NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-1982-22
FIDELITY ASSET MANAGEMENT, LLC,
Plaintiff-Respondent,
v.
LORE SMITH, her heirs, devisees and personal representatives and any of her, their or any of their successors in right, title and interest, VIRTUA HEALTH & REHABILITATION CENTER AT MT. HOLLY, and STATE OF NEW JERSEY,
Defendants,
and
KURT V. SMITH,
Defendant-Appellant. __________________________
Submitted January 31, 2024 – Decided March 4, 2024
Before Judges Accurso and Gummer. On appeal from the Superior Court of New Jersey, Chancery Division, Burlington County, Docket No. F-005657-21.
Kurt V. Smith, appellant pro se.
Honig & Greenberg, LLC, attorneys for respondent (Adam D. Greenberg, on the brief).
PER CURIAM
Defendant Kurt V. Smith appeals from the denial of his Rule 4:50
motion to vacate a tax foreclosure judgment. Because the record reveals
plaintiff Fidelity Asset Management LLC established it complied with all the
steps necessary to enter the final judgment, and defendant failed to
demonstrate excusable neglect, a meritorious defense or the existence of
exceptional circumstances to justify setting it aside, we affirm. See US Bank
Nat'l Ass'n v. Guillaume, 209 N.J. 449, 457 (2012).
Because the appeal arises out of a default judgment in a tax foreclosure,
the facts in the record are not extensive. What we know is that the property
was a single-family home owned by defendant's late mother and the real estate
taxes were current at the time of her death on October 16, 2018, when she
perished, along with her companion, in a fire that destroyed the dwelling.
Because defendant was apparently his mother's only heir, the property
passed to him immediately on her death. See McTamney v. McTamney, 138
A-1982-22 2 N.J. Eq. 28, 31 (Ch. 1946) (Judge Jayne explaining "the fundamental principle
of modern law that the fee in real property must always be vested in
someone"). A little over a week after the fourth-quarter taxes came due on
November 1, 2018, however, defendant was arrested and detained on homicide
and arson charges alleging he caused the deaths of his mother and her
companion by starting the fire, and the taxes went unpaid.
The property went to tax sale in September 2019. Plaintiff purchased
the tax sale certificate at the auction and sent a notice of intent to foreclose to
defendant's mother at the property in October 2021. Plaintiff filed its
complaint to foreclose the certificate the following month.
In February 2022, defendant was convicted by a jury of two counts of
second-degree reckless manslaughter, N.J.S.A. 2C:11-4(b)(1), and sentenced
to an aggregate extended term of eleven years in State prison, subject to the
periods of parole ineligibility and supervision required by the No Early
Release Act, N.J.S.A. 2C:43-7.2.1
1 The jury deadlocked on the arson charge. The State elected not to re-try defendant on that count, and it was dismissed at sentencing. We affirmed defendant's convictions and remanded his sentence for the judge to address the real time consequences of the sentence pursuant to N.J.S.A. 2C:43-2(f). State v. Smith, A-2068-21 (App. Div. Dec. 3, 2023) (slip op. at 26). Defendant's petition for certification is pending in the Supreme Court as of this writing.
A-1982-22 3 In March 2022, plaintiff filed an amended complaint to add defendant,
serving him personally in the Burlington County Jail on April 5, 2022. The
clerk's office rejected defendant's answer to the complaint because it was not
accompanied by the filing fee and his certification in support of a fee waiver
because it was not complete.2 Although the clerk's office sent defendant a
letter advising him of the problem and how to correct it, defendant claims he
never received the letter as he was transferred from the county jail to State
prison four days after mailing his answer.
With defendant having not corrected the problems with his answer,
default was entered on May 12. The court subsequently entered an order
fixing August 15, 2022, as the date to redeem the certificate in the amount of
$7,151.05. Defendant acknowledged timely service of that order at Mid-State
Correctional Facility. After defendant failed to redeem on that date, final
2 In his proposed pleading, defendant claimed he was never notified "of any past foreclosure notice" and claimed he had attempted to pay the taxes "well before the sale of the property" to plaintiff, but the Township Tax Office refused to "accept the money." Defendant also explained that his was a hardship case as the house was "completely destroy[ed] with no home insurance." In his certification in support of a fee waiver, defendant asserted he was without "sufficient funds or assets with which to pay the filings fees associated with this action," attaching a Uniform Defendant Intake form dated February 8, 2022, which included a statement from a probation officer stating defendant "does not appear to have the ability to make regular payments toward any court imposed fines/penalties/assessments at this time." A-1982-22 4 judgment foreclosing his right of redemption was subsequently entered on
September 20, 2022. Defendant acknowledges timely service of the judgment.
