Opinion
DOCKET NO. A-0321-11T2
03-08-2013
MERRICK WILSON, Plaintiff-Appellant, v. MD SASS MUNICIPAL FINANCE PARTNERS-V, L.L.C., Defendant-Respondent.
Merrick Wilson, appellant pro se. Gary C. Zeitz, L.L.C., attorneys for respondent (Robin London-Zeitz, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Reisner and Yannotti.
On appeal from Superior Court of New Jersey, Law Division, Somerset County, Docket No. L-1814-10.
Merrick Wilson, appellant pro se.
Gary C. Zeitz, L.L.C., attorneys for respondent (Robin London-Zeitz, on the brief). PER CURIAM
Plaintiff Merrick Wilson (Wilson) appeals from an order entered by the Law Division on July 22, 2011, granting summary judgment to defendant MD Sass Municipal Finance Partners-V, LLC (MD Sass). We affirm.
This appeal arises from the following facts. On December 14, 2006, MD Sass purchased Tax Sale Certificate No. 2006-04 from the Township of Montgomery (Township) at a public auction. The certificate was secured by certain property on Spring Hill Road in the Township, which was owned by Wilson.
On March 23, 2010, MD Sass sent a letter to Wilson, at his last known address in Yardley, Pennsylvania, by certified mail, return receipt requested. The letter stated that MD Sass was the holder of the tax sale certificate, and the amount of the tax lien was $31,307.22 as of that date. The letter said that, unless that amount was paid within thirty days, MD Sass would file a complaint to foreclose the right of redemption. MD Sass sent a copy of the notice to the Township's Tax Collector.
It appears that the United States Postal Service attempted to deliver the letter to Wilson on March 24, 2010, and April 4, 2010. The Postal Service returned the letter to MD Sass on April 10, 2010, indicating that the letter had been unclaimed and it was unable to forward the letter to another address.
Wilson did not pay the amounts due within thirty days of March 23, 2010. Accordingly, on May 6, 2010, MD Sass filed its foreclosure complaint in the Chancery Division, Somerset County, and submitted to the Township's Tax Office an affidavit detailing the fees and costs it had incurred in connection with the tax sale certificate.
On June 4, 2010, MD Sass recorded a lis pendens with regard to the subject property. On June 16, 2010, copies of the summons and complaint were served upon Wilson at the Yardley, Pennsylvania, address. On June 29, 2010, Wilson paid $33,524.48 to redeem the property from the tax lien. That amount included MD Sass' fees and costs.
On October 22, 2010, Wilson filed his complaint in this matter. Wilson alleged that MD Sass failed to serve him with the required pre-litigation notice, and charged excessive fees to release the property from the tax lien. He claimed that MD Sass had forfeited its right to foreclose on the tax sale certificate, and sought the return of the $33,524.48 he had paid, along with interest, legal fees and punitive damages.
In lieu of filing an answer, MD Sass filed a motion to dismiss or, in the alternative, for summary judgment. The trial court considered the motion on July 22, 2011. The court determined that MD Sass had provided the pre-litigation notice to Wilson at his last-known address, in accordance with Rule 4:42-9(a)(5), and MD Sass was not obligated to take any other steps to provide Wilson with notice. The court additionally determined that, with the exception of a charge of $14.60, the fees and costs imposed were lawful and proper. The court entered an order dated July 22, 2011, granting summary judgment in favor of MD Sass. Appended to that order was a lengthy and detailed statement of reasons for the order. This appeal followed.
Wilson argues that: (1) the trial court erred by granting summary judgment because there were genuine issues of material fact in dispute; (2) the pre-litigation notice was returned as unclaimed; therefore, the notice was not served in accordance with Rules 4:64-7(c) and 4:42-9(a)(5) and the Due Process Clause of the Fourteenth Amendment to the United States Constitution; and (3) the court erred by failing to recognize that the fees and costs charged exceeded the limits under Rule 4:42-9(a)(5) and were unlawful under N.J.S.A. 54:5-63.1.
We have carefully considered Wilson's arguments, in light of the record and the applicable law. We are satisfied that Wilson's arguments are entirely without merit. We accordingly affirm the trial court's order of July 22, 2011, substantially for the reasons set forth in the statement of reasons appended to the order. We add the following brief comments.
Wilson argues that MD Sass failed to serve him with the pre-litigation notice required by Rule 4:42-9(a)(5). The rule provides
[i]n an action to foreclose a tax certificate or certificates, the court may
award attorney's fees not exceeding $500 per tax sale certificate in any in rem or in personam proceeding except for special cause shown by affidavit. If the plaintiff is other than a municipality no attorney's fees shall be allowed unless prior to the filing of the complaint the plaintiff shall have given not more than 120 nor fewer than 30 days' written notice to all parties entitled to redeem whose interests appear of record at the time of the tax sale, by registered or certified mail with postage prepaid thereon addressed to their last known addresses, of intention to file such a complaint. The notice shall also contain the amount due on the tax lien as of the day of the notice. A copy of the notice shall be filed in the office of the municipal tax collector.
[Ibid.]
Here, the record shows that MD Sass mailed Wilson the notice of its intention to file the foreclosure complaint by certified mail, at an address in Yardley, Pennsylvania. As the trial court noted in its decision, Wilson acknowledged that the address was his last known address.
Wilson also acknowledged that he received the summons and complaint in the subsequently filed foreclosure action, which was served upon him at the Yardley, Pennsylvania address. The fact that the notice of intent to file the foreclosure action was returned as unclaimed is irrelevant. MD Sass satisfied the requirements of the rule by mailing the notice to Wilson, and MD Sass was not required to effectuate service by any other means.
Wilson also argues that MD Sass imposed excessive and unlawful fees and costs to redeem the property from the tax lien. We disagree. As the trial court noted in its statement of reasons, MD Sass submitted an affidavit to the Township's Tax Collector indicating that it had incurred fees and costs in the amount of $1,513.07.
The court noted that the actual fees and costs were $1,498.47, which included $104 for filing the discharge of the lis pendens; $329.40 for sheriff's fees and the cost of service; $500 for attorney's fees; costs in the amount of $50 awarded pursuant to N.J.S.A. 22A:2-10; $200 for the Superior Court filing fee; and $313.07 for title and judgment search fees.
The court determined that the costs for which MD Sass sought reimbursement were all "supported by statutory authority." We are satisfied that Wilson's claims to the contrary are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION