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Coryell, L.L.C. v. Curry

October 5, 2006

CORYELL, L.L.C., AS ASSIGNEE OF M.D. SASS MUNICIPAL FINANCE PARTNERS II, L.P., PLAINTIFF-APPELLANT,
v.
PAUL CURRY AND WANDA D. PRICE,*FN1 DEFENDANTS-RESPONDENTS, AND LEADER FEDERAL BANK FOR SAVINGS N/K/A UNION PLANTERS BANK; COMMERCIAL CREDIT CORPORATION; SUPERIOR ASSET MANAGEMENT, LTD.; RICHARD BERLIN, M.D.; COUNTY OF ATLANTIC; STATE OF NEW JERSEY, DEFENDANTS.
JULIAN M. BLUMENTHAL, INTERVENOR-RESPONDENT.
CORYELL, L.L.C., AS ASSIGNEE OF M.D. SASS MUNICIPAL FINANCE PARTNERS II, L.P., PLAINTIFF-RESPONDENT,
v.
PAUL CURRY AND WANDA D. PRICE, DEFENDANTS-RESPONDENTS,
AND LEADER FEDERAL BANK FOR SAVINGS N/K/A UNION PLANTERS BANK; COMMERCIAL CREDIT CORPORATION; SUPERIOR ASSET MANAGEMENT, LTD.; RICHARD BERLIN, M.D.; COUNTY OF ATLANTIC; STATE OF NEW JERSEY, DEFENDANTS.
JULIAN M. BLUMENTHAL, INTERVENOR-APPELLANT.



On appeal from the Superior Court of New Jersey, Chancery Division, Atlantic County, F-10461-03.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued September 13, 2006

APPROVED FOR PUBLICATION

Before Judges Lefelt, Parrillo and Sapp-Peterson.

The opinion of this court was delivered by SAPP-PETERSON, J.S.C. (temporarily assigned).

These back-to-back appeals arise out of a tax foreclosure proceeding brought by plaintiff Coryell, L.L.C. (Coryell), as Assignee of M.D. Sass Municipal Finance Partners II, L.P. (Sass), foreclosing a tax sale certificate and selling property located at 5002 English Creek Road, Egg Harbor Township, New Jersey (property), to intervenor, Julian Blumenthal (Blumenthal). Coryell and Blumenthal appeal from a Chancery Division order vacating the default judgment of foreclosure and the subsequent sale of the property because notice to the mortgagee, Commercial Credit Corporation (CCC), was not served at an address "most" reasonably calculated to apprise CCC of the pending foreclosure action. We are satisfied that CCC was notified in a manner reasonably calculated to apprise it of the foreclosure action, thus satisfying Rule 4:64-1(f)*fn2 and the constitutional requirements of due process. Mullane v. Central Hanover B. & T. Co., 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865 (1950). We reverse and remand to the Chancery Division to reinstate the foreclosure judgment and the sale of the property to Blumenthal.

The salient facts are not in dispute. Defendants Paul Curry and Wanda Curry (collectively, the Currys) originally purchased the property in 1976. In 1997, they obtained and properly recorded a second mortgage on the property from CCC. After obtaining the mortgage, the Currys failed to pay any property taxes, and between 1998 and 2000, the township held four tax sales to satisfy the unpaid taxes. In early 2003, the purchaser of three of the tax certificates, Sass, initiated foreclosure proceedings.

The summons and a copy of the complaint were served upon the Currys at the property, as were all other documents that required service throughout the course of the foreclosure proceedings. The Currys did not file an answer or otherwise plead to the complaint, nor did they respond to any of the notices served in connection with the action.

At the time the Currys executed the mortgage, the first page of the mortgage document identified the mortgagee as "Commercial Credit Plan Consumer Discount Company, doing business as Commercial Credit Corporation (a Pennsylvania Corporation) 2091 BLACKHORSE PIKE STE B-4 TURNERSVILLE NJ 08012." On the third page, below the signatures, appeared the following instructions in a box:

REQUEST FOR NOTICE OF DEFAULT ----------------------AND FORECLOSURE UNDER SUPERIOR--------------------- MORTGAGES OR DEEDS OF TRUST

Lender requests the holder of any mortgage, deed of trust or other encumbrance with a lien which has priority over this Mortgage to give Notice to Lender, at Lender's address set forth on page one of this Mortgage, with a copy to P.O. Box 17170, Baltimore, MD 21203, of any default under the superior encumbrance and of any sale or other foreclosure action.

A Gloucester County sheriff's officer served the summons and copy of the foreclosure complaint upon Dina Iacovelli, CCC's managing agent, at its office located at 2091 Blackhorse Pike, Suite B4, Turnersville, New Jersey, pursuant to Rule 4:4-4. CCC did not answer or otherwise plead to the complaint.

Default was entered against the Currys and CCC on December 9, 2003. Thereafter, on February 27, 2004, the court, pursuant to Rule 4:64-1(f), entered an "ORDER FIXING AMOUNT, TIME AND PLACE FOR REDEMPTION." The order directed defendants to appear at the Egg Harbor Township Tax Collector's office on April 16, 2004, to pay the amounts required to redeem the property and provided that "in default of said defendants paying to the Tax Collector the said sums . . . defendants stand absolutely debarred and foreclosed of and from all right and equity of redemption of, in and to the said lands and premises and every part thereof . . . ." Sass mailed copies of both orders via regular and certified mail to the Currys at the property and to CCC at the Blackhorse Pike address. On March 4, 2004, Dina Iacovelli acknowledged receipt of the certified mail. Neither the Currys nor CCC appeared at the Tax Collector's office in accordance with the order.

On June 3, 2004, final judgment was entered vesting title to the property in Coryell.*fn3 The order also granted Sass' motion to substitute Coryell as its assignee on the tax certificates. On June 15, 2004, a copy ...


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