In December 2022, defendant moved to reopen the judgment under Rule
4:50-1 to allow him the opportunity to redeem, asserting his incarceration had
made it impossible for him to appear and redeem the certificate on the date
previously appointed. Although defendant had not designated which section of
the Rule he was invoking, Judge Fiamingo considered the motion under
subsection "(a) mistake, inadvertence, surprise or excusable neglect" and
subsection "(f) any other reason justifying relief from the operation of the
judgment or order," and found defendant could not qualify for relief under
either section.
In a comprehensive written statement of reasons, Judge Fiamingo
rejected defendant's assertion that his incarceration had prevented him from
filing an answer or acting to redeem the certificate. Acknowledging the case
law instructing that "before a default judgment can be entered against an
inmate for 'nonappearance,' the trial court must treat with liberality an inmate's
endeavor to defend," Beneficial of N.J. v. Bullock, 293 N.J. Super. 109, 112
(App. Div. 1996), the judge found default judgment here was not entered based
on defendant's "non-appearance." Instead, default judgment was appropriately
A-1982-22 5 entered because defendant could point to no irregularity in plaintiff's purchase
of the tax sale certificate and had failed to demonstrate any ability to redeem
it.
The judge rejected defendant's assertion that his incarceration had
prevented him from timely appointing someone to access his bank account and
appear at the place of redemption with the funds necessary to redeem.
Reviewing the power of attorney defendant had attached to his motion papers,
Judge Fiamingo noted it did not give defendant's attorney in fact the power to
access defendant's bank accounts.
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-1982-22
FIDELITY ASSET MANAGEMENT, LLC,
Plaintiff-Respondent,
v.
LORE SMITH, her heirs, devisees and personal representatives and any of her, their or any of their successors in right, title and interest, VIRTUA HEALTH & REHABILITATION CENTER AT MT. HOLLY, and STATE OF NEW JERSEY,
Defendants,
and
KURT V. SMITH,
Defendant-Appellant. __________________________
Submitted January 31, 2024 – Decided March 4, 2024
Before Judges Accurso and Gummer. On appeal from the Superior Court of New Jersey, Chancery Division, Burlington County, Docket No. F-005657-21.
Kurt V. Smith, appellant pro se.
Honig & Greenberg, LLC, attorneys for respondent (Adam D. Greenberg, on the brief).
PER CURIAM
Defendant Kurt V. Smith appeals from the denial of his Rule 4:50
motion to vacate a tax foreclosure judgment. Because the record reveals
plaintiff Fidelity Asset Management LLC established it complied with all the
steps necessary to enter the final judgment, and defendant failed to
demonstrate excusable neglect, a meritorious defense or the existence of
exceptional circumstances to justify setting it aside, we affirm. See US Bank
Nat'l Ass'n v. Guillaume, 209 N.J. 449, 457 (2012).
Because the appeal arises out of a default judgment in a tax foreclosure,
the facts in the record are not extensive. What we know is that the property
was a single-family home owned by defendant's late mother and the real estate
taxes were current at the time of her death on October 16, 2018, when she
perished, along with her companion, in a fire that destroyed the dwelling.
Because defendant was apparently his mother's only heir, the property
passed to him immediately on her death. See McTamney v. McTamney, 138
A-1982-22 2 N.J. Eq. 28, 31 (Ch. 1946) (Judge Jayne explaining "the fundamental principle
of modern law that the fee in real property must always be vested in
someone"). A little over a week after the fourth-quarter taxes came due on
November 1, 2018, however, defendant was arrested and detained on homicide
and arson charges alleging he caused the deaths of his mother and her
companion by starting the fire, and the taxes went unpaid.
The property went to tax sale in September 2019. Plaintiff purchased
the tax sale certificate at the auction and sent a notice of intent to foreclose to
defendant's mother at the property in October 2021. Plaintiff filed its
complaint to foreclose the certificate the following month.
