ORIX PUBLIC FINANCE, LLC VS. LYNN MARIE MELTON- KAUFMAN (F-035110-14, HUDSON COUNTY AND STATEWIDE)

• Court: New Jersey Superior Court Appellate Division
• Decided: March 22, 2019
• Docket: A-2695-17T3
• Status: Unpublished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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-2695-17T3

ORIX PUBLIC FINANCE, LLC,

Plaintiff-Appellant,

v.

LYNN MARIE MELTON-KAUFMAN, Individually and as Executrix of the Estate of DOLORES E. MERCER, deceased, and STATE OF NEW JERSEY,

Defendants,

and

EMAD AMIN,

Defendant/Intervenor- Respondent.

Argued December 19, 2018 – Decided March 22, 2019

Before Judges Alvarez and Mawla.

On appeal from Superior Court of New Jersey, Chancery Division, Hudson County, Docket No. F- 035110-14. Adam D. Greenberg argued the cause for appellant (Law Offices of Honig & Greenberg, LLC, attorneys; Adam D. Greenberg, on the briefs).

Pasquale Agresti argued the cause for respondent.

PER CURIAM

Plaintiff Orix Public Finance, LLC, appeals a January 16, 2018 order, and

a February 16, 2018 denial of reconsideration, permitting Emad Amin, a third-

party, to intervene in the within foreclosure action after he purchased the subject

property and attempted to redeem the associated tax sale certificate. Amin

moved to intervene prior to the redemption date in the pending tax foreclosure

matter. We affirm the challenged orders.

On September 7, 2017, the trial court entered a default judgment against

defendant Lynn Marie Melton-Kaufman, who had inherited the property from

her late mother Dolores E. Mercer. Melton-Kaufman and Amin contracted for

Amin to purchase the property. The November 8, 2017 settlement sheet reflects

a purchase price of $50,000, to be paid by an unrecorded mortgage taken back

by Melton-Kaufman, in the amount of $50,000, along with $86,174.88 towards

the payoff of all liens on the property and current taxes. When Amin attempted

to redeem the tax sale certificate at the office of the tax collector, and tendered

A-2695-17T3 2 $84,569.08, Orix rejected the attempted redemption and the tax collector's office

did not issue the certificate formalizing redemption.

The redemption date had been fixed in the tax sale foreclosure action as

December 26, 2017—the date was subsequently adjourned to January 31, 2018,

by way of an order to show cause with restraints signed on December 21, 2017.

The judge also allowed Amin to intervene, and set a schedule for a hearing on

the issue of redemption.

In the intervening time, Orix moved to foreclose Amin from the

proceedings, and to declare the attempted redemption improper. After

reviewing the relevant case law and statutes, relied upon by Orix on appeal, the

court concluded that because Amin moved to intervene before the redemption

deadline and paid Melon-Kaufman more than nominal consideration, the

intervention would be allowed along with the redemption. The judge noted

Melton-Kaufman had written a letter in support of Amin's application, in which

she stated that the property was in poor condition and had underground oil tank

contamination, which Amin had agreed to remediate. The motion was denied,

and Orix was ordered to accept the tendered amount in satisfaction of the tax

sale certificate.

A-2695-17T3 3 Orix filed a motion for reconsideration. The judge, noting that Orix had

failed to meet the standard for reconsideration of the original decision, denied

the motion.

On appeal, Orix raises the following point:

I. AFTER A TAX FORECLOSURE HAS BEEN FILED, ANYONE SEEKING TO REDEEM MUST BE A PARTY TO THE ACTION. A NON-PARTY WHO REDEEMS WITHOUT INTERVENTION IS DENIED RELIEF AND THE PLAINTIFF IS GIVEN THE BENEFIT OF THAT NON-PARTY'S TRANSACTION BY IMPOSITION OF A CONSTRUCTIVE TRUST.

