one years old and has owned the subject property
since 1996. Two commercial family businesses owned and operated by
defendant's sons and daughter-in-law occupy the property.
In 2009, plaintiff acquired a tax sale certificate at an auction of the
property for unpaid taxes, and water and sewer charges. Plaintiff began a
foreclosure and a search for the property owners revealed multiple potential
addresses for service of process, including the property address itself, and two
addresses on Ann Street in Newark, one of which was defendant's home address.
The postmaster confirmed these addresses were valid and deliverable.
In July 2015, plaintiff filed a foreclosure complaint. The face value of the
tax sale certificate was $13,964.37, but because the certificate went unpaid for
A-5457-18T3 2 eleven years, the redemption amount grew to $154,501.18 as of December 31,
2015.
Plaintiff served defendant with the notice of foreclosure via regular and
certified mail by delivering two sets of the notice to the property, one addressed
to defendant and one to "Owner/Occupant/Tenant"; and sent a second set to
defendant's address. None of the mailings were returned as undeliverable. On
October 25, 2015, an "R. Cuhna" signed for the certified mailings to the
property. The certified mail sent to defendant's address was unclaimed, but the
postal delivery confirmation stated "left notice" on the envelope.
Additionally, plaintiff published the notice of foreclosure on October 2,
2015, in the Star-Ledger. The notice was also posted in the office of the tax
collector, office of the county recording officer, and in three other places in the
municipality.
On October 9, 2015, one of defendant's sons called foreclosure counsel's
office stating he received the notice of foreclosure. Beginning in March 2017,
he contacted plaintiff thirty-two times attempting to ascertain the redemption
amount.
Defendant did not answer the complaint, and the court entered default
judgment on February 4, 2016, which was recorded on March 9, 2016. Plaintiff
A-5457-18T3 3 sent two copies of the final judgment to the property and one to defendant's
home address. None of the mailings were returned as undeliverable.
On January 29, 2019, defendant entered into a contract for sale of the
property. The buyer's counsel ordered a title report, which revealed the
foreclosure judgment. Plaintiff would not permit defendant to redeem the lien
certificate because it now owned the property.
In May 2019, defendant filed a complaint and order to show cause in the
Chancery Division to set aside the final judgment. Pursuant to Rule 4:50-1(d),
she claimed the judgment was void for lack of notice. Defendant, her sons, and
daughter-in-law certified they never received any notice of the foreclosure. She
also argued excusable neglect under Rule 4:50-1(a), due to plaintiff's refusal to
reply to her son's requests for a redemption figure. She argued exceptional
circumstances justified relief under Rule 4:50-1(f), because permitting the
judgment to stand would cause her to lose substantial equity in the property and
generate a windfall to plaintiff, since the property was unencumbered by a
mortgage and under contract for sale at $850,000.
Following oral argument, the judge rendered oral findings concluding
plaintiff effectuated valid service on defendant. The judge concluded
defendant's argument that the judgment was void under Rule 4:50-1(d) for lack
A-5457-18T3 4 of service was "undermined by the papers that were provided by . . . [plaintiff]
establishing that indeed the complaint and notice were served" at the property's
address and defendant's home address.
The judge found no basis for relief under Rule 4:50-1(a) and (f). She
noted defendant exceeded the one-year time limit for relief under Rule 4:50-1(a)
and was negligent for not paying taxes since 2004, or attempting to address the
issue until March 2017, more than one year after the judgment was entered. She
found no exceptional circumstances warranting relief, concluding "in this case
the equities weigh[ed] in favor of . . . [plaintiff]" because the contract for sale
on the property was entered into
more than three years after the final judgment was entered. And defendants have not certified to this [c]ourt that the purchasers in that contract are ready, willing, and able to close the contract.
Although the contract in the amount that is stated would in fact cover the judgment amount due in full to [plaintiff,] there is no guarantee that that contract will go through. . . .
We review a court's determination under Rule 4:50-1 for an abuse of
discretion. Hous. Auth. of Morristown v. Little, 135 N.J. 274, 283 (1994). Rule
4:50-1 states "the court may relieve a party . . . from a final judgment . . . for the
following reasons: (a) mistake, inadvertence, surprise, or excusable neglect; . . .
A-5457-18T3 5 (d) the judgment or order is void; . . . or (f) any other reason justifying relief
from the operation of the judgment or order." "The rule is 'designed to reconcile
the strong interests in finality of judgments and judicial efficiency with the
equitable notion that courts should have authority to avoid an unjust result in
any given case.'" U.S. Nat'l Bank Ass'n v. Guillaume, 209 N.J. 449, 467 (2012)
(citation and internal quotation marks omitted).
