EBURY RE LLC VS. ANTONIA SURO (F-002372-17, MERCER COUNTY AND STATEWIDE)

• Court: New Jersey Superior Court Appellate Division
• Decided: June 13, 2019
• Docket: A-3874-17T4
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-3874-17T4

EBURY RE LLC,

Plaintiff-Respondent,

v.

ANTONIA SURO,

Defendant-Appellant,

and

THOMAS SURO and SOVEREIGN BANK, n/k/a SANTANDER BANK, NA,

Defendants. _______________________________

Submitted June 4, 2019 – Decided June 13, 2019

Before Judges Hoffman and Geiger.

On appeal from Superior Court of New Jersey, Chancery Division, Mercer County, Docket No. F- 002372-17.

Antonia Suro, appellant pro se. Pellegrino & Feldstein, LLC, attorneys for respondent (Michael G. Pellegrino, on the brief).

PER CURIAM

Defendant Antonia Suro appeals from a Chancery Division order denying

her motion to vacate the default and final judgment entered against her, and to

dismiss the complaint. Finding no merit in any of defendant's arguments, we

affirm.

In this tax lien foreclosure action, plaintiff Tower Fund Services as

Custodian for Ebury Fund 2NJ LLC filed its complaint to foreclose a tax sale

certificate affecting property in Trenton (the subject property) on January 31,

2017. The complaint named both Thomas Suro and Antonia Suro (collectively

defendants)1 as defendants based on the recorded deed conveying the subject

property to them. Plaintiff subsequently moved to substitute Ebury Re LLC as

the name of plaintiff due to changes in its corporate structure and the resulting

assignment of the tax sale certificate.

In February 2017, plaintiff arranged for Guaranteed Subpoena Service to

serve the summons and complaint on defendants. The attempt was unsuccessful;

the return of service stated the house was "possibly vacant and abandoned."

1 We refer to Thomas and Antonia Suro by their first names to avoid confusion. We intend no disrespect. A-3874-17T4 2 Counsel for plaintiff conducted several searches to determine any other

whereabouts of defendants, but those searches were unsuccessful. Counsel

represented that it appeared defendants were avoiding service.

Postal inquiries confirmed mail was delivered to Thomas and Antonia at

the subject property. Plaintiff's counsel then mailed the summons and complaint

to the subject property on March 1, 2017. Both mailings were delivered as

confirmed by certified mail green receipt cards signed by Antonia. Plaintiff also

published a Notice to Absent Defendants in The Times of Trenton, a newspaper

of general circulation in Mercer County, on April 28, 2017, in accordance with

Rule 4:4-4(a). Additionally, plaintiff's counsel represented to the trial court that

he spoke to both Antonia and her sister regarding the foreclosure, and that

Antonia was properly served with process and had actual knowledge of the

foreclosure action as early as March 2017.

On July 18, 2017, an order setting time to redeem was entered setting

September 1, 2017, as the time to redeem the tax sale certificate, and $50,608.41

as the amount to redeem. The order was sent to defendants by regular and

certified mail on July 19, 2017, and published in The Times of Trenton on July

21, 2017. Defendants did not redeem the tax sale certificate or file any pleadings

or motions with the court. On September 15, 2017, plaintiff moved for entry of

A-3874-17T4 3 judgment. The motion papers were sent to defendants by regular and certified

mail. An uncontested final judgment of foreclosure was entered against

defendants on October 20, 2017. Copies of the judgment were mailed to

defendants by regular and certified mail on October 31, 2017. In all three

instances, the certified mail was returned stamped "Unclaimed." The regular

mail was not returned by the Postal Service as undeliverable.

On December 19, 2017, Antonia received notice that physical eviction

from the subject property would occur on February 15, 2018, through execution

of a writ of possession. On February 7, 2018, Antonia moved to vacate the

default and final judgment and to dismiss the complaint. She claimed service of

process was defective and the property taxes were paid while the foreclosure

action was pending. Antonia disputed plaintiff was unable to personally serve

her at the subject property and took issue with the service by mail. Plaintiff

opposed the motion. Plaintiff represented defendants were properly credited for

all payments made. Correspondence from the Tax Collector confirmed

defendants were credited for tax payments on the 2017 taxes but did not

complete redemption of the taxes that fell due from 2010 to 2016.

