GREEN KNIGHT CAPITAL, LLC VS. GABRIEL CALDERON (F-005626-20, HUDSON COUNTY AND STATEWIDE) ( 2021 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1265-20
GREEN KNIGHT CAPITAL, LLC,
Plaintiff-Appellant,
v. APPROVED FOR PUBLICATION
October 18, 2021
GABRIEL CALDERON, a/k/a
APPELLATE DIVISION
GABRIEL I. GOMEZ-CALDERON,
MRS. GABRIEL CALDERON,
a/k/a MRS. GABRIEL I. GOMEZ-
CALDERON, ROSA ELVIRA
CALDERON, THE 133 73rd
STREET CONDOMINIUM
ASSOCIATION, and STATE OF
NEW JERSEY,
Defendants,
and
133 73rd STREET APT, LLC,
Intervenor-Respondent.
______________________________
Argued September 29, 2021 – Decided October 18, 2021
Before Judges Whipple, Geiger, and Susswein.
On appeal from the Superior Court of New Jersey,
Hudson County, Chancery Division, Docket No.
F-005626-20.
Keith A. Bonchi argued the cause for appellant
(Goldenberg, Mackler, Sayegh, Mintz, Pfeffer, Bonchi
& Gill, attorneys; Keith A. Bonchi, of counsel and on
the briefs; Elliott J. Almanza, on the briefs).
Stephen McNally argued the cause for intervenor-
respondent (Chiumento McNally, LLC, attorney;
Stephen McNally, on the brief).
The opinion of the court was delivered by
GEIGER, J.A.D.
In this action to foreclose a tax sale certificate, plaintiff Green Knight
Capital, LLC appeals from three December 4, 2020 Chancery Division orders.
The first denied plaintiff's motion to bar redemption and impose a constructive
trust. The second granted respondent 133 73rd Street Apt, LLC's motion to
intervene and permit redemption. The third denied plaintiff's motion to set the
time, place, and amount of redemption as moot.
The record discloses that plaintiff was the holder of a tax sale certificate
on a condominium unit located in North Bergen (the property). On April 22,
2020, after waiting the requisite two-year period, see N.J.S.A. 54:5-58 to -60,
plaintiff filed a complaint to foreclose on the property owner's right of
redemption and to obtain title to the property. On September 22, 2020,
respondent purchased the property from defendant Gabriel Calderon in "as-is"
condition for $100,000. Calderon netted $63,194.58 from the sale.
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On September 22, 2020, the date the sale of the property closed, a check
for the full redemption amount, including interest through September 30, 2020,
was sent to the tax collector. The check was received by the tax collector the
next day. Plaintiff advised the tax collector that it rejected the attempted
redemption as illegal and directed the tax collector to return the redemption
funds. On September 24, 2020, plaintiff filed a request to enter default and
filed a motion for an order setting the time, place, and amount of redemption.
The motion remained undecided.
On October 7, 2020, plaintiff filed a motion to bar redemption and
impose a constructive trust. Although respondent had already tendered a
check for the full redemption amount, on November 17, 2020, respondent filed
a cross-motion to intervene and permit redemption before the last date for
redemption was set. Indeed, the trial court did not set a last date and
ultimately denied plaintiff's motion to set the time, place, and manner for
redemption as moot.
On December 4, 2020, the trial court issued a lengthy oral decision and
entered the three orders at issue. On appeal, plaintiff argues:
The trial court committed reversible error by refusing
to follow the Supreme Court's binding precedent under
identical circumstances in Simon v. Cronecker, 189
N.J. 304 (2007).
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Plaintiff claims that respondent's attempted redemption was invalid
under Cronecker because respondent did not move for intervention before
attempting to redeem the tax sale certificate. We disagree, finding the
controlling facts in Cronecker and the Court's companion opinion, Simon v.
Rando, 189 N.J. 339 (2007), to be materially distinguishable. We affirm the
three orders but do so for reasons different than those expressed by the trial
court.1
In Cronecker, "[a] third-party investor contracted to purchase
defendants’ properties and arranged for the redemption of the tax certificates,
without intervening first in the foreclosure action." 189 N.J. at 310. The
Court held that a third-party investor will be allowed to redeem a tax sale
certificate if the investor moves in a timely manner to intervene in the
foreclosure action, id. at 336-37, and offers more than nominal consideration,
id. at 334-36. The Court explained:
When a person attempts to redeem a tax certificate,
the tax collector need only look to the foreclosure
complaint for the names of persons with an interest in
the property. Any person not named in the complaint
must move to intervene in the action. Without the
1
See Hayes v. Delamotte, 231 N.J. 373, 387 (2018) (explaining that appellate
courts review orders, not opinions). An appellate court is "free to affirm the
trial court's decision on grounds different from those relied upon by the trial
court." State v. Heisler, 422 N.J. Super. 399, 416 (App. Div. 2011) (citation
omitted).
