PRO CAP II, LLC BY ITS CUSTODIAN US BANK VS. JAMES WILLIAMS (F-025248-15, ESSEX COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4406-18T1

PRO CAP II, LLC by its
CUSTODIAN: US BANK,

Plaintiff,

v.

JAMES WILLIAMS, MRS.
JAMES WILLIAMS, wife of
JAMES WILLIAMS, MONMOUTH
COUNTY TREASURER, NEWARK
BETH ISRAEL MEDICAL CENTER,
COLUMBUS HOSPITAL, EUGENE
DUKES, LANGTON E. BARTON,
CHRISTOPHER CHUDAKOWSKI,
TOMAR, SIMONOFF, ADOURIAN,
O'BRIAN, KAPLAN, JACOBY,
& GRAZIANO, CHRIST HOSPITAL,
EMMA VACCA, INTERBANK OF
NEW YORK n/k/a INVESTORS BANK,
HOUSEHOLD AUTOMOTIVE
FINANCE CORPORATION, FORD
MOTOR COMPANY, VINZINENT
MAIMONE, PETER J. MAIMONE,
NELSON TOBOLSKY, LANDMARK
AMERICA, INC., NEW JERSEY
PROPERTY LIABILITY INSURANCE
GUARANTY ASSOCIATION,
ADMINISTRATOR UNSATISFIED CLAIM
AND JUDGMENT FUND, ADINOLFI &
SPEVACK PA, NEW JERSEY
PROPERTY LIABILITY
INSURANCE GUARANTY
ASSOCIATION, MERCER COUNTY
PROBATION SERVICES, NEWARK
BETH ISRAEL MEDICAL CENTER,
PELLETTIERI RABSTEIN & ALTMAN,
ANTHONY BODY, THE TRUST
COMPANY OF NEW JERSEY n/k/a
CAPITOL ONE, NATIONAL
ASSOCIATION, GARDEN HOMES
MANAGEMENT, CUMBERLAND
INSURANCE, FORD MOTOR
CREDIT COMPANY, OIMH
RADIOLOGY GROUP, ALAN B.
CLARK MD, HOSPITAL & DOCTORS
SERVICE BUREAU, RAHWAY MRI,
MONTCLAIR COMMUNITY
HOSPITAL, PARKWAY MANOR
HEALTH CENTER, COUNTY OF
CAMDEN, UNIFUND CCR PARTNERS,
HOSPITAL CENTER AT ORANGE,
CALVARY PORTFOLIO SERVICES
LLC, ATLANTIC CREDIT AND
FINANCE, AFFINITY FEDERAL
CREDIT UNION, WILLIS MORTON,
ROY HENDRICKS, WALTER WISE,
FRANK GRAVES, CSC TKR, INC.
d/b/a CABLEVISION OF RARITAN
VALLEY, JACKSON HEWITT, INC.,
STATE OF NEW JERSEY and
UNITED STATES OF AMERICA,

Defendants,

and

A-4406-18T1
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901 SOUTH 18TH LLC and LOAN
FUNDER LLC SERIES 1968,

Intervenors-Appellants.
_______________________________

RASHID SAYYID,

Third-Party Plaintiff-
Respondent,

v.

THE CITY OF NEWARK,
ESSEX COUNTY SHERIFF'S
OFFICE, PRO CAP II, LLC, and
MOC SOUTH 18 LLC,

Third-Party Defendants-
Respondents.
____________________________

Argued telephonically March 24, 2020 –
Decided April 29, 2020

Before Judges Yannotti and Hoffman.

On appeal from the Superior Court of New Jersey,
Chancery Division, Essex County, Docket No. F-
025248-15.

Michael D. Malloy argued the cause for appellants 901
South 18th LLC and Loan Funder LLC Series 1968
(Finestein & Malloy, LLC, attorneys; Michael D,
Malloy, on the briefs).

Ariadna Peguero, Assistant Corporation Counsel,
argued the cause for respondent City of Newark

A-4406-18T1
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 (Kenyatta K. Stewart, Corporation Counsel, City of
Newark-Department of Law, attorney; Azeem M.
Chaudry, Assistant Corporation Counsel, and Ariadna
Peguero, on the brief).

Sylvia Hall, Assistant County Counsel, argued the
cause for respondent Essex County Sheriff's Office
(Courtney M. Gaccione, Essex County Counsel,
attorney; Sylvia Hall, on the brief).

Wanda M. Akin argued the cause for respondent Rashid
Sayyid (Wanda M. Akin & Associates, attorneys, join
in the brief of respondent City of Newark).

PER CURIAM

In this tax sale certificate foreclosure action, intervenors 901 South 18th LLC

(South LLC) and Loan Funder LLC Series 1968 (Loan Funder) appeal from

Chancery Division orders vacating the Sheriff's sale of the family home of

respondent Rashid Sayyid, who inherited the property as his father's sole intestate

heir, when his father died in 2012. In vacating the sale, the motion judge concluded

Sayyid redeemed the property before delivery of the Sheriff's deed.

On appeal, appellants contend the judge abused his discretion by vacating the

Sheriff's sale. They assert that while Sayyid may have had the right to redeem, he

did not validly redeem the property under the applicable provisions of our Tax Sale

Law (the Act), N.J.S.A. 54:5-1 to -137. Specifically, they contend that, under

N.J.S.A 54:5-98, once the foreclosure complaint was filed, redemption of the

A-4406-18T1
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property could have been made "in that cause only." Having considered the

arguments and applicable law, we affirm.

I

We glean the following facts from the record. James Williams, Sayyid's father,

owned a home (the home or the property) located on 18th Street in Newark. On

November 15, 2012, Sayyid became his father's legal guardian due to ongoing

medical issues. On November 26, 2012, Williams died intestate, leaving Sayyid as

his sole heir.

After his father died, Sayyid continued to reside in the home, but took no action

to administer his father's estate. Nor did he record a deed reflecting that he inherited

the home. Sayyid's family has lived in the home for over 40 years. He currently

resides there with his "significant-other," five young children, and a young adult who

suffers from "bipolar [disorder], epilepsy and has neurological impairment." Sayyid

recalled he began receiving notices from the City of Newark regarding overdue tax

payments "beginning in 2013 or 2014."

On February 8, 2013, Pro Cap II, LLC (Pro Cap) purchased the tax sale

certificate1 for the home issued by the City of Newark Tax Collector – due to

1
The Act provides a mechanism for individuals or entities to purchase tax liens
from municipalities and initiate foreclosure actions against property owners who

A-4406-18T1
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delinquent taxes, water and sewer charges. On June 16, 2015, Pro Cap sent a letter

to the property addressed to James Williams, indicating he had thirty days to redeem

the tax sale certificate or a foreclosure action would commence.

On July 20, 2015, Pro Cap filed its complaint commencing the foreclosure

action, naming "James Williams; Mrs. James Williams, Wife of James Williams" as

defendants, along with John Doe and Jane Doe. The complaint did not name the

"heirs" of James Williams as defendants. On July 22, 2015, Pro Cap attempted to

serve a copy of the summons and complaint on Williams. Sayyid accepted service

of the complaint. Thereafter, Pro Cap filed an affidavit of service, which verified

Sayyid told the process server that he was James Williams' son. It appears Sayyid

did not mention his father's passing.

On August 20, 2015, Sayyid attempted to file an answer to the complaint, signing

as "James Williams." The answer was marked received but not filed because Sayyid

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 [eleventh] 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, a certificate of tax sale is issued to the purchaser.
N.J.S.A. 54:5-46.

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failed to include a case information statement with the answer. On September 4,

2015, defendant filed the same answer, again signing it in his father's name.

On December 8, 2015, Pro Cap filed a second amended foreclosure

complaint adding approximately fifty additional defendants reflecting persons

and entities whose names appeared on a judgment search of James Williams'

name; however, this amended pleading again failed to include the heirs of James

Williams as defendants.

On May 24, 2016, Pro Cap filed a motion for entry of default and final

judgment in the tax sale foreclosure action. On June 29, 2016, the court entered

final judgment in favor of Pro Cap and against Williams for $24,950.50, plus

interest and counsel fees. A writ of execution issued on June 29, 2016.

On March 21, 2017, the home was sold at a Sheriff's sale to third-party purchaser

MOC South 18 LLC (MOC) for $66,000. Thereafter, the Sheriff's Office tendered

$32,044.25 to Pro Cap and sent the surplus of $32,394.78 to the Clerk of Superior

Court in Trenton. The Sherriff's commission for the sale, including fees, was

$3,678.50.

At the time of sale, James Williams remained the record owner of the home.

Sayyid did not move to intervene in the action nor was he present at the sale.

A-4406-18T1
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 Nevertheless, on April 19, 2017, Sayyid went to the office of the City of

Newark's Tax Collector and tendered $30,652.79, the amount the Tax Collector told

him was due in order to redeem the property. The Tax Collector accepted his tender

and issued a certificate of redemption.

Shortly after Sayyid purportedly redeemed the property, he claimed to have

spoken to an agent of MOC, who told him that her company owned the property.

This prompted Sayyid to go to the Sheriff's Office on April 24, 2017. According to

Sayyid, a person in the office told him he still had time to file a motion to vacate the

Sheriff's sale. The same individual also allegedly told him "[he] could file it

[himself] as [his] father's Legal Guardian or [he] could hire a lawyer to file it for

[him]."

On April 26, 2017, Sayyid attempted to file a motion to vacate the Sheriff's sale.

Under his father's name, he filed a "Certification in Support of Motion," which

referenced a motion to vacate sale; however, he was unsuccessful because the

motion was nonconforming under Rule 1:5-6(c)(1). Moreover, his certification of

service only named Pro Cap as a party.

The next day, on April 27, 2017, after Sayyid received his first certificate of

redemption, MOC received the Sheriff's deed for the property. On May 3, 2017,

Sayyid returned to the office of the City's Tax Collector because he continued

A-4406-18T1
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"receiving calls from people who claim they own my house." The office informed

Sayyid that he owed an additional $4,185.57, to be paid by May 31, 2017, in order

to successfully redeem the property. On May 12, 2017, MOC recorded its Sheriff's

deed for the property in the Essex County Clerk's Office. On May 30, 2017, Sayyid

paid the additional monies, which the Tax Collector accepted, and then issued a

second certificate of redemption to him.

Pro Cap, despite having knowledge of the Sheriff's sale, certified that – because

it was unaware of MOC's completion of the purchase and since over a month had

passed with the Sheriff failing to remit any funds – it endorsed the tax sale certificate

for cancellation and returned it to the Tax Collector in exchange for the redemption

proceeds.

On August 7, 2017, Pro Cap filed a stipulation of dismissal for the foreclosure

action. On August 24, 2017, MOC sold the property to South LLC for $125,000.

Loan Funder financed the purchase and took a first mortgage on the property. Sayyid

and his family remained in the property throughout this time.

On August 29, 2017, MOC filed an ejectment action seeking possession of the

property, MOC South 18 LLC v. Angelina Keamey, Rashid Sayyid, et. al, Docket

No. ESX-DC-17702-17. On September 21, 2017, the court dismissed the ejectment

action and advised MOC to seek a writ of possession under the foreclosure docket

A-4406-18T1
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number. Accordingly, on September 26, 2017, MOC applied for a writ of possession

in the foreclosure action. On October 2, 2017, the court denied the application

because Pro Cap previously dismissed the case. On October 4, 2017, MOC moved

to vacate Pro Cap's dismissal.

On October 27, 2017, Sayyid filed a motion to intervene and opposed MOC's

motion to vacate. On November 27, 2017, the court granted Sayyid's motion to

intervene, and on November 30, 2017, granted MOC's motion to vacate the

dismissal.

On December 7, 2017, Sayyid answered the second amended complaint in

foreclosure, counterclaiming against Pro Cap and filing a third-party complaint

against the City of Newark and the Essex County Sherriff's Office. South LLC then

filed a motion to strike defendant's answer, contending the final judgment in

foreclosure had never been vacated.

On January 24, 2018, the court entered an amended order vacating Pro Cap's

August 7, 2017 dismissal and permitting South LLC to file a writ of possession;

however, the parties were to take no further action regarding possession of the

property pending further court order.

