January 24, 2007
WACHOVIA BANK, N.A. AS ASSIGNEE FOR PLYMOUTH SPV1, PLAINTIFF-RESPONDENT,
RALPH JUERGENSEN, MRS. RALPH JUERGENSEN, WIFE OF RALPH JUERGENSEN, CAPITAL ASSETS PROPERTY MANAGEMENT & INVESTMENT CO., INC., NATIONAL HOME FUNDING, COPELCO CAPITAL, INC., DIMARCO SERVICES, INC., DENISE RUSH, PUBLIC SERVICES ELECTRIC AND GAS COMPANY, BUREAU OF HOUSING INSPECTION, AND THE STATE OF NEW JERSEY, DEFENDANTS AND DUGGAN PARTNERS, LLC, A NEW JERSEY LIMITED LIABILITY COMPANY, INTERVENOR-APPELLANT.
On appeal from the Superior Court of New Jersey, Chancery Division, Monmouth County, F-11309-04.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued December 6, 2006
Before Judges Winkelstein, Fuentes and Baxter.
Appellant, Duggan Partners, LLC (Duggan), appeals from a June 24, 2005 order of the Chancery Division that barred appellant from redeeming plaintiff's tax sale certificate in this tax sale foreclosure action and granted summary judgment to plaintiff. We affirm.
On August 29, 1997, the City of Asbury Park conducted a public tax sale of a number of properties, including the property at 1422 Mattison Avenue; Block 92, Lot 25 on the municipal tax map (the property). The tax sale certificate was sold to the City and was recorded on October 7, 1997. The City assigned the certificate to plaintiff, and on June 28, 2004, plaintiff filed its foreclosure complaint. Plaintiff named as defendants all individuals and entities having a recorded interest as of the date the complaint was filed. This included National Home Funding (National Home), which held a mortgage (the mortgage) on the property dated December 30, 1996. The mortgage was security for a $110,000 loan to the owner of the property, defendant Ralph Juergensen. Appellant, having no recorded interest in the property, was not named as a defendant.
In October 2004, plaintiff was notified that appellant had redeemed the tax sale certificate. According to appellant, which has supported its arguments with certifications of counsel, in return for $5000, it obtained an interest in the mortgage by virtue of an assignment from Walsh Securities, Inc. (Walsh), dated March 30, 2004, and recorded on either August 12 or October 6, 2004.*fn1
It is not disputed that prior to assigning the mortgage to appellant, Walsh had assigned its interest in the mortgage to "TMS Mortgage, Inc." (The Money Store), by assignment dated January 7, 1997. Appellant claims, however, that Walsh repurchased its interest in the mortgage from the Money Store before assigning that interest to appellant, when Walsh entered into a "repurchase agreement" with the Money Store dated June 16, 1998. According to that agreement, Walsh purchased a number of loans from the Money Store for approximately $1.5 million. The loans to be purchased were listed on an attached document, referred to as "Schedule A." Schedule A lists twenty loans, one of which is the National Home loan, secured by the mortgage.
Appellant acknowledges that it was not the legal owner of the mortgage; and appellant does not dispute that on January 7, 1997, Walsh assigned the mortgage to the Money Store. Appellant's principal contention on appeal is that the repurchase agreement vested in Walsh an equitable interest in the mortgage, and appellant obtained that same interest by virtue of the March 20, 2004 assignment from Walsh. Accordingly, appellant submits that this interest entitles it to intervene in the mortgage foreclosure proceedings and redeem the tax sale certificate.
In denying appellant's motion to intervene and granting plaintiff's cross-motion for summary judgment, the trial court stated, in part:
If Walsh did not own the mortgage in question, then the issue becomes whether there was a valid assignment of the mortgage from Walsh to Duggan. . . .
This Court is convinced that . . . Duggan has failed to meet its burden to demonstrate that it owns the mortgage in question.
Plymouth submits . . . documents demonstrating the Money Store's ownership actions with respect to the . . . [mortgage] after the date of the blank assignment . . . .
If I was to have a trial tomorrow, there would be no other evidence presented before me and there is no reason to have a trial, and that is why I am going to grant summary judgment.
