Superior Court of New Jersey, Appellate Division …...2016/01/08 · Anil, his wife, Dipika, and their two children reside at the Property. (Pa53 at 12) (Pa53 at 12) Ramesh (age

GREATER PATERSON PROPERTIES, L.L.C. d/b/a Tax..., 2011 WL 12619189...

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2011 WL 12619189 (N.J.Super.A.D.) (Appellate Brief)Superior Court of New Jersey, Appellate Division

GREATER PATERSON PROPERTIES, L.L.C. d/b/a Tax Lien Assignment Fund 020301, Plaintiff/Appellant,v.

Ramesh R. PATEL; Kantaben Patel, His Wife; Anil Patel, Dipika Patel; AntonioGagliostro; Francesca Gagliostro; and Shivani Estates, L.L.C., Defendants/Respondents.

No. A-2267-10T4.June 1, 2011.

On Appeal from: Superior Court of New Jersey Passaic County: Chancery DivisionDocket No. F-16021-08

Sat Below: Hon. Margaret Mary McVeigh, P.J. Ch.

Brief on Behalf of Respondents Ramesh R. Patel, Kantaben Patel, Anil Patel and Dipika Patel

On the Brief: David Kessler, Esq., Adam S. Kessler, Esq., Matthew M. Fredericks, Esq., David Kessler & Associates, L.L.C.,1373 Broad Street, Clifton, New Jersey 07013, (973) 773-1200, for respondents, Ramesh R. Patel, Kantaben Patel, Anil Pateland Dipika Patel.

*i TABLE OF CONTENTSTABLE OF CITATIONS ......................................................................................................................... iiiTABLE OF APPENDIX .......................................................................................................................... viPRELIMINARY STATEMENT .............................................................................................................. 1PROCEDURAL HISTORY ..................................................................................................................... 4STATEMENT OF FACTS ...................................................................................................................... 8STANDARD OF REVIEW ..................................................................................................................... 12LEGAL ARGUMENT ............................................................................................................................. 15I. THE TRIAL COURT PROPERLY REOPENED AND VACATED THE DEFAULTJUDGMENT UNDER RULE 4:50-1 ....................................................................................................

15

A. The Trial Court did perform a R. 4:50-1 analysis ........................................................................... 15B. Assuming, arguendo, there was no R. 4:50-1 analysis, the Trial Court's holding should beupheld as it is correct and is supported by the record and applicable case law ...................................

19

C. The Trial Court reviewed case law stating that defective service of process in a tax saleforeclosure suit voids a Final Judgment as to all defendants under R. 4:50-1 ....................................

23

II. SERVICE OF PROCESS ON DIPIKA DOES NOT CONSTITUTE VALID SERVICEUPON RAMESH AND KANTABEN BY WAY OF A LATER DISCOVERED POWER OFATTORNEY RUNNING FROM RAMESH AND KANTABEN TO ANIL FOR THE PURPOSEOF OBTAINING A MORTGAGE ON THE PROPERTY ...............................................................

26

A. Appellant cannot fall back upon a later-discovered power of attorney to cure improper service ofprocess upon Ramesh and Kantaben .....................................................................................................

27

B. The power of attorney given by Ramesh and Kantaben to Anil, for the purpose of obtaining amortgage on *ii the Property, did not expressly provide for acceptance of service of process forlitigation ....................................................................................................................................................

30

C. Additionally and/or alternatively, Anil's failure to obtain a mortgage on the Property had theeffect of terminating the power of attorney ...........................................................................................

31

D. Appellant did not fulfill its burden of diligent inquiry entitling it to the windfall of homeownership, in lieu of the statutory 18% return Appellant is entitled to ................................................

31

E. The Final Judgment did not ‘fully encompass' the redemption rights of all the parties. Rameshand Kantaben, who arranged for redemption and actually redeemed the Property, should not bedivested of their interest in the Property without having received notice of the Tax Foreclosure Suit

35

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III. ANIL PATEL EARNESTLY BELIEVED HE WOULD HAVE HIS DAY IN COURTAND WOULD BE ABLE TO OBTAIN A LOAN IN EXCHANGE FOR A MORTGAGE INORDER TO PAY OFF THE REAL ESTATE TAXES ON THE PROPERTY. IT WOULDBE INEQUITABLE FOR THE COURT TO PREVENT RAMESH AND KANTABEN FROMREDEEMING THEIR PROPERTY IF ANIL WAS SUBJECT TO THE FINAL JUDGMENTUNDER THE DOCTRINE OF UNCLEAN HANDS AND/OR ESTOPPEL ...................................

40

IV. APPELLANT WAS ORDERED TO “SERVE RAMESH AND KANTABEN WITHCOPIES OF THE SUMMONS AND COMPLAINT IN THIS MATTER VIA PERSONALSERVICE.” APPELLANT CHOSE TO EFFECTUATE SERVICE OF PROCESS UPONRAMESHA AND KANTABEN IN INDIA PURSUANT TO THE HAGUE CONVENTION ........

47

V. APPELLANT WAS AWARDED ATTORNEYS' FEES AND COSTS AFTER THESUBMISSION OF BRIEFS AND ORAL ARGUMENT AND THE ISSUANCE OF AWRITTEN OPINION IN THE TRIAL COURT. THERE IS NO EVIDENCE OF ‘ABUSEOF DISCRETION’ BY THE TRIAL COURT JUDGE. APPELLANT SHOULD NOT BEAWARED ANY FURTHER ATTORNEYS' FEES OR COSTS BECAUSE OF APPELLANT'SFAILURE TO PROPERLY SERVE OR PROVIDE PROPER NOTICE TO RESPONDENTS ...

50

CONCLUSION ....................................................................................................................................... 56

*iii TABLE OF CITATIONSArrow Mfg Co. v. Levinson, 231 N.J. Super. 527 (App. Div.1989) ......................................................................................

14, 37

A&S Manufacturing Co. v. Wetzler, 110 N.J. Super. 565(Ch. Div. 1970) .....................................................................

32

Bank of America, Nat. Trust & Sav. Ass'n v. Horowytz, 104N.J. Super. 35 (N.J. Co. 1968) ..............................................

28

Berger v. Paterson Veterans Taxi Serv., 244 N.J. Super. 200(App. Div. 1990) ...................................................................

26

Court Inv. Co. v. Perillo, 48 N.J. 334 (1966) ........................ 22Davis v. DND/Fidoreo, Inc., 317 N.J. Super. 92 (App. Div.1998) ......................................................................................

14, 22, 36, 37, 38, 55

Driscoll v. Burlington-Bristol Bridge Co., 8 N.J. 433 (1952) 26Feighan v. Sobers & Son, 84 N.J.L. 575 (Sup. Ct. 1913) ...... 32FMAC Loan Receivables v. Dagra, 288 F.R.D. 531 (E.D.Va. 2005) ...............................................................................

33

Housing Auth. Of Town of Morristown v. Little, 135 N.J.274 (1994) .............................................................................

1, 13, 19

Iska v. Planning Bd. of Twp. of Livingston, 51 N.J. 162, 175(1968) .....................................................................................

19

Jameson v. Great Atl. & Pac. Tea Co., 363 N.J. Super. 419(App. Div. 2003) ...................................................................

26, 47

John Reiner & Co. v. Dorsey Roofing Co., 187 N.J. Super.51 (Law Div. 1982) ...............................................................

52

Kurilla v. Roth, 132 N.J.L. 213 (Sup. Ct. 1944) .................... 32Local 617 v. Hudson Bergen Trucking, 182 N.J. Super. ....... 16 30M & D Associates v. Mandara, 366 N.J. Super. 341 (App.Div. 2004) ..............................................................................

13, 23-25, 33, 34, 36, 38, 39, 43, 44, 50

Manchini v. New Jersey Automobile Full InsuranceUnderwriting, 132 N.J. 330 (1993) .......................................

14, 36

*iv Mullane v. Central Hanover Bank & Trust Co., 339U.S. 306, 314) (1950) ............................................................

36

Palisades Collection, LLC v. Brown, A-2235-08T3, 2010WL 5104824 (N.J. Super. Ct. App. Div. Dec. 15, 2010) .......

28, 29, Da43

Palko v. Palko, 73 N.J. 395 (1977) ....................................... 22Robinson v. Shannon, A-1892-05T5, 2006 WL 2986549(N.J. Super. Ct. App. Div. Oct. 20, 2006) .............................

23-25, 50, Da41

Town of Phillipsburg vs. Block 1508, Lot 12, 380 N.J.Super. 159 (App. Div. 2005) .................................................

20, 21

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Vogelbacher v. Director, Division of Taxation, 15 N.J. Tax106 (Tax 1995) ......................................................................

22

Wachovia Bank, N.A. v. Mangradge, A-2184-04T2, 2005WL 3299190 at *1 (App. Div. December 7, 2005) (Pa 273) .