A-4406-18T1
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 On January 29, 2018, Sayyid filed a motion to vacate the June 29, 2016 default

judgment in foreclosure and to set aside the Sheriff's sale. On June 6, 2018, the

motion judge held a hearing on defendant's motion.

At the hearing, Sayyid, while acknowledging some degree of fault, took the

position that he was an unsophisticated party who lacked understanding of the

situation, and that, once he realized what had occurred, Pro Cap and the Sherriff's

Office – who had control and knowledge of all parties' positions – allowed him to

redeem. Furthermore, since he did everything as instructed, any procedural bar

should be set aside due to "equitable circumstances."

Pro Cap continued to contend it had no knowledge of MOC's completed purchase

after the Sheriff's sale because it never received a deposit. As a result, when the

Sheriff's Office communicated that Sayyid was attempting to redeem the property,

it accepted the redemption.

MOC and South LLC took the position that Sayyid received proper notice from

the outset of the matter and the court should consider his actions. They further

asserted, citing N.J.S.A. 54:5-98, that once a foreclosure action on a tax lien

commences, the only method for proper redemption was by filing with the court in

the existing foreclosure action. Therefore, they contended Pro Cap and the Sherriff's

A-4406-18T1
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Office had no authority to accept Sayyid's redemption once the foreclosure action

commenced.

On October 25, 2018, the motion judge placed his oral decision on the

record. The judge considered the motion to vacate judgment before him under

Rule 4:50-1. Addressing the parties' arguments, he first found the City's Tax

Collector and Pro Cap properly served Sayyid throughout the foreclosure

process. He also took note of Sayyid's failure to probate his father's estate,

record the deed, and notify the parties of his father's passing. Accordingly, the

judge concluded defendant could not vacate the judgment based on excusable

neglect or exceptional circumstances based on his lack of legal training because

"[a] property owner knows that he must pay taxes on his property and that if he

fails to do so the municipality will sell the property[.]"

Next, the motion judge turned to defendant's equitable argument.

The Chancery Division of course has the authority to set
aside a [S]heriff sale and order a resale of property. [First
Trust Nat. Assoc. v. Merola, 39 N.J. Super. 44 (App. Div.
1999).] The [courts] have recognized that such sales may
be set aside by reasons of fraud, accident, surprise, or
mistake, irregularities in the conduct of the sale and so on.
But, caution that a judicial sale is not ordinarily vacated on
the grounds of mistake flowing from a moving party's own
culpable negligence.

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The judge further noted that "courts have established that redemption may be

made at any time prior to the delivery of the sheriff's deed[,]" citing Mercury

Capital Corp. v. Freehold Office Park, Ltd., 363 N.J. Super. 235 (Ch. Div. 2003).

The motion judge concluded Sayyid's redemption was not barred, finding he

redeemed the property before the Sheriff issued the deed to MOC. He

considered it irrelevant that a balance remained after the initial tender because

Sayyid, each time, paid exactly what the Sherriff's Office advised him to pay.

In response to the appellants' argument that N.J.S.A. 54:5-98 controlled, the

judge reasoned that, when balancing the equities, owners and heirs are

differently situated, and therefore treated differently, as compared to third -party

purchasers. Furthermore, while Sayyid failed to pay the redemption amount in

the action, "the payment was made in the case because [Pro Cap] obviously

entered into a voluntary dismissal settling the case because of the payment that

was made."

As a result, after balancing the equities and considering the actions taken by

all parties, the motion judge set aside the Sheriff's sale, entering an order the

same day. The court later issued an order dated April 30, 2018, which clarified

the October 25, 2018 order and provided further directives to the parties. This

appeal followed.

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 II

South LLC and Loan Funders continue to contend the Act required Sayyid

to first intervene in the foreclosure action and then get approval from the court

to redeem the property. They argue that requiring "redeemers" to intervene in

the action advances the goals of notice and transparency.

