FIG CAP INVESTMENTS NJ13, LLC v. BLOCK 512, ETC. (F-011155-19, SUSSEX COUNTY AND STATEWIDE) ( 2022 )

NOT FOR PUBLICATION WITHOUT THE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-2461-20
FIG CAP INVESTMENTS
NJ13, LLC,
Plaintiff-Respondent,
v.
BLOCK 512, f/k/a 207.03,
LOT 111, f/k/a 2 405 BIGELOW
LANE, TOWNSHIP OF VERNON,
STATE OF NEW JERSEY,
assessed to VERONICA
STACHELSKI and ROBERT F.
STACHELSKI, SR.,
Defendants.
ERIC CARD and LYNN CARD,
Intervenors-Appellants.
Argued February 1, 2022 – Decided March 22, 2022
Before Judges Fisher and Currier.
On appeal from the Superior Court of New Jersey,
Chancery Division, Sussex County, Docket No.
F-011155-19.
Geoffrey T. Bray argued the cause for appellants (Bray
& Bray, LLC, attorneys; Geoffrey T. Bray, on the
briefs).
Amber J. Monroe argued the cause for respondent
(Gary C. Zeitz, LLC, attorneys; Robin I. London-Zeitz,
on the brief).
PER CURIAM
In this action, appellants Eric and Lynn Card sought to intervene in the
underlying foreclosure matter and redeem a tax sale certificate. The court
denied the motion to intervene, finding appellants had failed to comply with the
procedure for redemption established under Simon v. Cronecker, 189 N.J. 304,
310 (2007). Because appellants tendered the monies to redeem the certificate
and filed a motion to intervene before any court-ordered date for redemption had
passed, we reverse.
In 2017, plaintiff purchased the tax sale certificate for a property in the
Township of Vernon. In June 2019, plaintiff filed a complaint to foreclose on
the property owner's right to redemption and to obtain title to the property.
Plaintiff's subsequent motion for a declaration that the property was abandoned
was granted.
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On September 16, 2019, appellants entered into a contract with the
property owner, defendant Veronica Stachelski, to purchase the property for
$25,000. On September 20, a representative of the title insurance company
informed appellants' counsel of the issues regarding the insurability of the title,
including the tax sale certificate held by plaintiff and the foreclosure complaint.
The underwriting counsel recommended that appellants contact plaintiff's
attorney to obtain "an estoppel on th[e] foreclosure" and the opportunity to
"redeem [the] property once [an a]mount is agreed upon . . . OR FILE [A]
MOTION TO INTERVENE ON FORECLOSURE ACTIVITY."
On September 23, 2019, plaintiff served defendant with the Notice of In
Rem Foreclosure of Tax Lien Titles and the order determining the property was
abandoned and plaintiff published the Notice of Foreclosure in the local
newspaper. The Notice stated that any person desiring to contest the foreclosure
must either pay the redemption amount plus interest or file an answer to the
foreclosure complaint within forty-five days of the date of the publication.
On October 2, 2019, appellants advised plaintiff they had executed a
contract to purchase the property and "would like to determine the amount of
the payoff of the tax lien and obligation in order to bring [the] matter to
conclusion." Plaintiff did not respond to appellants, but five days later emailed
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Vernon Township's tax collector, approving the "Verification Request" for the
tax sale certificate and further stating, "Please proceed with redemption. Once
the Lien is redeemed, please notify us immediately and we will release the
certificate."
On October 16, 2019, appellants' counsel emailed plaintiff's counsel:
"Please review the attached and advise." 1 Plaintiff's counsel replied on October
24: "I will need a copy of the contract of sale to show my client before I can
respond. They will also need to see the payoff that you obtained from the tax
office to verify that it is correct."
On October 30, 2019, appellants and defendant closed on the sale of the
property for the purchase price of $25,000. Later that day, plaintiff's counsel
informed appellants that plaintiff "will not agree to waive the requirement that
you file a motion to intervene in the foreclosure prior to redeeming as required
by the Cronecker line of decisions based upon what they perceive to be a very
low purchase price for this property."
As part of the closing, appellants paid the full redemption amount owed
on the tax lien of $28,800.89 to the tax collector. The tax collector accepted and
processed the payment. On the same date, plaintiff emailed the tax collector
1
The record does not include the attachment.
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advising, "Please note that due to this property being in an active foreclosure
case, we are unable to accept redemption at this time. We will alert you if and
when this changes." The tax collector forwarded that message to appellants'
counsel on November 1, 2019, stating she was "not really [sure] what to do at
[that] point."
Appellants moved to intervene in the foreclosure action on November 14,
2019, seeking a court order to compel plaintiff to accept the redemption of the
tax lien. Plaintiff opposed the motion, stating appellants had not followed the
procedure established under Cronecker and N.J.S.A. 54:5-89.1 because
appellants did not seek permission from the court prior to redeeming the tax lien
and because the $25,000 purchase price and the $28,800.89 redemption costs
(together equaling $53,800.89) was nominal consideration. Plaintiff requested
the court "order a constructive trust on the transaction between [d]efendant and
[i]ntervenor, thereby allowing [p]laintiff to purchase the [p]roperty under the
same terms and conditions as the September 16, 2019 [c]ontract."
The court denied appellants' motion on December 9, 2019 and ordered a
constructive trust, granting plaintiff the opportunity to assume appellants' rights
under the contract for the purchase of the property. The court directed plaintiff
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to submit a supplemental order consistent with the court's decision outlining the
expenses plaintiff was to reimburse appellants.
