usbankcust/procap8/ Procapmgtii v. Block 268, Lot 7 38 Brenwal Ave., Etc. ( 2024 )

NOT FOR PUBLICATION WITHOUT THE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-2193-21
USBANKCUST/PROCAP8/
PROCAPMGTII,
Plaintiff-Respondent,
v.
BLOCK 268, LOT 7 38
BRENWAL AVE.,
TOWNSHIP OF EWING,
STATE OF NEW
JERSEY, ASSESSED TO:
188TH BRENWAL AVENUE
DEVELOPMENT LLC,
Defendant-Appellant.
____________________________
Submitted October 3, 2023 – Decided January 18, 2024
Before Judges Gooden Brown and Natali.
On appeal from the Superior Court of New Jersey,
Chancery Division, Mercer County, Docket No.
F-006684-20.
The Kelly Firm, PC, attorneys for appellant (Andrew J.
Kelly, of counsel and on the briefs; Nicholas D. Norcia,
on the briefs).
Sherman, Silverstein, Kohl, Rose & Podolsky, PA,
attorneys for respondent (Bruce S. Luckman, on the
brief).
PER CURIAM
Defendant, 188th Brenwal Avenue Development, LLC appeals from the
January 8, 2021, Chancery Division order denying its motion to vacate a tax sale
foreclosure judgment in favor of plaintiff, PC8REO, LLC, pursuant to Rule
4:50-1. We reverse and remand for an evidentiary hearing.
I.
The property at issue is located at 38 Brenwal Avenue in Ewing Township,
and is described on the tax map as Block 268, Lot 7. On November 9, 2018,
defendant, a New Jersey real estate investment limited liability company,
purchased the property for $97,900. On December 30, 2019, the Ewing
Township tax collector issued a tax sale certificate on the property in the amount
of $6,569.66 for unpaid tax and sewer charges, which certificate was purchased
by USBANKCUST/PROCAP8/PROCAPMGTII (Procap).
On June 18, 2020, Procap filed an in rem tax sale foreclosure complaint
alleging that the property was abandoned in accordance with the Abandoned
Properties Rehabilitation Act (APRA), N.J.S.A. 55:19-78 to -107. By way of
background, the holder of a tax sale certificate has no right to foreclose sooner
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than two years from the certificate's acquisition unless the property is abandoned
within the meaning of APRA, in which case the foreclosure action may be
commenced "any time" after the certificate's acquisition. See N.J.S.A. 54:5-
86(b) (authorizing "[a]ny person holding a tax sale certificate on a property" that
meets the statutory definition of abandoned property "either at the time of the
tax sale or thereafter," to "at any time file an action with the Superior Court in
the county wherein said municipality is situate, demanding that the right of
redemption on such property be barred . . . .").
A tax sale certificate holder may show abandonment in two general ways.
First, the holder may file with the complaint "a certification by the public officer
or the tax collector that the property is abandoned." N.J.S.A. 54:5-86(b). The
second path allows a court to make such a finding by considering both the
plaintiff's "evidence that the property is abandoned, accompanied by a report
and sworn statement by an individual holding appropriate licensure or
professional qualifications," ibid., and, of course, any opposing evidential
material.
On August 3, 2020, Procap pursued the second path and filed a motion
seeking a declaration from the court that the property was abandoned. In
support, Procap submitted a certification dated April 4, 2020, prepared by Dino
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3
Cavalieri, a licensed construction official. Cavalieri's certification consisted of
a preprinted form listing the statutory abandonment factors, with Cavalieri's
corresponding affirmative notations.
Specifically, in the certification, Cavalieri averred that he "personally
inspected the exterior of the property" on April 4, 2020. He certified that the
property was abandoned pursuant to N.J.S.A. 55:19-81 because it "ha[d] not
been legally occupied for at least six . . . months preceding the date of th[e
c]ertification;" "[was] in need of rehabilitation and no rehabilitation ha[d] taken
place during the last six months[;]" "[a]t least one installment of property tax[es]
remain[ed] unpaid[;]" and the condition of the property rendered it "unfit for
human habitation, occupancy or use" because, among other things, the "electric
meter [was] not operating" and the "steps [were] not secure." See N.J.S.A.
