Opinion
DOCKET NO. A-1018-13T3
03-24-2015
ULTIMATE HOLDING, L.L.C., Plaintiff-Respondent, v. ANGEL HERNANDEZ, Defendant-Appellant.
Gilberto M. Garcia, attorney for appellant. Marino & Montecallo, L.L.C., attorneys for respondent (Paul Marino, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fasciale and Whipple. On appeal from Superior Court of New Jersey, Chancery Division, Hudson County, Docket No. F-43758-10. Gilberto M. Garcia, attorney for appellant. Marino & Montecallo, L.L.C., attorneys for respondent (Paul Marino, on the brief). PER CURIAM
In this tax lien foreclosure action, defendant appeals from a September 2013 order that denied his motion to vacate an order for possession. We reverse.
We discern the following facts from the motion record. On August 23, 2010, plaintiff filed a complaint to foreclose a tax lien on defendant's property in Union City. Defendant was served with a summons and complaint, and on January 31, 2011, default was entered against defendant. In May 2011, plaintiff sought an order setting the time, place, and amount of redemption, which the trial court granted. The order stated that "redemption shall be permitted up until the entry of final judgment." Defendant did not redeem the tax certificate, and plaintiff never obtained a final judgment of foreclosure. Subsequently, the court granted plaintiff an order for possession in September 2012.
In June 2013, defendant moved to vacate the order of possession under Rule 4:50-1. In September 2013, the court heard oral argument and denied defendant's motion to vacate the order of possession, as if it were a final judgment of foreclosure, relying upon Rule 4:50-1.
On appeal, defendant argues that plaintiff failed to obtain a final judgment and therefore the judge erred by denying his motion to vacate the order of possession. Defendant urges us to reverse the order under review and vacate the order of possession.
Rule 4:64-1(f) governs the foreclosure of uncontested tax liens and provides that a trial court: (1) "shall enter an order fixing the amount, time and place for redemption upon proof establishing the amount due[;]" and (2) "may enter final judgment [on its own motion and after notice to all parties] upon proof of service of the order of redemption . . . and the filing by plaintiff of an affidavit of non-redemption."
Here, there is an order fixing the time, place, and amount of redemption, and an order for possession. There is no final judgment of foreclosure pursuant to Rule 4:64-1(f). Additionally, the order for possession is not in the form of a final judgment of foreclosure.
Although a court may grant full and complete relief pursuant to N.J.S.A. 54:5-87 and foreclose a right of redemption, it must be in the form of a final judgment, not an order of possession. As such, this appeal is interlocutory. See R. 2:2-3(a)(1) (providing that only appeals from final judgments "may be taken to the Appellate Division as of right").
Defendant has not sought leave for an interlocutory appeal. See R. 2:5-6(a) (providing for "[a]pplications for leave to appeal from interlocutory orders"). However, we choose to consider this appeal pursuant to Rule 2:4-4(b)(2).
Because there is no final judgment in this matter, the trial court should not have reviewed the interlocutory order for possession utilizing Rule 4:50-1, which governs only the vacation of final orders. See Johnson v. Cyklop Strapping Corp., 220 N.J. Super. 250, 263 (App. Div. 1987), certif. denied, 110 N.J. 196 (1988). Instead, the court, in its sound discretion, had the power to "review, revise, reconsider and modify its interlocutory order[.]" Id. at 257. Such discretion should be exercised in the interest of justice "at any time before the entry of final judgment[.]" R. 4:42-2; see also R. 4:49-2 (governing motions for reconsideration). Reconsideration is particularly appropriate when a court makes a decision on a palpably incorrect basis. Palombi v. Palombi, 414 N.J. Super. 274, 288 (App. Div. 2010).
Applying the well-recognized standards for motions for reconsideration, we conclude that defendant would have been successful had such an application been made, as the order improperly purported to foreclose defendant's right of redemption without a final judgment. See Simon v. Cronecker, 189 N.J. 304, 319 (2007) (noting redemption is available until entry of final judgment); see also N.J.S.A. 54:5-54; N.J.S.A. 54:5-87; R. 4:64-6.
Reversed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION