TOWNSHIP OF KINGWOOD v. BLOCK 1.02, LOT 4(313 Ridge Road)

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1581-04T11581-04T1

TOWNSHIP OF KINGWOOD,

Plaintiff-Respondent,

v.

BLOCK 1.02, LOT 4

(313 Ridge Road)

Assessed to Charles F. Zub,

Defendant-Appellant.

_____________________________________________________________

 

Argued October 19, 2005 - Decided

Before Judges Fuentes and Graves.

On appeal from the Superior Court of New Jersey,

Chancery Division, Hunterdon County, F-19423-02.

Michael G. Pellegrino argued the cause for appellant

(Casale & Pellegrino, attorneys; Mr. Pellegrino,

on the brief).

Joseph S. Novak argued the cause for respondent

(Novak and Novak, attorneys; Mr. Novak, on the brief).

PER CURIAM

Plaintiff the Township of Kingwood (the Township), initiated an in rem tax foreclosure action regarding Block 1.02, Lot 4, also known as 313 Ridge Road (the property), and it obtained a final judgment of foreclosure on March 17, 2003. The owner of the property, Charles F. Zub, appeals from an order denying his motion to vacate the final judgment based on improper service of process and equitable grounds. We now affirm.

The in rem foreclosure complaint was filed on October 23, 2002, however, there had been prior proceedings between the Township and Zub regarding the property. In a certification submitted in opposition to Zub's motion to vacate the in rem tax foreclosure judgment, the Township attorney, Joseph S. Novak, indicates that a "burned-out shell of a small single-family home" exists on the property. According to Novak, commencing in and about September 1993, the Township of Kingwood had communications with the owner, Charles F. Zub, "on the derelict condition of the subject property." Eventually, in 1995, the Township filed and served a complaint on Zub, who resides in London, England. Thereafter, Zub, through his attorney, advised the Township of his intention to demolish the fire-damaged structure and rebuild on the subject property. A hearing was held and an order was entered by the Township committee on February 19, 1996, requiring Zub "to undertake repairs, improvements and/or file applications before the Board of Adjustment and to take such other steps necessary to eliminate the attractive nuisance existing on the subject property." No action was taken by Zub subsequent to the entry of this order on February 19, 1996, and its service upon him. When neighbors complained, the Township's construction official inspected the property and issued a notice of unsafe structure on March 15, 1999. This notice was served on Zub, but no remedial action was undertaken. On August 25, 1999, based on his inspection of the property on August 19, 1999, the construction official entered a notice and order of penalty imposing a weekly penalty in the amount of $250 if the violations (failure to board over the windows on the second floor and failure to demolish the chimney), remained outstanding after August 30, 1999.

The Township attorney also certified to the following:

On or about November 26, 2001, the Tax Collector of the Township of Kingwood offered for sale, a "Certificate of Sale for Unpaid Municipal Liens" on Block 1.02, Lot 4 in the Township of Kingwood, titled in the name of Charles F. Zub and for outstanding, delinquent, unpaid taxes due as of December 31, 2000, amounting with interest to $2,970.33. This Tax Sale took place almost one year after the date of delinquency. There being no purchasers of the Tax Sale Certificate, it was retained by the Township of Kingwood and the Tax Sale Certificate was recorded in the Office of the Hunterdon County Clerk on December 7, 2001 in Book 2121, at Page 92.

These total taxes, as well as subsequent taxes and accruing interest continued to remain unpaid from calendar year 2000 through October 23, 2002 when the In Rem Tax Foreclosure Complaint was filed on behalf of the Township of Kingwood. As of July 15, 2002, additional taxes for each of the intervening quarters of 2001 and 2002 plus accrued interest amounted to an additional $4,896.93. At the time of the filing of the Complaint, taxes remained unpaid for approximately three years.

. . . .

Subsequent to the Entry of Judgment and recording of such Judgment in the Hunterdon County Clerk's Office on May 28, 2003, no further communication was received from Charles F. Zub or his representatives until approximately August of 2004 when I was contacted by Attorney Anthony Danzo who requested copies of the Judgment which I telefaxed to his office on August 26, 2004.

In his certification in support of his motion to vacate the final judgment of foreclosure, Zub states, "I also challenge the service of process in this matter as I was not personally served." But Zub also confirmed that because he resides in London, England, he relies on "a local property manager, Frank Perchaylo, to look after this property." The proof of process filed by the Hunterdon County Sheriff's Office confirms that the in rem tax foreclosure complaint and summons were personally served on Frank Perchaylo, the property manager, who accepted the documents on behalf of Zub on January 2, 2003. Thus, the record fully supports the trial court's decision regarding service:

Charles F. Zub ("Defendant") failed to pay property taxes on one of his properties located in Kingwood Township. The Township of Kingwood ("Plaintiff") filed an In Rem Foreclosure Complaint on October 23, 2002. A notice of the complaint was published in the Delaware Valley News on November 21, 2002. Notice of the publication was posted at various public places within Kingwood Township and Hunterdon County. Personal service of the complaint was secured on January 2, 2003 upon Frank Perchaylo, who identified himself as a caretaker/personal representative of the Defendant. Service was also completed through registered mail to Defendant's New Jersey and London, England addresses. Thereafter, the court entered a Final Judgment on March 17, 2003. The judgment was recorded in the Hunterdon County Clerks Office on May 28, 2003. Defendant filed a motion to vacate the In Rem Foreclosure Judgment on September 24, 2004.

