INDEPENDENT INVESTORS v. SEAN R. GOLEMAN (F-019973-16, 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NOT FOR PUBLICATION WITHOUT THE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-4563-19
INDEPENDENT INVESTORS,
Plaintiff-Respondent,
v.
SEAN R. GOLEMAN,
Individually and as
Administrator of the
Estate of Jesse J. Goleman,
Deceased, MEGAN GOLEMAN,
spouse of Sean R. Goleman,
ANDY GOLEMAN, MRS.
ANDY GOLEMAN, spouse of
Andy Goleman, STATE OF NEW
JERSEY, KEVIN REVOIR,
CHRISTINA REVOIR, GEORGE
M. YATES,
Defendants.
____________________________
BOROUGH OF AUDUBON,
Appellant.
____________________________
Argued August 17, 2022 – Decided September 8, 2022
Before Judges Messano, Natali and Smith.
On appeal from the Superior Court of New Jersey,
Chancery Division, Camden County, Docket No. F-
019973-16.
Salvatore J. Siciliano argued the cause for appellant
(Siciliano & Associates, LLC, attorneys; Salvatore J.
Siciliano, of counsel and on the brief; Jennifer McPeak,
on the brief).
Adam D. Greenberg argued the cause for respondent
(Honig & Greenberg, LLC, attorneys; Adam D.
Greenberg, of counsel and on the brief).
PER CURIAM
In 2008, Jesse J. Goleman bought a parcel of land (the Property) in the
Borough of Audubon (the Borough). For many years, a gasoline service station
had operated on the Property, but Goleman decided to use the premises to
service automobiles without pumping gas. In 2011, the Borough issued
Goleman a permit to remove an underground fuel storage tank. Goleman died
on January 24, 2013, and his son, Sean, was appointed administrator of the estate
(the Estate).
The Borough filed liens on the Property for unpaid taxes. On October 3,
2013, at a public auction, plaintiff, Independent Investors, purchased tax sale
certificates for tax years 2013 and 2014. In August 2015, the Borough sent a
"Notice of Imminent Hazard" to the Estate concerning a building on the
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Property, and it subsequently hired a contractor to demolish the building. The
Borough placed another lien on the Property for the costs of demolition.
In July 2016, plaintiff filed a foreclosure complaint against the Estate.
Plaintiff also filed suit against the Borough one month later, claiming it was
entitled to notice of the demolition and subsequent lien because it held the tax
sale certificates. Plaintiff sued to vacate the demolition lien. The suit was
resolved — plaintiff dismissed its complaint, and the Borough discharged its
demolition lien. 1 Meanwhile, plaintiff obtained an uncontested final judgment
of foreclosure by default in April 2018, vesting plaintiff with legal title to the
Property.
In February 2019, without notice to the Borough, plaintiff moved to vacate
the default foreclosure judgment. In support, one of plaintiff's partners, Ethel
Roerdomp, certified the Borough's environmental consultant and an unnamed
employee of the Borough misrepresented the environmental condition of the
Property prior to plaintiff's filing of its foreclosure action. Roerdomp claimed
the consultant said his company removed underground tanks, tested the soil on
the Property, and "there was no contamination and no further action required."
1
We were advised at oral argument that as part of the settlement, the Borough
reformed a 2016 tax sale certificate to include some of the demolition costs.
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Roerdomp said this "information was false," and if plaintiff "had received
truthful information, [it] would not have proceeded to final judgment."
On March 15, 2019, the judge granted plaintiff's unopposed motion,
vacated the default foreclosure judgment, reverted title to the Property to the
Estate, and dismissed plaintiff's foreclosure complaint. Nearly one year later,
in February 2020, the Borough filed a motion to intervene in the foreclosure
suit; plaintiff filed opposition.
The Borough argue: (1) it did not discover plaintiff had successfully
vacated the default judgment until August 2019; (2) plaintiff's claims of
misrepresentation by a municipal employee lacked any support; and (3) plaintiff
was on constructive notice of environmental conditions on the property because
Goleman's applications, including one which sought removal of the underground
storage tank, were public records. The Borough also contended that reversion
of title to the Estate resulted in revenue loss to the Borough; therefore,
intervention was appropriate given the Borough's strong interest in the
foreclosure litigation.
