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Garden State Investment v. James A. Zaleski

December 3, 2010

GARDEN STATE INVESTMENT, PLAINTIFF-RESPONDENT,
v.
JAMES A. ZALESKI, DEFENDANT-APPELLANT, AND MRS. JAMES A. ZALESKI, HIS WIFE, RALPH HUGHES, AND STATE OF NEW JERSEY, DEFENDANTS-RESPONDENTS, AND JAMES A. ZALESKI, THIRD-PARTY PLAINTIFF-APPELLANT,
v.
TOWNSHIP OF MANTUA AND STATE OF NEW JERSEY, THIRD-PARTY DEFENDANTS-RESPONDENTS.



On appeal from the Superior Court of New Jersey, Chancery Division, Gloucester County, Docket No. F-24480-09.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted November 8, 2010 - Decided

Before Judges Kestin and Newman.

This is an appeal involving plaintiff, Garden State Investment, an owner of a Tax Sale Certificate, in a foreclosure action. Defendant, James A. Zaleski, contested the foreclosure action and the matter was transferred from the Foreclosure Unit to the Superior Court, Chancery Division, in Gloucester County.

Following argument on a summary judgment motion, the court deemed the contesting answer non-contesting, returned the matter to the Foreclosure Unit as an uncontested foreclosure, and severed the third-party complaint defendant brought against third-party defendants, Township of Mantua and the State of New Jersey, which was then transferred to the Law Division.

Defendant appeals from that order. We affirm.

Viewing the facts in the light most favorable to defendant, they can be summarized as follows. Defendant failed to pay the taxes for the year 2005. Isadore H. May, Esq., plaintiff's agent, certified that, "[o]n December 6, 2006, [he] personally attended and purchased Tax Sale Certificate #05-00037, at a public tax sale in the Township of Mantua. "Defendant's taxes, interest[,] and cost of sale . . . [were] offered to the public" and purchased in the amount of $4,596.39, according to May.

Plaintiff was the successful bidder. May also certified that "[t]he municipal lien was on [the] property located at Block 246, Lot 6, on the tax map" of Mantua Township. The purchaser was an investor who acquires tax liens throughout the state.

The Tax Sale Certificate was "recorded by the Gloucester County Clerk on December 21, 2006," as May certified. Plaintiff, in May's certification, alleged that "[a]ll subsequent taxes have been paid." May certified that the redemption calculation prepared by the Tax Collector's office in Mantua Township was $31,028.20, as of December 31, 2009. May's certification also stated that plaintiff instituted a tax lien foreclosure action more than twenty-four months after the purchase of the lien by filing this complaint on May 14, 2009, which was served on defendant on June 30, 2009. Though it began as an uncontested foreclosure, the matter was transferred on October 7, 2009, after defendant filed a contesting answer on or about July 31, 2009.

In challenging the Tax Sale Certificate, defendant asserted that the sale was invalid and that the tax itself was invalid.

Relying on Rule 4:64-6(a), defendant claimed that he had set up the aforementioned defenses, which then should have been tried in the action. Defendant asserted there was a genuine issue of fraud relating to the issuance and procurement of the Tax Sale Certificate, referring to the fact that the check used to pay for the delinquent taxes, interest, and costs was dated two days before the public auction and that it was not in the form of a certified check or a cashier's check as purportedly required by the notice to bidders.

In rejecting the argument, the trial court ruled that, with regard to plaintiff, it did not matter how the Township was paid so long as it was paid, which was evidenced by the issuance of the Tax Sale Certificate itself.

With respect to the claim that the property was unlawfully assessed and amounted to an inverse condemnation by the defendant Township, and other conduct by defendant, the State of New Jersey, the court ruled that those were issues to be tried before the Law Division, severing the action. The issues raised would not affect the issuance of the Tax Sale Certificate, but could be addressed and, if successful, defendant could be awarded ...


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