55:19-81 (delineating criteria for a determination of abandonment, including
that "[t]he property is in need of rehabilitation . . . and no rehabilitation has
taken place during [a] six-month period[,]" "[a]t least one installment of
property tax remains unpaid and delinquent on th[e] property[,]" and "[t]he
property has been determined to be a nuisance by the public officer" in
accordance with N.J.S.A. 55:19-82); see also N.J.S.A. 55:19-82(a) (defining
nuisance as the property being "unfit for human habitation, occupancy or use").
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The motion was served on defendant's registered agent at a Neptune
address and on defendant's managing agent at the property address. On August
28, 2020, the trial court granted Procap's unopposed motion and entered an
abandonment order. The August 28, 2020, abandonment order was served on
defendant's registered agent at a Neptune address and on defendant's managing
agent at the property address.
On October 21, 2020, Procap assigned its rights in the tax sale certificate
to plaintiff, PC8REO, LLC, and subsequently moved to substitute plaintiff in all
pleadings, which the court granted. On November 17, 2020, the court entered
an uncontested order in plaintiff's favor for final judgment on the foreclosure
complaint, vesting title in the property to plaintiff and barring any right of
redemption. The final judgment was mailed to defendant on November 24,
2020.
On December 3, 2020, defendant moved to vacate the November 17, 2020,
final judgment pursuant to Rule 4:50-1. In support of the motion, defendant
submitted the certification of Santi Rodriquez, defendant's property manager.
Rodriquez certified that "the property was never abandoned but waiting for
construction permit approvals." According to Rodriquez, "[p]ermits were filed
with the City of Ewing on [August 20, 2019]," and between August 20, 2019,
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and March 25, 2020, "[t]he City of Ewing was in the process . . . of doing a plan
review." As a result, "[n]o work could be done during that period of time."
Rodriquez averred that once "the building department issue[d] the permit"
on March 25, 2020, "work began." However, he explained that "[they] had to
shut down" during April 2020 when Cavalieri's inspection occurred "due to
COVID 19" and Governor Murphy's "[E]xecutive [O]rder 122 to cease all non-
essential construction projects." Rodriquez stated that once the ban was lifted,
work "resumed." As a result, they "had an [i]nspection for [f]ire [and e]lectrical
on May 26, 2020," "an inspection for [p]lumbing on May 27[], 2020," "a
building inspection" on May 29, 2020, "a [f]ire [i]nspection" on June 12, 2020,
and "a [m]echanical inspection" on June 17, 2020.
According to Rodriquez, they ultimately "passed all inspections," "have
been working on the property," and anticipated completing the work "sometime
in December 2020." Rodriguez added that had plaintiff's inspector "checked
with the building department he would have seen this information," and they
were unaware of the litigation because "[they] were never served with
notification of the motion for [a]bandonment or [f]inal foreclosure action."
Supporting documents were submitted with Rodriguez' certification, which
A-2193-21
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included a PSE&G bill for the property with a due date of May 21, 2020, and
showing current gas and electricity charges for the property.
Plaintiff opposed the motion and submitted a certification of counsel
pointing out that on October 26, 2018, and July 9, 2019, Ewing Township issued
violation notices citing defendant for over twenty violations at the property,
including a violation for failure to obtain required inspections and working
without a permit.1 Further, according to counsel, "on June 23, 2020, a Stop
Construction Order was issued for the [p]roperty for [d]efendant's failure to
correct[] violations and failure to obtain permits," and on June 25, 2020, "a
Notice of Violation and Order to Terminate was issued for the [p]roperty."
Additionally, counsel averred that
[o]n May 8, 2020, [p]laintiff served [d]efendant with
pre-foreclosure notices by way of certified mail to the
[p]roperty and to 1301 Corlies Ave. Suite 6E, Neptune,
New Jersey 07753, which is the address for
[d]efendant's registered agent, the address on file with
the Ewing Township tax collector where tax bills for
the [p]roperty are mailed to [d]efendant, and the
address for [d]efendant on its deed to the [p]roperty.
The certified mail sent to the [p]roperty was returned
marked, "moved left no address" and that certified mail
sent to 1301 Corlies Ave. Suite 6E, Neptune, New
Jersey 07753 was returned marked "unclaimed."
1
The July 9, 2019, notice indicated that when the construction official arrived
at the property at approximately 2:45 p.m. on July 9, 2019, he observed ongoing
work in "all construction disciplines."
