ROBERT U. DEL VECCHIO TRUSTEE OF THE ROBERT U DEL VECCHIO PENSION TRUST v. HELEN V. SMITH
Annotate this CaseNOT 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-1729-16T1
ROBERT U. DEL VECCHIO,
TRUSTEE OF THE ROBERT U.
DEL VECCHIO PENSION TRUST,
Plaintiff-Respondent/
Cross-Appellant,
v.
[HELEN V. SMITH], KATHLEEN
SMITH, WILLIAM E. SMITH,
ALARIS HEALTH F/K/A WEST
HUDSON HOSPITAL, and
CLARA MAASS MEDICAL CENTER,
Defendants,
and
DENISE V. BAMBER,
Defendant-Appellant/
Cross-Respondent.
____________________________
Argued telephonically April 17, 2018 –
Decided May 15, 2018
Before Judges Simonelli and Gooden Brown.
On appeal from Superior Court of New Jersey,
Chancery Division, Hudson County, Docket No.
F-049034-13.
Cory Anne Cassidy argued the cause for
appellant/cross-respondent (Riposta Lawyers,
LLC, attorneys; Cory Anne Cassidy, of counsel
and on the brief).
Keith A. Bonchi argued the cause for
respondent/cross-appellant (Goldenberg,
Mackler, Sayegh, Mintz, Pfeffer, Bonchi &
Gill, PC, attorneys; Keith A. Bonchi, of
counsel and on the brief; Elliott J. Almanza,
on the brief).
PER CURIAM
In this tax sale foreclosure matter, defendant Denise V.
Bamber appeals from the November 18, 2016 Chancery Division order,
which denied her motion to vacate a January 22, 2016 final default
judgment. Plaintiff Robert U. Del Vecchio, Trustee of the Robert
U. Del Vecchio Pension Trust, cross-appeals from a separate
November 18, 2016 order, which denied his cross-motion to enforce
a January 15, 2015 consent order. We affirm both orders.
I.
We derive the following facts from the competent evidence in
the record. Defendant's mother, Helen V. Smith (the decedent),
held title to property in the Town of Kearny and failed to pay the
property taxes for the year 2010. As a result, on July 6, 2011,
the Town conducted a tax sale. On July 15, 2011, plaintiff
purchased the tax sale certificate, paying a premium of $9600. On
October 18, 2011, plaintiff recorded the tax sale certificate with
the Hudson County Register of Deeds.
2 A-1729-16T1
The decedent died testate on June 8, 2012. Under her Last
Will and Testament, her daughter, defendant Kathleen Smith,
inherited "all [her] worldly possessions[,]" and was named as
executrix of the estate. The decedent bequeathed her residuary
estate equally to her grandson and plaintiff. Smith sent defendant
a Notice of Probate of Will, advising the Will was probated on
December 13, 2013. Although defendant later challenged Smith's
appointment as executrix, there is no evidence she challenged the
Will or inquired about the status of the property or Smith's
handling of the estate or property taxes until over two years
later.
The property taxes remained unpaid. As a result, plaintiff
filed a complaint to foreclose the tax sale certificate. After
learning of Smith's existence and that she was the decedent's
daughter and lived in the property, on March 4, 2014, plaintiff
filed an amended complaint, naming Smith as a defendant. Smith
filed a contesting answer. Plaintiff filed a motion to strike the
answer and deem the action uncontested.
The parties subsequently executed a consent order on January
15, 2015, which provided the matter would be "deemed noncontest[ed]
and . . . returned to the Foreclosure Unit to proceed as an
uncontested matter." The consent order precluded plaintiff from
applying for final judgment before April 1, 2015, and Smith waived
3 A-1729-16T1
her right to contest the foreclosure unless plaintiff failed to
comply.
Defendant contacted plaintiff in early April 2015, and
advised she was one of the decedent's children. Subsequently,
plaintiff filed a second amended complaint, adding defendant to
the litigation. On July 28, 2015, defendant was personally served
with the summons and second amended complaint, but did not file
an answer or other pleading.
On September 3, 2015, plaintiff filed a request to enter
default against defendant. On October 23, 2015, the court entered
an order setting the amount of redemption at $38,013.78, and
setting December 7, 2015 as the last day to redeem (the OST). On
October 27, 2015, plaintiff sent copies of the request to enter
default and OST to defendant, and defendant received them on
November 4, 2015. Defendant did not move to vacate the entry of
default or OST, and neither she nor any other defendant redeemed
the tax sale certificate.