In the context of a default judgment "[a] court should view 'the opening
of default judgments . . . with great liberality,' and should tolerate 'every
reasonable ground for indulgence . . . to the end that a just result is reached.'"
Mancini v. EDS ex rel N.J. Auto. Full Ins. Underwriting Ass'n, 132 N.J. 330,
334 (1993) (second and third alteration in original) (quoting Marder v. Realty
Constr. Co., 84 N.J. Super. 313, 319 (App. Div. 1964)). "In the tax sale
certificate foreclosure context considerations of public policy and equity are also
taken into account." M&D Assocs. v. Mandara, 366 N.J. Super. 341, 350 (App.
Div. 2004).
On appeal, defendant urges reversal on the same grounds argued to the
motion judge. At a minimum, defendant asserts the matter should be remanded
to the motion judge for a hearing and testimony regarding her claims.
A-5457-18T3 6 "When 'a default judgment is taken in the face of defective personal
service, the judgment is [generally] void'" and relief is warranted under Rule
4:50-1(d). Jameson v. Great Atl. & Pac. Tea Co., 363 N.J. Super. 419, 425 (App.
Div. 2003) (alteration in original) (quoting Rosa v. Araujo, 260 N.J. Super. 458,
462 (App. Div. 1992)). We agree with the motion judge that plaintiff effectuated
proper service of process and defendant lacked grounds for relief pursuant to
Rule 4:50-1(d).
Indeed, plaintiff complied with its obligations under Rule 4:64-7(b) and
(c), which respectively require publication of the notice of foreclosure in a
generally-circulated newspaper in the municipality of the property, and personal
service of the foreclosure notice on each person whose name appears as an
owner in the tax foreclosure lists at the last known address, as it appears on the
last municipal tax duplicate. Plaintiff complied with Rule 4:64-7(c), which
requires that personal service take place either in the manner provided in Rule
4:4-4(a)(1) or (c), or by simultaneously mailing notice to the last known address
via registered or certified mail, and via ordinary mail. Plaintiff also complied
with its obligation under Rule 4:64-7(d), which requires it to post a copy of the
foreclosure notice within fifteen days of publication of the notice in the office
of the tax collector, the office of the county recording officer, and in three
A-5457-18T3 7 additional conspicuous places within the taxing district where the property is
located.
Rule 4:50-1(a) requires a showing of excusable neglect and a meritorious
defense. Guillaume, 209 N.J. at 468. "'Excusable neglect' may be found when
the default was 'attributable to an honest mistake that is compatible with due
diligence or reasonable prudence." Ibid. (quoting Mancini, 132 N.J. at 335).
We discern no error in the judge's findings this relief was time-barred pursuant
to Rule 4:50-2 and agree substantially for the reasons she expressed.
Lastly, the Supreme Court stated: "No categorization can be made of the
situations which would warrant redress under [Rule 4:50-1](f). . . . [T]he very
essence of (f) is its capacity for relief in exceptional situations. And in such
exceptional cases its boundaries are as expansive as the need to achieve equity
and justice." DEG, LLC v. Twp. of Fairfield, 198 N.J. 242, 269-70 (2009)
(quoting Court Inv. Co. v. Perillo, 48 N.J. 334, 341 (1966)) (second alteration
in original). We have stated that "general equitable principles . . . apply to the
remedy of foreclosure. Foreclosure is a harsh remedy and equity abhors a
forfeiture. A court of equity may invoke its inherent equitable powers to avoid
a forfeiture and deny the remedy of foreclosure." Sovereign Bank v. Kuelzow,
297 N.J. Super. 187, 198 (App. Div. 1997) (citation omitted).
A-5457-18T3 8 Defendant argued she contracted for the sale of the property with a buyer
who was ready, willing, and able to close. Indeed, we understand the attorney
review process concluded and all inspections were either satisfied or waived by
the buyer, who was prepared to close. These facts conflict with the judge's
findings and the record lacks findings to support the judge's conclusion that a
sale could not be consummated. Moreover, considering the judge was
"aware . . . [the elderly defendant] . . . will lose significant equity if the [c]ourt
does not vacate the default judgment" and found "the contract in the amount that
is stated would in fact cover the judgment amount due in full to [plaintiff,]" more
findings were necessary before the judge could conclude the equities weighed
in favor of plaintiff. For these reasons, we reverse and remand for further
findings and a plenary hearing, if necessary.
Reversed and remanded. We do not retain jurisdiction.
A-5457-18T3 9