In February 2022, defendant was convicted by a jury of two counts of
second-degree reckless manslaughter, N.J.S.A. 2C:11-4(b)(1), and sentenced
to an aggregate extended term of eleven years in State prison, subject to the
periods of parole ineligibility and supervision required by the No Early
Release Act, N.J.S.A. 2C:43-7.2.1
1 The jury deadlocked on the arson charge. The State elected not to re-try defendant on that count, and it was dismissed at sentencing. We affirmed defendant's convictions and remanded his sentence for the judge to address the real time consequences of the sentence pursuant to N.J.S.A. 2C:43-2(f). State v. Smith, A-2068-21 (App. Div. Dec. 3, 2023) (slip op. at 26). Defendant's petition for certification is pending in the Supreme Court as of this writing.
A-1982-22 3 In March 2022, plaintiff filed an amended complaint to add defendant,
serving him personally in the Burlington County Jail on April 5, 2022. The
clerk's office rejected defendant's answer to the complaint because it was not
accompanied by the filing fee and his certification in support of a fee waiver
because it was not complete.2 Although the clerk's office sent defendant a
letter advising him of the problem and how to correct it, defendant claims he
never received the letter as he was transferred from the county jail to State
prison four days after mailing his answer.
With defendant having not corrected the problems with his answer,
default was entered on May 12. The court subsequently entered an order
fixing August 15, 2022, as the date to redeem the certificate in the amount of
$7,151.05. Defendant acknowledged timely service of that order at Mid-State
Correctional Facility. After defendant failed to redeem on that date, final
2 In his proposed pleading, defendant claimed he was never notified "of any past foreclosure notice" and claimed he had attempted to pay the taxes "well before the sale of the property" to plaintiff, but the Township Tax Office refused to "accept the money." Defendant also explained that his was a hardship case as the house was "completely destroy[ed] with no home insurance." In his certification in support of a fee waiver, defendant asserted he was without "sufficient funds or assets with which to pay the filings fees associated with this action," attaching a Uniform Defendant Intake form dated February 8, 2022, which included a statement from a probation officer stating defendant "does not appear to have the ability to make regular payments toward any court imposed fines/penalties/assessments at this time." A-1982-22 4 judgment foreclosing his right of redemption was subsequently entered on
September 20, 2022. Defendant acknowledges timely service of the judgment.
In December 2022, defendant moved to reopen the judgment under Rule
4:50-1 to allow him the opportunity to redeem, asserting his incarceration had
made it impossible for him to appear and redeem the certificate on the date
previously appointed. Although defendant had not designated which section of
the Rule he was invoking, Judge Fiamingo considered the motion under
subsection "(a) mistake, inadvertence, surprise or excusable neglect" and
subsection "(f) any other reason justifying relief from the operation of the
judgment or order," and found defendant could not qualify for relief under
either section.
In a comprehensive written statement of reasons, Judge Fiamingo
rejected defendant's assertion that his incarceration had prevented him from
filing an answer or acting to redeem the certificate. Acknowledging the case
law instructing that "before a default judgment can be entered against an
inmate for 'nonappearance,' the trial court must treat with liberality an inmate's
endeavor to defend," Beneficial of N.J. v. Bullock, 293 N.J. Super. 109, 112
(App. Div. 1996), the judge found default judgment here was not entered based
on defendant's "non-appearance." Instead, default judgment was appropriately
A-1982-22 5 entered because defendant could point to no irregularity in plaintiff's purchase
of the tax sale certificate and had failed to demonstrate any ability to redeem
it.
The judge rejected defendant's assertion that his incarceration had
prevented him from timely appointing someone to access his bank account and
appear at the place of redemption with the funds necessary to redeem.