On December 10, 2015, plaintiff obtained the tax collector's
certification of non-redemption and applied for final judgment.
On January 22, 2016, the court entered a final default judgment
against defendant,1 and on January 25, 2016, served a copy of it
1
The final judgment included all defendants.
4 A-1729-16T1
on defendant. On May 5, 2016, the court issued a writ of
possession.
Ten months after entry of the final judgment, on October 7,
2016, defendant filed a motion to vacate the final judgment
pursuant to Rule 4:50-1 (a), (e), and (f) and equitable
principles.2 The motion was not supported by defendant's
certification or affidavit, as required by Rule 1:6-6. Rather,
plaintiff relied on her attorney's certification, which contained
facts not based on the attorney's personal knowledge.
Plaintiff opposed the motion, arguing, as he does on appeal,
that defendant's equitable arguments were not supported by
competent evidence and lacked merit. He certified that since more
than five years had passed since the tax sale certificate was
sold, if the court vacated the final judgment, he could not recover
the $9600 premium he paid because it escheated to the Town under
2
Prior to filing the motion to vacate, on June 15, 2016, defendant
filed an order to show cause and verified complaint in the Chancery
Division, Probate Part, seeking to remove Smith as executrix of
the estate, eject Smith from the property, and set aside the final
judgment entered in the foreclosure matter. The court entered an
order on October 11, 2016, removing Smith as executrix, appointing
defendant as successor executrix, and ejecting Smith and any other
occupants from the property. The court dismissed the complaint
as to plaintiff. Defendant's alleged dispute with Smith is
irrelevant to this foreclosure matter.
5 A-1729-16T
1 N.J.S.A. 54:5-33.3 Plaintiff also filed a cross-motion to enforce
the consent order.
The motion judge denied defendant's motion, finding it was
untimely under
N.J.S.A. 54:5-87, which provides, in pertinent
part, that "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." The judge also found defendant failed to show good
cause to vacate under Rule 4:50-1, as she could not show any
unexpected or extreme hardship as a result of the final judgment.
The judge noted defendant did not live in the property, and thus,
would not be removed from her home, and was not able to redeem the
tax sale certificate and had no short term ability to secure the
necessary funds to redeem.
The judge found defendant failed to show excusable neglect,
as she knew about this action since July 2015, when she received
3 N.J.S.A. 54:5-33 provides as follows, in pertinent part:
Payment for the sale shall be made before the
conclusion of the sale, or the property shall
be resold. Any premium payment shall be held
by the collector and returned to the purchaser
of the fee if and when redemption is made. If
redemption is not made within five years from
date of sale the premium payment shall be
turned over to the treasurer of the
municipality and become a part of the funds
of the municipality.
6 A-1729-16T1
service of the second amended complaint, and failed to file an
answer. The judge noted that even though defendant claimed she
could not afford to retain counsel, she could have filed an answer
or pleading as a pro se litigant. The judge also found defendant
had not pled or asserted any meritorious defense to the tax sale
foreclosure.
The judge denied plaintiff's cross—motion, finding the denial
of defendant's motion to vacate rendered the consent order moot.
The judge also found plaintiff provided no basis to enforce a
consent order to which defendant was not a party, which was entered
before she was joined as a party, and which named her individually,
not as executrix of the estate. This appeal and cross-appeal
followed.
II.
On appeal, relying on equitable reasons not supported by
competent evidence in the record, defendant argues the judge's
decision "must be reversed because it will lead to the sort of
[draconian], unjust result not contemplated by our system of
justice[.]"4 Defendant also argues that although
N.J.S.A. 54:5-
4
Defendant relies on I.E.'s, L.L.C. v. Simmons,
392 N.J. Super. 520 (Law Div. 2006) to support her purported equitable reasons to
vacate the final judgment. However, trial court opinions do not
constitute precedent and are not binding on us. S & R Assocs. v.
Lynn Realty Corp.,
338 N.J. Super. 350, 355 (App. Div. 2001). In
7 A-1729-16T1
87 provides a tax sale foreclosure can only be reopened three
months after the date of the judgment, Rule 4:50-1 allows one year
or a reasonable time for a motion to vacate, the rule governs, and
she filed the motion within a reasonable time. Lastly, defendant
argues she was entitled to relief under Rule 4:50-1(a), (e), and
(f) based on the same unsupported equitable reasons.5
We review the trial court's decision on a motion to vacate a
default judgment for abuse of discretion. Deutsche Bank Nat'l Tr.
