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Sidney S. Kanter v. Malcolm Scharf

November 7, 2012

SIDNEY S. KANTER, PLAINTIFF-APPELLANT,
v.
MALCOLM SCHARF, DEFENDANT-RESPONDENT, AND FERNWOOD FUNDING, L.L.C., AND KENNETH KANTER, DEFENDANTS, AND MALCOLM SCHARF, THIRD-PARTY PLAINTIFF,
v.
FOUNDATION TITLE, L.L.C., AND MICHAEL MARGELLO, THIRD-PARTY DEFENDANTS, AND FOUNDATION TITLE, L.L.C., FOURTH-PARTY PLAINTIFF,
v.
ACTION TITLE RESEARCH, L.L.C., FOURTH-PARTY DEFENDANT.



On appeal from the Superior Court of New Jersey, Law Division, Morris County, Docket No. L-2353-07.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued October 1, 2012

Before Judges Espinosa and Guadagno.

Plaintiff Sidney S. Kanter appeals from a December 2, 2011 order dismissing his complaint for lack of subject matter jurisdiction. Because we agree with the sound conclusion of the Law Division judge that he lacked jurisdiction to hear this matter, we affirm.

On October 8, 1986, Malcolm Scharf purchased and recorded tax sale certificate #512 to property located at Block 59, Lot 73, on the tax map of Washington Township, New Jersey (the Property). The Property is a landlocked 3.57 acre parcel with an uninhabitable dwelling. Taxes were assessed against the Property in the names of "Harry K. and Elizabeth Peck Estate." A deed recorded in Morris County on March 23, 1977 conveyed the interest of James Ballentine in the Property to Harry K. Peck and Elizabeth Peck, his wife, as tenants in common, with Harry

B. Peck and Donna M. Peck, his wife, to hold their undivided one-half interest as tenants by the entirety. Elizabeth Peck died in 1998.

Scharf*fn1 paid the delinquent taxes for the year 1985 in the amount of $506.38 and continued to pay taxes on the Property through the fourth quarter of 2003. When taxes on the Property went unpaid during 2004, another tax sale certificate, #919, was issued by the Township of Washington. On December 16, 2004, Fernwood Funding, LLC, (Fernwood) purchased certificate #919 and assigned it to Kenneth Kanter on September 26, 2005.

When Scharf attempted to redeem certificate #919, Kenneth Kanter filed an order to show cause to prevent the redemption, naming Scharf and the Washington Township tax collector as defendants. A complaint filed by Scharf in 1999, which sought to foreclose on the Property, was dismissed in 2000. Since the dismissal order was marked "with prejudice," Kenneth claimed the dismissal voided certificate #512 and Scharf lacked standing to redeem certificate #919.

While the record on appeal does not indicate how the order to show cause was resolved, the Washington Township tax collector permitted Scharf to redeem certificate #919 and issued a check to Kenneth for $7,711.08 on October 21, 2005.

On October 3, 2005, Kenneth obtained a quitclaim deed from Harry K. Peck and Harry B. Peck, conveying all their right, title and interest in the Property to him for $1,000. Sidney Kanter, Kenneth's brother, signed the deed as a witness.

On October 24, 2005, Donna M. Peck executed a quitclaim deed to Fernwood, conveying all of her right, title and interest in the Property for $500. Sidney also witnessed her signature.

On November 2, 2005, Scharf filed a complaint in the Chancery Division, Morris County, to foreclose on his tax certificate. The complaint traced title in the Property back to 1883 when William and Susan Blaine acquired a deed of conveyance. Named as defendants in the complaint were Harry K. and Harry B. Peck, Donna M. Peck and thirty-seven other heirs, devisees and possible successors in right, title and interest.

Although Kenneth Kanter and Fernwood were not named in the complaint, Kenneth testified in a deposition that he was aware of the filing of the complaint, knew he ...


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