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C.J.T.C., LLC v. City of Newark

December 15, 2010

C.J.T.C., LLC, PLAINTIFF-APPELLANT,
v.
CITY OF NEWARK, DEFENDANT-RESPONDENT, AND BERGEN STREET REALTY AND THE STATE OF NEW JERSEY, DEFENDANTS.



On appeal from Superior Court of New Jersey, Chancery Division, Essex County, Docket No. F-31261-08.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted February 3, 2010 - Decided Before Judges Graves and J.N. Harris.

Plaintiff C.J.T.C., LLC, appeals from an order dated December 19, 2008, denying its motion for summary judgment and granting the cross-motion of defendant City of Newark (the City) for summary judgment. We affirm.

This matter involves property located at 622-628 Bergen Street in the City of Newark, described as Block 2685, Lot 46, on the City's tax map. In 1994, the owner of the property, Brown's Fried Chicken (Brown) failed to pay taxes in the amount of $5313.66. As a result, on November 20, 1995, the City sold Tax Sale Certificate 950322 to "FUNB CUSTODIAN-NATL TAX FUNDING LP" (FUNB). FUNB recorded the certificate in the Essex County Register's Office on March 27, 1996.

Brown again failed to pay taxes in 1997, this time in the amount of $5689.65, and on August 28, 1997, the City sold Tax Sale Certificate 971317 to "FUNB AS CUSTODIAN FOR FUNDCO INC" (FUNB FUNDCO).*fn1 The certificate was recorded in the Essex County Register's Office on November 21, 1997.

On July 23, 2001, the City filed an in rem tax foreclosure complaint. As required by N.J.S.A. 54:5-104.48 and Rule 4:64-7, notice of the foreclosure action was published, posted, and mailed, and affidavits of compliance were filed by the City. R. 4:64-7(e).

Notices of foreclosure were sent to: FUNB, 1700 Palm Beach Lakes Boulevard, West Palm Beach, Florida, 33401; FUNB FUNDCO, 3950 RCA Boulevard, Suite 5002, Palm Beach Gardens, Florida, 33401; and First Union National Bank/CAR97, 3950 RCA Boulevard, Suite 2002, Palm Beach Gardens, Florida 33401. Signatures denoting receipt were obtained for the FUNB FUNDCO and First Union National Bank mailings; however, there was no signature on the FUNB return receipt card.

On October 1, 2001, the City obtained a tax foreclosure judgment. The judgment was recorded on October 12, 2001.

More than six years later, on November 13, 2007, both FUNB and FUNB FUNDCO assigned their tax sale certificates to plaintiff. On August 14, 2008, plaintiff filed a foreclosure complaint naming the City, Bergen Street Realty, and the State of New Jersey as defendants.

In November 2008, plaintiff filed a motion for summary judgment and the City cross-moved for summary judgment. Plaintiff's motion was supported by a seven paragraph statement of uncontested facts, signed by plaintiff's counsel. During oral argument, plaintiff's counsel acknowledged:

My client is an individual. He bought two liens on his property. He knew at that time, he wasn't misled, he knew that there had been a foreclosure intent. There's a . foreclosure judgment from 2001 when the City foreclosed on the property He went to Trenton himself, looked at the foreclosure records, says he didn't see any green cards. So he bought the lien.

In addition, counsel conceded that "the issue could have been brought as a motion to vacate judgment." Nonetheless, plaintiff argued that the City's service of notice of foreclosure on FUNB was defective,*fn2 and therefore plaintiff had a right to redeem that tax sale certificate.

In response, the City argued that plaintiff's motion was "unsupported by any documents [and] any evidence." In addition, the City emphasized that plaintiff had actual knowledge of the foreclosure judgment because "it was aware of the City's ...


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