MAS CAPITAL, LLC VS. BLOCK 1, LOT 83, 121 COURT STREET (F-017541-16, UNION COUNTY AND STATEWIDE)

• Court: New Jersey Superior Court Appellate Division
• Decided: December 13, 2018
• Docket: A-1173-17T3
• Status: Unpublished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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-1173-17T3

MAS CAPITAL, LLC,

Plaintiff-Appellant,

v.

BLOCK 1, LOT 83, 121 COURT STREET, ELIZABETH CITY, NEW JERSEY ASSESSED TO: ALFREDO LEYVA-CAMPOS and ANA LEYVA-CAYADO,

Defendants,

and

CARISBROOK ASSET HOLDING TRUST,

Intervenor-Respondent. ______________________________________

Argued November 28, 2018 – Decided December 13, 2018

Before Judges Nugent and Reisner.

On appeal from Superior Court of New Jersey, Chancery Division, Union County, Docket No. F- 017541-16. Jeffrey B. Datz argued the cause for appellant (Taylor and Keyser, attorneys; Robert W. Keyser, of counsel and on the briefs; Jeffrey B. Datz, on the briefs).

Sonya Gidumal Chazin argued the cause for respondent (Phelan Hallinan Diamond & Jones, PC, attorneys; Sonya Gidumal Chazin, of counsel and on the brief).

PER CURIAM

In this tax foreclosure case, plaintiff Mas Capital, LLC (Mas Capital)

appeals from an October 27, 2017 order, permitting a mortgage holder,

Carisbrook Asset Holding Trust (Carisbrook), leave to intervene in the

foreclosure action and redeem the outstanding tax sale certificates held by

plaintiff. We affirm.

Because we write this opinion primarily for the parties, who are familiar

with the background of the case and the governing law, a short discussion will

suffice. The case began when Mas Capital purchased tax lien certificates that

were issued due to the nonpayment of a few hundred dollars in municipal utility

charges. The property was also subject to a $133,726 mortgage, held by

Newlands Asset Holding Trust (Newlands), which had bought the mortgage as

part of a bundle of thousands of mortgages.

Upon learning that this particular mortgaged property was subject to a tax

lien, Newlands sought to pay off the lien with the tax collector. The payment

A-1173-17T3 2 was rejected, due to the pending foreclosure. Newlands then filed a motion to

intervene in the foreclosure case. The trial court first granted Newlands'

application, but then denied it after Mas Capital filed a reconsideration motion.

Newlands then transferred the mortgage to Carisbrook. The trial court initially

denied Carisbrook's motion to intervene and redeem the tax certificates, but

granted the motion on reconsideration. This appeal followed.

After reviewing the record, we conclude that the trial court initially erred

in denying Newlands permission to intervene in the foreclosure action. There

is no evidence that either Newlands or Carisbrook was a title raider. Rather, as

previously noted, the mortgage in question was purchased as part of a larger

transaction, in which these companies bought and sold bundles of mortgages.

There is no evidence that Newlands or Carisbrook bought the mortgage for only

nominal value. As a mortgage holder, Newlands had the right to redeem the tax

lien. See N.J.S.A. 54:5-54. Newlands' prior attempt to redeem through the tax

collector did not bar its intervention motion.

Mas Capital contends that if a tax foreclosure suit is pending, an entity

that attempts to redeem a tax certificate with the tax collector, instead of moving

to intervene in the foreclosure action, is thereafter forever barred from filing an

intervention motion. We disagree. Mas Capital's argument is based on a

A-1173-17T3 3 misreading of a trilogy of foreclosure cases – Simon v. Cronecker, 189 N.J. 304

(2007), Simon v. Rando, 189 N.J. 339 (2007), and Malinowski v. Jacobs, 189

N.J. 345 (2007). In those cases, mortgagees or real estate investors actually

succeeded in paying off the tax certificates, despite pending foreclosure

litigation. The Court disapproved that procedure, holding that once a tax

foreclosure suit is filed, any third party seeking to redeem the certificates must

first move to intervene in the foreclosure action. Cronecker, 189 N.J. at 336-

37; Rando, 189 N.J. at 342-44; Malinowski, 189 N.J. at 353; see N.J.S.A. 54:5-

98 (after foreclosure suit is filed, redemption may only take place in that

action).1 As a remedy, the Court ordered that the entities that wrongfully

redeemed the properties would hold them in constructive trust for the original

tax lien holder. Cronecker, 189 N.J. at 338. The Court did not hold that an

entity that mistakenly, but unsuccessfully, attempts to redeem certificates

through the tax collector is thereafter forever barred from following the correct

procedure by moving to intervene in the foreclosure action.

1 The Court observed that the primary purpose for that procedure was to prevent the exploitation of financially distressed homeowners, by assuring the trial court that the third party was paying the homeowner more than a nominal consideration for the property. Cronecker, 189 N.J. at 320-22; see N.J.S.A. 54:5- 89.1 (no person shall be permitted to intervene "whenever it shall appear that he has acquired such interest in the lands for a nominal consideration after the filing of the complaint . . ."). A-1173-17T3 4 Mas Capital's arguments on the redemption issue are without sufficient

merit to warrant further discussion. R. 2:11-3(e)(1)(E).

On the record presented to us, Mas Capital's next contention – that

Carisbrook was not authorized to transact business in New Jersey – was not

briefed, argued or decided in the trial court. Nor has Mas Capital cited any case

law on the issue. We decline to address the issue for the first time on appeal.

See Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234-35 (1973).

The trial court's January 5, 2018 order, staying Carisbrook's right of

redemption pending appeal, is hereby vacated.

Affirmed.

A-1173-17T3 5