21

Warfield v. Fisher, 94 N.J. Super. 142 (Law Div. 1967) ....... 32COURT RULESR. 4:4-4 .................................................................................. 21, 29, 30, 32, 34, 47, 48R. 4:4-5 .................................................................................. 32, 47, 49R. 4:42-9 ................................................................................ 50, 51R. 4 : 50-1 .............................................................................. passimSTATUTESN.J.S.A 46:2B-8.2 .................................................................. 28N.J.S.A. 46:2B-8.9 ................................................................. 27N.J.S.A. 4 6-14.2.1(a) ............................................................ 27N.J.S.A. 46:14-6.1(a) (2) ....................................................... 27N.J.S.A. 54:5-97.1 .................................................................. 51N.J.S.A. 54:5-104.67 .............................................................. 12, 13*v CONVENTIONS

The Hague Convention on the Service Abroad of Judicialand Extra Judicial Documents in Civil and CommercialMatters ...................................................................................

passim

SECONDARY AUTHORITIES3 Am. Jur. 2d, Agency, s 23, p. 433 ..................................... 28Restatement, Agency 2d §§ 106 to 110; Mechem, Agency §260 .........................................................................................

31

Wright and Miller, Federal Practice and Procedure: Civil,Sections 1097 and 1101 ........................................................

30

*vi TABLE OF APPENDIXLetter dated December 7, 2010 from Adam S. Kessler, Esq.to Stephen Mainardi, Esq. enclosing the total redemptionamount ...................................................................................

la 1

Respondents' Brief in Support of Defendant's Motion to Reopen and Vacate Final Judgment in TaxForeclosure pursuant to R. 4:50-1 marked received on October 13, 2009 ..............................................

3a 2

Appellant's Reply Letter Brief dated November 24, 2009 ................................................................ 18a 3

Respondents' Supplemental Letter Brief dated December 14, 2009 ................................................. 27a 4

Respondents' Supplemental Letter Brief dated December 18, 2009 ................................................. 34a 5

Robinson v. Shannon, A-1892-05T5, 2006 WL 2986549 (N.J. Super. Ct. App. Div. Oct. 20, 2006) ...... 41aPalisades Collection, LLC v. Brown, A-2235-08T3, 2010 WL 5104824 (N.J. Super. Ct. App. Div.Dec. 15, 2010) ..........................................................................................................................................

43a

*1 PRELIMINARY STATEMENT

Appellant Greater Paterson Properties, L.L.C. (“Appellant”) is appealing five (5) Orders entered by Hon. Margaret MaryMcVeigh, P.J. Ch. of the Passaic County Chancery Division (“Trial Court”) granting Respondents' motion pursuant to R. 4:50-1to reopen and vacate the Final Judgment in Tax Sale Foreclosure (the “Final Judgment”) on Respondents' property located at492 Brook Avenue, Passaic, New Jersey (the “Property”) and fixing the amount to redeem the Property.






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Respondents are Anil Patel, his wife, Dipika Patel and Anil's parents Ramesh and Kantaben Patel.

The five (5) Orders entered by the Trial Court vacating the Final Judgment and fixing the amount for redemption should beupheld for the following reasons:

1. Contrary to Appellant's argument, the Trial Court did perform a R. 4:50-1 analysis, which is supported by the Trial Courtrecord and applicable case law. Housing Auth. Of Town of Morristown v. Little, 135 N.J. 274 (1994).

*2 2. Ramesh and Kantaben were not served with the Complaint until May, 2010. Appellant should not be permitted toovercome defective service by pointing to an after-discovered power of attorney, given by Ramesh and Kantaben to Anil forthe purpose of obtaining a mortgage on the Property.

3. It would be inequitable to divest Ramesh and Kantaben of their interest in the Property without having been properly servedand given the opportunity to redeem the Property. Such a holding would establish a more relaxed standard for service of processin a tax foreclosure action which would contravene public policy.

4. Appellant's argument that service in accordance with the Hague Convention was not required is unavailing as Appellantvoluntarily effectuated service upon Ramesh and Kantaben in India pursuant to the Hague Convention.

*3 5. Appellant has already been awarded a reasonable and fair amount for attorneys' fees and costs and Appellant's requestfor additional fees is improper and should be denied.

This appeal is an attempt by Appellant, a sophisticated tax sale investor, to seek the windfall of the Property in lieu of thestatutory 18% per annum return on the subject tax sale certificates (which redemption amount, including statutory interest of18% per annum, has already been tendered to Appellant by Respondents).

*8 STATEMENT OF FACTS

Anil Patel and his parents, Ramesh Patel and Kantaben Patel, have owned the Property since February, 1985. (Pa53 at SID

Anil, his wife, Dipika, and their two children reside at the Property. (Pa53 at 12)

Ramesh (age 8 3) and Kantaben age 7 6) moved to India in 1994, and since 1994 have not resided at the Property. (Pa53 at3112 through 14)

Anil was seeking to obtain a mortgage loan on the Property when the Final Judgment was entered, but was delayed becausehis parents, who were also owners of the Property, were unable to send proper authorization from their home in India. Anil'sparents are elderly and could not wait on long lines in India to have necessary documents, including a power of attorney,properly notarized. As a result, Anil was unable to redeem the Property with proceeds of a mortgage loan prior to entry ofFinal Judgment. (Pa53 19 and 10)

Although a power of attorney had been notarized in 2006 in India by an Indian notary for the purpose of obtaining a mortgageloan secured by the Property, Anil's mortgage broker informed him that the power of attorney must be notarized by an Americannotary (in India) in order for an institutional lender *9 to accept a mortgage on the home. Anil therefore believed that theoriginal 2006 India notary (notarized by an Indian notary) was insufficient to permit him to obtain a mortgage on the Property.

On August 6, 2009, after entry of Final Judgment, Alohay A. Patel, a friend of Anil and duly appointed New Jersey NotaryPublic, traveled to India and, while in India, notarized the original 2006 power of attorney on behalf of Ramesh and Kantaben.(Pa53 at Sill)




On August 7, 2009, Anil wrote a letter to the Chancery Division requesting the Court grant him a thirty (30) day extensionto receive “needed paper work from India.” (Pa53 at SI19) Anil believed he would receive a response and have his day inCourt. (Pa53 at 224)

On September 17, 2009, Anil wrote another letter to the Chancery Division stating that he received the paperwork from Indiaand needed a thirty (30) day extension and letter from the Court in order to process his mortgage. (Pa53 at 223)

Neither Ramesh nor Kantaben were aware of the Tax Foreclosure Suit prior to the entry of Final Judgment. (Pa53 at 516)

*10 On or about May 24, 2010, following the Court's March 26, 2010 Order, Ramesh and Kantaben were served in India inaccordance with the Hague convention. (5T3-22)

On June 22, 2010, within 35 days of being properly served, Ramesh and Kantaben filed an Answer to Appellant's Complaint.(Pa27)

Ramesh and Kantaben arranged for redemption of the Property within the time prescribed by the New Jersey Court Rules andthe Order of Judge McVeigh filed November 25, 2010. (Pal5) (Dal)

Anil, Ramesh and Kantaben received a loan in the amount of $100,000.00 from Manu Patel. Manu Patel is the brother ofKantaben, the brother-in-law of Ramesh and uncle of Anil. (Pa171)

Respondents' Property is valued by the City of Passaic, based upon its 2010 equalization ratio, at over $385,000. (Pa53 at ¶8)Anil has estimated the value of the Property at approximately $300,000. (Pa53 at ¶8)

Appellant foreclosed on tax sale liens it held on the Property in the original amount of $66,205.31. (Pa53 at ¶4)

Respondents have redeemed their family home in the total amount of $101,946.24, which sum includes attorneys' fees and costsawarded by the Trial Court in the amount of $4,452.55. (Dal)

*11 The difference between the value of the property, according to the City of Passaic, and the final redemption amount is$283,053.76. The value of the Property is approximately 378% of the final redemption amount fixed by the Trial Court.

This appeal is an attempt by Appellant, a sophisticated and experienced tax sale investor, to seek the windfall of the Propertyin lieu of the statutory 18% per annum return on the subject tax sale certificates (which redemption amount, including statutoryinterest of 18% interest per annum, has already been tendered to Appellant by Respondents).

The effect of Appellant's desired result would be to displace Anil, his wife and two (2) children from their family home wherethey currently reside and to divest Ramesh and Kantaben of their ownership interest in the Property without the opportunityto redeem the Property.

*4 PROCEDURAL HISTORY

On April 23, 2008, Appellant filed a Complaint to Foreclose Tax Sale Certificates in the Chancery Division, Passaic County.(Pa21)

On May 12, 2008, Appellant attempted to serve Anil and his parents, Ramesh and Kantaben, by substitute service upon Dipikaat the Property. (Pa53 at ¶1) (Pa35) (Pa37) (Pa39)



On May 29, 2009, the Court entered default against the Respondents. (Pa43)

On July 14, 2009, Final Judgment was entered in favor of Appellant. (Pa53 at A3)

On August 7, 2009, and again on September 17, 2009, Anil wrote to the Chancery Division requesting the Court grant him athirty (30) day extension to arrange for a mortgage. (Pa53 at 3119 and 23)

On October 12, 2009, Anil and Dipika filed a R. 4:50-1 motion to reopen and vacate the Final Judgment the “R. 4:50-1 Motion”).(Pa51) (Da3)

On December 18, 2009, the parties appeared before the Trial Court for oral argument on Respondents' R. 4:50-1 Motion. (1T)

Between December 18, 2009 and March 11, 2010, the Trial Court heard oral argument on the R. 4:50-1 Motion four (4)times, on December 18, 2009, January 8, 2010, March 5, 2010 and *5 March 11, 2010. (1T) (2T) (3T) (4T) Both Appellantand Respondents submitted numerous and comprehensive briefs to the Trial Court during this period regarding Respondents'application under R. 4:50-1.