A-2193-21
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Further, counsel certified that on August 3, 2020, plaintiff served
defendant with its motion to declare the property abandoned "at the [p]roperty,"
as well as at "its registered agent['s office]," its "tax bill address," and "its deed
[address]" on Corlies Avenue in Neptune. Counsel stated the abandonment
order was served on defendant "on September 1, 2020[,] at the [p]roperty and
its registered agent's office." According to counsel, plaintiff also "caused to be
published in the Trenton Times, . . . a notice of [i]n [r]em [f]oreclosure, pursuant
to [Rule] 4:64-7(b)."
Counsel continued:
In addition, on September 1, 2020, in accordance with
the provisions of [Rule ]4:64-7(c), [p]laintiff caused to
be mailed notice of the within [i]n rem [f]oreclosure
action, in sealed envelopes, with postage prepaid,
simultaneously by first class and certified mail, return
receipt requested, addressed to [d]efendant. Such
service was sent to [d]efendant at the [p]roperty, its tax
bill/registered agent address/deed address at 1301
Corlies Ave. Suite 6E, Neptune, New Jersey 07753 and
to 27 Marbourne Dr., Mamaroneck, NY 10543, which
is an additional address listed on [d]efendant's
registered agent report. The certified mail sent to the
[p]roperty was returned marked "vacant" further
bolstering the status of the [p]roperty as abandoned.
The [d]efendant signed the return receipt for the service
sent to 1301 Corlies Ave., Ste. 6E[,] Neptune, [New
Jersey] 07753 two times. Defendant additionally
signed the return receipt for the certified mail sent to 27
Marbourne Dr., Mamaroneck, NY 10543. . . .
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. . . Further, [p]laintiff posted a true copy of the
published Notice of In Rem Tax Foreclosure in a
conspicuous location at the [p]roperty in accordance
with [Rule] 4:64-7(d) on September 8, 2020. . . .
. . . On September 23, 2020, La'Toya Wilkinson,
assistant to Santi Rodriguez, the principal of the
property owner, who maintains [d]efendant's address at
1301 Corlies Ave., Ste. 6[E], Neptune[,] [New Jersey]
07753 sent the Ewing Township Tax Collector
correspondence indicating [d]efendant's desire to
redeem the [t]ax [l]ien on October 14, 2020.
Defendant's subsequent correspondence to the Ewing
Township Tax Collector dated October 28, 2020[,] and
November 24, 2020[,] stated that [d]efendant spoke
with Amy, who is a paralegal at the office for
[p]laintiff's counsel, and advised that [d]efendant
intended to redeem the [t]ax [l]ien, further confirming
[d]efendant's knowledge of the [t]ax [l]ien and
foreclosure proceedings. . . .
On January 8, 2021, following oral argument, the court entered an order
denying defendant's Rule 4:50-1 motion. In an accompanying written opinion,
the court rejected each of defendant's arguments ad seriatum. First, regarding
inadequate service, the court stated:
Plaintiff overwhelmingly refutes [d]efendant's
assertion of inadequate service. Plaintiff demonstrates
that they published the notice of In Rem Foreclosure
pursuant to Rule 4:64-7(b) and served such notice upon
[d]efendant per Rule 4:64-7(c) on September 1, 2020[,]
by way of first class and certified mail, return receipt
requested at its registered agent/tax bill/deed address,
1301 Corlies Ave., Ste. 6E, Neptune, New Jersey
07753, the very address that appears on [d]efendant's
A-2193-21
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signature line on the correspondence from [d]efendant
to the Ewing Township tax collector in September
2020, shortly after [d]efendant received service.
Additionally, [d]efendant signed the return receipt for
such service two times and [d]efendant signed the
return receipt for service sent to the other address on its
registered agent report, 27 Marbourne Dr.,
Mamaroneck, NY 10543. Plaintiff also observes that
the certified mail sent to the [p]roperty was returned to
[p]laintiff marked "vacant," buttressing its argument
(and the [c]ourt's finding) that the property was
abandoned.
Next, rejecting defendant's defense that the property was not abandoned,
the court stated:
Defendant maintains that its defense to the
foreclosure action derives from the fact that the
property is not truly abandoned. However, neither this
application nor any other mounts [d]efendant's
challenge to the order entered declaring the property
abandoned, and nothing in Rule 4:50-1 enables it to
serve as a vehicle for a collateral attack on a wholly
separate order. Moreover, in support of its application,
[p]laintiff submitted the certification of a qualified
individual certifying that the property was abandoned;
in this application, an unqualified representative of
[d]efendant attacks that conclusion but does not dispute
that the property was unoccupied for a period of six
months or more and that property taxes remained
unpaid. Nothing in N.J.S.A. 55:19-81 requires the
inspector to check with the municipality's building
department to evaluate whether any permits were
approved and pending on the date of inspection.
