NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-1184-16T4
PCIII REO, LLC,
Plaintiff-Appellant,
v.
IVAN SEDNEFF and THEODORA FARKAS,
Defendants,
and
BANDI PROPERTY GROUP, LLC,
Defendant/Intervenor- Respondent. ___________________________________
Argued May 16, 2018 – Decided October 17, 2018
Before Judges Koblitz and Suter.
On appeal from Superior Court of New Jersey, Chancery Division, Middlesex County, Docket No. F- 051150-14.
Linda S. Fossi argued the cause for appellant (Gary C. Zeitz, LLC, attorneys; Linda S. Fossi, on the brief). Michael S. Burns argued the cause for respondent (Burns & Isen, LLC, attorneys; Michael S. Burns, on the brief).
The opinion of the court was delivered by
SUTER, J.A.D.
Plaintiff PCIII REO, LLC appeals three orders in this tax foreclosure
matter. One order allowed Bandi Property Group (Bandi) to intervene in the
foreclosure and to redeem a tax sale certificate. The other two orders extended
the time for redemption. We affirm all the challenged orders.
In 2011, non-party James C. Older purchased a tax lien for $740.20 at an
auction for a property in South Brunswick owned by defendants Ivan Sedneff
and Theodora Farkas. In 2013, his estate assigned the tax lien to U.S. Bank
Cust. for Pro Cap III, LLC (Pro Capital). Pro Capital filed a tax foreclosure
complaint in 2014, alleging that defendants had not redeemed the tax lien. In
March 2016, an order set May 2, 2016, as the final day to redeem the tax lien.
By then, the redemption amount for unpaid taxes and interest was $66,298.07.
On May 6, 2016, shortly after the redemption date, the tax lien was
assigned to plaintiff. It requested entry of a Final Judgment in July 2016,
because defendants had not redeemed the tax lien. Shortly after, however,
defendants agreed to sell the property to Bandi for $140,000. Under the
A-1184-16T4 2 agreement of sale, Bandi agreed to satisfy all outstanding liens and defendants
agreed to accept a payment of $30,000 each. Defendants were permitted to
continue to use and reside at the premises for another sixty days. Bandi's counsel
advised the Office of Foreclosure (Office) by letter that it was filing a motion to
intervene and requested, "that final judgment not be entered while this motion
is pending." The Office marked the letter as "received, but not filed."
Bandi filed a motion to intervene and to redeem the property. In a
supporting certification, Bandi's representative averred that the property's
assessed value was approximately $175,900 and that under the contract,
defendants were guaranteed net proceeds of $60,000 (or $30,000 each).
Defendants also certified they were "comfortable with the contract," and had not
been offered "any assistance or any compensation" from plaintiff.
Plaintiff opposed the motion, arguing that defendants were not given
nominal consideration. It relied on a "Zestimate" from Zillow.com's automated
valuation model, which estimated the property's value at $413,207. In response,
Bandi submitted a copy of a "side by side comparable market analysis" showing
the "as is" market value of the property as $139,000.1
1 Plaintiff's request for a final foreclosure judgment was denied by the Office on August 3, 2016, because there was a "contested motion pending before [the] vicinage judge." A-1184-16T4 3 On September 21, 2016, the court granted Bandi's motion to intervene and
to redeem the tax sale certificate because the court found that Bandi offered
defendants "more than 'nominal consideration' for the [p]roperty." The deadline
to redeem the property was set for September 30, 2016. The order provided that
if Bandi "fail[ed] to comply with [it's] terms and deadlines," Bandi would waive
the right to redeem or intervene and that plaintiff would be permitted to pursue
its final judgment.
On September 27, 2016, just before the September 30, 2016 redemption
date, Bandi filed a motion to approve an amendment to the contract with
defendants and for a short extension of the redemption deadline because the
inspection revealed an underground storage tank that had spilled. Clean-up costs
were estimated to be $21,161.35. Defendants certified they were unaware the
underground storage tank had leaked and contaminated the property. They
approved a credit to Bandi to clean up the discharge and agreed to reduce their
guaranteed net proceeds by $10,580.78 each. Plaintiff opposed the motion.
However, by order dated October 31, 2016, the court set a new redemption
deadline of November 5, 2016. The parties inadvertently were not notified that
order was entered, and therefore, the court entered a new order, sua sponte,
A-1184-16T4 4 extending the redemption date to November 11, 2016. Defendants executed a
deed to Bandi, and received their closing proceeds on November 9, 2016.
Plaintiff argues on appeal that the judge abused his discretion in granting
Bandi's motion to intervene and by continuing to extend the redemption
deadline. It argues that Bandi's contract with defendants was "unconscionable"
and there was not adequate consideration. Bandi missed the September 30, 2016
redemption deadline and as such, its sole relief in the event it was not satisfied
with inspection of the property was to terminate the contract. Plaintiff claims,
for the first time on appeal, that it was improper for the Office to stay the entry
of its request for a final foreclosure judgment. We find no merit in these
arguments.
We review the trial court's orders regarding intervention in this tax sale
foreclosure under an abuse of discretion standard. Town of Phillipsburg v.