On or about January 15, 2010, Appellant attempted to effectuate service upon Ramesh and Kantaben in India by UPS, whichwas not successful. (Pa122)

On March 26, 2010, Judge McVeigh granted Respondents' R. 4:50-1 Motion and filed an Order vacating the Final Judgmentagainst Ramesh and Kantaben and ordering Appellant to immediately serve Ramesh and Kantaben with copies of the Summonsand Complaint in this matter via personal service. The March 26, 2010 Order further stated that Ramesh and Kantaben wouldhave thirty-five (35) days from the date of service of the Summons and Complaint to file an Answer to the Complaint or toredeem the Property. (Pa6)

On April 16, 2010, Appellant sought to effectuate service in accordance with the Hague Convention by forwarding theComplaint, along with appropriate documentation, to the The Ministry of Law and Justice, Department of Legal Affairs in NewDelhi, India. (Pa144)

On or about May 24, 2010, Ramesh and Kantaben received the Summons and Complaint at their home in India, pursuant tothe Hague Convention. (5T3-22)

*6 On June 22,2010, Ramesh and Kantaben filed an Answer, which was marked by the Trial Court as “contested”, within thetime prescribed by the New Jersey Court Rules. (Pa27)

On June 25, 2010, the parties appeared on Appellant's motion for an order requiring correction of violations, maintenance ofsubject premises, payment of use and occupancy fees and proof of ability to redeem. (Pa137) (5T)

On June 25, 2010, Judge McVeigh filed an Order, which, in relevant part, provided Respondents time to redeem the Property.(Pa8)

On August 18, 2010, Respondents wrote a letter to the Trial Court advising that Respondents deposited $100,000.00 in theattorney trust account of David Kessler & Associates, L.L.C. for the purpose of paying off in full the open tax sale certificatesheld by Appellant. (Pa171)

On August 26, 2010, Judge McVeigh, further ruling on Respondents' R. 4:50-1 Motion, filed an Order vacating the FinalJudgment as to all Respondents, including against Anil and Dipika. (Pa10)



On September 15, 2010, an Amended Order was entered, amending the numerical reference to a tax sale certificate on theAugust 26, 2010 Order. (Pal3)

*7 On September 30, 2010, the parties appeared on Respondents' motion and Appellant's cross-motion to fix the amount forredemption. (6T)

On November 25, 2010, Judge McVeigh filed an Order Fixing the Amount for Redemption, as follows:(a) on account of tax sale certificate #00-315 -$86,167.27;

(b) on account of tax sale certificate #01-299 -$6,560.89;

(c) on account of attorneys' fees and costs $4,452.55;

(d) on account of insurance costs - $2,978.83;

Total Redemption Amount - $100,159.54 as of October 1, 2010

Per diem interest after October 1, 2010 - $26,275

(Pal5a)

Pursuant to the Orders entered by Judge McVeigh in this matter, Anil, Ramesh and Kantaben redeemed tax sale certificatenumbers #00-315 and #01-299, held by Appellant, by tendering the total amount of $101,946.24, as follows:1. On account of tax sale certificate #00-315: $86,167.27;

2. On account of tax sale certificate #00-299: $6,560.89;

3. On account of attorneys' fees and costs: $4,452.55;

4. On account of insurance costs: $2,978.83; and

5. On account of per diem for 68 days: $1,786.70.

(Dal)

*12 STANDARD OF REVIEW

Pursuant to N.J.S.A. 54:5-104.67, Application to Reopen Judgment:

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

Grounds to reopen a Final Judgment are set forth in R. 4:50-1, which states:

On motion, with briefs, and upon such terms as are just, the court may relieve a party or the party's legalrepresentative 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 andwhich by due diligence could not have been discovered in time to move for a new trial under R. 4:49; (c)fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of anadverse party; (d) the judgment or order is void; (e) the judgment or order has been satisfied, released ordischarged, or a prior judgment or order upon which it is based has been reversed or otherwise vacated, orit is no longer equitable that the judgment or order should have prospective application; or (f) any otherreason justifying relief from the operation of the judgment or order.

*13 Final Judgment was recorded on July 17, 2009. Respondent's R. 4:50-1 Motion was made on October 12, 2009, withinthe three (3) month period permitted by N.J.S.A. 54:5-104.67.The Supreme Court has articulated the standard of review for a motion to vacate a judgment under R. 4:50-1 as follows:

The decision granting or denying an application to open a judgment will be left undisturbed unless it represents a clear abuse ofdiscretion. Mancini v. EDS, 132 N.J. 330, 334 (1993); Court Inv. Co. v. Perillo, 48 N.J. 334, 341 (1966); Hodgson v. Applegate,31 N.J. 29, 37 (1959); Pressler, Current N.J. Court Rules, comment 1 on R. 4:50-1 (1993).

Housing Auth. of Town of Morristown v. Little, 135 N.J. 274, 283 (1994).

The standard of review for the Trial Court to vacate a judgment under R. 4:50-1 was articulated by the Appellate Division inM & D Associates v. Mandara, 366 N.J. Super. 341, 350 (App. Div. 2004), as follows:An application to vacate a judgment based on R. 4:50-1 is within the sound discretion of the trial court and “should be guidedby equitable principles in determining whether relief should be granted or denied.” Housing Auth. of the Town of Morristownv. Little, 135 N.J. 274, 283 (1994). The application is “viewed with great liberality, and every reasonable ground for indulgenceis tolerated to the end that a just result is reached.” Marder v. Realty Constr. Co., 84 N.J. Super. 313, 319 (App. Div.), aff'd, 43N.J. 508 (1964). In the tax sale certificate foreclosure context considerations of public *14 policy and equity are also takeninto account See Bron v. Weintraub, 42 N. J. 87, 94-96 (1964).

In a R. 4:50-1 analysis to vacate a default judgment, “[a]ll doubts … should be resolved in favor of the parties seeking relief.”Davis v. DND/Fidoreo, Inc., 317 N.J. Super. 92 (App. Div. 1998) (quoting Manchini v. Mew Jersey Automobile Full InsuranceUnderwriting, 132 N.J. 330, 334 (1993) (citing Arrow Mfg Co. v. Levinson, 231 N.J. Super. 527, 534 (App. Div. 1989)).

*15 LEGAL ARGUMENT

I. THE TRIAL COURT PROPERLY REOPENED AND VACATED THE DEFAULT JUDGMENT UNDER RULE4:50-1.

In this appeal, Appellant argues that the Orders entered by the Trial Court granting Respondents' R. 4:50-1 Motion to reopenand vacate the Final Judgment and fix the amount to redeem the Property were improper because, Appellant alleges, the TrialCourt failed to perform a R. 4:50-1 analysis prior to entry of the Orders. This argument is without merit. The Orders enteredby the Trial Court were responsive to and disposed of Respondents' R. 4:50-1 Motion to reopen and vacate the Final Judgmentand both parties argued at length before the Trial Court on the applicability of R. 4:50-1.

A. The Trial Court did perform a R. 4:50-1 analysis.




















Respondents' brief, dated October 12, 2009, was entitled “Brief in Support of Defendants' Motion to Reopen and Vacate FinalJudgment in Tax Foreclosure.” Respondents' primary argument in their brief in support of the motion was that the Court shouldreopen and vacate the Final Judgment by default against Respondents under R. 4:50-1. (Da3) The motion expressly requestedrelief under R. 4:50-1.

*16 In response to Respondents' motion, Appellant specifically argued that R. 4:50-1 was inapplicable, citing to several casesin support of its position. (Da18)

Respondents submitted supplemental letter briefs on December 14, 2009 and December 18, 2009, which reviewed theapplication of R. 4:50-1 and applicable case law. (2T2-7 through 11) (Da27) (Da34)

On six (6) separate occasions between December 18, 2009 and September 30, 2010 the learned Equity Judge heard oral argumentaddressing Respondents' motion to reopen and vacate the Final Judgment pursuant to R. 4:50-1.

The Trial Court entered five (5) Orders in vacating the Final Judgment against Anil, Dipika, Ramesh and Kantaben. (Pa6) (Pa8)(Pa10) (Pa13) (Pa15)

In accordance with the Trial Court's Orders, Respondents redeemed their family home in the total amount of $101,946.24. (Dal)

Now, after submitting briefs almost exclusively on the application of R. 4:50-1, and after arguing the applicability of R. 4:50-1for months, Appellant alleges that the five (5) Trial Court Orders should be reversed and remanded because a R. 4:50-1 analysisallegedly was not performed.

R. 4:50-1 provides that a party may be relieved from a Final Judgment for several reasons, including: (a) mistake, *17inadvertence, surprise, or excusable neglect; (d) the judgment or order is void; or (f) any other reason justifying relief fromthe operation of the judgment or order.

A review of the Trial Court record demonstrates that the Trial Court, after considering the multitude of briefs and argumentspresented by the parties on the appropriateness of vacating the Final Judgment by default under R. 4:50-1, engaged in a R.4:50-1 analysis prior to vacating the Final Judgment.

At oral argument Judge McVeigh stated, in relevant part, as follows:(1T) December 18, 2009

(1T10-9 through 11) THE COURT: I know that. It's an interim tax lien foreclosure, something I have been incredibly familiarwith since I took over.

(2T) January 8, 2010

(2T16-1 through 7)

THE COURT: Yes, it's the same thing, they have to demonstrate in order to vacate a judgment, under the rule they have to show[]excusable neglect, they have to show a meritorious defense, they have to show the ability to redeem under these circumstanceswhich is something that's more unique to the situation of a tax foreclosure.

*18 (4T) March 11, 2010



(4T2-10 through 19) THE COURT: Okay. This matter has been ongoing for some period of time because an issue was raisedby the defendant that the senior Patels, Ramesh and Kantaben, had not been served as they do not live in the United States, havenot lived in the United States for an extended period of time, in fact reside in India.

I wouldn't deny the application to vacate the judgment; I required that the plaintiff in fact serve the defendants.

(4T13-4 through 17) THE COURT: Well, you have until Friday - until Monday to provide me with a brief that says that serviceon a power of attorney is insufficient service, particularly when the power of attorney has been executed for the purpose ofobtaining a financial encumbrance upon the property that is also effected by the subject matter of this litigation.

I will - it's a very specific request, and I will wait until Monday until I get your brief to determine whether or not I will nowconsider this to be proper service and give the Patels seniors 35 days within which to provide a response to the litigation in thismatter and potentially provide them with the opportunity to redeem.

*19 B. Assuming, arguendo, there was no R. 4:50-1 analysis, the Trial Court's holding should be upheld as it is correctand is supported by the record and applicable case law.

Assuming, arguendo, that Appellant is correct and that a R. 4:50-1 analysis was not performed by the Trial Court, the holdingof the Trial Court should be upheld based on the Trial Court record and applicable case law.

An order or judgment will be affirmed on appeal if it is correct, even though the judge gave the wrong reasons for it. Iska v.Planning Bd. of TCP. of Livingston, 51 N.J. 162, 175 (1968).

In Housing Auth. of Town of Morristown v. Little, 135 N.J. 274, 283 (1994), the Supreme Court of New Jersey held that a trialcourt need not identify the specific subsections of R. 4:50-1 on which it relies to open a default judgment. The Little Court reliedon the trial court record and applicable case law in reversing and vacating a judgment for possession based on non-payment ofrent, where the tenant tendered payment of rent in full after the entry of a warrant for removal. Ibid.

In the present action, substantial defects in service of process combined with exceptional circumstances rendered the FinalJudgment void pursuant to R. 4:50-1(a), (d) and (f).

Appellant cites three (3) cases in support of its argument that this matter should be remanded for R. 4:50-1 analysis by *20the Trial Court. The cases cited by Appellant are not factually analogous to the present action and should not be relied uponby the Court.

The first case cited by Appellant is Town of Phillipsburg vs. Block 1508, Lot 12, 380 N.J. Super. 159 (App. Div. 2005). InPhillipsburg, the holder of a tax sale certificate, obtained by assignment after the filing of the complaint, sought to intervene inthe action in order to vacate the judgment and redeem later-issued tax sale certificates. The tax sale certificates were securedby a property which had long been vacant, not maintained for many years and in need of rehabilitation. Id. at 161.

The Phillipsburg Court determined that the intervener “failed to satisfy any of the grounds provided by [Rule 4:50-1] forgranting relief from the final judgment”, and “provided no explanation for … its failure to move immediately to intervene inthe Superior Court action when it was aware that entry of judgment in foreclosure was imminent.” Id. at 173. (emphasis added)In affirming the Chancery judge's holding, the Phillipsburg Court stated, “ [a] decision to deny a Rule 4:50-1 motion, beingwithin the reasonable discretion of the Chancery judge, is one we would not reverse except for an abuse of discretion, whichwe cannot find in this case.” Id. at 174.










*21 Unlike the investors in Phillipsburg, in the present action Ramesh and Kantaben are the current owners of the Propertywith Anil and would be divested of their ownership, without notice, if Appellant is successful in reinstating its Final Judgment.Ramesh and Kantaben would not be suffering the downside of a risky investment, but would be losing title to a home that theyhave owned, with their son, Anil, since 1985.

Appellant cites Wachovia Bank, N.A. v. Mangradge, A-2184-04T2, 2005 WL 3299190 at *1 (App. Div. December 7, 2005) (Pa272), an unpublished decision involving Appellant's new counsel, for the proposition that a final judgment cannot be vacatedwithout a R. 4:50-1 analysis. However, the Mangradge Court reversed and remanded for a R. 4:50-1 analysis where, “[i]t[was] undisputed that both Manradge and U.S. Mortgage, the mortgagee of record, were properly served in [the] action.” Id.(emphasis added)

In the present matter, service of process on a daughter-in-law (Dipika) at the former place of abode of individuals who have notresided at the premises or in the United States for sixteen (16) years (Ramesh and Kantaben) did not constitute valid serviceunder R. 4:4-4 (a) (1) of the New Jersey Court Rules. This fact alone warrants vacating the Final Judgment under R. 4:50-1(a),(d) and (f).

*22 Appellant also cites Vogelbacher v. Director, Division of Taxation, 15 N.J. Tax 106 (Tax 1995), for the proposition thatexceptional circumstances must exist to vacate a judgment under R. 4:50-1(f). The Vogelbacher Court made this commentin dicta, after holding that a R. 4:50-1 analysis would not be appropriate because the matter did not involve a final order orjudgment.

New Jersey Courts have stated that, “[t]he essence of subsection (f) is ‘its capacity for relief in exceptional situations. And insuch exceptional cases its boundaries are as expansive as the need to achieve equity and justice.”’ Davis v. DND/Fidoreo, Inc.,317 N.J. Super. 92, 100 (App. Div. 1998) (citing Palko v. Palko, 73 N.J. 395, 398 (1977) (quoting Court Inv. Co. v. Perillo,48 N.J. 334, 341 (1966)).

In the present action Ramesh and Kantaben stood to be divested of their ownership in the Property without notice. Realizing theineffective service, and in order to remedy the situation as expressly permitted by R. 4:50-1, the Trial Court properly vacated theFinal Judgment and ordered that Ramesh and Kantaben be properly served. After being served with the Foreclosure Complaint,as ordered by the Trial Court, Ramesh and Kantaben filed an Answer and arranged for the redemption of the Property withinthe time prescribed by the New Jersey Court Rules.

*23 In addition to defective service of process, there is a large disparity of approximately $283,053.76 between the value ofthe home (approximately $385,000) and the final redemption amount of $101,946.24 (the disparity is $318,794.69 when usingthe original final judgment amount of $66,205.31). Appellant's suggestion that exceptional circumstances are not present tosupport vacating the Final Judgment pursuant to R. 4:50-l(f) is incorrect.

The Trial Court entered each Order after reviewing submissions by the parties and hearing oral argument. The Trial Court'sdecision to reopen and vacate the Final Judgment is supported by the Trial Court record, applicable case law and is consistentwith the standards of R. 4:50-1.

C. The Trial Court reviewed case law stating that: defective service of process in a tax sale foreclosure suit voids a FinalJudgment as to all defendants under R. 4:50-1.

Under New Jersey's Tax Sale Law, the failure by a foreclosing tax sale certificate holder to properly join or serve a party whomay exercise the power of redemption voids the judgment of foreclosure as to “all” parties. M & D Associates v. Mandara,366 N.J. Super. 341, 350 (App. Div. 2004); Robinson v. Shannon, A-1892-05T5, 2006 WL 2986549 (N.J. Super. Ct. App. Div.Oct. 20, 2006) (Da41).


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*24 The Trial Court acknowledged the holdings of the Appellate Division in M & D and Robinson, as follows:(1T) December 18, 2009

(1T13-8 through 11) THE COURT: The potential fear. I'll take another look at M & D, since that's a tax foreclosure case rightout of this vicinage, to see whether or not the facts here fall within those parameters.

(1T13 and 14-25 and 1 through 3) THE COURT: I have to look at M & D again. I looked at it and I reviewed the papers andthe arguments, and I have to admit I didn't read the case again with the same detail.

(5T) June 25, 2010

(5T7-10 through 19) MR. KESSLER: … I believe that these cases say that if one of the defendant's, final judgment is vacatedas to one of them, then it should be vacated as to all of them.

THE COURT: It's an unreported case [referring to the Robinson case]. It's not binding on me.

MR. KESSLER: It's not only that case, Your Honor, it's also M & D Associates -vs- Mandara.

THE COURT: I'll look for that in M & D, but I don't recall that being part of the M & D holding.

Defective service is fatal to a tax sale foreclosure, especially where there is potential for a significant windfall. *25 M &D, supra, 366 N.J. Super, at 449 (Appellate Division carefully scrutinized substitute service where there was a “tremendousdisparity” between the amount due on the tax certificates ($4,500) and the value of the property ($100,000 to $200,000));Robinson, supra, A-1892-05T5, 2006 WL 2986549 (Da41) (there was a large discrepancy of approximately $61,236.93(mortgage of $80,000.00 was due to a defeased lender, but final judgment in tax foreclosure was $18,763.07).

