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Sonderman v. Remington Construction Co.

Decided: March 2, 1992.

KEVIN SONDERMAN, PLAINTIFF-APPELLANT,
v.
REMINGTON CONSTRUCTION CO., INC., AND TOWNSHIP OF JACKSON, DEFENDANTS-RESPONDENTS. TOWNSHIP OF JACKSON, THIRD-PARTY PLAINTIFF, V. JOSEPH F. MARTONE, THIRD-PARTY DEFENDANT



On certification to the Superior Court, Appellate Division, whose opinion is reported at 244 N.J. Super. 611 (1990).

For affirmance -- Chief Justice Wilentz, and Justices Clifford, Handler, Pollock, O'Hern, Garibaldi and Stein. For reversal -- None. The opinion of the Court was delivered by Pollock, J. Stein, J., Concurring. O'Hern, J., joins in this opinion. O'Hern and Stein, JJ., Concurring in the result.

Pollock

The primary issue is whether a property owner who did not receive actual notice of an in rem tax foreclosure can defeat a quiet title action brought by a subsequent purchaser who did not know of the defective notice at the time of purchase from the municipality.

Before 1983 defendant Remington Construction Co., Inc. (Remington) was the record owner of the property in question. In 1983 defendant Township of Jackson (the Township) acquired title to the property through a tax foreclosure. Shortly thereafter, plaintiff, Kevin Sonderman, purchased the property at public auction. Before the closing, however, Remington obtained an order vacating the tax foreclosure judgment because it had not received notice of the foreclosure action. Remington filed the order in litigation files with the Clerk of the Superior Court and with the Clerk of Ocean County, but did not record it in the County deed book. Notwithstanding the vacation of the foreclosure judgment, the Township delivered a deed to Sonderman, which he promptly recorded.

Thereafter Sonderman brought the present action to quiet title, arguing that as a subsequent bona fide purchaser without notice, he had better title than Remington, which had failed to record its vacation order in the County deed book. He also argued that the order was void because he was an indispensable party and had not been notified of the proceeding. Relying on the order vacating the foreclosure judgment, the Chancery Division ruled that the Township had no title to convey to Sonderman. The Appellate Division affirmed. 244 N.J. Super. 611, 583 A.2d 367 (1990). We granted certification, 126 N.J. 323, 598 A.2d 883 (1991), and now affirm.

-I-

Before June 23, 1983, Remington owned approximately fourteen acres in Jackson Township, identified on the tax map as Lot 15, Block 138-2. Due to an "oversight," Remington failed

to pay taxes on five properties, including Lot 15. Consequently, the Township commenced an in rem tax foreclosure action. On June 29, 1983, it obtained a final judgment terminating Remington's right of redemption and declaring that ownership of all the lots was vested in the Township. The Township thereupon recorded the judgment in the county deed book on July 19, 1983. See N.J.S.A. 54:5-104.65.

On November 21, 1983, Sonderman successfully bid $13,600 for Lot 15 at a foreclosure sale. The sale was held pursuant to an ordinance that provided in relevant part:

In the event that the Title of the Township of Jackson to any parcel or portion thereof is not marketable or insurable at regular rates by a reputable title insurance company licensed to do business in the State of New Jersey, or in the event of any other defects, a successful bidder's sole remedy shall be the right to demand the return of any deposit paid to the Township of Jackson.

The closing was delayed because of a cloud on the title of all properties owned by Jackson Township arising from a $13.3 million judgment. Ayers v. Township of Jackson, 106 N.J. 557, 525 A.2d 287 (1987). After the removal of the cloud, on November 19, 1984, the Township delivered to Sonderman a bargain and sale deed, which he recorded on January 14, 1985.

