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FIDELITY ASSET MANAGEMENT, L.L.C v. MARY A. FAINE

December 1, 2010

FIDELITY ASSET MANAGEMENT, L.L.C., PLAINTIFF-RESPONDENT,
v.
MARY A. FAINE, A/K/A MARY A. CURRY, HER HEIRS, DEVISEES AND PERSONAL REPRESENTATIVES AND THEIR OR ANY OF THEIR SUCCESSORS IN RIGHT, TITLE AND INTEREST; ANTHONY JOHNS, BARBARA HAWKINS, TONI E. FLEMING, STATE OF NEW JERSEY, DEFENDANTS-APPELLANTS.



On appeal from the Superior Court of New Jersey, Chancery Division, Burlington County, Docket No. F-24369-06.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted September 29, 2010 - Decided Before Judges Kestin and Coburn.

Defendants appeal from an order denying their motion to vacate a default judgment in a tax foreclosure regarding property in Cinnaminson Township. The substituted plaintiff is a successor in interest to the purchaser of the tax sale certificate.

In challenging the order, defendants contend that the trial court "erred . . . because the heirs [of the title owner] did not receive notice of the foreclosure" and "because they were denied notice and an opportunity to be heard on their motion to vacate the default." In response to an assertion in plaintiff's Appellate Division Case Information Statement, defendants also argue that "this appeal is not mooted by [plaintiff's] sale of the . . . property."

The complaint, captioned as an in personam tax foreclosure action to bar the right of redemption, see N.J.S.A. 54:5-85 to -104, was filed on December 21, 2006, by New Jersey Home Construction, Inc., which alleged it was the owner of a tax sale certificate.*fn1 The individual defendants named in the complaint were the decedent, Mary A. Faine a/k/a/ Mary R. Curry, the widowed title owner of the property, deceased on October 31, 2002, with "no estate pleadings . . . located"; and Toni E. Fleming, who was alleged to be "a known heir." The named defendants also included Faine/Curry's "heirs, devisees, and personal representatives and their or any of their successors in right, title, and interest" because, plaintiff alleged, it "has been unable to determine her heirs." On March 19, 2007, the complaint was amended to name as defendants Anthony Jones and Barbara Hawkins "because they are known heirs" of Faine/Curry.*fn2

Certifications by plaintiff's attorney, dated May 4, 2007, described Jones as Faine/Curry's grandson*fn3 and Hawkins as Faine/Curry's daughter. In another certification dated May 11, 2007, plaintiff's counsel stated: "We believe that Toni Fleming is also a daughter of Mary A. Curry."

On November 2, 2007, plaintiff's attorney certified that service had been made upon all named defendants and that none had filed an answer "or otherwise moved," and he requested the entry of default as to all. On the ultimate motion to vacate the default that was to enter, plaintiff asserted that both Barbara Hawkins and Anthony Jones had been served by certified and regular mail. A return receipt for the certified mail from Anthony Johns appears in the record. No return receipt from Barbara Hawkins was received, but plaintiff alleged that the regular mail sent to her had not been returned.

In an order dated November 2, 2007, on the recommendation of the Office of Foreclosure, see R. 1:34-6, the court had set the redemption amount at $19,025.02 plus costs of $1,180.26. On January 2, 2008, also on the recommendation of the Office of Foreclosure, in a form reciting that no redemption of the tax sale certificate had been made, a final judgment of foreclosure was entered against all named defendants, along with an order correcting the mis-designated address of the property from 706

S. Randolph Avenue to number 708.

Sixteen days later, on January 18, 2008, an "order pending

motion to vacate sale" was entered precluding transfer of the property because the "heirs [had] applied . . . to vacate Final Judgment[.]" A letter from plaintiff's counsel to the court, dated January 29, 2008, stated that the motion to vacate and redeem the property had been made "on behalf of Mallonease Scott, Barbara J. Hawkins, Anthony Johns, and Hiram R. Johnston, Jr." The record before us on appeal, however, does not include the papers filed in support of the motion.

The next document, chronologically, in the record on appeal is the May 2, 2008 decision of the trial court denying the motion to vacate the default judgment. That decision sets forth, in detail, the factual background and positions of the parties on the motion to vacate the default and allow redemption.

The movants contended that Mallonease O. Scott and defendant Barbara J. Hawkins, sisters who resided together in Texas, were the daughters of the intestate decedent and her only heirs at law. Scott had never been named as a defendant in the foreclosure proceeding. One named defendant, Anthony Johns, a Nevada resident who was Scott's son and decedent's grandchild, was not an heir at law; and another named defendant, Toni E. Fleming, was a stranger and unknown by the family. One of the movants, Hiram R. Johnston, Jr., was not a defendant but was a trusted family friend who had been "taking care of the property" and was there "on a daily basis between August, 2007 ...


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