On appeal from Superior Court of New Jersey, Chancery Division, Bergen County, Docket No. F-11647-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Stern and Parker.
Jung Ok Kim appeals from an order entered on August 15, 2008 denying her application to restore the action to the active calendar and her request for a hearing to establish her claim of right for her share of the surplus funds from foreclosure on property owned by her husband, defendant Ryong Hi Yi. The property was subject to a tax lien by the United States of America and the surplus funds were awarded to it.*fn1
The facts relevant to this appeal are as follows. Kim and Yi were married on October 30, 1975 in Korea. In January 1993, Yi purchased a two-family house in the Borough of Palisades Park, New Jersey, with a purchase money mortgage from plaintiff Hudson City Savings Bank. The deed and the mortgage listed Yi as unmarried. Yi's affidavit of title to the bank also stated that he was not married.
In 2005, Yi defaulted on the mortgage and the bank instituted a foreclosure action. The United States joined in the foreclosure action because it had a lien on the property as a result of Yi owing approximately $15 million in taxes.
When the bank instituted the foreclosure action, it inspected the premises in September and December 2005. The inspector learned that the two-family home was occupied by Yi, who lived alone in one apartment, and his son, daughter-in-law and their young child, who lived in the other. A final judgment of foreclosure was entered on June 6, 2006 and a writ of execution was issued by the Bergen County Sheriff for sale of the property on August 4, 2006. The sale resulted in proceeds of $742,000. After the mortgage lien was paid, there was a surplus of $593,014.69, which was deposited with the Clerk of the Superior Court.
The government's lien attached to the surplus and it filed a motion for payment of the funds. On November 17, 2006, the Chancery Division granted the government's unopposed motion for payment of the surplus monies.
Kim then moved for payment of a share of the surplus monies to her on the ground that she was Yi's wife, the tax liability was his alone, and she was, therefore, entitled to $311,643.79.*fn2
Kim's motion was argued on February 2, 2007. After hearing the arguments, the trial court found that Yi had purchased the property in 1993 with the deed and mortgage reflecting that he was unmarried. Nevertheless, the court accepted Kim's representation and proofs that she was married to Yi prior to the time the house was purchased and mortgaged. The court noted that "the wife was not on the mortgage, the wife was not on the note. The wife has no judgment which grants her an equitable or percentage share in the house or the property."
The court concluded that there was "simply no basis... in law or in equity to supersede or invalidate the award of the surplus funds that was previously entered in this matter nor to award any money whatsoever to the wife and, of course, to the husband." Accordingly, Kim's motion was denied. Kim appealed and argues that under N.J.S.A. 3B:28-3*fn3 she is entitled to one-half the surplus proceeds. In an opinion dated November 28, 2007, we noted that Kim had not raised the statute before the trial court. We found nothing in the record demonstrating that the foreclosed home was the principal marital residence. Nevertheless, we permitted Kim to make an application to the Chancery Division based upon the statute. We specifically stated that "any such application must be filed on or before December 21, 2007."
On December 21, 2007, Kim's attorney filed a motion "for an order restoring this case to the active docket and for a hearing to establish her claim of right for one-half the surplus funds" pursuant to N.J.S.A. 3B:28-3 and this court's decision dated November 28, 2007. Kim submitted no certification or affidavit in support of that motion. Rather, her attorney submitted a certification simply requesting restoration of the case to the active docket. On January 18, 2008, the motion was denied.
On April 14, 2008, Kim submitted an affidavit stating that she was unaware of the January 18, 2008 order until the previous week when her "attorneys were finally able to get in touch with [her], since [she] had not left an address after moving out [of the foreclosed home]." The affidavit stated: "I am now ready to appear and certify that I have lived and shared the marital home with my husband at 215 Third Street in Palisades Park ...