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court’s approval, that person is not entitled to redeem
the tax certificate. On the other hand, if the third-
party investor properly intervenes and satisfies the
court that more than nominal consideration has been
offered for the property interest, then the court can
issue an order making the investor a party to the
foreclosure action. With that order and appropriate
notice to the tax collector, the intervenor can then
redeem the tax certificate.
[Id. at 336-37 (citation omitted).]
The Court held that "before redeeming or causing to be redeemed the tax
certificate," the investor seeking to redeem "had the duty to apply for
admission to the foreclosure actions." Id. at 337. The investor "did not have a
right to tender funds to the tax collector without prior judicial authorization."
Ibid. The investor's "failure to follow the clear dictates of the Tax Sale Law
and our court rules renders any redemption or attempted redemption invalid ."
Ibid. Accordingly, "[o]ne who acquires an interest post-complaint and is not
named in the court’s order of redemption is barred from redeeming through the
tax collector." Id. at 336-37 (alteration in original) (quoting Simon v. Rando,
374 N.J. Super. 147, 157 (App. Div. 2005), aff’d, 189 N.J. 339 (2007)).
Cronecker involved two consolidated cases. In the Cronecker matter,
the trial court entered an order setting August 22, 2005 as the last date to
redeem the tax sale certificate. Id. at 312. In September 2005, the plaintiff
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filed a motion to bar redemption. Ibid. In response, the investor "for the first
time" moved to intervene in the foreclosure action. Ibid.Similarly, in the Grivas v. Smyth matter, the last day to redeem the tax
certificate was set for March 14, 2005. Id.at 313. One day after the last date
set for redemption, the investor tendered a redemption check to the tax
collector. Id. at 314. The tax collector refused to accept the check. Ibid. The
foreclosure judgment was later vacated due to defective service of process on
the Smyths. Ibid. The last day to redeem was reset to September 8, 2005.
Ibid. Following remittance of the redemption amount to the tax collector on
September 6, 2005, the plaintiff refused to release the tax sale certificate and
discharge the lien on the property. Ibid. The plaintiff then moved to bar the
redemption and the investor cross-moved to compel the plaintiff to discharge
the tax lien. Ibid.In Rando, a holder of a tax sale certificate initiated a foreclosure action.
Rando, 374 N.J. Super. at 150. On May 16, 2003, the trial court entered an
order setting the amount to redeem and July 7, 2003, as the last day to redeem
the tax certificate. Ibid. A third-party investor that purchased prior tax sale
certificates sought to redeem the tax sale certificate held by the plaintiff
without first intervening in the pending foreclosure action. Id. at 151. On July
8, 2003, the tax collector accepted the redemption amount. Ibid. The trial
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court entered final judgment in favor of the plaintiff that same day. Ibid. On
July 31, 2003, the investor filed a motion to intervene in the foreclosure action
and to vacate the final judgment. Ibid. The trial court granted the motion.
Ibid. We reversed the trial court and the Supreme Court affirmed. Rando, 189
N.J. at 342. The Court reiterated that a third-party investor "must intervene in
the foreclosure action before attempting to redeem the certificate in the tax
collector's office." Id. at 343. "Accordingly, after purchasing the prior tax
certificates for more than nominal consideration, had [the investor] timely
intervened in the tax sale foreclosure action, with the court's approval it then
could have redeemed plaintiffs' subsequently acquired tax certificates." Id. at
344.
Here, in contrast to Cronecker, an order setting the time, place, and
amount of redemption was never entered, much less entered before respondent
tendered the redemption amount and filed its motion to intervene. And, unlike
in this matter, the investor in Rando waited until twenty-four days after the last
date to redeem and twenty-three days after the entry of judgment to move to
intervene in the foreclosure action. We thus find these facts materially
distinguishable.
We hold that when an investor has an interest in the property in
foreclosure, is prepared to redeem the tax sale certificate, and files a motion to
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intervene in the foreclosure action before the entry of an order setting the last
date for redemption, the investor is permitted to intervene and redeem the tax
certificate. Accordingly, we affirm the three orders entered by the trial court.
We do not reach the issue of whether the consideration paid by
respondent was nominal. Plaintiff did not raise or brief that issue on appeal.
"An issue not briefed on appeal is deemed waived." Woodlands Cmty. Ass'n
v. Mitchell, 450 N.J. Super. 310, 319 (App. Div. 2017) (quoting Sklodowsky
v. Lushis, 417 N.J. Super. 648, 657 (App. Div. 2011)). We deem the issue
waived.
Affirmed.
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