Township of Scotch Plains v. 2345 Plainfield Avenue, Inc.

A-5023-96T5 (N.J. Super. App. Div. 1999) (Unpublished)
  • Opinion Date: November 8, 1999

TAXATION; FORECLOSURE—While service of process in a tax foreclosure action may be jurisdictional, the rules setting time strictures for notices can be flexible.

A municipality obtained a final judgment of foreclosure against a property, In Rem, for failure to pay real estate taxes. The property owner sought to have the judgment set aside, pointing to several technical deficiencies in the manner in which the foreclosure action had been handled. For example, R. 4:64-7 requires that notice of the foreclosure action be published and paragraph (c) of the Rule directs that notice of a foreclosure shall be served within seven days after such publication. Here, however, the notice of foreclosure was not served until eighteen or nineteen days had passed, as much as thirteen days late. Paragraph (d) of the rule further directs that notice of foreclosure shall be posted in the office of the municipal tax collector and in the office of the county recording officer within fifteen days of publication. Here, notice was mailed to the respective offices twenty days after publication, a delay of five days. Finally, paragraph (e) of the rule specifies that a final judgment of foreclosure may not be entered until appropriate affidavits have been filed showing that the rule’s procedural requirements have been met. Here, however, at least one affidavit was filed after entry of judgment. The Court rejected these claims as a basis for setting aside the foreclosure judgment. The Court found it clear from the record that the owners were fully apprised of the pendency of the foreclosure action and discussed its progress on several occasions with the attorney prosecuting it. While service of the notice of a foreclosure may be jurisdictional, compliance with the various time strictures of R.4:64-7 is not. The Comment to the rule, moreover, notes “the requirements of these rules, particularly if they do not go to the essence of the proceedings, are in any event relaxable.”