The Trial Court accepted supplemental briefs from Respondents which examined how the Appellate Division applied R. 4:50-1in M & D and Robinson. (Da27) (Da34) (2T2-7 through 11)

Appellant had ample opportunity to brief and argue the issues involved in this matter before the Trial Court. Unsatisfied withthe Trial Court's holding, Appellant now asserts that the Trial Court did not perform a proper R._ 4:50-1 analysis.

*26 II. SERVICE OF PROCESS ON DIPIKA DOES NOT CONSTITUTE VALID SERVICE UPON RAMESHAND KANTABEN BY WAY OF A LATER DISCOVERED POWER OF ATTORNEY RUNNING FROM RAMESHAND KANTABEN TO ANIL FOR THE PURPOSE OF OBTAINING A MORTGAGE ON THE PROPERTY.

A motion to vacate a default judgment for lack of service is governed by R. 4:50-l(d), which authorizes a court to relieve aparty from a final judgment if “the judgment or order is void.” A default judgment will be deemed void when a “substantialdeviation from service of process rules has occurred, casting reasonable doubt on proper notice.” Jameson v. Great Atl. & Pac.Tea Co., 363 N.J. Super. 419, 425 (App. Div. 2003). “If defective service renders the judgment void, a meritorious defense isnot required to vacate the judgment under R. 4:50-1(d).” Ibid.

“The requirements of the rules with respect to service of process go to the jurisdiction of the court and must be strictly compliedwith. Any defects … are fatal and leave the court without jurisdiction and its judgment void.” Berger v. Paterson Veterans TaxiServ., 244 N.J. Super. 200, 204 (App. Div. 1990) (quoting, Driscoll v. Burlington-Bristol Bridge Co., 8 N.J. 433, 493 (1952)).

Following Respondents' R. 4:50-1 Motion, Appellant pointed to a power of attorney given by Ramesh and Kantaben to Anilfor *27 the sole purpose of obtaining a mortgage loan secured by the Property.









The power of attorney was initially provided to Appellant in October, 2009, as an exhibit to Anil's Certification, withRespondents' R._ 4:50-1 Motion. The power of attorney was included for the purpose of explaining that Anil was advised byhis mortgage broker that the power of attorney, executed in India in 2006 and notarized in India by an Indian notary, wasinsufficient to obtain a mortgage on the Property from an institutional lender. (Pa53 at ¶10)

Anil asked his friend, Alohay A. Patel, a duly appointed New Jersey Notary Public, to re-notarize the 200 6 signatures ofRamesh and Kantaben when Alohay A. Patel visited India in August, 2009. (Pa53 at ¶11)

Despite the fact that the power of attorney was r/e-notarized in 2009, almost one (1) year after service on Dipika, and despitethe controlling case law, discussed below, the re-notarization of the power of attorney was invalid under N.J.S.A. 46:14-6.1(a)(2), which requires a New Jersey notary public to take acknowledgements in New Jersey. See also N.J.S.A. 46:2B-8.9; andN.J.S.A. 46-14.2.1 (a).

A. Appellant cannot fall back upon a later-discovered power of attorney to cure improper service of process upon Rameshand Kantaben.

*28 During the hearings before the Trial Court in 2009/2010, after becoming aware of the power of attorney, Appellant pointedto the power of attorney in an argument that the power of attorney could be used to validate service of process upon Rameshand Kantaben by the original service upon Anil's wife, Dipika in May, 2008. The power of attorney was prepared in India anddoes not specifically address acceptance of service for litigation. (Pa77) The power of attorney is silent as to acceptance ofservice of process.

A “power of attorney” is an instrument in writing by which one person, as principal, appoints another as his agent and confersupon him the authority to perform certain specified acts or kinds of acts on behalf of the principal. Bank of America, Nat. Trust& Sav. Ass'n v. Horowytz, 104 N.J. Super. 35, 38 (N.J. Co. 1968); see also N.J.S.A 46:2B-8.2.

The primary purpose of a power of attorney is not to define the authority of the agent as between himself and his principal, but toevidence the authority of the agent to third parties with whom the agent deals. Ibid, (citing 3 Am. Jur. 2d, Agency, s 23, p. 433).

In Palisades Collection, LLC v. Brown, A-2235-08T3, 2010 WL 5104824 (N.J. Super. Ct. App. Div. Dec. 15, 2010) (Da43) ,a recent, unpublished case, the Appellate Division refused to allow plaintiff to rely on a “broadly-worded” power of attorney*29 to prove proper service where plaintiff had no knowledge of the power of attorney when attempting to effectuate service.

The Brown Court stated, in relevant part, as follows:

As we have noted, plaintiff was unaware of Davis's status when it mailed the summons and complaint todefendant. Thus, it possessed no “evidence … of [her] agency authority,” and could not have relied, to itsdetriment, upon any apparent authority she had to accept service. Instead, plaintiff now seeks to justifyits failure to strictly comply with its service obligations under the Rule by relying upon facts that weresubsequently disclosed by Davis and defendant themselves. We find no inequity in denying plaintiff thisbenefit.

When Appellant attempted to serve Ramesh and Kantaben under R. 4:4-4 (a) (1) , Appellant had no knowledge of the powerof attorney, nor was any representation made that Dipika or Anil had the authority to accept service on behalf of Ramesh andKantaben, residents of India for sixteen (16) years, under a power of attorney. The basis of Appellant's defective service onRamesh and Kantaben was Appellant's incorrect assumption that Ramesh and Kantaben resided in the Property. Appellant is












attempting to fall back upon the power of attorney, recently discovered, which was inarticulately drafted in India and onlyintended for the purpose of obtaining a mortgage, to cure improper service of process on Ramesh and Kantaben.

*30 B. The power of attorney given by Ramesh and Kantaben to Anil, for the purpose of obtaining a mortgage on theProperty, did not expressly provide for acceptance of service of process for litigation.

The power bestowed upon Anil by his parents was intended for the purpose of obtaining a mortgage. Anil failed to obtaina mortgage. It was not contemplated by the parties that Anil would accept service on behalf of his parents in the event of aforeclosure action on the Property, which would have the effect of divesting Ramesh and Kantaben's interest in the Property.

In Local 617 v. Hudson Bergen Trucking, 182 N.J. Super. 16, a case relied upon by Appellant, the Appellate Division held thatan attorney who previously represented defendant in a related arbitration proceeding was not an appropriate person to receiveservice of process pursuant to R. 4:4-4(c) (1).

The Local 617 Court stated, in part, as follows:

The cases dealing with agency by appointment indicate that an actual appointment for the specific purposeof receiving process normally is expected. Accordingly, the mere fact that a person acts as a defendant' sagent for some purposes does not necessarily mean that he has authority to receive process.

Local 617, supra, 182 N.J. Super. at 20 (App. Div. 1981) (quoting Sections 1097 and 1101 of Wright and Miller, FederalPractice and Procedure: Civil).

*31 Contrary to Appellant's suggestion, the power of attorney does not have express language stating that Raiuesh andKantaben intended for Anil to accept service on their behalf.

Ramesh and Kantaben did not expect that the power of attorney would be used as a sword by Appellant to take their property fromthem. The purpose of the power of attorney was for Anil to obtain a loan from an institutional lender in exchange for a mortgageon the Property. (Pa53 at SI15 and 16) Ultimately, Anil was unable to obtain a mortgage on the Property as contemplated bythe power of attorney.

C. Additionally and/or alternatively, Anil's failure to obtain a mortgage on the Property had the effect of terminating thepower of attorney.

In addition and/or alternatively, the fulfillment of the purpose for which the power was created terminates the power.Restatement, Agency 2d §§ 106 to 110; Mechem, Agency § 260. Thus, a power that was intended for the purpose of obtaininga mortgage would not survive the subsequent execution of the mortgage, nor would it survive in the event the attorney-in-factfailed to obtain a mortgage.

D. Appellant did not fulfill its burden of diligent inquiry entitling it to the windfall of home ownership, in lieu of thestatutory 18% return Appellant is entitled to.

*32 Appellant had the burden of inquiring whether Ramesh and Kantaben were residents of the United States. R. 4:4-5 (b)states, in part, “the inquiry required by this rule [that service cannot be made within the State] shall be made by the plaintiff,plaintiff's attorney actually entrusted with the conduct of the action, or by the agent of the attorney …”.










Appellant originally attempted to serve Ramesh and Kantaben at their “dwelling place or usual place of abode” pursuant toR. 4:4-4(a)(1).