The motion was considered on the papers without oral argument. The trial

court issued a March 14, 2018 order and written statement of reasons denying

A-3874-17T4 4 the motion. The court recognized that while motions to vacate default "should

be viewed with great liberality," quoting Marder v. Realty Construction Co., 84

N.J. Super. 313, 319 (App Div.) aff'd, 43 N.J. 508 (1964), motions for relief

from judgments based on any of the six grounds specified in Rule 4:50 "should

be granted sparingly," citing U.S. Bank National Ass'n v. Guillaume, 209 N.J.

449, 467 (2012). The court noted "[a] default judgment will not be disturbed

unless the failure to answer or otherwise appear and defend was excusable under

the circumstances and unless the defendant has a meritorious defense," citing

Guillaume, 209 N.J. 468-69.

Applying those principles, the trial court concluded:

Here, there is no issue with service of the complaint upon [d]efendant. Plaintiff made a diligent effort to serve [d]efendant at the subject property. Having been unable to serve [d]efendants by personal service, plaintiff served by the alternative means for service pursuant to [Rule] 4:4-[5] and [Rule] 4:64-7. Furthermore, [d]efendant has not redeemed the tax lien in full. Defendant and [d]efendant's sister have confirmed that [d]efendant is unable to pay off the tax lien.

Based upon the foregoing, [d]efendant has failed to demonstrate good cause for vacating the Final Judgment in this matter.

The order was not stayed pending appeal. The subject property was sold

by plaintiff to a third party on September 24, 2018 for the sum of $33,000.

A-3874-17T4 5 Defendant raises the following arguments: (1) the trial court erred and

abused its discretion in refusing to vacate the default judgment under Rules

4:50-1(d) and (f), and 4:50-3; (2) plaintiff deprived Antonia of the opportunity

to protect her interest by not serving her with a summons with the complaint;

(3) plaintiff prevented the Estate of Thomas Suro from protecting its interest by

omitting the Estate from the complaint despite having knowledge of his death;

and (4) plaintiff is guilty of unclean hands.

We affirm substantially for the reasons expressed by the trial court in its

written statement of reasons. Defendant's arguments lack sufficient merit to

warrant further discussion in this opinion, Rule 2:11-3(e)(1)(E), except for the

following comments.

Antonia states Thomas died on March 28, 2009 and asserts his estate was

prejudiced by the lack of service on it. Thomas and Antonia owned the subject

property as tenants by the entirety. "A tenancy by the entirety is a form of joint

property ownership available only to spouses that is created 'when property is

held by a husband and wife with each becoming seized and possessed of the

entire estate.'" Jimenez v. Jimenez, 454 N.J. Super. 432, 436 (App. Div. 2018)

(quoting N.T.B. v. D.D.B., 442 N.J. Super. 205, 218 (App. Div. 2015)). Each

tenant by the entirety has a right to survivorship; upon the death of one spouse,

A-3874-17T4 6 the surviving spouse "takes the whole." Ibid. (quoting N.T.B., 442 N.J. Super.

at 218). Upon the death of her husband, Antonia became sole owner of the

subject property by operation of law. Consequently, the Estate of Thomas Suro

was not a necessary party to the foreclosure action as it had no interest in the

subject property.

The record demonstrates plaintiff was unable to personally serve Antonia

with process despite diligent inquiry. Rule 4:4-5(a)(2) permits service of

process by mail and Rule 4:4-5(a)(3) permits service of process by publication

of a notice to absent defendants in tax lien foreclosures when "a defendant

cannot, after diligent inquiry . . . be served within the State." R. 4:4-5(a). The

service of process on Antonia by mail and publication was in conformance with

those rules and consistent with due process in this in rem foreclosure action.

Affirmed.

A-3874-17T4 7