The court concluded:
A-2193-21
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Plaintiff has demonstrated by far more than a
preponderance of the evidence that it[ ha]s effectuated
service upon [d]efendant and [d]efendant had every
opportunity to seek reconsideration of the order
declaring the property as abandoned or to seek leave to
appeal that interlocutory order. Defendant took no such
steps. Nothing in [d]efendant's submission asserts
mistake, inadvertence, surprise, or excusable neglect
and none is apparent to the [c]ourt on this record.
Finally, as [p]laintiff points out, [d]efendant does not
assert or even suggest that it is prepared to make
[p]laintiff whole for the fees and costs incurred on this
property or to actually fulfill its obligation to pay
property taxes to the Township.
This appeal from the January 8, 2021, order followed.2
On appeal, defendant argues "the court committed several errors" in
denying its Rule 4:50-1 motion to vacate the final judgment. Among the errors,
defendant asserts "the court accepted as 'overwhelming[]' [p]laintiff's proofs of
service" when plaintiff "fell short of its obligations under Rule 4:64-7(c)."3
2
Defendant filed a bankruptcy petition on February 12, 2021, that resulted in
an automatic stay of all proceedings. After the bankruptcy court granted
defendant's motion to allow defendant to pursue an appeal from the final
judgment in the State court, defendant filed a notice of appeal on March 23,
2022, seeking to appeal the August 28, 2020, November 17, 2020, and January
8, 2021 orders. On November 3, 2022, we entered an order determining that
only the appeal of the January 8, 2021, order was timely and "the August 28 and
November 17, 2020 orders [were] not properly before the court."
3
Rule 4:64-7(c) delineates service requirements for in rem tax foreclosure
proceedings.
A-2193-21
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According to defendant, because "[a] judgment flowing out of a proceeding
against a litigant not duly served 'is void,'" the judgment should be set aside.
Defendant further argues the court erred in ruling that defendant was precluded
from challenging the underlying abandonment order while moving to vacate the
final judgment of foreclosure because the abandonment order was the foundation
for the foreclosure order. Defendant asserts that because the abandonment order
was predicated on insufficient evidence that the property was abandoned,
evidence defendant disputed with credible evidence of ongoing construction and
current energy usage at the property, the foreclosure judgment should be
vacated.
At the very least, defendant contends "the court misapplied its discretion"
by "failing to resolve doubt in [d]efendant's favor . . . where there were disputed
issues of fact," and "fail[ing] to weigh the excusable neglect issue in
[d]efendant's favor, particularly with respect to issues far beyond [d]efendant's
control such as the City of Ewing's permitting process and the ongoing global
pandemic." We reject defendant's contentions regarding defective service and
determine they are without sufficient merit to warrant discussion in a written
opinion. See R. 2:11-3(e)(1)(E). We agree, however, with defendant's assertion
that the abandonment order, upon which the final judgment of foreclosure was
A-2193-21
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premised, was predicated upon disputed facts regarding whether the property
met the statutory definition of abandonment. In light of the contested record,
we vacate the final judgment of foreclosure and remand for an evidentiary
hearing to determine whether the property was properly ruled abandoned in
accordance with APRA, a determination pivotal to whether plaintiff was entitled
to seek foreclosure when it did.
II.
Under Rule 4:50-1, a party may move for relief from a judgment or order
for the following reasons:
(a) mistake, inadvertence, surprise, or excusable
neglect; (b) newly discovered evidence which would
probably alter the judgment or order and which by due
diligence could not have been discovered in time to
move for a new trial under [Rule] 4:49; (c) fraud
(whether heretofore denominated intrinsic or extrinsic),
misrepresentation, or other misconduct of an adverse
party; (d) the judgment or order is void; (e) the
judgment or order has been satisfied, released or
discharged, or a prior judgment or order upon which it
is based has been reversed or otherwise vacated, or it is
no longer equitable that the judgment or order should
have prospective application; or (f) any other reason
justifying relief from the operation of the judgment or
order.