The Supreme Court has held a residence or domicile to be the place where the defendant is ”actually living' at the time whenservice is made. Feighan v. Sobers & Son, 84 N.J.L. 575, 576 (Sup. Ct. 1913); Kurilla v. Roth, 132 N.J.L. 213, 38 (Sup. Ct.1944). Ramesh and Kantaben were not properly served by Appellant at their “dwelling place or usual place of abode”, whichwas in India. See A&S Manufacturing Co. v. Wetzler, 110 N.J. Super. 565 (Ch. Div. 1970) (service of process was not properupon Defendant where service was made upon the wife at New Jersey residence where Defendant was under contract to sellNew Jersey residence, left to begin working in Canada, visited wife and child at the New Jersey residence on three or fourweekends between the time he left for Canada and the date of service and signed a lease in Canada); see also Warfield v. Fisher,94 N.J. Super. 142 (Law Div. 1967) (substituted service *33 upon defendant's mother was not proper where defendant wasstudying in Germany and did not return regularly to parental home in New Jersey and did not maintain “usual place of abode”there); contra FMAC Loan Receivables v. Dagra, 288 F.R.D. 531 (E.D. /Va. 2005) (where plaintiff had earnestly tried to servedefendant, it was obvious that defendant was well aware of current suit and defendant intentionally concealed his whereaboutsin Pakistan, evading more than $80 million in unpaid loans allegedly obtained in an intricate pattern of fraudulent activity,defendant's motion to quash service was denied and the court granted plaintiff's motion allowing service on defense counsel).

Appellant failed to perform the due diligence which would entitle it to the windfall of property ownership.

The M & D Court stated, “[w]hether this situation might have required the hiring of an investigator rather than superficialchecking of phone directories and tax rolls is something we leave for future cases.” M & D, supra, 366 N.J. Super, at 449.

In the present matter the potential windfall is many times greater than in M & D. Appellant's inquiry, similar to the inquiry inM & D, consisted of reviewing a present owner deed, phone book and tax rolls. (Pal28) Appellant's ‘superficial’ inquiry shouldnot be considered sufficient for substituted *34 service on Ramesh and Kantaben, who have not resided at the Property orlived in the United States for sixteen (16) years.

As suggested by the M & D Court, where there is potential for a significant windfall in a tax foreclosure action combined withsubstituted service, the holder of the tax sale certificate should hire a private investigator as part of its due diligence in locatingall homeowner defendants.

Appellant has been fishing for a theory to prove effective service of process. Appellant originally attempted to serve Rameshand Kantaben pursuant to R. 4:4-4 (a)(1) at Respondents “dwelling place or usual place of abode”. However, Appellant assertedin the Trial Court that pursuant to .R. 4:4-4 (a) (4) , Anil is the managing agent of Ramesh and Kantaben by way of power ofattorney granted to Anil by his parents. (Da18) (1T5-20)

R. 4:4-4(a)(4) is intended for operators and managers of real estate held for business purposes. New Jersey case law has notstretched the interpretation of managing or general agent' to include authority that may be granted under a power of attorneyby a parent to a child with respect to a family home. The language of the statute is intended to apply to those involved withthe business of real estate operation and management.

*35 Anil advised his parents that the power of attorney was solely for the purpose of obtaining a mortgage on the Property(Pa53 at ¶15)

Even if service of process upon Anil would be considered acceptable, service of process was not made upon Anil. Service ofprocess was made upon Dipika. The subject power of attorney did not run to Dipika and Dipika had no authority to acceptservice on behalf of Ramesh and Kantaben.












Additionally, Appellant did not know of the existence of the power of attorney prior to entry of Final Judgment. Appellantshould not be rewarded for its failure to perform due diligence as to the actual residence of Ramesh and Kantaben by awardingAppellant ownership of the Property in lieu of the 18% return, which has been tendered to Appellant by Respondents.

E. The Final Judgment did not ‘fully encompass' the redemption rights of all the parties. Ramesh and Kantaben, whoarranged for redemption and actually redeemed the Property, should not foe divested of their interest in the Propertywithout having received notice of the Tax Foreclosure Suit.

Ramesh and Kantaben had no knowledge of the Tax Foreclosure Suit prior to the entry of Final Judgment. Upon being servedin India pursuant to the Hague Convention, Ramesh and Kantaben promptly filed an Answer and redeemed the Property withinthe time prescribed by the New Jersey Court Rules.

*36 In its brief Appellant argues, “[t]he only constitutional requirement of service of process is ‘notice reasonably calculated,under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to presenttheir objections.”’ Davis v. DND/Fidoreo, Inc. , 317 N.J. Super. 92, 98 (App. Div. 1998) (quoting Mullane v. Central HanoverBank & Trust Co., 339 U.S. 306, 314) (1950)).

Similar to the reasoning expressed by the Davis Court for the constitutional requirement for service of process, a final judgmentis properly reopened and vacated where it does not “fully encompass the redemptive rights of all the defendants” for failureby the foreclosing party to properly serve a party who may exercise the power of redemption, whether or not that party wouldhave actually redeemed. See M & D, supra, 366 N.J. Super. 356.

The Davis Court held that although service of process was not defective, the trial court's refusal to grant relief from the defaultjudgment under R. 4:50-1(f) was beyond the reasonable exercise of discretion and constituted legal error. The Davis Courtreinforced that “ [a] 11 doubts … should be resolved in favor of the parties seeking relief.” Davis, supra, 317 N.J. Super, at99 (quoting Manchini v. New Jersey Automobile Full Insurance Underwriting, 132 N.J. 330, 334 (1993) (citing *37 ArrowMfg Co. v. Levinson, 231 M.J. Super. 527, 534 (App. Div. 1989)).

The Davis Court stated, in relevant part, as follows:

Because defendants sought relief from a default judgment, their application should have been treated indulgently under Marder,supra. Furthermore, even though the service was valid, there was undeniably doubt about defendants' actual receipt of theprocess; and, in that event, where the relief sought is not dismissal of the complaint but vacation of the default judgment, wehave previously said that if “there is at least some doubt as to whether the defendant was in fact served with process, we thinkthe circumstances require a more liberal disposition of” the motion. Goldfarb v. Roeger, 54 N.J. Super. 85, 92 (App. Div. 1959);see also Garley v. Waddington, 177 N.J. Super. 173 (App. Div. 1981) In that regard, even though the neglect was inexcusable,the absence of evidence establishing willful disregard of the court's process is an important consideration. Mancini, supra, 132N. J. at 336.

Davis, supra, 317 N.J. Super. 100-01 (emphasis in original)

In the present action Ramesh and Kantaben did not have knowledge of the Tax Foreclosure Suit prior to the entry of FinalJudgment. Ramesh and Kantaben were not put on notice of the Tax Foreclosure Suit and did not have the opportunity to redeemthe Property prior to the entry of Final Judgment.

*38 Doubts about service of process have led New Jersey Courts to view a motion to vacate under R._ 4:50-1 with liberality.See Davis, supra, 317 N.J. Super. 92.














In M & D, two brothers, Philip and Carmelo Mandara, purchased a property in Paterson, New Jersey. Thereafter, the holder offour (4) tax sale certificates on the property obtained a final judgment of foreclosure against the Mandaras. Proper service wasmade on Philip Mandara by serving his seventeen (17) year old stepdaughter. Personal service was attempted on Carmelo at thesame address, but was unsuccessful because Carmelo did not live there. Personal service upon Carmelo was never completedand service by publication was therefore attempted.

The M & D Court stated, in part, as follows:

We are of the view that particularly in situations like the one involved in this case, where there is substitutedservice, as well as tremendous disparity between the amount due on the tax certificates and the value ofthe property subject to foreclosure (here approximately $4,500 versus potentially $100,000 to $200,000 forthe property), careful scrutiny of the affidavit of inquiry requires the Chancery Judge to demand more thancursory inquiries or recitals not only as a matter of due process, but also of fundamental fairness. See Bron v.Weintraub, 42 N.J. 87, 93-96 (1964). The Chancery Judge in such foreclosure cases should be alerted whenthe face of the documentation indicates that a significant windfall might result if *39 adequate scrutinyof the affidavit of inquiry is not undertaken.

M & D, supra, 366 N.J. Super, at 354.

As a result, the Appellate Division concluded that the entire judgment of foreclosure was void, given that Carmelo Mandara,if properly served, could have redeemed and title would not have been transferred.

In M & D, the Appellate Division reopened and vacated the final judgment entered on April 27, 2000, which the Mandaras didnot attempt to vacate until February 21, 2003, almost three (3) years after entry of Final Judgment. The Court found that “theoperation of the tax sale law requires that the entire judgment must be vacated as void based upon equitable considerations,despite that fact that only Carmelo suffered defective service.” Id. at 356.

Although the present action does not involve defendants served by publication, this action involves substantial defects in serviceof process combined with exceptional circumstances under R. 4:50-1 (a) , (d) and (f) , rendering the Final Judgment void.

*40 III. ANIL PATEL EARNESTLY BELIEVED HE WOULD HAVE HIS DAY IN COURT AND WOULDBE ABLE TO OBTAIN A LOAN IN EXCHANGE FOR A MORTGAGE IN ORDER TO PAY OFF THE REALESTATE TAXES ON THE PROPERTY. IT WOULD BE INEQUITABLE FOR THE COURT TO PREVENTRAMESH AND KANTABEN FROM REDEEMING THEIR PROPERTY IF ANIL WAS SUBJECT TO THEFINAL JUDGMENT UNDER THE DOCTRINE OF UNCLEAN HANDS AND/OR ESTOPPEL.