Meanwhile Remington learned of the foreclosure action from survey stakes on its property. On February 29, 1984, Remington applied to the Chancery Division to vacate the tax foreclosure judgment, claiming that the Township had not notified it of the foreclosure proceeding. Remington moved pursuant to Rule 4:50, which provides:

-1. Grounds of Motion

On motion, with briefs, and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment or order for the following reasons: (a) mistake, inadvertence, surprise, or excusable neglect; (b) newly discovered evidence which would probably alter the judgment or order and which by due diligence could not have been discovered in time to move for a new trial under R. 4:49; (c) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (d) the judgment or order is void; (e) the judgment or order has been satisfied, released or discharged, or a prior judgment or order upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the

judgment or order should have prospective application; or (f) any other reason justifying relief from the operation of the judgment or order.

-2. Time of Motion

The motion shall be made within a reasonable time, and for reasons (a), (b) and (c) of R. 4:50-1 not more than one year after the judgment, order or proceeding was entered or taken.

-3. Effect of Motion

A motion under R. 4:50 does not suspend the operation of any judgment, order or proceeding or affect the finality of a final judgment, nor does this rule limit the power of a court to set aside a judgment, order or proceeding for fraud upon the court or to entertain an independent action to relieve a party from a judgment, order or proceeding.

In particular, Remington relied on (1) mistake, inadvertence, surprise, or excusable neglect; (2) the judgment or order was void; and (3) any other reason justifying relief from the operation of the judgment or order. R. 4:50-1.

On April 9, 1984, the Chancery Division entered an order vacating a portion of the tax foreclosure judgment and vesting title in Remington. As a condition of the judgment, the court directed Remington to pay $23,000 in back taxes, which Remington has since paid. Remington's attorney filed the order with the Clerk of the Superior Court in Trenton and with the Ocean County Clerk, both of whom placed it in the litigation files for the foreclosure action. Thus, before the Township delivered its deed to Sonderman, Remington had vacated the judgment purporting to vest title in the Township, a fact that was not known to Sonderman.

The Township's defective notification of Remington may be traced to the fact that the Township foreclosed against the lots in two parcels. Regarding one parcel that is not the subject of this action, the tax assessment records listed an address for Remington in Shrewsbury. The receptionist in the building where Remington's office was located signed the certified mail receipt for the notice of the tax foreclosure proceedings. She, however, was not an agent for or employed by Remington. Hence, she does not qualify as an agent for the service of process, R. 4:4-4(c)(1), and service on her did not constitute service on Remington. Concerning the second parcel, which

included Lot 15, Remington's address in the tax records was listed as 55 Brick Boulevard, Bricktown. The offices of Remington's registered agent, Ronald Gasorowski, an attorney, were not at that address, but at 556 Brick Boulevard. Remington never received any notice at either address. Neither the county nor its attorney could produce a certified mail receipt or any proof of proper service concerning Lot 15. In sum, the Township never made valid service on Remington for the foreclosure of the property in question.

The Chancery Division declined Sonderman's request to quiet title, reasoning that the tax foreclosure judgment "if not void [ab initio], for lack of proper service, was certainly voidable and, in fact, was voided by [the Chancery Division] and properly so." The court reasoned that even if Sonderman was a bona fide purchaser for value, the Township could not convey to him better title than it had. Because Sonderman had not acquired any title from the Township, the court rejected Sonderman's contention that he was entitled to the protection of the Recording Act, N.J.S.A. 46:16-1 to -14, and that he was an indispensable party to the motion to vacate the tax foreclosure judgment.

The Appellate Division affirmed, holding that Remington had "duly recorded" the order vacating the tax foreclosure judgment in compliance with N.J.S.A. 46:16-1.1. It found that by recording the order in the litigation files maintained by the County Clerk and the Clerk of the Superior Court, Remington had complied with the recording requirements. 244 N.J. Super. at 617, 583 A.2d 367.

The Appellate Division also rejected Sonderman's claim that he was an indispensable party to Remington's motion to vacate the foreclosure judgment. It reasoned that Remington's April 1984 order had deprived Sonderman of his interest in the property. The court implicitly agreed with the trial court's finding that the tax foreclosure judgment was void, stating that the Township had never ...


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