In an oral decision, the judge initially found the purchase price for the
property was more than nominal. The property had been abandoned and
unoccupied for many years and was deemed uninhabitable in its present
condition. When it was last listed for sale by defendant, the listing price was
$75,000. There were no offers.
However, the court further found that appellants had not followed the
Cronecker procedure because they failed to intervene in the foreclosure case
prior to redeeming the tax sale certificate. Therefore, the court denied
appellants' motion to intervene. Subsequent orders granted a constructive trust
and ordered plaintiff to reimburse appellants approximately $60,000 for the
redemption of the tax lien, the purchase price, closing costs, and other
documented costs incurred by appellants.
On appeal, appellants assert the court erred in denying their motion to
intervene. They also raise issues regarding the constructive trust. We review
the court's order for an abuse of discretion. Town of Phillipsburg v. Block 1508,
Lot 12, 380 N.J. Super. 159, 173 (App. Div. 2005).
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The trial court relied on Cronecker in denying appellants' motion to
intervene and redeem the tax sale certificate. The parties do not dispute the
court's finding that the property owner received more than nominal
consideration for the property. Therefore, we only address the timing of the
redemption and attempted intervention. We find the controlling facts in
Cronecker and its companion opinion, Simon v. Rando,2 to be materially
distinguishable from the circumstances here.
In both Cronecker and Rando, the trial court entered orders establishing a
specific date as the last date to redeem the tax sale certificate. Cronecker, 189
N.J. at 312; Rando, 374 N.J. Super. at 150. In Cronecker, the plaintiff moved
to bar redemption a month after the redemption date expired. 189 N.J. at 312.
Thereafter, the investor moved to intervene in the foreclosure action. Ibid. The
Court held that before redeeming the tax certificate, the third-party investor had
to intervene in the foreclosure action and show more than nominal consideration
had been offered for the property interest. Id. at 337.
In Rando, the trial court entered final judgment in favor of the plaintiff
the day after the last date set to redeem the tax sale certificate. 374 N.J. Super.
at 151. Approximately two weeks later, the investor moved to intervene in the
2
374 N.J. Super. 147 (App. Div. 2005), aff'd, 189 N.J. 339 (2007).
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foreclosure action and to vacate the final judgment. Ibid. The Court reiterated
that a third-party investor must intervene in the foreclosure action and receive
judicial authorization prior to redeeming the tax sale certificate. Id. at 343.
Here, no order was ever entered setting the last date of redemption and the
amount of redemption. Instead, plaintiff relies on its Notice of Foreclosure,
which stated any interested party had to redeem the certificate or file an answer
to the complaint within forty-five days after the date of publication of the notice.
Plaintiff contends that its Notice established a redemption deadline of November
7, 2019.3 We are unaware of any authority that the Notice of Foreclosure sets a
presumptive date for redemption.
To the contrary, under N.J.S.A. 54:5-54, any interested person may
redeem the tax sale certificate at any time before the final date for redemption
set by the court. And N.J.S.A. 54:5-86 permits redemption "until barred by the
judgment of the Superior Court." See also R. 4:64-6(b) ("Redemption may be
made at any time until the entry of final judgment . . . .").
As stated, the Court in Cronecker and Rando relied on the trial court's
order setting a redemption date. Therefore, lacking a court order establishing a
3
This argument was not raised to the trial court. Nor was the Notice included
in the trial court record. Nevertheless, we address it for completeness.
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redemption date, the circumstances here differ from Cronecker and Rando.
Instead, the facts are similar to this court's recent decision in Green Knight Cap.,
LLC v. Calderon, 469 N.J. Super. 390 (App. Div. 2021), cert. granted, __ N.J.
__ (2022).
In Green Knight, plaintiff filed a complaint to foreclose on the property
owner's right of redemption. Id. at 392. Thereafter, without first intervening, a
third party purchased the property and paid the full redemption amount to the
tax collector. Ibid. Several days later, the plaintiff moved for an order setting
the time, place, and amount of redemption. Ibid. The motion was not yet decided
when the plaintiff moved to bar redemption and impose a constructive trust. The
third-party investor subsequently filed its motion to intervene. Id. at 392-93.
The trial court granted the motion and permitted redemption. Ibid.On appeal, this court held 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 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." Id. at 395-96.
Because the record does not reflect a court order setting a final date for
redemption, we conclude appellants moved to intervene prior to the redemption
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deadline. Furthermore, after appellants notified plaintiff of the purchase
contract and provided a copy of it upon plaintiff's request, plaintiff informed the
tax collector she could proceed with the redemption. Relying on these actions,
appellants closed on the property. It was not until after the closing that plaintiff
advised appellants of its objection to the redemption because appellants had not
complied with the Cronecker intervention procedure. The tax collector had
already accepted the redemption proceeds from the closing.
The trial court mistakenly exercised its judgment in denying appellant's
intervention motion. Because no final date for redemption was established by
court order, the redemption of the tax sale certificate and subsequent motion for
intervention were made during the time frame in which redemption was possible.
Under Rule 4:64-6(b), redemption of a tax sale certificate may occur any time
prior to the entry of final judgment. Therefore, the purpose behind the
Cronecker procedure was not thwarted because there was still time for judicial
scrutiny of the third-party purchase. And here, there was no prejudice to
plaintiff or defendant as the court found there was more than nominal
consideration paid for the property.
We reverse the December 9, 2019 order denying intervention and vacate
the subsequent December 19, 2019 and March 24, 2021 orders imposing a
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constructive trust. We remand to the trial court for the entry of an order
permitting intervention and further proceedings.
Reversed, vacated, and remanded in accordance with this opinion. We do
not retain jurisdiction.
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