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Westwood Investment Co., LLC v. Bankers Trust Co.

July 20, 2010

WESTWOOD INVESTMENT CO., LLC, PLAINTIFF-RESPONDENT,
v.
BANKERS TRUST COMPANY, SOLELY AS TRUSTEE OR ITS PERMITTED SUCCESSORS AND ASSIGNS, ON BEHALF OF AMERICAN HOUSING TRUST V N/K/A DEUTSCHE BANK; STEPHANIE BREWINGTON; STATE OF NEW JERSEY DEFENDANTS.



On appeal from the Superior Court of New Jersey, Chancery Division, Essex County, Docket No. F-9421-06.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued February 4, 2010

Before Judges Skillman, Fuentes and Simonelli.

Appellants-intervenors Julio and Gayle Edwards appeal from the February 27, 2009 Chancery Division order denying their motion to vacate a final tax foreclosure judgment entered on December 18, 2006, and the May 4, 2009 order denying their motion for reconsideration. We affirm.

Andrew and Dolores Boiselle owned property located at 56 Alexander Street in Newark (the property). Because the Boiselles had financed the purchase of the property with a mortgage from the Veteran's Administration (the VA), Bankers Trust Company (Bankers Trust), as trustee for American Housing Trust V (AHT V), held title to the property through a recorded deed. Deutsche Bank Trust Co. (Deutsche Bank) later succeeded Banker's Trust as trustee.

According to appellants, in 1989, they began living at the property pursuant to a lease-purchase agreement with the Boiselles. In February 2000, they obtained a mortgage from CitiFinancial Mortgage Company to purchase the property, and retained Central Title Agency (Central Title), to conduct the closing. Central Title received the mortgage proceeds on February 26, 2000, and paid a portion to Deutsche to satisfy the VA loan, and the balance to the Boiselles. Central Title received a deed transferring title from Deutsche Bank, as trustee, to the Boiselles, and a deed transferring title from the Boiselles to appellants but never recorded the deeds or the CitiFinancial mortgage.

Appellants claimed that because their rental payments to the Boiselles included property taxes, they believed that their mortgage payments did as well. They never received or inquired about a property tax bill. The taxes went unpaid after appellants purchased the property because the City of Newark tax collector continued sending the bills to Banker's Trust, who was still the property's owner of record.

On November 27, 2001, the City issued a tax sale certificate to plaintiff Westwood Investment Co., LLC (Westwood), which was recorded on April 29, 2002. On April 26, 2006, Westwood sent Banker's Trust a notice of intention to file a tax foreclosure complaint in accordance with the requirements of N.J.S.A. 54:5-97.1. On May 26, 2006, Westwood filed a notice of lis pendens and an in personam tax foreclosure complaint to foreclose the right of redemption, naming Bankers Trust, "as trustee, or its permitted successors and assigns on behalf of [AHT V,]" Stephanie Brewington, and the State of New Jersey as defendants.*fn1 After discovering that Deutsche Bank had succeeded Banker's Trust as trustee, Westwood served Deutsche Bank in accordance with the requirements of Rule 4:4-4(a) at its principal place of business in California. On September 27, 2006, Westwood filed a certification of inquiry as to Bankers Trust and Deutsche Bank.

None of the defendants filed responsive pleadings, resulting in the entry of default against them. The court entered an order setting the amount of redemption at $5,385.52, and fixing November 13, 2006 as the redemption deadline. The order also provided that if defendants failed to pay the redemption sum to the tax collector by the entry of final judgment, they would "stand absolutely debarred and foreclosed of and from all right and equity of redemption on, in and to [the property] . . . and the plaintiff shall have an absolute and indefeasible interest of inheritance in fee simple to [the property]."

Westwood served the request to enter default and order on Bankers Trust on behalf of Deutsche Bank. In response thereto, on October 26, 2006, Deutsche Bank executed a second trustee's deed to the Boiselles, which was recorded on December 14, 2006.

In accordance with instructions on the deed, the Essex County Register returned the recorded deed to Wells Fargo Home Mortgage in Minneapolis, which had apparently succeeded Deutsch Bank as trustee.

None of the defendants redeemed the property. On December 18, 2006, the court entered a final judgment of foreclosure, foreclosing any right and equity of redemption in and to the property, and granting Westwood an absolute and indefeasible fee simple in the property (the final judgment).

On June 27, 2007, Westwood sold the property to Oakhurst NJ, LLC (Oakhurst). Oakhurst, in turn, sold the property to CHBE Investments I, LLC (CHBE). On July 9, 2007, the Essex County Sheriff served a writ of possession on ...


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