Reviewing the power of attorney defendant had attached to his motion papers,
Judge Fiamingo noted it did not give defendant's attorney in fact the power to
access defendant's bank accounts. Instead, analyzing the language of the
power, the judge found it appeared "to have been given to permit the attorney
in fact to purchase the subject property, but not to access funds to permit the
redemption of the tax sale certificate."3
Even more important, defendant had failed to present any "evidence of
the availability of funds in any account, or elsewhere, available to redeem the
tax sale certificate." Specifically, the judge noted defendant had sought a fee
3 Judge Fiamingo noted the well-settled law providing that prior to filing of a tax foreclosure complaint, "[a] property owner may finance the redemption from any source and sell his interest for any amount to any person," but "[a]fter the filing . . ., both the property's sale and the redemption procedure are subject to court supervision, primarily to protect property owners from exploitation by third-party investors." Simon v. Cronecker, 189 N.J. 304, 320 (2007). A-1982-22 6 waiver in connection with his answer, certifying "that he did not 'have
sufficient funds or assets with which to pay the filing fees associated with this
action.'" The judge found "[t]hose fees, less than $200.00, were significantly
less than the amounts needed to redeem the tax sale certificate" and defendant
had failed to "explain the discrepancy" between his April 2022 certification
that he did not have the $175 for the filing fee "and his claimed ability in
August 2022 to redeem the tax sale certificate, which exceeded $7,000.00 at
that time."
The judge found defendant had acknowledged both service of the
complaint and of the order setting the amount, place and time for redemption,
as well as the final judgment. But he had not, however, provided the court any
proof of the availability of funds to redeem the tax sale certificate or "any
credible proof that the funds to make payment of the redemption price would
be made by an individual authorized to do so by the statute." See N.J.S.A.
54:5-54 (setting forth the persons and entities with the right to redeem).
Finally, the judge found that assuming for argument's sake that
defendant had the funds available to redeem, he "failed to demonstrate that the
delay from April 2022 when he became aware of the pendency of this
foreclosure action until December 2022, when he filed this motion, was
A-1982-22 7 justifiable" even in light of the circumstances of his incarceration. The judge
found defendant had been provided "sufficient notice of the date, place and
amount of redemption, yet he failed to take any action until several months
thereafter and only after final judgment had been entered." Judge Fiamingo
concluded those circumstances precluded relief under Rule 4:50-1(a) or (f).
Defendant appeals reprising his arguments to the trial court that his
incarceration made it impossible for him to be at the township tax office on the
day fixed for redemption, and that it took him time "to acquire a trustee with
power of attorney" to act on his behalf. He adds that the court misconstrued
the power of attorney, which gave his attorney in fact the power "to oversee
the property" and "to do every act necessary or proper to carry out his
authority as fully as [defendant] could do if personally present."
"Although courts are empowered to confer absolution from judgments,
'[r]elief [under this rule] is granted sparingly.'" DEG, LLC v. Twp. of
Fairfield, 198 N.J. 242, 261 (quoting F.B. v. A.L.G., 176 N.J. 201, 207
(2003)). "A motion under Rule 4:50-1 is addressed to the sound discretion of
the trial court," and we review its decision whether to reopen a judgment only
for clear abuse of discretion. Hous. Auth. of Morristown v. Little, 135 N.J.
274, 283 (1994).
A-1982-22 8 Having reviewed the record, we cannot find Judge Fiamingo abused her
considerable discretion in denying defendant relief. Although defendant
insists he has a meritorious defense to the action, the record is to the contrary.
Defendant does not deny the taxes on the property went unpaid or assert any
irregularity in the sale of the certificate to plaintiff, and he acknowledges
service of the complaint and the order setting the time and place of
redemption. Although he claims his incarceration prevented his timely
execution of a power of attorney to allow an agent to access his bank account
for funds to redeem the certificate, the power he submitted to the court does
not provide his attorney in fact the power to do either of those things.
In addition, the judge is correct that defendant has never demonstrated
any ability to redeem the certificate. Defendant makes no representation in his
appellate brief that he has the ability to do so, and the power of attorney he
proffered to the trial court does not represent an arrangement to make
payment. In the absence of any ability to redeem, reopening the judgment will
not change the result here. See BV001 REO Blocker, LLC v. 53 West
Somerset Street Properties, LLC, 467 N.J. Super. 117, 125 n.3 (App. Div.
2021) (explaining "a meritorious defense is required so that 'there is some
possibility that the outcome' after restoration 'will be contrary to the result
A-1982-22 9 achieved by the default'") (quoting 10A Charles A. Wright et al., Federal
Practice & Procedure § 2697 (4th ed. 2020)).
Because defendant has not met his burden to demonstrate either
excusable neglect, a meritorious defense or the existence of any exceptional
circumstances warranting the setting aside of the final judgment, we affirm ,
essentially for the reasons expressed in Judge Fiamingo's thorough and
thoughtful statement of reasons.
Affirmed.
A-1982-22 10