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Carf Realty 1997, L.L.C. v. Strauss

June 18, 2008

CARF REALTY 1997, L.L.C., PLAINTIFF-RESPONDENT,
v.
STEVEN STRAUSS, DEFENDANT-APPELLANT, AND MRS. STRAUSS (WIFE OF STEVEN STRAUSS), THOMAS A. GIOVARELLI, LIBRO A. GIOVARELLI, JR., WACHOVIA BANK, N.A., SUCCESSOR TO FIRST UNION NATIONAL BANK, F/K/A FIRST FIDELITY BANK, N.A., DISCOVER BANK, DEFENDANTS.



On appeal from the Superior Court of New Jersey, Chancery Division, Warren County, Docket No. F-19761-03.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued May 20, 2008

Before Judges Coburn, Grall and Chambers.

In this tax sale certificate foreclosure case, defendant Steven Strauss appeals from the orders denying his motion to vacate the default judgment against him and of his two motions for reconsideration. The trial court was correct because defendant was aware of the proceedings and could have sought to enter the litigation long before the final judgment was entered and the property was sold to a bona fide purchaser for value. We affirm.

I.

In 1994, defendant was the owner of property located at 465-467 South Main Street, Phillipsburg. Due to his failure to pay the 1994 taxes on the property in the sum of $3,281.04, those unpaid taxes became a lien on the property in accordance with N.J.S.A. 54:5-6. When the taxes remained unpaid for the requisite statutory time period, Phillipsburg held a tax sale on July 12, 1995, in accordance with N.J.S.A. 54:5-19. At the taX sale, the lien was sold in the form of a tax sale certificate (number 95-147) to First Union National Bank as Custodian/National Tax Fund, for the sum of $4,064.90, with a rate of redemption of three percent. Plaintiff, CARF Realty 1997, L.L.C., which thereafter became the holder of the tax sale certificate, commenced this tax foreclosure action on the certificate in 2003.

Plaintiff was served on April 29, 2004, but did not file an answer. The case proceeded as an uncontested matter, and on August 26, 2005, an Order Setting Time, Place and Amount of Redemption was entered. The order provided that the amount necessary to be paid in order to redeem the property was $77,147.22, together with interest for February 28, 2005, and costs of suit in the sum of $1,017.

The deadline for exercising the right of redemption was October 12, 2005, between the hours of 9:00 a.m. and 4:00 p.m. at the tax collector's office in Phillipsburg. The order further provided that if defendant failed to redeem the property by that deadline, he was "absolutely debarred and foreclosed of and from all right and equity of redemption on, in and to said lands and premises and every part thereof, and the plaintiff shall have an absolute and indefeasible interest of inheritance in fee simple, to said land and premises." The order also provided that "[a]nything to the contrary notwithstanding, redemption shall be permitted up until the entry of final judgment including the whole of the last date upon which judgment is entered."

On October 12, 2005, ten minutes before expiration of the deadline fixed in the order for redemption, defendant appeared at the tax collector's office in Phillipsburg and attempted to pay off the tax certificate. The checks presented were rejected because they were stale. Defendant's personal check was also rejected because it was not certified and it was not in the correct amount.*fn2 By letter dated October 14, 2005, Phillipsburg advised defendant that the lien holder was willing to accept full payment and requested that defendant contact the tax collector's office immediately.

On September 26, 2006, almost a year after defendant's unsuccessful effort to redeem the property, a final default judgment was entered vesting title in plaintiff CARF Realty 1997, L.L.C. The property was thereafter sold to Atlantic REO Services, L.L.C., which in turn sold the property on November 30, 2006, to Richard Halley for the sum of $150,000. The court later determined that Halley was a bona fide purchaser for value, since he was unaware of defendant's unsuccessful efforts to redeem.

In January 2007, defendant moved to vacate the final judgment of September 26, 2006. Halley, as the party in interest having purchased the property, appeared in opposition to the motion.*fn3 The motion was denied by order dated February 21, 2007, and the trial court issued a written decision. On March 13, 2007, defendant filed a motion for reconsideration, raising issues regarding his attempt to exercise his right of redemption on October 12, 2005. The trial court addressed the motion for reconsideration on the merits in a written decision and denied the motion by order dated March 30, 2007. Defendant's second motion for reconsideration was filed on April 19, 2007, and was denied by order dated May 11, 2007. This appeal was filed on June 25, 2007.

Defendant raises the following issues on appeal:

I. JUDGE DERMAN SHOULD HAVE CONSIDERED THE DEFENDANT'S SECOND MOTION FOR RECONSIDERATION SINCE HER PRIOR OPINION CONTAINED INACCURACIES AND AS WRITTEN IS ...


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