This information clearly supports the court's conclusion that there has been no evidence or could be no evidence produced that shows the . . . mortgage was ever assigned back from the Money Store to Walsh.
And therefore Walsh could not have owned the mortgage at the time of the alleged assignment to the Duggan Partners.
Accordingly, the trial judge denied appellant's motion to intervene in the tax foreclosure proceedings. Where a party appeals from a decision of a trial judge regarding intervention in a tax sale foreclosure, the "issue . . . [is] whether the [trial] judge improperly exercised his discretion." Town of Phillipsburg v. Block 1508, Lot 12, 380 N.J. Super. 159, 172 (App. Div. 2005); See R. 4:33-2 (stating that the court shall "exercis[e] its discretion").
The judge also granted plaintiff's cross-motion for summary judgment. In reviewing the trial court's grant of summary judgment, we "employ the same standard that governs trial courts in reviewing summary judgment" motions. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). Summary judgment must be denied if there exists a "genuine issue" of material fact that would require resolution by a factfinder. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).
Against this factual and legal background, we affirm both the decision to deny appellant leave to intervene and the grant of summary judgment in favor of plaintiff. We come to this decision for two primary reasons.
First, no competent evidence in the record supports appellant's claims. Its arguments are supported by certifications of its attorney, who had no personal knowledge of the material facts. Attorney's certifications not based on personal knowledge are not competent evidence. See Murray v. Allstate Ins. Co., 209 N.J. Super. 163, 169 (App. Div. 1986), appeal dismissed by 110 N.J. 293 (1988); R. 1:6-6. Here, no one with personal knowledge of the assignment from Walsh to appellant, or of the repurchase agreement between Walsh and the Money Store, submitted a certification or affidavit to support the authenticity of those documents or that they were performed in accordance with their terms.
Even if we assume, however, that Walsh had some ill-defined equitable interest in the mortgage as a result of its repurchase agreement with the Money Store, that interest does not entitle appellant to redeem the tax sale certificate. Persons or entities entitled to redeem a tax sale certificate are listed in N.J.S.A. 54:5-54. The statute limits those who may redeem to the property "owner, his heirs, [the] holder of any prior outstanding tax lien certificate, [a] mortgagee, or [an] occupant of land sold for municipal taxes, [or] assessment for benefits . . . ." N.J.S.A. 54:5-54. Appellant's purported interest does not fall within any of those categories.
Before its amendment in 1994, the statute defined those entitled to redeem more broadly. In addition to those entities currently listed, any "other person having an interest in land sold for municipal liens" was entitled to redeem a tax sale certificate. Caput Mortuum, LLC v. S & S Crown Servs., Ltd., 366 N.J. Super. 323, 331 (App. Div. 2004). That is no longer so. The legislative history behind the amendment, and the plain language of the amendment, demonstrate "a clear legislative intent to eliminate the rights of those persons who did not have a sufficient interest in the property to warrant extension of the right of redemption to them in favor of more protection for the owner of the property, as well as the holder of the certificate." Id. at 331-32. "[T]he clear legislative intent [of the amendment] was to narrow the category of persons entitled to redeem a tax sale certificate." Id. at 332.
Here, the interest appellant claims it has in the mortgage is at best ill-defined. Even assuming that appellant has an interest in the mortgage, given the 1994 amendment to the statute, which limited the category of persons entitled to redeem, such an interest does not provide appellant with a right of redemption.
This conclusion is consistent with the public policy underlying the New Jersey Tax Sale Law, N.J.S.A. 54:5-1 to -136, which was "enacted to encourage the sale and foreclosure of tax lien certificates to assist municipalities in collecting revenue for delinquent real estate taxes and other municipal liens." Caput Mortuum, supra, 366 N.J. Super. at 334. Permitting appellant, which is not the legal holder of the mortgage, to redeem would cause subsequent purchasers "of fee simple title of tax foreclosed real estate [to] experience the same difficulties in clearing title that the amended statute is intended to eliminate." Id. at 337.
In sum, therefore, we conclude that the court did not abuse its discretion in denying appellant the right to intervene in the proceedings. We also hold that the record contains no competent evidence that would demonstrate a genuine issue of material fact precluding summary judgment against appellant.