City of Atlantic City v. Block C-11, Lot 11

• Decision Date: 09 June 1977
• Docket Number: LOT,C-11
• Citation: 74 N.J. 34,376 A.2d 926
• Parties: CITY OF ALANTIC CITY, in the County of Atlantic, a Municipal Corporation of the State of New Jersey, Plaintiff-Respondent, v. BLOCK11, Defendant, and Rose Schoenthal, Appellant.
• Court: New Jersey Supreme Court

Page 34

74 N.J. 34

376 A.2d 926

CITY OF ALANTIC CITY, in the County of Atlantic, a Municipal

Corporation of the State of New Jersey, Plaintiff-Respondent, v. BLOCK C-11, LOT 11, Defendant, and Rose Schoenthal, Appellant.

Supreme Court of New Jersey.

Argued Oct. 25, 1976.

Decided June 9, 1977.

Stephen Hankin, Atlantic City, for appellant.

Daniel J. Dowling, Atlantic City, for plaintiff-respondent (Murray Fredericks, Atlantic City, attorney).

The opinion of the court was delivered by

PASHMAN, J.

This is a companion case to Township of Montville v. Block 69, Lot 10, et al., 74 N.J. 1, 376 A.2d 909 (1977) decided this day. Although the landowner in this case similarly challenges the constitutionality of notice requirements embodied in the In Rem Tax Foreclosure Act, N.J.S.A. 54:5-104.29 et seq., she also questions the applicability of that statute to her property and asserts various procedural reasons in support of her motion to reopen a final judgment of foreclosure in favor of the plaintiff, City of Atlantic City, under the Act. Both lower courts denied her motion, and we granted certification, 69 N.J. 394, 354 A.2d 322 (1976). We affirm the denial of appellant's motion.

I

This suit involves a parcel of land designated as Block C-11, Lot 11 on the Atlantic City tax map. The Synor Company purchased the property on April 12, 1938. Although that corporation subsequently became defunct, municipal tax records have always listed the record owner of the property as "Synor Co.," with a mailing address of "Hotel Mark, 3100 Pacific Ave., Atlantic City, N.J."

The appellant, Mrs. Rose Schoenthal, filed an affidavit asserting that the property had previously been owned by her husband, Sylvan Schoenthal. She alleges that he conducted a hotel on the premises until 1960, when they were divorced. She asserts that, although no deed ever passed to her and the property technically still belongs to the defunct corporation, as "part of the divorce proceedings . . . the property in question * * * became (her) property." In support of her claim that she is the real party in interest, she states that since 1960 she has continuously dealt with the parcel as her own, paying taxes on it from 1960 to 1965. She applied for a tax deduction in her own name in 1962 and 1964, and received a refund in 1963 for an overpayment on her 1961 property tax. In 1972, appellant obtained a municipal permit and demolished the deteriorating building. Later that year she applied for and received a reduction in her building assessment from $49,100 to $25,000.

The arrearages on the property began to accumulate as early as 1965. Appellant received a notice of default with her 1967 tax bill and a warning that her property might be sold for unpaid taxes. The City did in fact conduct a tax sale of the premises on September 19, 1967, purchasing the property itself for unpaid 1966 taxes plus interest aggregating $5,209.40. A tax sale certificate noting the sale was recorded on January 15, 1968.

Mrs. Schoenthal paid no part of the 1966 or any subsequent tax bills. As of November 30, 1972, the total taxes and interest due amounted to $52,579.57. She alleges that the property was worth $135,000 at that time. Appellant contends that she offered to pay $5,000 toward her tax bill on July 10, 1970, but was refused by the Deputy Tax Collector. In an answering affidavit, he denied appellant's allegations and asserted that had she offered to pay any part of the taxes, he would have referred her to the Tax Collector or the Director of Revenue and Finance.

On January 8, 1973 the City instituted in rem tax foreclosure proceedings to bar any rights of redemption in the property. Both the complaint in the action and the foreclosure notice listed Synor Co. as the "record owner" and the "transferee of purchaser of title." R. 4:64-7. This notice was published and posted in accordance with N.J.S.A. 54:5-104.42 and R. 4:64-7(b), (d). Additionally, an affidavit was filed on behalf of the City alleging that a copy of the foreclosure notice was mailed on February 24, 1973 "to each person whose name appears as an owner in the Tax Foreclosure List, at his last known address as it appears on the last municipal tax duplicate * * *."

The Chancery Division entered a final judgment of foreclosure on May 23, 1973. Claiming to have learned of the proceeding in late September, Mrs. Schoenthal filed a motion to vacate the judgment on November 3, 1973. It was denied on March 30, 1974. In an unreported opinion, the Appellate Division affirmed the trial court's denial of the motion, holding (1) that appellant had no standing to contest the foreclosure; (2) that the notice provisions of the foreclosure act were constitutional under City of Newark v. Yeskel, 5 N.J. 313, 74 A.2d 883 (1950), and that the City was not bound to send notice of the proceeding to her; (3) that her alleged tender of part payment, even if proven, would not have affected the validity of the proceeding; and (4) that the Act was intended to authorize foreclosure of all real property, not just vacant land, for tax arrearages. ¹

II

Appellant's primary argument is that she has been denied procedural due process under the foreclosure statute. As in Montville v. Block 69, Lot 10, et al., supra, this contention is grounded on the statute's failure to require individualized notice to taxpayers of record. However, a major difference between the facts of this appeal and those presented in that companion case turns upon the notice which was actually given to the Synor Co. as the owner of record.

