AMACO v. SAJEDA PATHAN

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4728-04T14728-04T1

AMACO,

Plaintiff-Respondent,

v.

SAJEDA PATHAN,

Defendant-Appellant,

and

UNION VILLAGE CONDOMINIUM

ASSOCIATION, INC.,

Defendant.

_________________________________

 

Submitted February 8, 2006 - Decided June 30, 2006

Before Judges Wecker, Fuentes and Graves.

On appeal from Superior Court of New

Jersey, Chancery Division, Union County,

Docket No. F-16305-03.

Meyer L. Rosenthal, attorney for appellant.

Casale & Pellegrino, attorneys for

respondent (Michael G. Pellegrino, on

the brief).

PER CURIAM

This is a tax sale certificate foreclosure action. Defendant appeals from the denial of a motion to vacate a default judgment entered in plaintiff's favor, cutting off defendant's right of redemption, and vesting plaintiff with the title to defendant's condominium unit. Plaintiff filed a tax foreclosure complaint on September 10, 2003. Defendant Sajeda Pathan was personally served with process on December 1, 2003. Defendant did not file a responsive pleading. The court entered a default judgment against her on July 27, 2004.

In a certification in support of defendant's motion to vacate the final judgment, defendant's father, Lal Pathan, avers that he purchased the property for his daughter in 1996. He was responsible for the property's day-to-day operations, including the payment of municipal taxes. Pathan (the father) also certifies that personal medical problems severely affected his ability to take care of his personal finances and business matters.

The condominium was occupied by a tenant who was refusing to tender rent. When Pathan learned of the tax foreclosure action in 2003, he attempted, without success, to have the tenant pay the outstanding taxes from the rental payments that the tenant's attorney was holding in escrow. When he contacted the tax collector, however, he learned that the taxes had not been paid, and "[u]nfortunately, [he] did not follow through to be sure that the taxes were paid. . . ."

On March 2, 2005, more than three months after final foreclosure judgment was entered, defendant filed a motion before the trial court seeking to reopen and vacate the final judgment, essentially, but not specifically, alleging excusable neglect under R. 4:50-1(a). In Town of Phillipsburg v. Block 1508, Lot 12, 380 N.J. Super. 159, 166 (App. Div. 2005), we indicated that:

The effect of a final judgment of foreclosure under the Tax Sale Law is to vest title to the property in fee simple. "[I]n an action to foreclose the right of redemption, [the court may] bar the right of redemption and . . . foreclose all prior or subsequent [claims] . . . except subsequent municipal liens, and [grant title in] fee simple [to] the purchaser." N.J.S.A. 54:5-87 (emphasis added). Thereafter the judgment "shall be final . . . and no application shall be entertained to reopen the judgment after three months from the date thereof, and then only upon the grounds of lack of jurisdiction or fraud in the conduct of the suit." Ibid. (emphasis added). Thus the Tax Sale Law evidences an intention to impose stricter limits upon the time and the grounds for vacating a judgment of foreclosure than would apply generally under Rule 4:50.

[Footnote omitted.]

Here, defendant's motion was filed beyond the three-month deadline established by N.J.S.A. 54:5-87. Under these circumstances, defendant has no grounds for relief as a matter of law.

Despite this statutory bar, Judge Lyons reviewed the merits of defendant's motion under the "excusable neglect" standard in R. 4:50-1(a), and, citing Mancini v. EDS, 132 N.J. 330, 335 (1993), found that defendant had failed to present sufficient evidence to satisfy the court rule.

When you read through this application here I can't find his actions compatible with due diligence or reasonable prudence. A person who goes through -- number one, doesn't pay taxes since 1999, that's not compatible with due diligence or reasonable prudence.

A person who has and writes numerous letters to the Mayor, the city attorney, and counsel, all complaining about situations going on at the property that doesn't pay the taxes doesn't evidence to me actions that are compatible with due diligence or reasonable prudence.

I understand the argument that tax sale foreclosures can be somewhat Draconian in their outcome, however, the Supreme Court and our lower Courts have looked long and hard at this statute and pointed out that this is a remedial statute that's meant to encourage people to pay their taxes and send a message to those who don't. And that it should be strictly construed here.

We review the trial court's denial of a motion to vacate a final judgment in a foreclosure action, involving a tax sale certificate, under an abuse of discretion standard. Town of Phillipsburg v. Block 1508, Lot 12, supra, 380 N.J. Super. at 173; Pressler, Current N.J. Court Rules, comment 1.1 on R. 4:50-1 (2006). The record here amply supports Judge Lyons's findings and we are in complete agreement with his conclusions of law.

Affirmed.

 

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A-4728-04T1

June 30, 2006