. . . .

Defendant makes an attempt to claim he was not properly served pursuant to Rule 4:4-4. However, a review of Rule 4:4-4 demonstrates that Defendant was properly served through Frank Perchaylo. Rule 4:4-4(4) allows service to be made upon a managing or general agent employed for the management of real property. Defendant admits in his reply brief of November 2, 2004 that Frank Perchaylo was helping to manage the property. Therefore, Frank Perchaylo was managing Defendant's real property and could be served pursuant to Rule 4:4-4(4). Moreover, Plaintiff properly published notice of the In Rem Foreclosure. Defendant's motion is denied pursuant to N.J.S.A. 54:5-104.67 and Rule 4:4-4(4), as well as, Rule 40:50-1 and Rule 40:50-2.

The trial court also rejected defendant's argument that it is "necessary and appropriate" to vacate the final judgment because of equitable considerations including Zub's "good faith attempt to pay off the plaintiff's lien," and his substantial equity in the property. According to Zub, he "reasonably believed that his payment to the Kingwood Tax Collector redeemed the past due taxes and terminated the foreclosure proceedings," and he argues that the Township "should be compelled to accept [his] redemption money under the doctrine of Equitable Estoppel." The trial court, however, rejected this argument reasoning as follows:

Rule 4:50-1 states that the court may relieve a party from a final judgment for a litany of reasons. In addition to meeting one of the Rule's criteria, a defendant seeking to reopen a default judgment [because of excusable neglect] must show that the neglect to answer was excusable under the circumstances and that he has a meritorious defense." Morales v. Santiago, 217 N.J. Super. 496, 501 (App. Div. 1987). Vacating is more difficult under Rule 4:50-1 as it is 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. Bauman v. Marinaro, 95 N.J. 380, 392 (1984) (quoting Manning Eng'g, Inc. v. Hudson County Park Comm'n, 74 N.J. 113, 120 (1977).

The court must also consider existing statutory requirements when analyzing a motion to vacate final judgment. In the instant case Defendant is asking the court to vacate an In Rem Tax Foreclosure Judgment. Upon review of applicable statutes it is clear that Defendant cannot succeed in vacating the final judgment entered on March 17, 2003. N.J.S.A. 54:5-104.67 states:

No application shall be entertained to reopen such judgment after three months from the date of the recording thereof in the office of the county recording officer, and then only upon the grounds of lack of jurisdiction or fraud in the conduct of the action.

N.J.S.A. 54:5-104.67; see also Sourlis v. Borough of Red Bank, 220 N.J. Super. 434 (App. Div. 1987). Moreover, Rule 40:50-1 and Rule 40:50-2 provide that a court can relieve a party from final judgment not more than one year after the judgment or, for certain instances, motions made within a reasonable time. Borough of New Shrewsbury v. Block 115, Lot 4, Assessed to Hathaway, 74 N.J. Super. 1 (App. Div. 1962).

Defendant filed this application to vacate final judgment on September 24, 2004, more than a year and half after the entry of final judgment. Pursuant to N.J.S.A. 54:5-104.67, Defendant has failed to file to vacate the final judgment within 3 months of recordation of same. Moreover, even if Defendant filed within the three month time period, he has failed to plead fraud or lack of jurisdiction.

Even if the court were to find a reason why N.J.S.A. 54:5-104.67 did not apply (which it cannot), Defendant has failed to file the motion within a year of entry of final judgment, pursuant to Rule 40:50-2. Therefore, the only recourse left Defendant, would be to ask the court to consider the matter pursuant to Rule 40:50-1(f), which permits the court to vacate final judgment for "any other reason justifying relief from the operation of the judgment or order." Defendant's purported excuse of lack of knowledge that the delinquency was not cured rings hollow. In stating its argument for unclean hands Plaintiff emphasizes some significant facts Kingwood Township has been communicating with Mr. Zub, his agents and attorney since 1993. He chose to disregard orders and hearings regarding the burned out building which was directed to be removed by the Township. When an order of penalty was issued in 1999 Mr. Zub reacted by not paying taxes on this piece of property although he continued to pay taxes on the other Kingwood properties. Defendant had ample time to rectify his tax delinquencies. Moreover, Defendant did not attempt to pay his taxes from the date of the foreclosure until now. Defendant had no reason to believe he was in compliance with all tax obligations. Therefore, even if the law allowed for the relief requested, which it does not, the equities balance against it.

 
We have carefully considered the record, the briefs, and the arguments of counsel in light of applicable law, and we are satisfied that the record amply supports the judge's findings and conclusions. "[E]quity aids the vigilant, not those who sleep on their rights." Goodyear Tire and Rubber Co. v. Kin Props., Inc., 276 N.J. Super. 96, 103 (App. Div.), certif. denied, 139 N.J. 290 (1994).

Affirmed.

(continued)

(continued)

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A-1581-04T1

November 3, 2005