Co. v. Russo,
429 N.J. Super. 91, 98 (App. Div. 2012). The court
should not grant the motion unless the defendant's failure to
answer or appear was excusable, and the defendant has a meritorious
defense. Marder v. Realty Constr. Co.,
84 N.J. Super. 313, 318
(App. Div. 1964). "The trial court's determination under [Rule
any event, the case is distinguishable. There, unlike here, the
decedent included her property in her residuary estate and
bequeathed the residuary estate to her four children. Id. at 524.
In addition, three children were not personally served with the
summons and complaint and only became aware of the proceedings
after the entry of final judgment, and two children lived in the
premises. Id. at 524-26, 530. Defendant also relies on an
unpublished opinion from this court. However, unpublished
opinions do not constitute precedent or bind us. Trinity Cemetery
Ass'n v. Twp. of Wall,
170 N.J. 39, 48 (2001); R. 1:36-3.
5
We decline to address defendant's argument that equity and
justice require reversal even if we find the final judgment was
entered due to her negligence. Defendant did not raise this issue
before the motion judge, it is not jurisdictional in nature, and
does not substantially implicate the public interest. Zaman v.
Felton,
219 N.J. 199, 226-27 (2014).
8 A-1729-16T1
4:50-1] warrants substantial deference, and the abuse of
discretion must be clear to warrant reversal." Ibid. (alteration
in original) (citations omitted). "[An] abuse of discretion only
arises on demonstration of 'manifest error or injustice[,]'"
Hisenaj v. Kuehner,
194 N.J. 6, 20 (2008) (quoting State v. Torres,
183 N.J. 554, 572 (2005)), and occurs when the trial judge's
"decision is 'made without a rational explanation, inexplicably
departed from established policies, or rested on an impermissible
basis.'" Milne v. Goldenberg,
428 N.J. Super. 184, 197 (App. Div.
2012) (quoting Flagg v. Essex Cty. Prosecutor,
171 N.J. 561, 571
(2002)). We discern no abuse of discretion here.
The Tax Sale Law,
N.J.S.A. 54:5-1 to -137, provides a
mechanism for individuals or entities to purchase tax liens from
municipalities and initiate foreclosure actions against property
owners who are delinquent in paying their property taxes. The
foreclosure process begins when a property owner fails to pay the
property taxes, as the unpaid balance becomes a municipal lien on
the property.
N.J.S.A. 54:5-6. "When unpaid taxes or any
municipal lien . . . remains in arrears on the 11th day of the
eleventh month in the fiscal year when the taxes or lien became
in arrears, the collector . . . shall enforce the lien by selling
the property[.]"
N.J.S.A. 54:5-19. Upon completion of the sale,
9 A-1729-16T1
a certificate of tax sale is issued to the purchaser.
N.J.S.A.
54:5-46.
A tax foreclosure sale is subject to redemption.
N.J.S.A.
54:5-32. If the certificate is not redeemed within two years from
the date of the tax sale, the certificate holder can file an in
personam foreclosure action to bar the right of redemption.
N.J.S.A. 54:5-86(a). Prior thereto, the certificate holder must,
through a "title search of the public record[,]" identify "any
lienholder or other persons and entities with an interest in the
property that is subject to foreclosure[,]" who then must be named
as defendants in the action and served with the foreclosure
complaint. R. 4:64-1(a).
If the defendants fail to plead or otherwise defend, Rule
4:64-1(c), "the court . . . shall enter an order fixing the amount,
time and place for redemption upon proof establishing the amount
due." R. 4:64-1(f). The order must then be served on each
defendant. Ibid. Thereafter, "[t]he court, . . . on notice to
all appearing parties including parties whose answers have been
stricken, may enter final judgment upon proof of service of the
order of redemption . . . and the filing by plaintiff of an
affidavit of non-redemption." Ibid.
Defendant does not dispute that plaintiff complied with all
statutory and rule requirements for tax sale foreclosure. The
10 A-1729-16T1
only question is whether she is entitled to vacation of the final
judgment.
Owners or occupants of the property who may have the right
to redeem must exercise that right by paying the delinquent taxes
before the time to redeem has been cut off.
N.J.S.A. 54:5-54.
The right to redeem continues "until barred by the judgment of the
Superior Court."
N.J.S.A. 54:5-86(a). "[T]he express policy of
the [Tax Sale Law] is that it be liberally constructed so as to
bar the right of redemption, not preserve it, the goal being that
marketable titles to property be secured." Malone v. Midlantic
Bank, N.A.,
334 N.J. Super. 238, 250 (Ch. Div. 1999) (citing
N.J.S.A. 54:5-85), aff'd o.b.,
334 N.J. Super. 236 (App. Div.
2000). The judgment entered is 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."
N.J.S.A. 54:5-
87; see also
N.J.S.A. 54:5-104.67. The judgment vests in the
plaintiff "an absolute and indefeasible estate of inheritance in
fee simple in the land[.]"
N.J.S.A. 54:5-104.64(a).
Although
N.J.S.A. 54:5-87 imposes a three-month limit to
reopen a tax foreclosure judgment following its entry, we have
held:
11 A-1729-16T1
the standards in the court rules govern the
motion to vacate a default judgment of
foreclosure. While the tax sale law states
in [
N.J.S.A.] 54:5-87 that "no application
shall be entertained to reopen the judgment
after three months from the date thereof," the
rules allow a period of one year to bring the
motion based on [Rule] 4:50-1(a), (b), or (c).
Otherwise, the motion to vacate must be
brought within a reasonable time . . . .
[M & D Assocs. v. Mandara, 366 N.J. Super.
341, 351 (App. Div. 2004) (citations
omitted).]
We concluded that "[i]n foreclosure actions, where there is a
conflict between a statute regarding practice and procedure, the
court rules are generally paramount." Ibid. (citation omitted).
Accordingly, we find defendant's motion to vacate was not untimely
under
N.J.S.A. 54:5-87; however, it was untimely under Rule 4:50.
Rule 4:50-1 provides as follows:
On motion, with briefs, and upon such terms
as are just, the court may relieve a party or
the party's legal representative from a final
judgment or order for the following reasons:
(a) mistake, inadvertence, surprise, or
excusable neglect; (b) newly discovered
evidence which would probably alter the
judgment or order and which by due diligence
could not have been discovered in time to move
for a new trial under [Rule] 4:49; (c) fraud
(whether heretofore denominated intrinsic or
extrinsic), misrepresentation, or other
misconduct of an adverse party; (d) the
judgment or order is void; (e) the judgment
or order has been satisfied, released or
discharged, or a prior judgment or order upon
which it is based has been reversed or
otherwise vacated, or it is no longer
12 A-1729-16T1
equitable that the judgment or order should
have prospective application; or (f) any other
reason justifying relief from the operation
of the judgment or order.
"Regardless of the basis, vacation of a judgment under Rule 4:50-
1 should be granted sparingly." In re Guardianship of J.N.H.,
172 N.J. 440, 473-74 (2001) (citation omitted).
Defendant relies on reasons (a), (e), and (f). Under Rule
4:50-2, a motion to vacate "shall be made within a reasonable
time, and for reason[] (a) . . . not more than one year after the
judgment, order or proceeding was entered or taken." However,
Rule 4:50-2
does not mean that it is reasonable to file
such a motion within one year; the one-year
period represents only the outermost time
limit for the filing of a motion based on Rule
4:50-1(a) . . . . All [Rule] 4:50 motions
must be filed within a reasonable time, which,
in some circumstances, may be less than one
year from entry of the order in question.
[Orner v. Liu,
419 N.J. Super. 431, 436-37
(App. Div. 2011).]
Defendant did not file her motion to vacate within a
reasonable time. She was aware of these proceedings as of July
2015, and knew in November 2015 that default had been entered
against her and December 7, 2015 was the last day to redeem. She
also knew as of January 2016, that final judgment had been entered
against her. She had more than ample time to respond to this
13 A-1729-16T1
litigation since July 2015 as a pro se litigant, but instead,
chose not to proceed in that capacity. Under the circumstances
of this case, defendant's ten-month delay in filing her motion to
vacate was unreasonable. Except for the fact that defendant
finally retained an attorney, no new developments occurred in that
ten-month period that would make the delay reasonable.
Accordingly, the motion to vacate was untimely.