Appellant in this case has made no attempt to rebut the City's assertion that it sent notice by mail to each person whose name appeared on the Tax Foreclosure List. See ante at 927. She concedes that title to the property has been continuously recorded in the municipal tax roles under the name "Synor Co." and that the company's address has been listed as "Hotel Mark, 3100 Pacific Avenue." However, she contends that the City made it a practice to send two sets of tax bills, one to the company at its official address and another to her at her home address. She also notes that the City was apprised of her claim to the property through her attorney's efforts to reduce the building's assessment in 1972. Thus, she argues that additional notice of the foreclosure proceeding should have been sent directly to her address or to her attorney's address.

Mrs. Schoenthal's argument goes substantially beyond the Supreme Court's holding in Mullane, and would place on a municipality the affirmative duty of ascertaining whether the name and address listed on its tax roles are correct. In Mullane v. Central Hanover Bank & Trust Co., the Court recognized that administrative limitations might hamper notification efforts, and stated that "impracticable and extended searches are not required in the name of due process." 339 U.S. 306 at 317-18, 70 S.Ct. 652 at 659, 94 L.Ed. 865 at 875. Significantly, the Court there overruled any constitutional objections to published notice raised on behalf of persons whose interests or addresses were unknown, and limited relief to "known present beneficiaries of known place of residence." Id. See also, Nelson v. New York, 352 U.S. 103, 108, 77 S.Ct. 195, 198, 1 L.Ed.2d 171, 175 (1956) (rejecting a similar argument that municipal authorities "should have known from the state of the records . . . that mailed notice would probably be ineffective.")

Alternatively, appellant relies on the notion that the validity of the foreclosure proceedings must be judged by the notice prescribed under the statute, and not by that which may have actually been given. Various cases have adhered to this position. E. g., Wuchter v. Pizzutti, 276 U.S. 13, 24, 48 S.Ct. 259, 262, 72 L.Ed. 446, 452 (1928); Coe v. Armour Fertilizer Works, 237 U.S. 413, 424-25, 35 S.Ct. 625, 629, 59 L.Ed. 1027, 1031-32 (1915); Security Trust & S. V. Co. v. Lexington, 203 U.S. 323, 333, 27 S.Ct. 87, 89, 51 L.Ed. 204, 208 (1906); Rixner v. White, 417 F.Supp. 995, 997 (D.N.D.1976); State v. Standard Oil Co., 5 N.J. 281, 74 A.2d 565 (1950) (Vanderbilt, J., dissenting), aff'd on other grounds, 341 U.S. 428, 71 S.Ct. 822, 95 L.Ed. 1078 (1951); Weiner v. Wittman, 129 N.J.L. 35, 27 A.2d 866 (Sup.Ct.1942). But see, Aikins v. Kingsbury, 247 U.S. 484, 489, 38 S.Ct. 558, 560, 62 L.Ed. 1226, 1229 (1918); Wuchter v. Pizzutti, supra, 276 U.S. at 28, 48 S.Ct. at 264, 72 L.Ed. at 453 (Brandeis, Holmes, JJ., dissenting). But cf., Harris v. Balk, 198 U.S. 215, 227, 228, 25 S.Ct. 625, 628, 49 L.Ed. 1023, 1028 (1905). However, this position seems to have been abandoned by the United States Supreme Court in Botens v. Aronauer, 414 U.S. 1059, 94 S.Ct. 562 38 L.Ed.2d 464 (1973), dismissing appeal from 32 N.Y.2d 243, 344 N.Y.S.2d 892, 298 N.E.2d 73 (1973). Although the latter case involved a challenge to a statute which prescribed only published notice, it was dismissed for want of a substantial federal question because, as here, notice by mail was actually sent. See Montville v. Block 69, Lot 10, et al., 74 N.J. at 1, 376 A.2d 909.

Furthermore, the principal case upon which appellant relies Wuchter v. Pizzutti, supra involved a scheme which failed to make any provision for constitutionally adequate notice. Thus, the Court was able to say that since the notice which was actually given in that case was not contemplated by the statute, it could not "supply constitutional validity to the statute or to service under it." 276 U.S. at 24, 48 S.Ct. at 262, 72 L.Ed. at 452. Apparently, the Court concluded that the failure to provide anywhere for adequate notice was a jurisdictional defect which made the lower court's judgment in that case void. See Driscoll v. Burlington-Bristol Bridge Co., 8 N.J. 433, 492-93, 86 A.2d 201 (1952). Jurisdiction in the present case, however, may be sustained under the Court Rule governing notice in foreclosure actions, R. 4:64-7(c). Though this provision...