Block 1508, Lot 12, 380 N.J. Super. 159, 172 (App. Div. 2005). A court has
abused its discretion "when a decision is made without a rational explanation,
inexplicably departed from established policies, or rested on an impermissible
basis." Flagg v. Essex Cty. Prosecutor, 171 N.J. 561, 571 (2002).
Under N.J.S.A. 54:5-89.1 and N.J.S.A. 54:5-98, a third-party investor
must intervene in a foreclosure action before attempting to redeem a tax sale
A-1184-16T4 5 certificate. "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. v. Berezansky, 452 N.J. Super.
408, 412 (App. Div. 2017). To intervene, a third party investor must "establish
to the satisfaction of the court that the owner has been offered more than 'a
nominal consideration' for his interest." Simon v. Cronecker, 189 N.J. 304, 322
(2007).
In addressing whether consideration is more than nominal, the Court said
in Cronecker that the trial court "may consider a number of factors, including
but not limited to the amount received by the owner in comparison to the
property's fair market value and to his equity in the property." Id. at 335. The
trial court could also consider the "windfall profit" that the third party might
make. Ibid.
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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-1184-16T4
PCIII REO, LLC,
Plaintiff-Appellant,
v.
IVAN SEDNEFF and THEODORA FARKAS,
Defendants,
and
BANDI PROPERTY GROUP, LLC,
Defendant/Intervenor- Respondent. ___________________________________
Argued May 16, 2018 – Decided October 17, 2018
Before Judges Koblitz and Suter.
On appeal from Superior Court of New Jersey, Chancery Division, Middlesex County, Docket No. F- 051150-14.
Linda S. Fossi argued the cause for appellant (Gary C. Zeitz, LLC, attorneys; Linda S. Fossi, on the brief). Michael S. Burns argued the cause for respondent (Burns & Isen, LLC, attorneys; Michael S. Burns, on the brief).
The opinion of the court was delivered by
SUTER, J.A.D.
Plaintiff PCIII REO, LLC appeals three orders in this tax foreclosure
matter. One order allowed Bandi Property Group (Bandi) to intervene in the
foreclosure and to redeem a tax sale certificate. The other two orders extended
the time for redemption. We affirm all the challenged orders.
In 2011, non-party James C. Older purchased a tax lien for $740.20 at an
auction for a property in South Brunswick owned by defendants Ivan Sedneff
and Theodora Farkas. In 2013, his estate assigned the tax lien to U.S. Bank
Cust. for Pro Cap III, LLC (Pro Capital). Pro Capital filed a tax foreclosure
complaint in 2014, alleging that defendants had not redeemed the tax lien. In
March 2016, an order set May 2, 2016, as the final day to redeem the tax lien.
By then, the redemption amount for unpaid taxes and interest was $66,298.07.
On May 6, 2016, shortly after the redemption date, the tax lien was
assigned to plaintiff. It requested entry of a Final Judgment in July 2016,
because defendants had not redeemed the tax lien. Shortly after, however,
defendants agreed to sell the property to Bandi for $140,000. Under the
A-1184-16T4 2 agreement of sale, Bandi agreed to satisfy all outstanding liens and defendants
agreed to accept a payment of $30,000 each. Defendants were permitted to
continue to use and reside at the premises for another sixty days. Bandi's counsel
advised the Office of Foreclosure (Office) by letter that it was filing a motion to
intervene and requested, "that final judgment not be entered while this motion
is pending." The Office marked the letter as "received, but not filed."
Bandi filed a motion to intervene and to redeem the property. In a
supporting certification, Bandi's representative averred that the property's
assessed value was approximately $175,900 and that under the contract,
defendants were guaranteed net proceeds of $60,000 (or $30,000 each).
Defendants also certified they were "comfortable with the contract," and had not
been offered "any assistance or any compensation" from plaintiff.
Plaintiff opposed the motion, arguing that defendants were not given
nominal consideration. It relied on a "Zestimate" from Zillow.com's automated
valuation model, which estimated the property's value at $413,207. In response,
Bandi submitted a copy of a "side by side comparable market analysis" showing
the "as is" market value of the property as $139,000.1
1 Plaintiff's request for a final foreclosure judgment was denied by the Office on August 3, 2016, because there was a "contested motion pending before [the] vicinage judge." A-1184-16T4 3 On September 21, 2016, the court granted Bandi's motion to intervene and
to redeem the tax sale certificate because the court found that Bandi offered
defendants "more than 'nominal consideration' for the [p]roperty." The deadline
to redeem the property was set for September 30, 2016. The order provided that
if Bandi "fail[ed] to comply with [it's] terms and deadlines," Bandi would waive
the right to redeem or intervene and that plaintiff would be permitted to pursue
its final judgment.
On September 27, 2016, just before the September 30, 2016 redemption
date, Bandi filed a motion to approve an amendment to the contract with
defendants and for a short extension of the redemption deadline because the
inspection revealed an underground storage tank that had spilled. Clean-up costs
were estimated to be $21,161.35. Defendants certified they were unaware the
underground storage tank had leaked and contaminated the property. They
approved a credit to Bandi to clean up the discharge and agreed to reduce their
guaranteed net proceeds by $10,580.78 each. Plaintiff opposed the motion.