We review a trial court's order regarding intervention in a tax sale

foreclosure under an abuse of discretion standard. Town of Phillipsburg v. Block

1508, Lot 12, 380 N.J. Super. 159, 172 (App. Div. 2005). An abuse of discretion

occurs where a decision is made "without a rational explanation, inexplicably

departed from established policies, or rested on an impermissible basis." Flagg

v. Essex Cty. Prosecutor, 171 N.J. 561, 571 (2002) (quoting Achacoso-Sanchez

v. Immigration & Naturalization Serv., 779 F.2d 1260, 1265 (7th Cir. 1985)).

As noted by the City of Newark, this case does not involve the actions of a

third-party to redeem in a foreclosure action by acquiring an interest in the

property during the pendency of the foreclosure action; instead, this matter

involved Sayyid's redemption of his own property, which he acquired upon the

death of his father.

In Simon v. Cronecker, 189 N.J. 304, 335-36 (2007), our Supreme Court

interpreted the redemption statute, N.J.S.A. 54:5-98, to generally require that a

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person who seeks to redeem a tax certificate, whether directly or indirectly, to

intervene in the foreclosure action to allow for the protection of property own ers

through judicial oversight of the foreclosure process. The Court reasoned that

this interpretation gives effect to the Legislature's goal of protecting distressed

property owners from predatory third-party investors, who might seek to acquire

the homeowner's property interest for "nominal value" and redeem the property

for themselves. Id. at 323-24, 336. Although the Court observed that the

conduct of the third-party investor in Cronecker did not violate "a social policy

embodied in the Tax Sale Law," it found that the investor was still required to

intervene in the foreclosure case to permit judicial oversight of the transaction

because it obtained a property interest. Id. at 328, 337.

This court later applied Cronecker to a situation involving close family

friends of a homeowner who had lent the owner money that was used to redeem

a tax certificate. Phoenix Funding, Inc. v. Krute, 403 N.J. Super. 261, 264-65

(App. Div. 2008). Notably in Krute, the friends were interested in acquiring the

property themselves from the homeowner, who herself was looking to dispose

of the house, which had fallen into disrepair. Id. at 265. The friends purchased

the property shortly after it was redeemed. Id. at 264. We held in Krute that "the

obligation to intervene extends to one who redeems 'indirectly' through an

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arrangement of [this sort,]" reasoning that Cronecker "directs courts not to

overlook the reality of the transaction" in determining whether a third party

sought to redeem a tax certificate "indirectly" through the homeowner. Id. at

267.

Nevertheless, the Supreme Court in Cronecker made clear that only those

parties who acquire or intend to acquire a property interest by facilitating

redemption need to intervene in the tax foreclosure action. Cronecker, 189 N.J.

at 336. The Court explicitly and repeatedly discussed "interested" third parties

throughout its opinion. Id. at 337. Its reasoning was premised on the need to

protect property owners from such third parties because of the ownership

interest such third parties seek to acquire:

In the post-foreclosure complaint stage, the
requirement that a person, directly or indirectly,
seeking to redeem a tax certificate "be admitted as a
party to such action" permits judicial oversight of the
adequacy of consideration offered for the property
interest.

By forbidding an interested investor, who is not a party
to the foreclosure action from "indirectly" seeking
redemption, we intend to interdict the myriad
machinations that a creative mind might devise to elude
the Tax Sale Law.

[Id. at 336. (citations omitted)]

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 Plaintiff's assertion that a property owner must intervene, regardless of

owning the property, contradicts both the Court's reasoning in Cronecker, as

well as the public policy and legislative intent of the Act. The specific evil the

Legislature sought to address in N.J.S.A. 54:5-98 are the acts of predatory third

parties who seek to take advantage of distressed property owners. Cronecker,

189 N.J. at 323-24, 336. A property owner who redeems his own property does

not implicate the Legislature's concern.

The case before the motion judge presented such circumstances. Because

Sayyid owns the property in question, he was not required to intervene in the

foreclosure proceedings in order to effect redemption. The Tax Collector

accepted Sayyid's payments twice and issued two separate certificates of

redemption. This led Sayyid to believe his actions were proper. Moreover, Pro

Cap, which filed the foreclosure action, was compliant in allowing defendant's

redemption. Therefore, the equitable result reached here was not an abuse of the

motion judge's discretion. We find no reason to disturb the motion judge's

equitable resolution.

Affirmed.

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