BOROUGH OF BARRINGTON v. BLOCK 57, LOTS 7.01, 8.01 9.01 ASSESSED AND RECORDED OWNER, STEPHEN RABINOWITZ

NOT FOR PUBLICATION WITHOUT THE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).

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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




                                   5                             A-5070-15T4
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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