PRO CAP II, LLC BY ITS CUSTODIAN US BANK VS. JAMES WILLIAMS (F-025248-15, ESSEX COUNTY AND STATEWIDE) ( 2020 )

NOT FOR PUBLICATION WITHOUT THE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-4406-18T1
PRO CAP II, LLC by its
CUSTODIAN: US BANK,
Plaintiff,
v.
JAMES WILLIAMS, MRS.
JAMES WILLIAMS, wife of
JAMES WILLIAMS, MONMOUTH
COUNTY TREASURER, NEWARK
BETH ISRAEL MEDICAL CENTER,
COLUMBUS HOSPITAL, EUGENE
DUKES, LANGTON E. BARTON,
CHRISTOPHER CHUDAKOWSKI,
TOMAR, SIMONOFF, ADOURIAN,
O'BRIAN, KAPLAN, JACOBY,
& GRAZIANO, CHRIST HOSPITAL,
EMMA VACCA, INTERBANK OF
NEW YORK n/k/a INVESTORS BANK,
HOUSEHOLD AUTOMOTIVE
FINANCE CORPORATION, FORD
MOTOR COMPANY, VINZINENT
MAIMONE, PETER J. MAIMONE,
NELSON TOBOLSKY, LANDMARK
AMERICA, INC., NEW JERSEY
PROPERTY LIABILITY INSURANCE
GUARANTY ASSOCIATION,
ADMINISTRATOR UNSATISFIED CLAIM
AND JUDGMENT FUND, ADINOLFI &
SPEVACK PA, NEW JERSEY
PROPERTY LIABILITY
INSURANCE GUARANTY
ASSOCIATION, MERCER COUNTY
PROBATION SERVICES, NEWARK
BETH ISRAEL MEDICAL CENTER,
PELLETTIERI RABSTEIN & ALTMAN,
ANTHONY BODY, THE TRUST
COMPANY OF NEW JERSEY n/k/a
CAPITOL ONE, NATIONAL
ASSOCIATION, GARDEN HOMES
MANAGEMENT, CUMBERLAND
INSURANCE, FORD MOTOR
CREDIT COMPANY, OIMH
RADIOLOGY GROUP, ALAN B.
CLARK MD, HOSPITAL & DOCTORS
SERVICE BUREAU, RAHWAY MRI,
MONTCLAIR COMMUNITY
HOSPITAL, PARKWAY MANOR
HEALTH CENTER, COUNTY OF
CAMDEN, UNIFUND CCR PARTNERS,
HOSPITAL CENTER AT ORANGE,
CALVARY PORTFOLIO SERVICES
LLC, ATLANTIC CREDIT AND
FINANCE, AFFINITY FEDERAL
CREDIT UNION, WILLIS MORTON,
ROY HENDRICKS, WALTER WISE,
FRANK GRAVES, CSC TKR, INC.
d/b/a CABLEVISION OF RARITAN
VALLEY, JACKSON HEWITT, INC.,
STATE OF NEW JERSEY and
UNITED STATES OF AMERICA,
Defendants,
and
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901 SOUTH 18TH LLC and LOAN
FUNDER LLC SERIES 1968,
Intervenors-Appellants.
_______________________________
RASHID SAYYID,
Third-Party Plaintiff-
Respondent,
v.
THE CITY OF NEWARK,
ESSEX COUNTY SHERIFF'S
OFFICE, PRO CAP II, LLC, and
MOC SOUTH 18 LLC,
Third-Party Defendants-
Respondents.
____________________________
Argued telephonically March 24, 2020 –
Decided April 29, 2020
Before Judges Yannotti and Hoffman.
On appeal from the Superior Court of New Jersey,
Chancery Division, Essex County, Docket No. F-
025248-15.
Michael D. Malloy argued the cause for appellants 901
South 18th LLC and Loan Funder LLC Series 1968
(Finestein & Malloy, LLC, attorneys; Michael D,
Malloy, on the briefs).
Ariadna Peguero, Assistant Corporation Counsel,
argued the cause for respondent City of Newark
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3
(Kenyatta K. Stewart, Corporation Counsel, City of
Newark-Department of Law, attorney; Azeem M.
Chaudry, Assistant Corporation Counsel, and Ariadna
Peguero, on the brief).