Anil is currently employed at Home Depot. (Pa53 at ¶27) During the pendency of this action, Anil has applied for two (2)Hardship Withdrawals with Home Depot, completely decimating his retirement savings. (Pa53 at ¶26 and 27).

Anil attempted to take out a mortgage to satisfy the tax sale certificates held by Appellant. Anil wrote two (2) letters to theCourt pleading for extra time and describing his efforts to redeem the Property. (Pa53 at 8119 and 23)

Anil did not receive a loan in time to redeem the Property because his elderly parents could not wait on the long lines in Indiato have the necessary documentation notarized and Appellant would not grant the Patels an extension. (Pa53 at 3110)

Anil arranged for a friend and a duly appointed New Jersey Notary Public to notarize Ramesh and Kantaben's signatures on apower of attorney during the friend's trip to India on August 6, 2009, after entry of Final Judgment in this matter. (Pa53 at ¶11)







Anil wrote a letter to the Court dated August 7, 2009. *41 Anil's letter requested a thirty (30) day extension to receive paperworkfrom India necessary to obtain a mortgage and pay off the tax liens. Anil received no response to this letter. (Pa53 at 319 and 20)

Anil wrote a second letter to the Court, on September 17, 2009, stating that he had received the necessary documentation fromIndia and requesting a letter from the Court so that Anil could obtain a mortgage to pay off Appellant. Anil received no response.(Pa53 at ¶23)

Anil believed he would receive his day in Court to resolve this matter and establish a plan to pay the tax liens before the housethat he lives in with his family was taken away from him. (Pa53 at 124 and 25)

Neither Ramesh nor Kantaben were aware of the Tax Foreclosure Suit prior to the entry of Final Judgment. (Pa53 at ¶16)

Even if the Court were to find that Anil is barred by the doctrine of unclean hands and/or is estopped from reopening andvacating the Final Judgment, there is no evidence in the Trial Court record to support Appellant's allegation that Ramesh andKantaben should be barred from reopening and vacating the Final Judgment due to Anil's actions.

*42 After being served in India pursuant to the Hague Convention, Ramesh and Kantaben filed an Answer within the timeprescribed by the New Jersey Court Rules. (Pa27)

Ramesh and Kantaben arranged for redemption of the Property within the time prescribed by the New Jersey Court Rules. Anil,Ramesh and Kantaben received a loan in the amount of $100,000.00 from Manu Patel. Manu is the brother of Kantaben, thebrother-in-law of Ramesh and uncle of Anil. (Pa171)

Respondents' Property is valued by the City of Passaic, based upon its equalization ratio, at over $385,000, calculated with2010 ratio and assessment. (Pa53 at ¶8)

Appellant foreclosed on tax sale liens it held on the Property in the original amount of $66,205.31. (Pa53 at 530)

Appellants have redeemed their family home in the total amount of $101,946.24 (inclusive of interest at 18% per annum), whichsum includes attorneys' fees awarded by the Trial Court in the amount of $4,452.55. (Dal)

The difference between the value of the property ($385,000) and the final redemption amount ($101,946.24) is approximately$283,053.76. This appeal is an attempt by Appellant to seek the windfall of the Property, in lieu of the statutory 18% perannum return on the subject tax sale certificates (which sums Respondents have already tendered to Appellant). The value ofthe Property, as indicated by the City of Passaic, is *43 approximately 378% of the final redemption amount fixed by theTrial Court.

Appellant's argument that Anil's actions should bar Ramesh and Kantaben from redeeming the Property is unsupported by NewJersey case law and would be inequitable. Appellant has not cited any cases supporting this legal theory.

Ramesh and Kantaben did not arrange for redemption of the Property prior to the entry of Final Judgment because Appellantfailed to properly serve or provide adequate notice of the Tax Foreclosure Suit at Ramesh and Kantaben's actual residence inIndia.

In M & D the Court stated, “[h]ere, there is insufficient reason to apply estoppel. A motion to vacate filed in 2003 for a 2000judgment is not estopped simply by the passage of time if Carmelo Mandara had no notice prior to the fall of 2002, and therewas a question of jurisdiction.” The M & D Court found that substitute service of process upon Philip Mandara, the brother ofCarmelo Mandara, was properly effectuated by leaving the summons and complaint with his seventeen-year-old stepdaughter



at his address. The M & D Court did not attribute service on Philip Mandara, his knowledge of the tax sale foreclosure action,or Philip's inaction to his brother, Carmelo.

*44 In vacating the default judgment the M & D Court held, in part, as follows:

In view of our decision, the operation of the tax sale law requires that the entire judgment must be vacatedas void based upon equitable considerations, despite the fact that only Carmelo suffered defective service.The tax sale law is clear that any-eligible individual is entitled to redeem, and upon such redemption thecertificates are cancelled. The transfer of title is contingent upon the non-redemption of the certificates atthe time of judgment. Therefore, Carmelo could have unilaterally prevented the entire transfer of title hadhe had notice of the action and timely redeemed. While Carmelo could have redeemed at any time, evenprior to the action, M & D still purported to obtain title by a judgment that did not fully encompass theredemptive rights of all the defendants. Because M & D could have been prevented from obtaining anyownership interests by Carmelo's exercise of his redemption rights, we are satisfied that the entire judgmentmust be vacated.

M & D Associates v. Mandara, 366 N.J. Super. 341, 356-57 (App. Div. 2004)

Ramesh and Kantaben could have redeemed their Property had they been properly noticed. The Final Judgment did not ‘fullyencompass' the redemptive rights of all of the Defendants and was therefore properly vacated by the Trial Court. Neither Rameshnor Kantaben were given the opportunity to redeem the Property prior to the entry of Final Judgment.

*45 Appellant has attempted to cast Ramesh and Kantaben's redemption of their family home as the equivalent of an“intermeddler” or “heir hunter” who has purchased a tax sale certificate as an investor for nominal consideration after the filingof the tax foreclosure complaint.

The amount for redemption of the Property was fixed by the Trial Court, which sum included the statutory 18% return. Whenproperly served and noticed of the Tax Foreclosure Suit on their Property, Ramesh and Kantaben arranged for redemption ofthe Property.

Appellant, as a seasoned investor in tax sale certificates, is now seeking the windfall of divesting the Patels of the Propertywhere Anil, Dipika and their two (2) children live.

Appellant has suggested that vacating the Final Judgment could lead to a public policy whereby a “trap” and “whole newbusiness model” would be established for lien holders attempting to foreclose.

Contrary to the hypothetical “business model” imagined by Appellant, Respondents did not transfer an interest in the Propertyfor the purpose of evading service. Ramesh and Kantaben have owned the Property since February, 1985, prior to Appellantpurchasing the tax sale certificates or filing its lis pendens.

It would be inequitable to divest Ramesh and Kantaben of their interest in the Property without notice and the *46 opportunityto redeem the Property. Doing so would promote a more relaxed standard for service of process in a tax foreclosure action.

*47 IV. APPELLANT WAS ORDERED TO “SERVE RAMESH AND KANTABEN WITH COPIES OF THESUMMONS AND COMPLAINT IN THIS MATTER VIA PERSONAL SERVICE.” APPELLANT CHOSE TOEFFECTUATE SERVICE OF PROCESS UPON RAMESHA AND KANTABEN IN INDIA PURSUANT TO THEHAGUE CONVENTION.




A motion to vacate a default judgment for lack of service is governed by R._ 4:50-l(d), which authorizes a court to relieve aparty from a final judgment if “the judgment or order is void.” “A default judgment will be considered void when a substantialdeviation from service of process rules has occurred, casting reasonable doubt on proper notice.” Jameson v. Great Atl. & Pac.Tea Co., 363 N.J. Super. 419, 425 (App. Div. 2003). “If defective service renders the judgment void, a meritorious defense isnot required to vacate the judgment under R. 4:50-1(d).” Jameson v. Great Atl. & Pac. Tea Co., supra, 363 M.J. Super, at 425.

The New Jersey Court Rules do not allow for service of process on a daughter-in-law at the former place of abode of individualswho have not resided at the premises or in the United States for sixteen (16) years. In addition, the daughter-in-law is not anowner of the premises.

R. 4:4-5 specifically provides methods for service of process, consistent with due process of law, when a defendant cannotbe served within the United States. R._ 4:4-5 (a) authorizes service of process in accordance with *48 R. 4:4-4(b)(1)(B).R. 4:4-4(b)(1)(B) provides for personal service outside of the United States “in accordance with any governing internationaltreaty or convention to the extent required thereby …”. Service of process abroad can be effected in India in accordance withthe Hague Convention on the Service Abroad of Judicial and Extra Judicial Documents in Civil and Commercial Matters (the“Hague Convention”).

As discussed in detail in Point II above, Appellant has been fishing for a theory to prove effective service of process.