"Rule 4:50-1 does not accord tax sale foreclosure judgments greater
respect than judgments obtained under other laws that are supported by equally
A-2193-21
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strong public policy." BV001 REO Blocker, LLC v. 53 W. Somerset St. Props.,
LLC, 467 N.J. Super. 117, 129 (App. Div. 2021). Nonetheless, Rule 4:50-1
"[was] designed to reconcile the strong interests in finality of judgments and
judicial efficiency with the equitable notion that courts should have authority to
avoid an unjust result in any given case." Id. at 123 (quoting Manning Eng'g,
Inc. v. Hudson Cnty. Park Comm'n, 74 N.J. 113, 120 (1977)). As such, a motion
for relief under Rule 4:50-1 should be granted "'sparingly [and only] in
exceptional situations . . . in which, were it not applied, a grave injustice would
occur.'" Badalamenti by Badalamenti v. Simpkiss, 422 N.J. Super. 86, 103
(App. Div. 2011) (alterations in original) (quoting Hous. Auth. of Morristown
v. Little, 135 N.J. 274, 289 (1994)).
A motion to vacate based on one of the six enumerated grounds in Rule
4:50-1 "is a determination left to the sound discretion of the trial court, guided
by principles of equity." F.B. v. A.L.G., 176 N.J. 201, 207 (2003). That said,
the "[trial] court's judgment will be left undisturbed 'unless it represents a clear
abuse of discretion.'" Ibid. (quoting Little, 135 N.J. at 283). A court abuses its
discretion "'when a decision is "made without a rational explanation,
inexplicably departed from established policies, or rested on an impermissible
basis."'" Pitney Bowes Bank, Inc. v. ABC Caging Fulfillment, 440 N.J. Super.
A-2193-21
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378, 382 (App. Div. 2015) (quoting Flagg v. Essex Cnty. Prosecutor, 171 N.J.
561, 571 (2002)). Because principles of equity guide a judge's consideration of
a Rule 4:50-1 motion, a request to vacate a default judgment must "be viewed
with great liberality," with "every reasonable ground for indulgence . . . tolerated
to the end that a just result is reached." Marder v. Realty Constr. Co., 84 N.J.
Super. 313, 319 (App. Div. 1964). Still, under the rule, the movant bears the
burden of demonstrating his or her entitlement to relief. See Jameson v. Great
Atl. & Pac. Tea Co., 363 N.J. Super. 419, 425-26 (App. Div. 2003).
Although defendant did not specify in the trial court, on appeal, defendant
primarily relies on subsections (a), (b), and (f) of the Rule. Rule 4:50-1(a)
"requir[es] a showing of excusable neglect and a meritorious defense." US Bank
Nat'l Ass'n v. Guillaume, 209 N.J. 449, 468 (2012). "'Excusable neglect' may
be found when the default was 'attributable to an honest mistake that is
compatible with due diligence or reasonable prudence.'" Ibid. (quoting Mancini
v. EDS ex rel. N.J. Auto. Full Ins. Underwriting Ass'n, 132 N.J. 330, 335
(1993)). Rule 4:50-1(f), the so-called catch-all, "affords relief only when 'truly
exceptional circumstances are present.'" Ibid. (quoting Little, 135 N.J. at 286).
Indeed, "[n]o categorization can be made of the situations which would
warrant redress under subsection (f). . . . [T]he very essence of (f) is its capacity
A-2193-21
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for relief in exceptional situations. And in such exceptional cases its boundaries
are as expansive as the need to achieve equity and justice." DEG, LLC v. Twp.
of Fairfield, 198 N.J. 242, 269-70 (2009) (second and third alteration in original)
(quoting Court Inv. Co. v. Perillo, 48 N.J. 334, 341 (1966)). To that end, we
have considered additional factors in deciding whether relief under subsection
(f) is warranted, including "(1) the extent of the delay in making the application;
(2) the underlying reason or cause; (3) the fault or blamelessness of the litigant;
and (4) the prejudice that would accrue to the other party." Parker v. Marcus,
281 N.J. Super. 589, 593 (App. Div. 1995).
We acknowledge that "[f]oreclosure is a harsh remedy and equity abhors
a forfeiture. A court of equity may invoke its inherent equitable powers to avoid
a forfeiture and deny the remedy of foreclosure." Sovereign Bank, FSB, v.
Kuelzow, 297 N.J. Super. 187, 198 (App. Div. 1997) (quoting Brinkley v. W.
World, Inc., 275 N.J. Super. 605, 610 (Ch. Div. 1994), aff'd o.b., and modified
on other grounds, 292 N.J. Super. 134 (App. Div. 1996)). Nonetheless, APRA
is intended to provide a tool for local governments to rehabilitate abandoned
properties and avoid blight and declining property values. See N.J.S.A. 55:19-
79. As such, properties designated as abandoned are eligible for special tax
sales. See N.J.S.A. 55:19-101.
