ROYAL TAX LIEN SERVICES, LLC, ETC. VS. SYEDA FATIMAÂ Â SHUAIB(F-9651-11, CAMDEN COUNTY AND STATEWIDE) ( 2017 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R.1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-5501-14T2
ROYAL TAX LIEN SERVICES,
L.L.C. d/b/a CRUSADER
LIEN SERVICES, L.L.C,
Plaintiff-Respondent,
v.
SYEDA FATIMA SHUAIB and
SYED TARIQ SHUAIB,
Defendants-Appellants,
and
HILLTOP FUEL HEATING & A/C,
and DISCOVER BANK,
Defendants.
_________________________________
Argued December 13, 2016 – Decided May 11, 2017
Before Judges Messano and Suter.
On appeal from the Superior Court of New
Jersey, Chancery Division, Camden County,
Docket No. F-9651-11.
Ahmed M. Soliman argued the cause for
appellants (Soliman & Associates, P.C.,
attorneys; Syed Tariq Shuaib, on the pro se
brief).
1
Adam D. Greenberg argued the cause for
respondent (Honig & Greenberg, L.L.C.,
attorneys; Mr. Greenberg, on the brief).
PER CURIAM
This appeal is from the denial of a motion to vacate a Final
Judgment of Tax Sale Certificate Foreclosure (Final Judgment) by
defendant Syeda Fatima Shuaib (Syeda)1. We exercise our original
jurisdiction under Rule 2:10-5 and affirm the denial, although for
reasons other than those expressed by the motion judge.
We relate only such facts as are necessary to the issues on
appeal. Syeda and defendant Syed Tariq Shuaib (Syed) are brother
and sister. They are the owners of a property located in Winslow
Township, Camden County (the Property), which they purchased in
2003. Syed alleges the house on the Property was destroyed in
2006 by a storm, and was not restored until 2011. During that
time, Syed disputed the amount of taxes due to Winslow Township.
Syed acknowledged he stopped paying taxes on the Property in 2007.
Plaintiff, Royal Tax Lien Services, L.L.C. (Royal), purchased
the Property's tax lien certificate from Winslow Township on
December 9, 2008, for $3,748.79. When the Property was not
redeemed after two years, Royal gave written notice of its
intention to foreclose to Syed and Syeda on September 28, 2011.
1We refer to the owners of the subject property by their first
names only to avoid confusion because they have the same last
name.
2
The notice was sent to an address in Paterson, Passaic County.
Thereafter, on November 15, 2011, Royal filed a Summons and
Complaint for Foreclosure of Tax Sale Certificate(s) (the
complaint), naming Syed and Syeda as defendants.
Syed was personally served with the complaint on February 6,
2012, at the Paterson address, but he told the process server that
Syeda was not living there at the time and that he had no forwarding
address for her. Syed was defaulted on April 10, 2012, when he
did not file an answer to the complaint.
After attempting personal service at the Paterson address in
February, Syeda was served on June 14, 2013, by publication in a
Camden County newspaper. The affidavit of diligent inquiry by
Royal's attorney detailed Royal's efforts to obtain a current
address. The search included an inquiry to the Post Office, which
gave the Paterson address as "good as addressed"; the internet,
which showed the Paterson address; the White Pages, which also
showed the Paterson address; the Social Security death index,
which had no record on file for Syeda; the local Board of
Elections, which had no record; and an obituary website, which
also was negative. Royal's counsel called an attorney for Syed,
who did not have an address for Syeda, and called Syed, who
promised to call back but never did. Having been served by
publication, Syeda was defaulted on December 26, 2013.
3
On March 19, 2014, an order was entered setting the redemption
amount as $29,977.76 and requiring redemption by May 5, 2014, or
the right to redeem would be extinguished under N.J.S.A. 54:5-87.
This order was served on Syeda by publication on April 4, 2014.
It was served on Syed by regular and certified mail to the Paterson
address, although the certified mail was returned unclaimed. When
neither Syed nor Syeda paid the redemption amount, the Final
Judgment was entered on December 2, 2014.
There have been three motions filed to vacate the Final
Judgment. The first was made by Syed and denied on January 9,
2015. That order was not appealed. The second motion to vacate
was made by Robert Brown, an alleged partial owner of the Property,
whose name does not appear on the deed. This motion was denied
by order dated March 20, 2015. That order was not appealed. The
third motion made by Syeda requested restraints, a declaration the
Final Judgment was void, and redemption.2 Syeda's motion was
denied on June 26, 2015 without oral argument. The trial court
later clarified its decision in a letter dated December 4, 2015.
Finding that Syeda's motion was "not filed due to a deficiency for
lack of []proper fee by Mr. Ahmed/Shuaib," the court stated the
2No one has included a copy of the Notice of Motion or Order to
Show Cause in their appendix.
4
denial of the June 26 order "was not based on the merits of the
Motion but . . . was denied because of the Notice of Deficiency."3
The Notice of Appeal (the Notice) filed in this matter
provided that both Syed and Syeda appeal the June 26, 2015 order,
but it is signed by Syed only. The appellate Case Information
Statement (the CIS) is signed by Syed and not by Syeda. The brief
in support of the appeal, although noting the names of Syed and
Syeda on the cover, is signed only by Syed. Because Syeda did not
sign the Notice, the CIS nor the brief, it is clear that Syeda has
not appealed the June 26, 2015 order.