Plaintiff contended the motion was untimely because the Borough knew
the foreclosure action was pending and could have intervened at that time but
chose not to do so. Further, plaintiff argued that it stopped paying property taxes
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in 2015, resulting in the Borough issuing another tax sale certificate, which the
Borough itself purchased in December 2016. Plaintiff contended the Borough
suffered no adverse consequence from vacation of the foreclosure judgment
since the Borough's lien had priority over all other liens. Lastly, plaintiff argued
the Borough should not be permitted to intervene, because it was not a necessary
party in the foreclosure action. Plaintiff argued only parties who have a right to
redeem are proper parties to a tax foreclosure complaint, and the Borough could
not have redeemed the Property following plaintiff's successful foreclosure.
In an oral decision following arguments, the Chancery judge reasoned,
"[T]here's nothing to intervene . . . this case doesn't exist anymore. . . . [T]here's
no lawsuit between the plaintiff and [the Borough] . . . making any allegations
about misrepresentation . . . that had to do with the tank." The judge's May 8,
2020 order noted the foreclosure litigation "is hereby DISMISSED," and, "[a]s
a result of the dismissal," the judge denied the Borough's motion to intervene .
The Borough moved for reconsideration, which the judge denied in a July
24, 2020 order. Essentially, without reexamining the merits of plaintiff's earlier
motion to vacate, the judge reasoned, "I vacate[d] the final judgment. . . . [O]nce
it's vacated, we don't have a lawsuit anymore. There's no more foreclosure
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because the final judgment in that action is vacated. So, there's nothing to
intervene in."
The Borough appeals. It argues that intervention was appropriate since
the Borough was an "interested party" in the foreclosure suit because plaintiff
alleged misrepresentation by a Borough employee in seeking to vacate the
judgment. Plaintiff counters by arguing the appeal is untimely, the Borough's
motions were unsupported by any factual evidence, and the Borough is not an
"interested party" entitled to intervene because it was unaffected by plaintiff's
successful motion to vacate the foreclosure judgment.
We disagree with plaintiff's rationale and conclude the Borough was
entitled to intervene, even after the judge vacated the foreclosure judgment.
Therefore, we reverse. In doing so, we do not reach the merits of the Borough's
opposition to the motion to vacate, but rather remand the matter for the court to
reconsider anew plaintiff's motion to vacate the foreclosure judgment.
We initially reject plaintiff's contention that the Borough's appeal of the
May 8, 2020 order is untimely. "An appeal from a final judgment must be filed
with the Appellate Division within forty-five days of its entry . . . and served
upon all other parties . . . ." Lombardi v. Masso, 207 N.J. 517, 540 (2011) (citing
R. 2:4-1 and R. 2:5-1(a)). "A timely filed motion for reconsideration tolls the
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time for filing an appeal." Eastampton Ctr, LLC v. Plan. Bd. of Eastampton,
354 N.J. Super. 171, 187 (App. Div. 2002) (citing R. 2:4-3(a)).
Additionally, Rule 2:4-4(a) permits a maximum thirty-day extension of
time for good cause, but only if the appellant actually files the notice of appeal
"within the time as extended." Lombardi, 207 N.J. at 540–41 (citing R. 2:4-4).
"Where the appeal is untimely, [we lack] jurisdiction to decide the merits of the
appeal." Ridge at Back Brook, LLC v. Klenert, 437 N.J. Super. 90, 97 n.4 (App.
Div. 2014) (quoting In re Hill, 241 N.J. Super. 367, 372 (App. Div. 1990)).
The Borough filed a timely motion for reconsideration with the Chancery
judge twenty days after the May 8, 2020 order. The Borough still had twenty-
five days after entry of the July 24, 2020 order denying the motion for
reconsideration, or, until August 18, 2020, to file its appeal within the forty-five
days required by Rule 2:4-1(a). The Borough's notice of appeal was filed on
August 24, 2020, after the forty-five-day limit, but within the thirty-day
extension period permitted by Rule 2:4-4(a). Although the Borough did not
move for an extension as required by that Rule, we would have found good cause
had such a motion been made. As a result, we treat the notice of appeal as if it
was a timely motion for an extension, see, e.g., Seltzer v. Isaacson, 147 N.J.
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Super. 308, 311–12 (App. Div. 1977), and conclude the Borough's notice of
appeal was filed within time.
To satisfy intervention as of right, Rule 4:33-1 requires a moving party:
(1) claim "an interest relating to the property or
transaction which is the subject of the transaction," (2)
show [that the movant] is "so situated that the
disposition of the action may as a practical matter
impair or impede its ability to protect that interest," (3)
demonstrate that the "[movant's] interest" is not
"adequately represented by existing parties," and (4)
make a "timely" application to intervene.