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Under APRA,
any property that has not been legally occupied for a
period of six months and which meets any one of the
following additional criteria may be deemed to be
abandoned property upon a determination by the public
officer that:
a. The property is in need of rehabilitation
in the reasonable judgment of the public
officer, and no rehabilitation has taken
place during that six-month period;
b. Construction was initiated on the
property and was discontinued prior to
completion, leaving the building
unsuitable for occupancy, and no
construction has taken place for at least six
months as of the date of a determination by
the public officer pursuant to this section;
c. At least one installment of property tax
remains unpaid and delinquent on that
property in accordance with [N.J.S.A.
54:4-1 to -136] as of the date of a
determination by the public officer
pursuant to this section; or
d. The property has been determined to be
a nuisance by the public officer in
accordance with [N.J.S.A. 55:19-82].
[N.J.S.A. 55:19-81(a) to (d).]
Once an abandoned designation has been made, the purchaser of the tax
sale certificate may commence a foreclosure proceeding, but the abandoned
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property owner may redeem his rights at any time, subject to court order.
N.J.S.A. 55:19-58(c) ("After the foreclosure action is instituted, the right to
redeem shall exist and continue to exist until barred by the judgment of the
Superior Court[.]"). A tax sale certificate "creates only a lien on the premises"
and is "not an outright conveyance;" it "conveys the lien interest of the taxing
authority." Town of Phillipsburg v. Block 1508, Lot 12, 380 N.J. Super. 159,
163 (App. Div. 2005) (quoting Savage v. Weissman, 335 N.J. Super. 429, 436
(App. Div. 2002)). Additionally, the "interest of the holder of the tax sale
certificate is entirely subordinate to the statutory right of redemption of the
property owner." Ibid. (quoting Savage, 335 N.J. Super. at 436).
Here, because the final foreclosure judgment was based on the
abandonment designation, the propriety of the abandonment designation
necessarily informed whether vacating the foreclosure judgment was
appropriate under Rule 4:50-1. While defendant's failure to pay taxes on the
property was undisputed, the remaining facts supporting the abandonment
designation were not. Critically, the threshold requirement for an abandonment
designation, that the property had not been legally occupied for six months, a
fact attested to by Cavalieri, was disputed by the certification of Rodriquez,
defendant's property manager, who attested that the property was undergoing
A-2193-21
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rehabilitation construction that had been delayed by the permit approval process
and the pandemic. If accepted, Rodriquez' certification demonstrated that
defendant had by no means abandoned the property.
Significantly, other than his April 4, 2020, inspection, Cavalieri's
certification, which consisted of a preprinted form listing the statutory
abandonment factors and Cavalieri's confirmatory notations, did not explain the
basis for his conclusion that the property had not been occupied for at least six
months. See Wells Fargo Bank, N.A. v. Ford, 418 N.J. Super. 592, 599 (App.
Div. 2011) ("A certification will support the grant of summary judgment only if
the material facts alleged therein are based, as required by Rule 1:6-6, on
'personal knowledge.'" (quoting Claypotch v. Heller, Inc., 360 N.J. Super. 472,
489 (App. Div. 2003))). In contrast, Rodriquez' certification showed that in the
six months preceding Cavalieri declaring that the property had been abandoned
for six months, defendant had applied to the City of Ewing for construction
permits and obtained approval after the third attempt. In addition, within that
six-month period, Governor Murphy had declared a public health state of
emergency. See Exec. Order No. 103 (Mar. 9, 2020), 52 N.J.R. 549(a) (Apr. 6,
2020). Once the ban was lifted and the permits secured, Rodriquez averred that
construction resumed with its concomitant inspections.
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We, of course, draw no conclusions on the abandonment issue except to
observe the presence of genuine factual disputes in the parties' competing
certifications that should be examined at an evidentiary hearing. Because the
abandonment determination was pivotal to whether plaintiff was entitled to seek
foreclosure when it did, all that followed must be vacated. We therefore reverse
the decision denying the motion to vacate the final judgment of foreclosure,
remand for an evidentiary hearing consistent with this opinion, and vacate the
final judgment of foreclosure, effective immediately, without prejudice to the
outcome of the remanded proceedings.
Reversed and remanded for further proceedings. We do not retain
jurisdiction.
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