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Wachovia Bank v. Dodge

A-3282-03T2 (N.J. Super. App. Div. 2005) (Unpublished)

TAX SALES; NOTICE —With respect to a tax sale foreclosure, a sheriff’s return of service is presumed valid and the sheriff’s representation of its efforts to personally serve the property owner is sufficient unless the property owner can show, by clear and convincing evidence, that the sheriff did not use diligent efforts to accomplish service.

A holder of a tax sale certificate sent the property owner a pre-foreclosure letter advising her that she had thirty-three days to redeem the certificate. The property was a corner lot and had two different street addresses. The certificate holder sent the notice to one street address, the one listed on the tax sale certificate. When the notice was returned unclaimed, the certificate holder confirmed that it had used a proper mailing address. The property owner admitted that both addresses were used for the property. When the certificate was not redeemed, the certificate holder filed a foreclosure action, using the proper mailing address. The sheriff’s return of service stated that the officer had made “numerous attempts” to contact the property owner at that address and was unsuccessful. The return of service did not describe those efforts. Since personal service was not successful, the certificate holder attempted substituted services by certified and first class mail. The certified mail was returned unclaimed but the first class mail was not returned. The certificate holder sent the property owner a copy of the Order Setting Time, Place, and Amount of Redemption. The property owner failed to redeem the certificate or appear for the hearing. The Chancery Division then entered a Final Judgment of Foreclosure by default, vesting title to the property to the certificate holder. The certificate holder sold the property to an individual, who, in turn re-sold the property to someone else. The original property owner claimed she had no knowledge of the foreclosure action and moved to vacate the default judgment on the grounds of lack of service. The lower court found that the sheriff’s return of service did not sufficiently specify the sheriff’s efforts to personally serve the property owner. Therefore, it did not demonstrate sufficient diligence to authorize substituted service by mail. The subsequent owners appealed. They argued that the lower court improperly discounted the sheriff’s proof of service. They claimed that the sheriff’s return of service is presumed valid and the sheriff’s representation of its efforts to personally serve the property owner was sufficient. Therefore, the property owner was required to provide clear and convincing evidence that the sheriff did not use diligent efforts to personally serve her. The Appellate Division agreed with the new property owners. It reversed the lower court’s ruling and reinstated the final judgment.


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