Savage v. Weissman

• Decision Date: 01 August 2002
• Citation: 355 N.J. Super. 429,810 A.2d 1077
• Parties: Mark SAVAGE, Plaintiff-Respondent, v. Nathan WEISSMAN, Jane Weissman, T.G. Makmy, Inc., Rosenbach & Rosenbach, Door Openings Corp. of New Jersey, Neil Goldwasser, Sally Goldwasser, and United States of America, Defendants, and Realty Ownership Ventures, Inc., Applicant for Intervention-Appellant.
• Court: New Jersey Superior Court

810 A.2d 1077

355 N.J. Super. 429

Mark SAVAGE, Plaintiff-Respondent, v. Nathan WEISSMAN, Jane Weissman, T.G. Makmy, Inc., Rosenbach & Rosenbach, Door Openings Corp. of New Jersey, Neil Goldwasser, Sally Goldwasser, and United States of America, Defendants, and Realty Ownership Ventures, Inc., Applicant for Intervention-Appellant.

Superior Court of New Jersey, Appellate Division.

Argued April 17, 2002.

Decided August 1, 2002.

Richard O. Venino, Jr., argued the cause for appellant.

Keith A. Bonchi, Atlantic City, argued the cause for respondent (Goldberg, Mackler, Sayegh, Mintz, Pfeffer, Bonchi & Gill, attorneys; Mr. Bonchi, on the brief).

Before Judges CUFF, WECKER and WINKELSTEIN.

The opinion of the court was delivered by CUFF, J.A.D.

In these consolidated appeals, we consider two appeals from orders denying a party the right to intervene in an action to foreclose tax sale certificates. These appeals require us to consider whether the circumstances of the intervenor's acquisition of title contravenes the public policy of this State and bars the intervenor's right of redemption. We affirm in modified form the three orders barring intervention and entering final judgment.

These appeals involve legal issues of a procedural nature; therefore, we provide an extensive discussion of the parties which have an interest in the property and the manner in which they derived each interest. On September 9, 1958, Edward V. Lipman and Gardina A. Lipman, his wife, executed a deed conveying a parcel of vacant property comprising approximately thirty acres in Freehold Township, Monmouth County, to Nathan Weissman. Sometime thereafter, Weissman and his wife, Jane, moved to California. In 1983, the Weissmans were divorced in California. As part of their divorce settlement, Nathan Weissman executed a quitclaim deed conveying an undivided one-half interest in the property to his former wife, now known as Jane Auster, as tenants in common. This deed was recorded on August 30, 1983.

On August 4, 1988, a judgment was entered in New Jersey against Nathan Weissman and in favor of T.G. Makmy, Inc. (Makmy) in the face amount of $29,008. Prejudgment interest amounted to $10,268.76 for a total judgment of $39,276.76.

The real estate taxes on the property were not paid and Albert Savage (now deceased), purchased a tax sale certificate for unpaid taxes on the property from Freehold Township (the Township) at a public sale on August 20, 1991. The total purchase price was $5,263.79. The tax sale certificate was dated August 28, 1991, and recorded on August 29, 1991. Subsequently, the taxes again became delinquent and, in 1996 and 1999, tax sale certificates were purchased by First Union National Bank (FUNB) from the Township. On July 29, 1999, the Estate of Albert Savage redeemed these two certificates by paying $13,623.52 to the Township tax collector. On July 30, 1999, the Estate of Albert Savage, "in consideration of the amount of $13,623.52 paid to said estate by Mark Savage [plaintiff]," assigned the 1991 tax sale certificate to plaintiff.

On March 23, 2000, plaintiff Mark Savage filed an in personam tax foreclosure complaint seeking to bar and foreclose defendants of all equity of redemption in and to the still-vacant property. Plaintiff joined as defendants Nathan Weissman and Jane Weissman, as the owners of the property, and various judgment creditors of Nathan Weissman, including Makmy and the United States. Defaults were eventually entered as to all defendants. The United States was dismissed as a defendant when its lien was satisfied.

Subsequent to the filing of the complaint, Makmy assigned its judgment against Nathan Weissman to Realty Ownership Ventures, Inc. (ROV) on August 28, 2000; the assignment was recorded on September 5, 2000. The net consideration paid to Makmy was $3000. As a result, ROV became the holder, by assignment, of the judgment entered in favor of Makmy against Nathan Weissman.

In October 2000, plaintiff applied to the Foreclosure Unit of the Superior Court for an order setting time, place and amount of redemption. In a certification dated September 22, 2000, plaintiff stated that, as of August 31, 2000, $63,723.10 was due on the 1991 tax sale certificate. On October 20, 2000, an order was entered setting December 8, 2000, as the time for redemption and $63,723.10 as the amount required to redeem the property referred to in the 1991 tax sale certificate. ROV, as assignee of the Makmy judgment, was served with a copy of this order.

