TOWNSHIP OF GREENWICH, ETC. VS. BLOCK 117, LOT 1, ASSESSED TO RALPH SABATINI, ULMER AVENUE(F-17156-15, GLOUCESTER COUNTY AND STATEWIDE) ( 2017 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
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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-0473-16T2
TOWNSHIP OF GREENWICH, a
Municipal Corporation of
the State of New Jersey,
Plaintiff-Respondent,
v.
BLOCK 117, LOT 1
ASSESSED TO RALPH
SABATINI, ULMER AVENUE,
Defendant-Appellant.
_________________________________________
Submitted May 25, 2017 – Decided June 9, 2017
Before Judges Lihotz and O'Connor.
On appeal from Superior Court of New Jersey,
Chancery Division, Gloucester County, Docket
No. F-17156-15.
Ralph Sabatini, appellant pro se.
Ward Law Firm, attorneys for respondent
(John H. Shindle, on the brief).
PER CURIAM
Defendant Ralph Sabatini appeals from an August 19, 2016
General Equity Part order denying his motion to vacate a final
default judgment in a tax sale foreclosure. Defendant sought to
vacate the default judgment on the ground he had not been served
with plaintiff Greenwich Township's notice of foreclosure.
Having reviewed defendant's arguments in light of the record and
applicable principles of law, we reverse the order under review
and remand for further proceedings.
The following facts are derived from the motion record.
Defendant owned residential property located on Ulmer Avenue in
Gibbstown. The last time defendant paid any property taxes on
this land was in 2011. Plaintiff obtained tax sale certificates
against the property and, in 2015, filed a verified in rem tax
foreclosure complaint. At that time, plaintiff owed over
$20,000 in unpaid property taxes. Defendant did not respond to
the complaint and plaintiff eventually obtained a default final
judgment against him.
Defendant filed a motion to vacate the default judgment.
In his certification in support of the motion, defendant
asserted he had not been served; he does not identify the
document with which he had not been served, but it appears there
is no dispute defendant was referring to the notice of
foreclosure.
In response, one of plaintiff's attorneys certified he sent
the notice to foreclose by regular and certified mail to
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defendant at his last known address, located in Franklinville.
Although not the property that was the subject of the foreclose
action, the Franklinville address appears as defendant's address
on the last municipal tax duplicate. See R. 4:64-7(c).
However, both the regular and certified mail sent to the
Franklinville address was returned to plaintiff, with a notation
affixed by the Post Office on the front of both envelopes
stating the mail was "not deliverable as addressed" and "unable
to forward."
Another attorney for plaintiff certified he was posting
copies of the notice to foreclose on telephone poles at the
subject property when defendant appeared and identified himself.
Plaintiff's attorney informed defendant who he was and why he
was at the property. The attorney claims he then served
defendant by handing him a copy of the page from the newspaper
where the notice to foreclose appeared.1
1
It is not disputed plaintiff published a copy of the notice
to foreclose in the South Jersey Times, a newspaper generally
circulated in the municipality where the lands affected are
located. See R. 4:64-7(b). Plaintiff also arranged to have a
copy of the notice to foreclose posted in the Gloucester County
Clerk's Office and in Greenwich Township's Tax Collector's
Office. See R. 4:64-7(d). The latter Rule also requires a copy
of the notice to foreclose be posted in "3 other conspicuous
places within the taxing district in which the land is located."
Ibid. Plaintiff is taking the position the posting of the
notice on telephone poles on defendant's property fulfilled the
latter condition.
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The attorney further certified defendant's attorney then
contacted him to discuss resolving the matter. Plaintiff's
attorney advised defense counsel the only way defendant could
prevent the tax sale foreclosure was to pay the outstanding
property taxes. When defendant did not do so, plaintiff pursued
and eventually obtained the default final judgment against him.
In his certification in reply, defendant again claimed he
had never been served, asserting the first time he saw any
pleadings in this matter was when he examined the court's file
after the final judgment was entered. Defendant's attorney
submitted a certification claiming he had discussions with
plaintiff's counsel about assigning the tax sale certificate to
a third party, but the defense attorney claims he did not
discuss "service of process or a deadline[] for filing answers
or deadlines for paying off taxes. My conversations were
strictly limited to trying to get an assignment of the tax sale
certificate."