Sylvia Hall, Assistant County Counsel, argued the
cause for respondent Essex County Sheriff's Office
(Courtney M. Gaccione, Essex County Counsel,
attorney; Sylvia Hall, on the brief).
Wanda M. Akin argued the cause for respondent Rashid
Sayyid (Wanda M. Akin & Associates, attorneys, join
in the brief of respondent City of Newark).
PER CURIAM
In this tax sale certificate foreclosure action, intervenors 901 South 18th LLC
(South LLC) and Loan Funder LLC Series 1968 (Loan Funder) appeal from
Chancery Division orders vacating the Sheriff's sale of the family home of
respondent Rashid Sayyid, who inherited the property as his father's sole intestate
heir, when his father died in 2012. In vacating the sale, the motion judge concluded
Sayyid redeemed the property before delivery of the Sheriff's deed.
On appeal, appellants contend the judge abused his discretion by vacating the
Sheriff's sale. They assert that while Sayyid may have had the right to redeem, he
did not validly redeem the property under the applicable provisions of our Tax Sale
Law (the Act), N.J.S.A. 54:5-1 to -137. Specifically, they contend that, under
N.J.S.A 54:5-98, once the foreclosure complaint was filed, redemption of the
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property could have been made "in that cause only." Having considered the
arguments and applicable law, we affirm.
I
We glean the following facts from the record. James Williams, Sayyid's father,
owned a home (the home or the property) located on 18th Street in Newark. On
November 15, 2012, Sayyid became his father's legal guardian due to ongoing
medical issues. On November 26, 2012, Williams died intestate, leaving Sayyid as
his sole heir.
After his father died, Sayyid continued to reside in the home, but took no action
to administer his father's estate. Nor did he record a deed reflecting that he inherited
the home. Sayyid's family has lived in the home for over 40 years. He currently
resides there with his "significant-other," five young children, and a young adult who
suffers from "bipolar [disorder], epilepsy and has neurological impairment." Sayyid
recalled he began receiving notices from the City of Newark regarding overdue tax
payments "beginning in 2013 or 2014."
On February 8, 2013, Pro Cap II, LLC (Pro Cap) purchased the tax sale
certificate1 for the home issued by the City of Newark Tax Collector – due to
1
The Act provides a mechanism for individuals or entities to purchase tax liens
from municipalities and initiate foreclosure actions against property owners who
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delinquent taxes, water and sewer charges. On June 16, 2015, Pro Cap sent a letter
to the property addressed to James Williams, indicating he had thirty days to redeem
the tax sale certificate or a foreclosure action would commence.
On July 20, 2015, Pro Cap filed its complaint commencing the foreclosure
action, naming "James Williams; Mrs. James Williams, Wife of James Williams" as
defendants, along with John Doe and Jane Doe. The complaint did not name the
"heirs" of James Williams as defendants. On July 22, 2015, Pro Cap attempted to
serve a copy of the summons and complaint on Williams. Sayyid accepted service
of the complaint. Thereafter, Pro Cap filed an affidavit of service, which verified
Sayyid told the process server that he was James Williams' son. It appears Sayyid
did not mention his father's passing.
On August 20, 2015, Sayyid attempted to file an answer to the complaint, signing
as "James Williams." The answer was marked received but not filed because Sayyid
are delinquent in paying their property taxes. The foreclosure process begins
when a property owner fails to pay the property taxes, as the unpaid balance
becomes a municipal lien on the property. N.J.S.A. 54:5-6. "When unpaid taxes
or any municipal lien . . . remains in arrears on the [eleventh] day of the eleventh
month in the fiscal year when the taxes or lien became in arrears, the collector
. . . shall enforce the lien by selling the property . . . ." N.J.S.A. 54:5 -19. Upon
completion of the sale, a certificate of tax sale is issued to the purchaser.
N.J.S.A. 54:5-46.
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failed to include a case information statement with the answer. On September 4,
2015, defendant filed the same answer, again signing it in his father's name.
On December 8, 2015, Pro Cap filed a second amended foreclosure
complaint adding approximately fifty additional defendants reflecting persons
and entities whose names appeared on a judgment search of James Williams'
name; however, this amended pleading again failed to include the heirs of James
Williams as defendants.