On November 15, 2000, ROV, in its capacity as successor in interest to Makmy, filed a motion to vacate the order of October 20, 2000. This motion was supported by an affidavit, dated November 15, 2000, by Richard O. Venino, Jr., ROV's president and counsel. ROV argued it was entitled to redeem the tax sale certificate, and a 1994 amendment to N.J.S.A. 54:5-54, which barred a judgment creditor from exercising the right to redeem, was unconstitutional. On December 6, 2000, the judge issued and filed a memorandum opinion and order. The judge deferred consideration of the constitutionality of N.J.S.A. 54:5-54 until the Attorney General was notified of the challenge to the statute and given the opportunity to defend it.

On February 13, 2001, after the Attorney General declined to intervene, the judge issued a written decision on the motion. He found that ROV, as the assignee of Makmy, a judgment creditor, did not have standing to set aside the order setting time, place and amount of redemption. He then proceeded to find no constitutional infirmity. On February 13, 2001, the judge entered an order denying the motion by ROV.

In the meantime, ROV, on September 28, 2000, caused the issuance of a Law Division writ of execution on the Makmy judgment. At a pre-advertised sheriff's sale on December 4, 2000, ROV, the sole bidder, purchased the title and interest of Nathan Weissman in the property for $100. On January 5, 2001, a sheriff's deed was executed conveying Nathan Weissman's title and interest in the property to ROV. This deed was recorded between January 5 and February 15, 2001.

On February 15, 2001, ROV filed a motion requesting (1) substitution as a party defendant in the place of defendant Nathan Weissman, and (2) an order vacating the October 20, 2000 order setting time, place and amount of redemption entered in this action. In his supporting affidavit of February 15, 2001, Venino stated that ROV had acquired Nathan Weissman's one-half interest in the property at a judicial sale. On May 3, 2001, the judge issued his written decision regarding ROV's motion to intervene in the tax sale foreclosure. He found that intervention was barred because ROV had acquired Nathan Weissman's interest in the property for a nominal consideration.

In a footnote in the May 3, 2001 opinion, the judge referred to ROV's acquisition of the undivided one-half interest in the property held by Nathan Weissman's former wife, Jane Auster. ROV acquired the Auster interest on April 10, 2001, when Auster executed a quitclaim deed to ROV. The consideration for the deed was $3000. Contact between ROV and Auster was initiated following receipt of a notice of entry of default in a partition action commenced by ROV. ROV sought to exercise the right of redemption directly with the tax collector in June 2001. As the successor in title of both Nathan Weissman and Jane Auster, ROV did not seek to intervene in the tax sale foreclosure. ROV also filed a notice of appeal on May 8, 2001, from the February 13 and May 3, 2001 orders.

On June 8, 2001, the same day that ROV sought to redeem based on the title acquired from Jane Auster, ROV also filed opposition to plaintiff's motion for entry of a final judgment. The judge held that ROV had no standing to oppose the entry of final judgment because the May 3, 2001 order prohibited intervention in the foreclosure action. On July 6, 2001, final judgment was entered. On July 12, 2001, ROV, as successor in interest to Jane Auster, filed a notice of appeal from the July 6, 2001 final judgment. We consolidated both appeals by order dated August 22, 2001.

I

As a preliminary matter, we must address ROV's contention that the motion judge lacked jurisdiction to issue the July 6, 2001 final judgment. ROV contends that its notice of appeal from the May 3, 2001 order deprived the trial court of jurisdiction. We disagree.

Rule 2:9-1(a) provides that "supervision and control of the proceedings on appeal ... shall be in the appellate court from the time the appeal is taken." Except to the extent of enforcement and except as provided in the rule, once a notice of appeal has been filed, the trial court is deprived of jurisdiction in the matter. Manalapan Realty L.P. v. Township of Manalapan, 140 N.J. 366, 376, 658 A.2d 1230 (1995). A notice of appeal, however, may only be filed from a final judgment. R. 2:2-3(a).

Our review of the procedural history demonstrates that the May 8, 2001 notice of appeal concerns the interlocutory orders of February 13 and May 3, 2001. To be sure, there is authority that indicates that an order denying intervention to a party with an absolute right to intervene is final and appealable. Grober v. Kahn, 88 N.J.Super. 343, 360-61, 212 A.2d 384 (App. Div.1965), rev'd on other grounds, 47 N.J. 135, 219 A.2d 601 (1966). Contra Government Sec. Co. v. Waire, 94 N.J.Super. 586, 589, 229 A.2d 664 (App.Div.1967). Here, as is explicated in Section IV of this opinion, ROV did not have an absolute right to intervene. The proper procedure was for ROV to file a motion for leave to appeal. The orders may have finally adjudicated ROV's applications to intervene but neither order, singly or combined, resolved all issues as to all parties. Appeals as of right may only be taken from a final order. R. 2:2-3(a). We decline to extend Rule 2:9-1(a) to a situation in which a notice of appeal has been improperly filed from an interlocutory order and hold that the trial...