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Quail Roost Properties, Inc. v. O’Connell

A-1600-03T2 (N.J. Super. App. Div. 2004) (Unpublished)

FORECLOSURE; TAX SALES - - Although personal service of a tax sale foreclosure summons can be made on a property owner’s child as an agent of the property owner, following that procedure requires that service on the child must be at the place where the property owner resides.

A homeowner filed a motion to vacate a default judgment against her in a municipal tax sale certificate foreclosure action, arguing that she never received notice of the action because notice was served on her daughter at her daughter’s house where the homeowner did not reside. The lower court denied her motion and she appealed.

The Appellate Division reversed the lower court’s ruling and remanded the case, agreeing with the homeowner that she had not been properly served. The Court held that the action was governed by R. 4:64-7(c) under which a plaintiff is required to serve the person whose name appears as an owner in the tax foreclosure list at his or her last known address as it appears on the last municipal tax duplicate. Service may be made in the manner provided by R. 4:4-4(a)(1), R. 4:4-4(c) or by simultaneously mailing to the last known address by registered or certified mail, return receipt requested, and by ordinary mail. Service may also be made by personal service pursuant to R. 4:4-4(a)(1) or R. 4:4-4(a)(4). R. 4:4-4(a)(1) requires that service be effectuated by: (1) personally serving a competent individual that is fourteen years of age or older; (2) leaving a copy of the summons and complaint at the individual’s dwelling place or usual place of abode with a competent member of the household that is age fourteen or above that resides at the home; or (3) by delivering a copy to a person authorized by appointment or law to receive service of process on the individual’s behalf. Alternatively, R. 4:4-4(a)(4) requires that the summons and complaint be served directly on the homeowner or on an agent or employee of the homeowner. On appeal, the certificate holder argued that service on the homeowner’s daughter at her residence was effective under R. 4:4-4(a)(4) which does not require the homeowner to actually reside at the place where the summons and complaint are served. The Court rejected this argument ruling that service on the homeowner’s daughter was not effective because R. 4:4-4(a)(4) requires that service be made on the homeowner personally or on an agent or employee of the homeowner. The Court further held that service was ineffective because the homeowner did not have actual notice of the action until after a judgment was entered against her.


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