The motion also fails on the merits. Under Rule 4:50-1(a),
"[a] defendant seeking to set aside a default judgment must
establish that his failure to answer was due to excusable neglect
and that he has a meritorious defense." Russo,
429 N.J. Super.
at 98 (quoting Goldhaber v. Kohlenberg,
395 N.J. Super. 380, 391
(App. Div. 2007)). Excusable neglect refers to a default that is
"attributable to an honest mistake that is compatible with due
diligence or reasonable prudence." Ibid. (quoting U.S. Bank Nat'l
Ass'n v. Guillaume
209 N.J. 449, 468 (2012)); see also Mancini v.
EDS ex rel. N.J. Auto. Full Ins. Underwriting Ass'n,
132 N.J. 330,
335 (1993). The type of mistake entitled to relief under the Rule
is one the party could not have protected themselves against. DEG,
LLC v. Twp. of Fairfield,
198 N.J. 242, 263 (2009).
Defendant's inability to afford an attorney and redeem the
tax sale certificate does not constitute excusable neglect in
failing to file an answer. She was properly served with the
14 A-1729-16T1
summons and complaint and could have filed an answer pro se and
then sought an attorney. Her lack of sophistication in the law
does not constitute excusable neglect or exceptional
circumstances. See State v. Murray,
162 N.J. 240, 246 (2000)
(citing State v. Dugan,
289 N.J. Super. 15, 22 (App. Div. 1996)).
More importantly, defendant does not assert any meritorious
defense or claim she can pay the delinquent taxes, which is
necessary for redemption. See
N.J.S.A. 54:5-54. Thus, she is not
entitled to relief under Rule 4:50-1(a).
Defendant is not entitled to relief under Rule 4:50-1(e).
"Rule 4:50-1(e) provides for relief from judgment where . . . 'it
is no longer equitable that the judgment or order should have
prospective application.'" DEG,
198 N.J. at 265 (quoting R. 4:50-
1(e). "In essence, the rule is rooted in changed circumstances
that call fairness of the judgment into question." Id. at 265-
66.
Our Supreme Court has looked to federal jurisprudence to
ascertain the meaning of Rule 4:50-1(e), and observed that under
the federal counterpart to our rule, the "party seeking relief
bears the burden of proving that events have occurred subsequent
to the entry of a judgment that, absent the relief requested, will
result in 'extreme' and 'unexpected' hardship.''" Id. at 266
(quoting Hous. Auth. of Morristown v. Little,
135 N.J. 274, 285
15 A-1729-16T1
(1994)). Nevertheless, the Court observed that the United States
Supreme Court has "moved towards a more flexible standard" than
that provided in Little, that is, one "that does not require the
additional showing of grievous hardship evoked by new and
unforeseen conditions." Id. at 267 (citations omitted). However,
even with the more flexible standard, modification of a judgment
is not appropriate in every instance, and it would not be
appropriate simply "because 'it is no longer convenient to live
with the terms of [the] . . . decree.'" Ibid. (quoting Rufo v.
Inmates of the Suffolk County Jail,
502 U.S. 367, 383 (1992)).
Under the relaxed standard, "[a] party seeking modification
. . . may meet its initial burden by showing a significant change
either in factual conditions or in law." Ibid. (quoting Rufo,
502 U.S. at 384). Under either the Little standard or the more relaxed
Rufo standard, "relief from judgment should ordinarily not be
granted where the so-called changed circumstances were actually
anticipated [at the time of the decree]. In such a case, a party
seeking relief has the 'heavy' burden of establishing . . . that
it made a reasonable effort to comply with the judgment." Id. at
268 (quoting Rufo,
502 U.S. at 385).
Defendant has not shown that events occurred subsequent to
entry of the final judgment that will result in extreme and
unexpected hardship. She did not live in the property, did not
16 A-1729-16T1
inherit it from her mother, and there is no competent evidence of
its value. Defendant has not shown a significant change in factual
conditions or the law, or that she made reasonable efforts to
comply with the final judgment. That defendant retained an
attorney and successfully removed Smith as executrix and
substituted herself as executrix does not satisfy her burden under
this rule.
Finally, defendant is not entitled to relief under Rule 4:50-
1(f). Relief under this Rule "is available only when 'truly
exceptional circumstances are present.'" Little,
135 N.J. at 286
(quoting Baumann v. Marinaro,
95 N.J. 380, 395 (1984)). "[I]n
order to obtain relief under this subsection, the movant must
ordinarily show that the circumstances are exceptional and that
enforcement of the order or judgment would be unjust, oppressive
or inequitable." Pressler & Verniero, Current N.J. Court Rules,
cmt. 5.6.1 on R. 4:50-1 (2018) (citations omitted). "No
categorization can be made of the situations which would warrant
redress under subsection (f). . . . [T]he very essence of (f) is
its capacity for relief in exceptional situations. And in such
exceptional cases its boundaries are as expansive as the need to
achieve equity and justice." DEG,
198 N.J. at 269-70 (alterations
in original) (quoting Court Inv. Co. v. Perillo,
48 N.J. 334, 341
(1966)).