However, by order dated October 31, 2016, the court set a new redemption
deadline of November 5, 2016. The parties inadvertently were not notified that
order was entered, and therefore, the court entered a new order, sua sponte,
A-1184-16T4 4 extending the redemption date to November 11, 2016. Defendants executed a
deed to Bandi, and received their closing proceeds on November 9, 2016.
Plaintiff argues on appeal that the judge abused his discretion in granting
Bandi's motion to intervene and by continuing to extend the redemption
deadline. It argues that Bandi's contract with defendants was "unconscionable"
and there was not adequate consideration. Bandi missed the September 30, 2016
redemption deadline and as such, its sole relief in the event it was not satisfied
with inspection of the property was to terminate the contract. Plaintiff claims,
for the first time on appeal, that it was improper for the Office to stay the entry
of its request for a final foreclosure judgment. We find no merit in these
arguments.
We review the trial court's orders regarding intervention in this tax sale
foreclosure under an abuse of discretion standard. Town of Phillipsburg v.
Block 1508, Lot 12, 380 N.J. Super. 159, 172 (App. Div. 2005). A court has
abused its discretion "when a decision is made without a rational explanation,
inexplicably departed from established policies, or rested on an impermissible
basis." Flagg v. Essex Cty. Prosecutor, 171 N.J. 561, 571 (2002).
Under N.J.S.A. 54:5-89.1 and N.J.S.A. 54:5-98, a third-party investor
must intervene in a foreclosure action before attempting to redeem a tax sale
A-1184-16T4 5 certificate. "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. v. Berezansky, 452 N.J. Super.
408, 412 (App. Div. 2017). To intervene, a third party investor must "establish
to the satisfaction of the court that the owner has been offered more than 'a
nominal consideration' for his interest." Simon v. Cronecker, 189 N.J. 304, 322
(2007).
In addressing whether consideration is more than nominal, the Court said
in Cronecker that the trial court "may consider a number of factors, including
but not limited to the amount received by the owner in comparison to the
property's fair market value and to his equity in the property." Id. at 335. The
trial court could also consider the "windfall profit" that the third party might
make. Ibid. Thus, the Court adopted "a more flexible, under-all-the-
circumstances approach that will keep the focus on the benefit to the property
owner facing forfeiture of his land." Id. at 334-335.
"[M]ore than nominal consideration under N.J.S.A. 54:5-89.1 means
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
355. It requires an examination of the adequacy of the consideration "from the
A-1184-16T4 6 property-owner's standpoint." Berezansky, 452 N.J. Super. at 414. Therefore,
"the Tax Sale Law does not prohibit a third-party investor from redeeming a tax
sale certificate after the filing of a foreclosure action, provided that the investor
timely intervenes in the action and pays the property owner more than nominal
consideration for the property." Cronecker, 189 N.J. at 311.
Here, the court did not abuse its discretion in finding that Bandi offered
defendants more than nominal consideration for the property. Defendants
received $19,125 each for the sale of the property. They would not have
received any compensation had plaintiff proceeded with the foreclosure. The
mortgage and taxes were paid. Defendants continued to have use and occupancy
of the property for another sixty days.
Plaintiff contends that defendants received little compensation when
compared with the valuation of the property, but plaintiff did not appraise the
property; it only showed what the property was valued on a website without any
comparisons. Bandi had a comparative analysis that showed an "as-is" market
value of $139,000. The property was sold for $140,000. The court was correct
not to strike down this third-party financing arrangement because it was not
insubstantial and exceeded more than nominal consideration to defendants.
A-1184-16T4 7 Defendants received $38,250 more than they would have received had the
foreclosure gone through.
Plaintiff argues the court abused its discretion in extending the deadlines
for redemption, but it cited no authority to support this claim. The first
redemption date of May 2, 2016, was set prior to plaintiff having been assigned
this tax certificate. The second date of September 30, 2016, was adjourned
because there was a spill from an oil tank and a need to obtain an estimate to
determine how that would be addressed. The final extension occurred only
because the court had not transmitted the order to the parties until the deadline
in it was upon them. In these circumstances, there was no abuse of discretion
by the court.
There also was nothing untimely about the redemption having occurred
after the first date in May or the September date. Rule 4:64-6(b) provides that
redemption of a tax sale certificate "may be made at any time until the entry of
final judgment." Bandi's redemption was timely because there was no final
judgment when the intervention motion was granted.
Plaintiff contends the Office erred by staying plaintiff's request for a final
judgment. This issue was not raised before the trial court. "Generally, an
appellate court will not consider issues…which were not raised below." State
A-1184-16T4 8 v. Galicia, 210 N.J. 364, 383 (2012). Therefore, we do not address this issue.
We add briefly, however, that the Office did not formally stay entry of a final
judgment. Plaintiff's request for a final foreclosure judgment was denied
because by that time a contested motion was pending in the vicinage. See R.
1:34-6 (providing that the Office "shall be responsible for recommending the
entry of orders or judgments in uncontested foreclosure matters.").
Affirmed.
A-1184-16T4 9