Orix's interpretation of the relevant case law would impose a rigid

sequential requirement, even in cases where no prejudice inured to the plaintiff

in a tax foreclosure proceeding. If a failed attempt to redeem is followed by

intervention in a tax foreclosure proceeding before the time for redemption has

passed, the failed attempt does not forever bar the proposed intervenor. Nor has

Orix identified a case that bars court-ordered extensions of the redemption date.

A trial court's order regarding intervention in a tax sale foreclosure is

reviewed under an abuse of discretion standard. Town of Phillipsburg v. Block

1508, Lot 12, 380 N.J. Super. 159, 172 (App. Div. 2005). An abuse of discretion

occurs where a decision is made "without a rational explanation, inexplicably

departed from established policies, or rested on an impermissible basis." Flagg

A-2695-17T3 4 v. Essex Cty. Prosecutor, 171 N.J. 561, 571 (2002) (quoting Achacoso-Sanchez

v. Immigration & Naturalization Serv., 779 F.2d 1260, 1265 (7th Cir. 1985)).

We agree with Orix that a third-party investor must intervene in a

foreclosure action before redeeming a tax sale certificate. See N.J.S.A. 54:5-

89.1 and 54:5-98. Additionally, N.J.S.A. 54:5-89.1 "bars a party from

intervening in a tax foreclosure action when claiming a right in the property that

was acquired 'for a nominal consideration.'" FWDSL & Assocs., LP v.

Berezansky, 452 N.J. Super. 408, 412 (App. Div. 2017). In order to intervene

and redeem, a third-party investor must establish more than nominal

consideration. Simon v. Cronecker, 189 N.J. 304, 322 (2007).

In this case, however, no abuse of discretion occurred when the judge

allowed intervention. Although the timing was not initially in lockstep with the

statutory scheme, Amin's unsuccessful attempt to redeem and subsequent

intervention were made during the timeframe in which redemption was

permissible. The redemption actually occurred after the court authorized

intervention and redemption. Intervention allows for judicial oversight by the

chancery court of the process and the proposed amount of consideration. Ibid.

Intervention is not designed to put the holder of a tax sale certificate in an

immutable preferential position vis-à-vis redemption.

A-2695-17T3 5 In Cronecker, the third party attempted to intervene in the foreclosure

action after the redemption deadline. Id. at 312-13. That was not the case here.

Orix was in no worse a position because of the chronology of events than it

would have been had Amin intervened first, sought judicial review of the offered

consideration, and then once having obtained approval, proceeded to redeem the

tax sale certificate.

Turning to the court's decision that the consideration was more than

nominal, that is not an abuse of discretion either. The property was in poor

condition, and among other things, required remediation because of a leaking

oil tank. Amin was willing to undertake the repairs of the property, the

environmental cleanup, remove all the violations on the property, and pay the

owner $50,000. This is more than nominal consideration; it is "consideration

that is not insubstantial under all the circumstances; it is an amount, given the

nature of the transaction, that is not unconscionable." Id. at 335.

Rule 4:64-6(b) allows for redemption of a tax sale certificate at any time

prior to the entry of final judgment. Thus there was no abuse of discretion in

either decision the judge made. The consideration here was more than nominal,

namely, a $50,000 mortgage, and the willingness to undergo the expense of

returning the property to a habitable condition. No final judgment had been

A-2695-17T3 6 entered—in fact, the date for redemption had not passed. The judge's focus on

the nature of the consideration and factors relative to allowing interven tion did

not inexplicably depart from established policies or rest on an impermissible

basis.

Nor did the judge err in failing to grant reconsideration. That is a decision

also within the sound discretion of the court, to be exercised in the interest of

justice. Cummings v. Bahr, 295 N.J. Super. 374, 384 (App. Div. 1996). The

interests of justice were satisfied by the judge's initial decision. Orix did not

establish that the court had decided the matter on a palpably incorrect or

irrational basis, or failed to consider probative evidence. Ibid.

Affirmed.

A-2695-17T3 7