Appellant first attempted to serve Ramesh and Kantaben by UPS on January 15, 2010, but was unsuccessful. (Pa122)

On March 26, 2010, the Trial Court filed an Order for Appellant to “immediately serve Ramesh and Kantaben Patel with copiesof the Summons and Complaint in this matter via personal service”. (Pa6)

On April 16, 2010, three (3) months after UPS service was attempted, Appellant forwarded the Complaint, along withappropriate documentation to the The Ministry of Law and Justice, Department of Legal Affairs in New Delhi, India in orderto effectuate service in accordance with the Hague Convention. (Pa144)

Ramesh and Kantaben received the Summons and Complaint at their home in India, pursuant to the Hague Convention, on orabout May 24, 2010. (5T3-22)

*49 Appellant had the burden of inquiring whether Ramesh and Kantaben were residents of the United States. R. 4:4-5(b)states, in part, “the inquiry required by this rule [that service cannot be made within the State] shall be made by the plaintiff,plaintiff's attorney actually entrusted with the conduct of the action, or by the agent of the attorney …”.

Ramesh and Kantaben had no knowledge of the within action prior to the entry of Final Judgment. Upon being served in Indiain accordance with the Hague Convention, Ramesh and Kantaben promptly filed an Answer and redeemed the Property withinthe time prescribed by the New Jersey Court Rules.

*50 V. APPELLANT WAS AWARDED ATTORNEYS' FEES AND COSTS AFTER THE SUBMISSION OFBRIEFS AND ORAL ARGUMENT AND THE ISSUANCE OF A WRITTEN OPINION IN THE TRIAL COURT.

THERE IS NO EVIDENCE OF A ABUSE OF DISCRETION' BY THE TRIAL COURT JUDGE. APPELLANTSHOULD NOT BE AWARED ANY FURTHER ATTORNEYS' FEES OR COSTS BECAUSE OF APPELLANT'SFAILURE TO PROPERLY SERVE OR PROVIDE PROPER NOTICE TO RESPONDENTS.

Appellant failed to properly serve Ramesh and Kantaben with the Complaint in Foreclosure.







Ramesh and Kantaben have lived in India since 1994. (Pa53 at ¶12) Had Ramesh and Kantaben been served properly byAppellant they could have redeemed the tax sale certificates held by Appellant prior to the entry of Final Judgment. See Robinsonv. Shannon, supra, A-1892-05T5, 2006 WL 2986549 (Da41) (citing M & D, supra, 366 N.J. Super. 341)).

In the Trial Court Appellant argued that under R. 4:42-9(a) (5) and R. 4:50-1 it was entitled to attorneys' fees and costs.

R. 4:42-9(a)(5) provides, in part, as follows:In an action to foreclose a tax certificate or certificates, the court may award a counsel fee not exceeding $500 per tax salecertificate in any in rem or in personam proceeding except for special cause shown by affidavit. If the plaintiff is other than amunicipality no counsel fee shall be allowed unless prior to the filing of the complaint the plaintiff shall have given not morethan 120 nor fewer than 30 days' written notice to all parties entitled to redeem whose interests appear of record at the time ofthe tax sale, by registered or certified *51 mail with postage prepaid thereon addressed to their last known address, of intentionto file such complaint. The notice shall also contain the amount due on the tax lien as of the day of the notice. A copy of thenotice shall be filed in the office of the municipal tax collector.

Respondents argued at the Trial Court that Appellant did not follow the procedures required by R. 4:42-9(a)(5) and Appellantwould be entitled at most to $1,000 in attorneys' fees, $500 per tax sale certificate.

Appellant failed to comply with the notice requirement of R. 4:42-9(a)(5). Appellant served Ramesh and Kantaben in Indiapursuant to the Hague Convention after the entry of Final Judgment. Neither Ramesh nor Kantaben were served with Appellant'sintention to file the complaint. The Rule is clear that no counsel fees are allowed unless, prior to the filing of the complaint,Plaintiff provides written notice of its intention to file such complaint.

N.J.S.A. 54:5-97.1 provides a similar notice requirement to R. 4:42-9(a)(5). N.J.S.A. 54:5-97.1 provides, in part, as follows:

No search fee, counsel fee or other fee related to the certified mailings shall be allowed a plaintiff … unless,prior to the filing of the complaint, the plaintiff shall have given 30 days'- written notice to the partiesentitled to redeem …

*52 Appellant's request for attorneys' fees and costs is based on equitable principals. Appellant alleges that R. 4:50-1 providesfor attorneys' fees and costs “upon such terms as are just”.R. 4:50-1 provides, in part, 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 froma final judgment or order for the following reasons: …

The Trial Court stated in its written opinion, in part, as follows:When relief is given from a default judgment the court is required to do so “upon such terms as are just.” John Reiner & Co.v. Dorsey Roofing Co., 187 N.J. Super. 51, 53 (Law Div. 1982) (citing R. 4:50-1) … As such, the expenses of locating andeffecting service on the defendants, in addition to defending the motion to vacate, justify the reasonable award of counsel feesand costs of $4,452.44.

(Pa18)









Appellant cites two (2) cases where New Jersey courts have imposed attorneys' fees and court costs in vacating defaultjudgments. Both cases cited by Appellant include situations where service of process by Plaintiff was proper and Plaintiffincurred attorneys' fees and costs due to Defendant's delayed response.

*53 Service of process in the present action was not properly effectuated on Ramesh and Kantaben and Appellant shouldtherefore be barred from collecting any further attorneys' fees and costs from Respondents. When properly notified of the withinaction Respondents arranged for redemption of the Property.

The language in R. 4:50-1, “upon such terms as are just”, should not be used to ascribe, from Appellant to Respondents,Appellant's legal fees and costs incurred as a result of Appellant's failure to properly serve Ramesh and Kantaben.

Appellant has attempted to improve its position from that of a tax lien holder, entitled to 18% interest on its investment, toproperty owner by windfall. Appellant seeks to become the beneficiary of the difference between the value of the Property andthe sums due on the tax sale certificates.

Appellant's legal costs were incurred in challenging Respondents' position that Respondents were entitled to vacate the FinalJudgment. Since October, 2009 Appellant has attempted to improve its position from that of a tax lien holder, entitled to 18%interest on its investment, to Property owner. Appellant calculatingly took this position due to the great disparity between thevalue of the Property (valued at over $385,000 by the City of Passaic) and the amount due on the tax sale certificates.

*54 Mr. Mainardi stated in his Certification in Support of Appellant's motion to fix the amount due for redemption, that he hasbeen representing Appellant and its affiliated companies in tax foreclosure suits for approximately 20 years. (Pal90) Appellant isan experienced investor in tax sale certificates and understood the risks and benefits in pursuing the subject tax sale foreclosure.It would be inequitable to permit Appellant to receive attorneys' fees and costs from Respondents as a result of a businessrisk Appellant took in attempting to improve its financial outcome, pursuing its efforts in the Trial Court and thereafter in theAppellate Court. Appellant has already received the benefit of its bargain, including 18% interest and $4,452.55 in attorneys'fees and costs, upon redemption of the Property.

There is no evidence that the Trial Court “arbitrarily reduced” the attorneys' fees and costs. The Trial Court awarded Appellant$4,452.55 in attorneys' fees and costs after hearing oral argument, reviewing the motion of Respondent and cross-motion ofAppellant to fix the amount due for redemption and issuing a written opinion. The Trial Court itemized the Foreclosure Costs,awarding Plaintiff $975.44 in Foreclosure Costs and $3,477.11 in attorneys' fees. (Pal5)

The Trial Court Judge stated in the written opinion, “[t]his Court, therefore, will award Attorney's fees and costs *55 in theamount of $4,452.55 in recognition of the very special set of circumstances and unusual amount of time counsel was requiredto spend in this case.” (Pal8)

The Trial Court Judge awarded Appellant reasonable attorneys' fees and costs in a situation where Respondents Ramesh andKantaben failed to redeem because they were not noticed of the Tax Foreclosure Suit.

Respondents believe this is the type of situation the Davis Court alluded to when it stated, “we note that there might be somecircumstances in which an award of attorneys' fees and costs would be inappropriate.” Davis, supra, 317 N.J. Super, at 102.

Appellant is seeking additional attorneys' fees in an effort to exploit Respondents' financial hardship and put redemption ofthe Property out of their reach.

An award of additional attorneys' would be inequitable to Respondents Ramesh and who had no notice of the within TaxForeclosure Suit.




*56 CONCLUSION

For the foregoing reasons, the decision of Hon. Margaret Mary McVeigh, P.J. Ch. of the Passaic County Chancery Divisionshould be upheld.

Respectfully submitted,

DAVID KESSLER & ASSOCIATES, L.L.C.

Attorney for

Defendants/Respondents,

David Kessler, Esq.

Dated: May 31, 2011

Appendix not available.

Footnotes1 Although the Trial Court was not copied on the December 12, 2010 letter, it has been submitted to show compliance with the Trial

Court's Order Fixing Amount for Redemption filed November 25, 2010. The letter is necessary for a full understanding of the issues

raised by Appellant, specifically, that the full redemption amount has been tendered by Respondent to Appellant.

2 Respondents' initial Brief, Appellant's Reply Letter Brief and two (2) of Respondents' Supplemental Letter Briefs are included as a

sample of the briefs submitted to the Trial Court almost exclusively on the application of R. 4:50-1. The briefs directly address the

issue of whether the Trial Court performed a R. 4:50-1 analysis. Only material pertinent to this issue was included in accordance

with R. 2:6-1(2).

3 See footnote 2 above.

4 See footnote 2 above

5 See footnote 2 above.

End of Document © 2016 Thomson Reuters. No claim to original U.S. Government Works.