BOROUGH OF BARRINGTON VS. BLOCK 57, ETC.(F-008105-00, CAMDEN COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-5070-15T4
BOROUGH OF BARRINGTON, A
Municipal Corporation,
Plaintiff-Respondent,
v.
BLOCK 57, LOTS 7.01, 8.01,
9.01 ASSESSED AND RECORDED
OWNER, STEPHEN RABINOWITZ and
BARBARA RABINOWITZ,
Defendants-Appellants.
______________________________________________________
Argued November 8, 2017 – Decided November 30, 2017
Before Judges Fisher and Moynihan.
On appeal from Superior Court of New Jersey,
Chancery Division, Camden County, Docket No.
F-008105-00.
Arthur H. Lang argued the cause for
appellants.
Timothy J. Higgins argued the cause for
respondent (Law Offices of Timothy J. Higgins,
attorneys; Mr. Higgins, on the brief).
PER CURIAM
Defendants Stephen and Barbara Rabinowitz appeal the 2016
denial of their motion to vacate a 2000 default judgment entered
in this in-rem tax foreclosure action. Without an evidentiary
hearing, the judge determined from the motion papers that plaintiff
complied with the notice requirements of both statute and rule,
and that defendants unreasonably delayed in seeking relief until
ostensibly discovering many years after entry of judgment that
their contaminated property had been remediated and developed.
In appealing, defendants argue plaintiff failed to comply
with the rules, the statute, and constitutional precepts in serving
notice of this foreclosure action. Because of the factual disputes
and uncertainties emanating from the moving and opposing papers,
we remand for an evidentiary hearing to determine, among other
things, whether notice was mailed by plaintiff to defendants' last
known address or to a location that would adequately advise
defendants of the foreclosure action.
To ensure property owners receive adequate notice of in-rem
tax foreclosure actions, our court rules set forth specific
publishing, posting, and service requirements. Rule 4:64-7(b)
requires that notice of foreclosure be published once in a
newspaper "generally circulated in the municipality where the
lands affected are located." And Rule 4:64-7(d) requires that,
fifteen days after publication, the notice be posted in: the tax
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collector's office; the county recording office; and three "other
conspicuous places within the taxing district." Defendants agree
plaintiff fully complied with these publication and posting
requirements.
Rule 4:64-7(c) requires that service be made pursuant to 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."1 Defendants argue that plaintiff
failed to comply with this service requirement. They contend that
they advised plaintiff's counsel at the time that they were moving
from New Jersey and, in that regard, provided their son's
California address where they would be living; they claim they
never told plaintiff or its representatives that this California
address should be used in place of the Haddonfield address set
forth on the tax duplicate. Plaintiff provided certifications that
seem to dispute but do not entirely meet this contention. And both
the moving and opposing papers were rife with uncertainties, no
1
For a time, our courts viewed publication and posting as all the
notice required by due process. See Newark v. Yeskel, 5 N.J. 313,
327 (1950). In 1977, the Supreme Court held that an owner's right
of redemption could not be terminated by a tax foreclosure suit
unless personal or mailed service was added to the publication and
posting requirements. Twp. of Montville v. Block 69, Lot 10, 74
N.J. 1, 17-19 (1977). Both Rule 4:64-7 and N.J.S.A. 54:5-104.42
were subsequently amended. See Brick Twp. v. Block 48-7, Lots 34,
35, 36, 202 N.J. Super. 246, 249 (App. Div. 1985).
3 A-5070-15T4
doubt caused by the extraordinary passage of time from those events
and defendants' motion for relief.
We need not cite the particulars contained in the moving and
opposing papers in pointing out where factual disputes may appear.
We conclude that the moving and opposing papers generated factual
disputes and uncertainties about what was communicated and
understood about the proper address for service of any future
notices.2 The judge, at an evidentiary hearing,3 will have to
determine what, if anything, was conveyed by the parties with
regard to where future notices were to be sent, and whether the
actions taken by plaintiff to effect service of the notice
satisfied the rule, the statute, and the requirements of due
process.
To be clear about what is to follow, we recognize there is
no dispute that at some point prior to the attempt to serve the
notice, defendants advised plaintiff that they were moving from
2
It should not be overlooked that prior proceedings were commenced
about other lots owned by defendants and in those matters notice
was sent to other locations and indisputably received by
defendants. Those other events – and the knowledge about
plaintiff's intentions regarding all the lots – may bear upon the
judge's attempts to ascertain what occurred and whether
plaintiff's service efforts comported with the letter or spirit
of Rule 4:64-7(c).
3
The judge may, if sought or warranted, permit discovery on these
issues prior to conducting an evidentiary hearing.
4 A-5070-15T4
New Jersey and they provided plaintiff with a California address
– their son's home – where they would be living. There is also no
dispute that in 2000 plaintiff forwarded the summons and complaint
to defendants at that California address by both certified mail,
return receipt requested, and by regular mail. And there is no
dispute that the former was returned unclaimed but the latter was
not returned, thereby suggesting it was received. If the facts,
as illuminated by the evidentiary hearing, demonstrate that that
California address might fairly be considered to be defendants'
last known address – or a place where, if notice there sent,
defendants would have received adequate notice – then the judge
may conclude that plaintiff complied with the notice elements
contained in Rule 4:64-7(c).
In providing additional guidance, we reject defendants'
technical argument that service could only be effective if sent
to the Haddonfield address contained in the tax duplicate. That
is, defendants argue that Rule 4:64-7(c) requires that notice be
sent to the owner "at his or her last known address as it appears
on the last municipal tax duplicate" (emphasis added). According
to defendants, this means that, to be in compliance, plaintiff
could only serve defendants at that Haddonfield address set forth
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on the municipal tax duplicate. We disagree.4 If the judge finds
defendants provided a California address and, in so doing, led
plaintiff to fairly understand that further notices with regard
to this property could be sent to that California address, then
the requirements of due process will have been satisfied. See,
e.g., Citibank, N.A. v. Russo, 334 N.J. Super. 346, 352 (App. Div.
2000).
We are also mindful that the considerable delay from the
publication, posting and contested service of the notice in 2000
and defendants' 2016 motion for relief may thwart and confound the
judge's ability to ascertain the true facts relevant to this
dispute. At the evidentiary hearing, the parties may offer evidence
to suggest whether it was or wasn't reasonable for defendants to
have failed to move for relief at some earlier date. For example,
if plaintiff could show that defendants were aware of the
property's status a significant period of time before they moved
for relief, the judge could conclude that defendants unreasonably
delayed in seeking relief. But if it were not reasonable for
defendants to have learned of the circumstances until shortly
before the filing of their motion, then such a conclusion might
4
We would agree, however, that if the proofs demonstrate that
plaintiff served notice at the address on the municipal tax
duplicate, then that service would have been adequate.
6 A-5070-15T4
not be appropriate. These questions – as to which the judge may
also permit discovery – must await the judge's opportunity to sift
through all the available evidence and assess the witnesses'
credibility.
The orders under review are vacated and the matter remanded
for an evidentiary hearing in conformity with this opinion. We do
not retain jurisdiction.
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