17 A-1729-16T1
There is no competent evidence in the record to support a
finding of "truly exceptional circumstances" in this case. The
court entered final judgment because defendant failed to file an
answer or other pleading when she had ample opportunity to do so.
Her inability to afford an attorney is not an extraordinary
circumstance warranting relief under Rule 4:50-1(f). See In re
Estate of Schifftner,
385 N.J. Super. 37, 44 (App. Div. 2006).
III.
On cross-appeal, plaintiff argues the motion judge erred in
refusing to enforce the consent order against defendant. We
disagree.
"Mootness is a threshold justiciability determination rooted
in the notion that judicial power is to be exercised only when a
party is immediately threatened with harm." Stop & Shop
Supermarket Co., LLC v. Cty. of Bergen,
450 N.J. Super. 286, 291
(App. Div. 2017) (quoting Betancourt v. Trinitas Hosp.,
415 N.J.
Super. 301, 311 (App. Div. 2010)). "[F]or reasons of judicial
economy and restraint, courts will not decide cases in which the
issue is hypothetical, [or] a judgment cannot grant effective
relief[.]" Ibid. (alterations in original) (quoting Cinque v.
N.J. Dep't of Corr.,
261 N.J. Super. 242, 243 (App. Div. 1993)).
Moreover, "[a] case is moot if the disputed issue was resolved,
at least with respect to the parties who instituted the
18 A-1729-16T1
litigation." Matthew G. Carter Apartments v. Richardson,
417 N.J. Super. 60, 67 (App. Div. 2010) (alteration in original)
(quoting Advance Inc. v. Montgomery Twp.,
351 N.J. Super. 160,
166 (App. Div. 2002)). Furthermore, "[a]n issue is 'moot' when
the decision sought in a matter, when rendered, can have no
practical effect on the existing controversy." Comando v. Nugiel,
436 N.J. Super. 203, 219 (App. Div. 2014) (alteration in original)
(quoting Greenfield v. N.J. Dep't of Corr.,
23 N.J. Super. 254,
257-58 (App. Div. 2006)).
Because the final judgment was not vacated, enforcing the
consent order would have no practical legal effect on the case.
Consequently, the consent order is moot and there was no reason
to enforce it.
In any event, plaintiff cites no authority supporting his
position that defendant, as successor executrix, is bound by the
actions of a former executrix. Although plaintiff cites to Jansen
v. Salomon Smith Barney, Inc.,
342 N.J. Super. 254 (App. Div.
2001) and In re Estate of Lange,
75 N.J. 464 (1978), these cases
do not apply.
In Jansen, we decided "whether the putative beneficiaries of
a retirement account are bound by an arbitration clause signed by
decedent and his financial advisors."
342 N.J. Super. at 255. We
held that "[a]lthough plaintiffs did not sign the arbitration
19 A-1729-16T1
provision, they were the intended successors" to the interests in
the accounts and thus, found they were bound by the arbitration
clause. Id. at 261.
In In re Estate of Lange, the Court contemplated "the
propriety of surcharging executrices for acts beyond the scope of
their powers under the will but validated by the effective consent
of all parties in interest to those acts."
75 N.J. at 469. The
Court held "that the members of the . . . classes of potential
takers of the respective shares of the trust remainder were bound
by their predecessors-in-interest's validation of the loan
transaction" because there was "a sufficient nexus between the
representatives and the members of each class of potential takers
in remainder to justify a conclusion that the class members are
bound by the representatives' validation of the loan transaction."
Id. at 486-87.
In contrast, the present case does not involve enforcement
of an arbitration agreement against intended successors, as in
Jansen, or enforcement of an act the predecessor in interest
consented to and the potential takers were known at the time of
consent, as in Estate of Lange. Rather, defendant was not a named
party in this litigation when the consent order was executed, and
her identity as a successor executrix was not known or intended
at that time. Moreover, plaintiff sued defendant individually,
20 A-1729-16T1
not as executrix of the estate. We are satisfied there was no
basis to enforce the consent order against her.
Affirmed.
21 A-1729-16T1
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