[N.J. Dep't of Env't Prot. v. Exxon Mobil Corp., 453
N.J. Super. 272, 286 (App. Div. 2018) (alterations in
the original) (quoting Am. C.L. Union of N.J., Inc. v.
Cnty. of Hudson, 352 N.J. Super. 44, 67 (App. Div.
2002)).]
The rule is not discretionary. Meehan v. K.D. Partners, LP, 317 N.J. Super. 563,
568 (App. Div. 1998).
Contrary to the motion judge's reasoning, "[g]enerally, intervention after
judgment is allowed if necessary 'to preserve some right which cannot otherwise
be protected.'" Warner Co. v. Sutton, 270 N.J. Super. 658, 662 (App. Div. 1994)
(quoting Chesterbrooke Ltd. P'ship v. Plan. Bd. of Chester, 237 N.J. Super. 118,
123 (App. Div. 1989)). We have even "recognized the appropriateness of
granting a party affected by a judgment leave to intervene to pursue an appeal if
a party with a similar interest who actively litigated the case in the trial court
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has elected not to appeal." CFG Health Sys., LLC v. Cnty. of Essex, 411 N.J.
Super. 378, 385 (App. Div. 2010) (emphasis added).
In this case, contrary to plaintiff's contentions, the Borough was an
interested party in the foreclosure litigation. Although plaintiff was not required
under the applicable statutes to name the Borough as a party in its foreclosure
complaint, it was required to serve a copy of its complaint on the municipal tax
collector. N.J.S.A. 54:5-104.41; see also N.J.S.A. 54:5-98 (providing for
redemption to "be made to the tax collector . . . at his [or her] official office").
The Borough had no reason to intervene in the foreclosure litigation while it was
pending because plaintiff's successful foreclosure coincided with the Borough's
aspirations that the Property would now be owned by a taxpaying entity that
might further develop the Property to its highest and best use.
Additionally, reversion of title to properties already foreclosed upon
imposes obligations upon the Borough which further support the conclusion that
it was entitled to notice of plaintiff's motion to vacate the foreclosure judgment.
The Borough's Code of Ordinances required the identification of abandoned
properties. For example, Code of Ordinances, Audubon, N.J., Code § 105-
111(a) provides:
The public officer . . . designated by the mayor is
hereby directed to identify abandoned properties within
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the borough, place said properties on an abandoned
property list established as provided in N.J.S.A. 55:19-
55, and provide such notices and carry out such other
tasks as are required to effectuate an abandoned
property list as provided by law.
A property may be deemed abandoned when "[a]t least one installment of
property tax remains unpaid and delinquent . . . ." N.J.S.A. 55:19-81(c).
There is a critical connection between tax-delinquent-abandoned
properties and an owner of a tax sales certificate on such property. Under
N.J.S.A. 55:19-83(a), a property will not be placed on the abandoned properties
list if the owner of a tax sale certificate for such a property paid the real estate
taxes when due, "takes action to initiate foreclosure proceedings" in a timely
fashion and "diligently pursues foreclosure proceedings in a timely fashion
thereafter." In short, the Borough's interests in plaintiff's application to vacate
the foreclosure judgment were obvious.
Equally apparent is the Borough's inability to ameliorate the harm it
suffered from the vacatur of plaintiff's foreclosure judgment by foreclosing on
the 2016 tax sale certificate it now owns. Simply put, the Borough did not own
the Property after plaintiff successfully foreclosed nor does it wish to own the
Property now.
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Nor do we think the Borough's motion to intervene was untimely.
Undisputedly, plaintiff never served the Borough with its notice to vacate the
foreclosure judgment. Also undisputed, at least on this record, is that the
Borough did not find out about reversion of title to the Property to the Estate as
a result of plaintiff's motion until August. The Borough moved to intervene in
February. Given time strictures routine to the initiation of official government
litigation, the motion to intervene was timely filed. Exxon Mobil Corp., 453
N.J. Super. at 286.
In sum, we reverse the order denying the Borough's intervention and
reconsideration motions and remand the matter to the Chancery judge, who
shall, upon notice to all interested parties, reconsider anew plaintiff's motion to
vacate the foreclosure judgment with due consideration to the Borough's
opposition. We leave the conduct of the proceedings to the judge's sound
discretion.
Reversed and remanded. We do not retain jurisdiction.
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