The June 26, 2015 order related to a motion that Syeda, not
Syed, filed to vacate the Final Judgment. At oral argument,
counsel for Syeda contended that Syed was not Syeda's agent in
handling the affairs of the Property.4 Syed also is not an
attorney. As such, Syed had no authority to file the appeal for
his sister. "[O]nly an aggrieved party may appeal a judgment."
3The Automated Case Management System (ACMS) reflects a fee paid
on April 30, 2015, that appears to relate to Syeda's May 22, 2015
motion.
4If Syed were Syeda's agent, then service of process on Syed would
have been effective for Syeda. See R. 4:4-4(a)(4) (service of
summons, writs and complaints may be effected "by delivering a
copy of the summons and complaint to any employee or agent of the
individual within this State acting in the discharge of his or her
duties in connection with the business or the management of the
real property").
5
Spinnaker Condo. Corp. v. Zoning Bd. of City of Sea Isle City, 357
N.J. Super. 105, 111 (App. Div.) (citing Howard Sav. Inst. of
Newark v. Peep, 34 N.J. 494, 499 (1961)), certif. denied, 176 N.J.
280 (2003).
Nevertheless, in certain circumstances, we "may exercise such
original jurisdiction as is necessary to complete the
determination of any matter on review." Price v. Himeji, L.L.C.,
214 N.J. 263, 294 (2013) (quoting R. 2:10-5). "[T]he exercise of
original jurisdiction is appropriate when there is 'public
interest in an expeditious disposition of the significant issues
raised[.]'" Ibid. (second alteration in original) (quoting Karins
v. City of Atlantic City, 152 N.J. 532, 540-41 (1998)). Rule
2:10-5 also allows original jurisdiction to be used "to eliminate
unnecessary further litigation, but discourage[s] its use if
factfinding is involved." Ibid. (alteration in original) (quoting
State v. Santos, 210 N.J. 129, 142 (2012)). As we aptly stated
in Vas v. Roberts, 418 N.J. Super. 509 (App. Div. 2011),
[r]esort to original jurisdiction is
particularly appropriate to avoid unnecessary
further litigation, . . . as where the record
is adequate to terminate the dispute and no
further fact-finding or administrative
expertise or discretion is involved, . . . and
thus a remand would be pointless because the
issue to be decided is one of law and
implicates the public interest.
[Id. at 523-24 (citations omitted).]
6
Here, there are no relevant facts in dispute, and we view it
as unnecessary to further prolong issues of ownership regarding
the Property by a remand to the trial court. We therefore affirm
the June 26, 2015 order denying Syeda's motion to vacate the Final
Judgment.
The only argument Syed makes to vacate the Final Judgment is
that Syeda was not properly served with the tax foreclosure
complaint when she was served by publication. Syed contends
because the original deed from 2003 listed an address in Hasbrouck
Heights for both Syed and Syeda, and because Royal did not search
for an out-of-state driver's license or conduct a skip search,
that Royal's search lacked appropriate due diligence.
Under Rule 4:4-5(a), a defendant who "cannot, after diligent
inquiry as required by this rule, be served within the State," can
be served by publication "once in a newspaper published or of
general circulation in the county in which the venue is laid." R.
4:4-5(a)(3). "Service by publication is hardly favored and is the
method of service that is least likely to give notice." M & D
Assocs. v. Mandara, 366 N.J. Super. 341, 353 (App. Div. 2004)
(citing Modan v. Modan, 327 N.J. Super. 44, 48 (App. Div. 2000))
(other citation omitted). As "an alternative method of service
of process . . . it must be consistent with due process." Ibid.
"[T]he rule requires an affidavit that a diligent inquiry has been
7
made and that the defendant is not available for service within
the State." Ibid. (citation omitted). The affidavit of "diligent
inquiry must be carefully scrutinized." Ibid.
Syed relies on M & D as support for his argument that service
on his sister was not adequate. In M & D, two brothers purchased
a home together, but when the property taxes were not paid, the
tax certificate was sold. Id. at 346. One brother was served
with the complaint personally, but the second was served by
publication. Id. at 347. We remanded because a search of the
Division of Motor Vehicles records would have revealed the
brother's in-state address. Id. at 353-54. We held there that
even though service was effective on one of the brothers, the
entire judgment of foreclosure was void because the other brother
could have redeemed the property at any time had he been served.
Id. at 356-57.
In contrast to M & D, Syeda lived out-of-state in New York.
There is no indication that a search of the New Jersey motor
vehicle records would have revealed the New York license or
address. Further, Syed and his sister plainly communicated,
otherwise he would not have had a copy of her New York driver's
license included in his appendix. Syed never returned a call to
Royal's counsel when he was asked for Syeda's address. Royal
conducted an internet search with no results for Syeda's location,
8
aside from the Paterson property address. Syed did not show that
Syeda's address could have been found; he only contended that
other sources should have been checked. We are satisfied from our
review of the record that service on Syeda by publication was
sufficient.
Having been properly served by publication, Syeda did not
answer the foreclosure complaint and the Final Judgment was
entered. Syeda's motion to void the Final Judgment based on lack
of service was filed under Rule 4:50-1. Having rejected the lack
of service argument as insufficient, we are satisfied that Syeda's
motion to void the Final Judgment was properly denied.
Affirmed.
9