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Caput Mortuum, L.L.C. v. S&S Crown Services

February 02, 2004

CAPUT MORTUUM, L.L.C., A NEW JERSEY LIMITED LIABILITY COMPANY, PLAINTIFF-RESPONDENT,
v.
S&S CROWN SERVICES, LTD.; CROWN DN & T PARTNERSHIP; NORMAN BERMAN; ALAN SIMONS, DEFENDANTS-APPELLANTS, AND STEPHEN GORDON AND DALE GORDON HIS WIFE; ROCHELLE GORDON N/K/A ROCHELLE RUBIN; STATE OF NEW JERSEY; THE MEWS AT CHANTICLEER CONDOMINIUM ASSOCIATION, DEFENDANTS.



On appeal from the Superior Court of New Jersey, Chancery Division, Camden County, F-22984-01.

Before Judges Axelrad, Winkelstein, and Lario.

The opinion of the court was delivered by: Axelrad, J.T.C. (temporarily assigned).

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued: October 29, 2003

This appeal presents the novel issue of whether an executing judgment creditor has the right to redeem a certificate of sale for unpaid municipal liens under N.J.S.A. 54:5-54, issued against its debtor's real estate and purchased by another entity. In a cogent written opinion, Judge Theodore Z. Davis found no such right to exist, based upon the legislative imperative expressed in the statutory amendment; the public policy of prioritizing municipal liens and encouraging tax sale foreclosure to assist municipalities in collecting delinquent taxes; and the judgment creditor's failure to either purchase the certificate from the municipality or by assignment from the certificate holder. The judge also rejected the judgment creditor's entitlement to redemption under the doctrine of equitable subrogation. He granted summary judgment in favor of the tax sale certificate holder, the effect of which was to preclude redemption by the creditor and to allow the foreclosure action to proceed. We affirm.

I.

There are no facts in dispute. In l990, defendant, Stephen Gordon, purchased a residence located at 116 St. Vincent Court in Cherry Hill ("the property"). In l997, defendants, S&S Crown Services, Ltd., Crown DN & T Partnership, Norman Berman, and Alan Simons (collectively referred to as"Crown"), obtained a judgment in Pennsylvania in excess of one million dollars against Gordon and domesticated it in New Jersey. Crown attempted to execute on its judgment but was unsuccessful because of several fraudulent transfers of Gordon's Cherry Hill property. On July 24, 1999, Crown filed suit in the United States District Court for the District of New Jersey, seeking to set aside the series of transfers of the property as fraudulent. In August 2000, Crown prevailed and title was revested in Gordon's name. A sheriff's sale was scheduled for May 4, 2001, but was postponed on several occasions by virtue of the filing of litigation by Gordon's wife asserting a spousal interest in the property, and a bankruptcy by Gordon. As a condition of the stay of execution, the court required Gordon's wife to post a $25,000 bond, which, at Crown's request, was increased by an additional $9l,400.10.

In the interim, on June 29, 1999, the Garden State Investment Group purchased tax sale certificate #99-538 for unpaid municipal taxes on the property from Cherry Hill Township ("the Township") at a public sale, N.J.S.A. 54:5-19, and recorded it on July 21, 1999. The tax sale certificate was assigned on November 14, 200l to Robert Stein, and on December 11, 200l, it was further assigned to plaintiff, Caput Mortuum, L.L.C. (CM). CM continued to pay taxes on the property. Crown

neither bid on the certificate at the public sale nor attempted to obtain an assignment of the certificate in the intervening two and one-half years before its purchase by CM.

In December 200l, following the two-year waiting period required by N.J.S.A. 54:5-86, CM filed an in personam taX foreclosure complaint seeking to bar and foreclose all equity of redemption in the property. CM joined as defendants Gordon and his wife, a mortgagee, and, although not required to do so under N.J.S.A. 54:5-54, various judgment creditors of Gordon, including Crown. Crown did not dispute CM's entitlement to pursue its right to foreclose; rather, it claimed an entitlement to redeem the certificate as an equitable owner or under the doctrine of equitable subrogation. Judge Davis disagreed, and on July 9, 2002, entered summary judgment in CM's favor. The order was interlocutory, and the matter is before us by leave granted. R. 2:2-3(b).

Subsequent to the filing of this appeal, the Bankruptcy Court granted relief from the automatic stay and Crown obtained summary judgment in its favor in the action brought by Gordon's wife. We were advised at oral argument that during the pendency of this appeal, and before CM completed its tax foreclosure action, Crown successfully executed on its judgment and obtained title to the property. Crown, now in the status of owner of the property, acquired the undisputed right to redeem the tax sale certificate. N.J.S.A. 54:5-54.

A case is moot if the disputed issue has been resolved, at least with respect to the parties who instituted the litigation. De Vesa v. Dorsey, 134 N.J. 420, 428 (1993) (Pollock, J., concurring); Oxfeld v. New Jersey State Bd. of Educ., 68 N.J. 301, 303-04 (1975). Whether Crown, in its former status as a judgment creditor, had the right to redeem, is no longer an issue in this litigation. Therefore, the issue resolved by the order under appeal is moot.

Ordinarily, our interest in preserving judicial resources dictates that we not attempt to resolve legal issues in the abstract. Oxfeld, supra, 68 N.J. at 303-04. Moot or academic appeals are generally dismissed. Cinque v. New Jersey Dep't of Corr., 261 N.J. Super. 242, 243 (App. Div. 1993). Our courts generally will not decide a case if the issues are hypothetical, a judgment cannot grant effective relief, or there is no concrete adversity of interest between the parties. Advance Elec. Co. v. Montgomery Township Bd. of Educ., 351 N.J. Super. 160, 166 (App. Div.), certif. denied, 174 N.J. 364 (2002); Anderson v. Sills, 143 N.J. Super. 432, 437 (Ch. Div. 1976).

On occasion, however, we will decide such appeals where the underlying issue is one of substantial importance and is capable of repetition while evading review. See, e.g., Joye v. Hunterdon Cent. Reg'l High School Bd. of Educ., 176 N.J. 568, 583 (2003); Zirger v. Gen. Accident Ins. Co., 144 N.J. 327, 330 (1996); In re Conroy, 98 N.J. 321, 342 (1985); Guttenberg Sav. & Loan Ass'n v. Rivera, 85 N.J. 617, 622-23 (1981). Both parties have urged us to address the issue raised in this appeal because it is of such compelling public importance to the lending and title abstract communities, municipalities, and others. They argue the issue presented here is a recurring one and justifies review at this time. We agree. There is little doubt that this case involves an important issue of statutory construction.

Moreover, we are satisfied that controversies similar to this one will present themselves in the future and may well evade appellate disposition. Accordingly, ...


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