The court denied the motion. In its brief decision, the
court observed defendant claimed he had never been served, but:
It appears from the opposition that Mr.
Sabatini was served with [the] Notice of the
Foreclosure personally, and also consulted
with [defense] counsel, who contacted
[plaintiff's counsel].
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The court also noted it received a copy of a letter from
plaintiff's counsel to defendant after he was allegedly served
with the notice of foreclosure. The court then concluded
defendant had been properly served with the notice of
foreclosure and denied defendant's motion.
The court did not state how it determined plaintiff's
attorney served defendant in light of the parties' conflicting
certifications. The court appeared to have placed some weight
on the letter from plaintiff's counsel to defendant. However,
we note that, while the letter references "previous
conversations" between plaintiff's counsel and defendant, and
plaintiff's counsel advises defendant of the redemption amount,
there is no reference in the letter to the foreclosure complaint
or pending litigation.
On appeal, defendant contends plaintiff failed to serve him
with the notice of foreclosure and, thus, the court erred when
it did not vacate the default judgment of foreclosure. We
review defendant's contention for abuse of discretion. Deutsche
Bank Nat'l Trust Co. v. Russo, 429 N.J. Super. 91, 98 (App. Div.
2012).
A tax sale foreclosure judgment is void where there was
defective service of process on the property owner. M & D
Assocs. v. Mandara, 366 N.J. Super. 341, 352-53 (App. Div.),
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certif. denied, 180 N.J. 151 (2004). Service of process is
governed by Rule 4:64-7, which provides:
The plaintiff shall, within 7 days after the
date of publication of the notice of
foreclosure, serve a copy thereof in the
manner hereinafter provided on each person
whose name appears as an owner in the tax
foreclosure list at his or her last known
address as it appears on the last municipal
tax duplicate. The plaintiff shall also
make such service upon all other persons
having an ownership or lien interest
recorded in the office of the Superior Court
Clerk or the county recording officer on the
date of the filing of the complaint and upon
all other persons who, pursuant to N.J.S.A.
54:5-104.48, as amended, have filed a notice
with the tax collector specifying a title,
lien, claim or interest in any of the lands
sought to be affected by said complaint.
Such service shall be made in the manner
provided by [Rule] 4:4-4(a)(1) or (c) or by
simultaneously mailing to the last known
address by registered or certified mail,
return receipt requested, and by ordinary
mail. In addition to the foregoing, the
plaintiff shall mail a copy of the notice of
foreclosure, by ordinary mail, to the
Attorney General.
[R. 4:64-7(c).]
Therefore, here, service of the notice of foreclosure had to be
accomplished by either Rule 4:4-4(a)(1) or (c). Plaintiff
claims one of its attorneys served defendant personally;
defendant disputes that claim. Plaintiff argues the fact its
attorney and defendant's attorney communicated after defendant
was allegedly served corroborates he had been served. In our
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view, the evidence plaintiff provides about the nature of those
communications is not dispositive, and defense counsel claims he
and plaintiff's counsel did not discuss the foreclosure action
at all.
Plaintiff does not contend defendant was served in
accordance with Rule 4:4-4(c). Thus, "[w]hen notices sent to
the property owner [are] returned as undelivered, additional
reasonable steps [are] required under due process of law to
notify the property owner." I.E.'s, L.L.C. v. Simmons, 392 N.J.
Super. 520, 530 (Law Div. 2006). Certainly, "service by . . .
posting does not meet due process requirements where the
defendant's names and address are 'reasonably ascertainable.'"
Ibid. (quoting New Brunswick Sav. Bank v. Markouski, 123 N.J.
402, 418-19 (1991)).
Here, there is a question of fact whether plaintiff's
attorney personally served defendant with the notice to
foreclose, a question the court was unable to resolve in the
face of competing certifications on this issue. Accordingly, we
reverse the order denying defendant's motion to vacate the
default judgment, and remand this matter for further fact-
finding on the question of whether defendant was properly
served. We leave to the court's discretion whether a plenary
hearing is required to resolve the disputed facts.
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Reversed and remanded for further proceedings consistent
with this opinion. We do not retain jurisdiction.
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