Archive

Posts Tagged ‘Plaintiff’

More Diligence Required in Seeking Out-of-State Heir in Foreclosure Suit

December 5, 2010 1 comment

More Diligence Required in Seeking Out-of-State Heir in Foreclosure Suit By Charles Toutant New Jersey Law Journal December 1, 2010 A default judgment for tax foreclosure was void because the plaintiff failed to locate and serve the deceased homeowner’s out-of-state heir, the Appellate Division ruled Wednesday. The case, Fidelity Asset Management, LLC v. Faine, A-1485-09, was remanded to determine if the owner of a tax sale certificate diligently tried to find the heir, whether service by publication in a New Jersey newspaper gave adequate notice to the out-of-state heir and whether mail service on one heir is adequate for another heir at the same address. New Jersey Home Construction Inc. brought a foreclosure action in December 2006 against a home in Cinnaminson for which it held the tax sale certificate. The certificate was later sold to another company, Fidelity Asset Management, which took over as plaintiff. The redemption amount on the certificate was $19,025 plus $1,180 in costs. The homeowner, Mary Faine, died intestate in 2002. The foreclosure complaint named Faine and Toni Fleming, described as “a known heir.” The complaint also included Faine’s “heirs, devisees, and personal representatives” or “any of their successors in right, title and interest” because the plaintiff alleged it “has been unable to determine her heirs.” In May 2007, Anthony Johns and Barbara Hawkins, described as known heirs of Faine, were added as defendants after the plaintiff’s attorney, Cherry Hill solo I. Dominic Simeone, learned from the Cinnaminson tax collector that they are Faine’s grandson and daughter. On Jan. 2, 2008, Burlington County Superior Court Judge Michael Hogan entered a final judgment of foreclosure against all the defendants. On Jan. 18, an order precluding transfer was entered after a motion was filed to vacate the foreclosure judgment. The order was entered by Johns; Hawkins; Hiram Johnson, a family friend who was looking after Faine’s house; and Mallonease Scott, Faine’s other daughter. The motion contended that Scott and Hawkins, who live together in Texas, are Faine’s only heirs, and that defendant Fleming was unknown to the family. Their motion contended that Fidelity failed to engage in sufficient efforts to locate the decedent’s heirs. Fidelity said it engaged in a title search, a vital statistics search and skip-tracing procedures to look for Faine’s heirs, but only found Fleming. On May 2, 2008, Hogan denied the motion to vacate after concluding that Fidelity had satisfied the requirements of Rule 4:4-4(b)(1)(c) for mail service and Rule 4:4-5 for service by publication. On appeal, Judges Howard Kestin and Donald Coburn declined to disturb Hogan’s determinations because it was based on undisputed facts and refused to reverse the judgment of foreclosure as to Hawkins and Johns. But the panel said it could not allow the judgment to stand with regard to Scott, who was not named as a defendant and was never served. “In the face of the reality that the heirs stand to lose their right to the full value of the property, whatever that may be, for failure to pay some $20,000 on a tax sale certificate, a default judgment as to Mallonease Scott cannot be countenanced without specific findings based on further proofs as to whether engaged in reasonably diligent efforts to identify and serve her,” Kestin and Coburn wrote. The heirs’ lawyer, Moorestown solo John Poindexter III, says he will prove on remand that Fidelity’s inquiry wasn’t diligent enough. Scott “was clearly the daughter of Ms. Faine — why they didn’t find her, I don’t know. They found one of the daughters — it seems to me they should have found the other,” Poindexter says.Simeone, the lawyer for Fidelity, did not return a call.