On May 24, 2016, Pro Cap filed a motion for entry of default and final
judgment in the tax sale foreclosure action. On June 29, 2016, the court entered
final judgment in favor of Pro Cap and against Williams for $24,950.50, plus
interest and counsel fees. A writ of execution issued on June 29, 2016.
On March 21, 2017, the home was sold at a Sheriff's sale to third-party purchaser
MOC South 18 LLC (MOC) for $66,000. Thereafter, the Sheriff's Office tendered
$32,044.25 to Pro Cap and sent the surplus of $32,394.78 to the Clerk of Superior
Court in Trenton. The Sherriff's commission for the sale, including fees, was
$3,678.50.
At the time of sale, James Williams remained the record owner of the home.
Sayyid did not move to intervene in the action nor was he present at the sale.
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Nevertheless, on April 19, 2017, Sayyid went to the office of the City of
Newark's Tax Collector and tendered $30,652.79, the amount the Tax Collector told
him was due in order to redeem the property. The Tax Collector accepted his tender
and issued a certificate of redemption.
Shortly after Sayyid purportedly redeemed the property, he claimed to have
spoken to an agent of MOC, who told him that her company owned the property.
This prompted Sayyid to go to the Sheriff's Office on April 24, 2017. According to
Sayyid, a person in the office told him he still had time to file a motion to vacate the
Sheriff's sale. The same individual also allegedly told him "[he] could file it
[himself] as [his] father's Legal Guardian or [he] could hire a lawyer to file it for
[him]."
On April 26, 2017, Sayyid attempted to file a motion to vacate the Sheriff's sale.
Under his father's name, he filed a "Certification in Support of Motion," which
referenced a motion to vacate sale; however, he was unsuccessful because the
motion was nonconforming under Rule 1:5-6(c)(1). Moreover, his certification of
service only named Pro Cap as a party.
The next day, on April 27, 2017, after Sayyid received his first certificate of
redemption, MOC received the Sheriff's deed for the property. On May 3, 2017,
Sayyid returned to the office of the City's Tax Collector because he continued
A-4406-18T1
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"receiving calls from people who claim they own my house." The office informed
Sayyid that he owed an additional $4,185.57, to be paid by May 31, 2017, in order
to successfully redeem the property. On May 12, 2017, MOC recorded its Sheriff's
deed for the property in the Essex County Clerk's Office. On May 30, 2017, Sayyid
paid the additional monies, which the Tax Collector accepted, and then issued a
second certificate of redemption to him.
Pro Cap, despite having knowledge of the Sheriff's sale, certified that – because
it was unaware of MOC's completion of the purchase and since over a month had
passed with the Sheriff failing to remit any funds – it endorsed the tax sale certificate
for cancellation and returned it to the Tax Collector in exchange for the redemption
proceeds.
On August 7, 2017, Pro Cap filed a stipulation of dismissal for the foreclosure
action. On August 24, 2017, MOC sold the property to South LLC for $125,000.
Loan Funder financed the purchase and took a first mortgage on the property. Sayyid
and his family remained in the property throughout this time.
On August 29, 2017, MOC filed an ejectment action seeking possession of the
property, MOC South 18 LLC v. Angelina Keamey, Rashid Sayyid, et. al, Docket
No. ESX-DC-17702-17. On September 21, 2017, the court dismissed the ejectment
action and advised MOC to seek a writ of possession under the foreclosure docket
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number. Accordingly, on September 26, 2017, MOC applied for a writ of possession
in the foreclosure action. On October 2, 2017, the court denied the application
because Pro Cap previously dismissed the case. On October 4, 2017, MOC moved
to vacate Pro Cap's dismissal.
On October 27, 2017, Sayyid filed a motion to intervene and opposed MOC's
motion to vacate. On November 27, 2017, the court granted Sayyid's motion to
intervene, and on November 30, 2017, granted MOC's motion to vacate the
dismissal.
On December 7, 2017, Sayyid answered the second amended complaint in
foreclosure, counterclaiming against Pro Cap and filing a third-party complaint
against the City of Newark and the Essex County Sherriff's Office. South LLC then
filed a motion to strike defendant's answer, contending the final judgment in
foreclosure had never been vacated.
On January 24, 2018, the court entered an amended order vacating Pro Cap's
August 7, 2017 dismissal and permitting South LLC to file a writ of possession;
however, the parties were to take no further action regarding possession of the
property pending further court order.
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On January 29, 2018, Sayyid filed a motion to vacate the June 29, 2016 default
judgment in foreclosure and to set aside the Sheriff's sale. On June 6, 2018, the
motion judge held a hearing on defendant's motion.
At the hearing, Sayyid, while acknowledging some degree of fault, took the
position that he was an unsophisticated party who lacked understanding of the
situation, and that, once he realized what had occurred, Pro Cap and the Sherriff's
Office – who had control and knowledge of all parties' positions – allowed him to
redeem. Furthermore, since he did everything as instructed, any procedural bar
should be set aside due to "equitable circumstances."
Pro Cap continued to contend it had no knowledge of MOC's completed purchase
after the Sheriff's sale because it never received a deposit. As a result, when the
Sheriff's Office communicated that Sayyid was attempting to redeem the property,
it accepted the redemption.
MOC and South LLC took the position that Sayyid received proper notice from
the outset of the matter and the court should consider his actions. They further
asserted, citing N.J.S.A. 54:5-98, that once a foreclosure action on a tax lien
commences, the only method for proper redemption was by filing with the court in
the existing foreclosure action. Therefore, they contended Pro Cap and the Sherriff's
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Office had no authority to accept Sayyid's redemption once the foreclosure action
commenced.
On October 25, 2018, the motion judge placed his oral decision on the
record. The judge considered the motion to vacate judgment before him under
Rule 4:50-1. Addressing the parties' arguments, he first found the City's Tax
Collector and Pro Cap properly served Sayyid throughout the foreclosure
process. He also took note of Sayyid's failure to probate his father's estate,
record the deed, and notify the parties of his father's passing. Accordingly, the
judge concluded defendant could not vacate the judgment based on excusable
neglect or exceptional circumstances based on his lack of legal training because
"[a] property owner knows that he must pay taxes on his property and that if he
fails to do so the municipality will sell the property[.]"
Next, the motion judge turned to defendant's equitable argument.
The Chancery Division of course has the authority to set
aside a [S]heriff sale and order a resale of property. [First
Trust Nat. Assoc. v. Merola, 39 N.J. Super. 44 (App. Div.
1999).] The [courts] have recognized that such sales may
be set aside by reasons of fraud, accident, surprise, or
mistake, irregularities in the conduct of the sale and so on.
But, caution that a judicial sale is not ordinarily vacated on
the grounds of mistake flowing from a moving party's own
culpable negligence.
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The judge further noted that "courts have established that redemption may be
made at any time prior to the delivery of the sheriff's deed[,]" citing Mercury
Capital Corp. v. Freehold Office Park, Ltd., 363 N.J. Super. 235 (Ch. Div. 2003).
The motion judge concluded Sayyid's redemption was not barred, finding he
redeemed the property before the Sheriff issued the deed to MOC. He
considered it irrelevant that a balance remained after the initial tender because
Sayyid, each time, paid exactly what the Sherriff's Office advised him to pay.
In response to the appellants' argument that N.J.S.A. 54:5-98 controlled, the
judge reasoned that, when balancing the equities, owners and heirs are
differently situated, and therefore treated differently, as compared to third -party
purchasers. Furthermore, while Sayyid failed to pay the redemption amount in
the action, "the payment was made in the case because [Pro Cap] obviously
entered into a voluntary dismissal settling the case because of the payment that
was made."
As a result, after balancing the equities and considering the actions taken by
all parties, the motion judge set aside the Sheriff's sale, entering an order the
same day. The court later issued an order dated April 30, 2018, which clarified
the October 25, 2018 order and provided further directives to the parties. This
appeal followed.
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II
South LLC and Loan Funders continue to contend the Act required Sayyid
to first intervene in the foreclosure action and then get approval from the court
to redeem the property. They argue that requiring "redeemers" to intervene in
the action advances the goals of notice and transparency.
We review a trial court's order regarding intervention in a tax sale
foreclosure under an abuse of discretion standard. Town of Phillipsburg v. Block
1508, Lot 12, 380 N.J. Super. 159, 172 (App. Div. 2005). An abuse of discretion
occurs where a decision is made "without a rational explanation, inexplicably
departed from established policies, or rested on an impermissible basis." Flagg
v. Essex Cty. Prosecutor, 171 N.J. 561, 571 (2002) (quoting Achacoso-Sanchez
v. Immigration & Naturalization Serv., 779 F.2d 1260, 1265 (7th Cir. 1985)).
As noted by the City of Newark, this case does not involve the actions of a
third-party to redeem in a foreclosure action by acquiring an interest in the
property during the pendency of the foreclosure action; instead, this matter
involved Sayyid's redemption of his own property, which he acquired upon the
death of his father.
In Simon v. Cronecker, 189 N.J. 304, 335-36 (2007), our Supreme Court
interpreted the redemption statute, N.J.S.A. 54:5-98, to generally require that a
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person who seeks to redeem a tax certificate, whether directly or indirectly, to
intervene in the foreclosure action to allow for the protection of property own ers
through judicial oversight of the foreclosure process. The Court reasoned that
this interpretation gives effect to the Legislature's goal of protecting distressed
property owners from predatory third-party investors, who might seek to acquire
the homeowner's property interest for "nominal value" and redeem the property
for themselves. Id. at 323-24, 336. Although the Court observed that the
conduct of the third-party investor in Cronecker did not violate "a social policy
embodied in the Tax Sale Law," it found that the investor was still required to
intervene in the foreclosure case to permit judicial oversight of the transaction
because it obtained a property interest. Id. at 328, 337.
This court later applied Cronecker to a situation involving close family
friends of a homeowner who had lent the owner money that was used to redeem
a tax certificate. Phoenix Funding, Inc. v. Krute, 403 N.J. Super. 261, 264-65
(App. Div. 2008). Notably in Krute, the friends were interested in acquiring the
property themselves from the homeowner, who herself was looking to dispose
of the house, which had fallen into disrepair. Id. at 265. The friends purchased
the property shortly after it was redeemed. Id. at 264. We held in Krute that "the
obligation to intervene extends to one who redeems 'indirectly' through an
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arrangement of [this sort,]" reasoning that Cronecker "directs courts not to
overlook the reality of the transaction" in determining whether a third party
sought to redeem a tax certificate "indirectly" through the homeowner. Id. at
267.
Nevertheless, the Supreme Court in Cronecker made clear that only those
parties who acquire or intend to acquire a property interest by facilitating
redemption need to intervene in the tax foreclosure action. Cronecker, 189 N.J.
at 336. The Court explicitly and repeatedly discussed "interested" third parties
throughout its opinion. Id. at 337. Its reasoning was premised on the need to
protect property owners from such third parties because of the ownership
interest such third parties seek to acquire:
In the post-foreclosure complaint stage, the
requirement that a person, directly or indirectly,
seeking to redeem a tax certificate "be admitted as a
party to such action" permits judicial oversight of the
adequacy of consideration offered for the property
interest.
By forbidding an interested investor, who is not a party
to the foreclosure action from "indirectly" seeking
redemption, we intend to interdict the myriad
machinations that a creative mind might devise to elude
the Tax Sale Law.
[Id. at 336. (citations omitted)]
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Plaintiff's assertion that a property owner must intervene, regardless of
owning the property, contradicts both the Court's reasoning in Cronecker, as
well as the public policy and legislative intent of the Act. The specific evil the
Legislature sought to address in N.J.S.A. 54:5-98 are the acts of predatory third
parties who seek to take advantage of distressed property owners. Cronecker,
189 N.J. at 323-24, 336. A property owner who redeems his own property does
not implicate the Legislature's concern.
The case before the motion judge presented such circumstances. Because
Sayyid owns the property in question, he was not required to intervene in the
foreclosure proceedings in order to effect redemption. The Tax Collector
accepted Sayyid's payments twice and issued two separate certificates of
redemption. This led Sayyid to believe his actions were proper. Moreover, Pro
Cap, which filed the foreclosure action, was compliant in allowing defendant's
redemption. Therefore, the equitable result reached here was not an abuse of the
motion judge's discretion. We find no reason to disturb the motion judge's
equitable resolution.
Affirmed.
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