SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1054-20

JAMEEL KEARNEY,

Plaintiff-Respondent,

v.

BECKER TERRACE, LLC,

Defendant-Appellant.

_________________________

Submitted October 4, 2021 – Decided December 9, 2021

Before Judges Sabatino and Natali. 

On appeal from the Superior Court of New Jersey, 

Chancery Division, Essex County, Docket No. 

F-016241-19. 

Alsaidi & Chang, LLC, attorneys for appellant (Joseph 

A. Chang, of counsel; Jeffrey Zajac, on the briefs). 

Taylor and Keyser, LLC, attorneys for respondent 

(Robert W. Keyser, of counsel; Jeffrey B. Datz, on the 

brief). 

PER CURIAM

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the 

internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
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In this tax sale certificate foreclosure action, we consider defendant 

Becker Terrace, LLC's (Becker) argument that the court abused its discretion in 

denying a motion to vacate a default judgment under Rule 4:50-1. Because we 

conclude Becker's failure to respond to the foreclosure proceedings was 

excusable, and there was a genuine factual dispute about whether the residential 

property Becker formerly owned was abandoned, we reverse.

I.

In 2018, Levi Rooz and his father, Sam Rooz,1formed Becker to purchase 

29 Becker Terrace in the Township of Irvington as an investment property. 

After Becker failed to pay its fourth quarter property taxes, Irvington held a sale 

in December 2018 for those properties with unpaid municipal liens under 

N.J.S.A. 54:5-19. Irvington acquired the property subject to Becker's right of 

redemption. See N.J.S.A. 54:5-32. 

At some point after the sale, Reinhardt Vilson, the Irvington housing 

inspector, allegedly viewed the property and determined it was abandoned as 

defined by the Abandoned Property Rehabilitation Act, N.J.S.A. 55:19-78 to -

107 (APRA). On March 7, 2019, Irvington published notice of the abandonment 

1 We refer to Levi and Sam Rooz by their first names for ease of reference, 

intending no disrespect.
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designation in the local newspaper, and Genia C. Philip, Irvington's Director of 

the Department of Economic Development and Grants Oversight and its 

Designated Abandoned Property Public Officer, sent a certified letter informing 

Becker of that finding.

Levi received Philip's letter and further acknowledged he was notified of 

the "abandonment issue" on February 22, 2019. Rather than pay Becker's 

outstanding tax obligation, he instead applied for a construction permit on March 

26, 2019, which Irvington granted on April 10, 2019, despite already having 

deemed the property abandoned. 

On April 9, 2019, Philip sent Becker notice that the tax lien certificate for 

29 Becker Terrace would be sold at auction on May 21, 2019. After receiving 

the notice, Becker administratively appealed the abandonment designation under 

N.J.S.A. 55:19-55(e), and an Irvington official scheduled a hearing for May 8, 

2019. After Becker's representative failed to appear at the hearing, the appeal 

was dismissed. Becker also failed to file a summary proceeding in the Law 

Division to challenge the adverse determination as permitted by N.J.S.A. 55:19-

55(f).

On May 15, 2019, Levi emailed Vilson and attached photos of a 

construction permit and ongoing renovations at the property. He also certified 
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that he visited Vilson and informed him of the construction, but Vilson allegedly 

told Levi to pay the taxes in order to remove the property from the special tax 

sale list for abandoned properties. After Becker failed to pay the outstanding 

taxes, Irvington conducted a special tax sale where plaintiff Jameel Kearney was 

the successful bidder. 

On May 30, 2019, Levi filed a Superior Court action to eject a squatter 

living at the property. He certified that at some point, his father permitted an 

individual to live "at the property to ensure that [it] was not being broken into." 

We discern from the record that the unnamed individual referenced refused to 

leave the premises. 

In a May 31, 2019 certification, Philip attested based on her "review of 

township records" and of "the inspection report and photographs made by 

[Vilson] from his visual inspection of the property," that it was abandoned under 

the criteria enumerated in N.J.S.A. 55:19-81, including the threshold 

requirement that the property "has not been legally occupied for a period of at 

least six months prior to [May 31, 2019]."

Philip further stated that "construction was initiated on the property and 

was discontinued prior to completion," and "no construction ha[d] taken place 

for at least six months." She also certified that "at least one installment of 
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property tax remains unpaid and delinquent," and "the property has been 

determined to be a nuisance in accordance with section 5 of P.L. 2003, c. 210 

(C.55:19-82)." She did not attach any supporting documents to her May 31 

certification, however. 

On August 29, 2019, plaintiff sent written notice by regular and certified 

mail to Becker's registered address in Rahway of his intention to institute a 

foreclosure action to bar Becker's right of redemption, but Levi claimed neither 

he nor his father received the correspondence. On October 2, 2019, plaintiff 

filed a foreclosure complaint. 

On January 3, 2020, plaintiff published notice of the foreclosure 

proceedings in The Star Ledger and, on January 6, 2020, mailed notice by 

certified and regular mail to Sam as Becker's registered agent at his Rahway 

address. The certified mail was returned as undeliverable, but the regular mail 

was never returned. Plaintiff also posted notice of the proceedings at the 

Irvington property, at the Tax Collector's office, and at the Essex County 

Register's office. Becker failed to answer or otherwise respond to the complaint. 

In April 2020, Sam tragically died from COVID-19. 

On June 3, 2020, Irvington's tax collector certified that a redemption of 

the special tax sale certificate had not occurred within the required forty-five-
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day period. The trial court granted plaintiff's application for final judgment on 

July 14, 2020, barring Becker's right of redemption and vesting plaintiff with 

title to the property. Plaintiff mailed a copy of the final judgment to Becker on 

July 21, 2020. 

After receiving the judgment, Becker served Irvington with an Open 

Public Records Act (OPRA) request on July 28, 2020. The request sought 

information relating to all violation notices, inspection reports, notice of "any 

tax sale or foreclosure" and records relating to the abandoned property 

determination. Irvington responded to the OPRA request by informing Levi that 

no responsive documents existed. 

Less than a month later, on August 13, 2020, Becker filed a motion to 

vacate the final judgment under Rule 4:50-1. After considering the parties' 

submissions, which included two certifications with supporting documents from 

Levi, the court denied Becker's application in a November 13, 2020 order. 

In its accompanying oral opinion, the court found Becker clearly had 

notice of the proceedings and plaintiff properly served the complaint consistent 

with the Rules. The court acknowledged and summarily rejected Becker's 

challenge to Irvington's abandonment designation, explaining that such a 

determination is made by the municipality and Becker failed to appear at the 
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scheduled appeal hearing. The court concluded Becker failed to establish its 

right to relief under Rule 4:50-1 as it failed to "take the steps . . . necessary to 

protect itself." 

Becker raises two points on appeal.2 First, it argues the court committed 

error in failing to vacate the final judgment because plaintiff failed to take the 

"additional constitutionally mandated steps to serve the complaint after learning 

of the undelivered certified mail," rendering the final judgment void ab initio. 

Second, he contends the court misapplied its discretion by failing to vacate the 

month-old default judgment under Rule 4:50-1(c) and (f) in the face of its 

allegations of excusable neglect and a meritorious defense.3 

With respect to its second argument, Becker maintains that the final 

judgment was grounded upon the factually unsupported determination that the 

property was abandoned, thereby "creat[ing] a defective foundation for the 

subsequent foreclosure action." Becker stresses that Irvington incorrectly 

categorized the property as vacant, falsely asserted that construction at the 

2

 We have reorganized Becker's arguments for purposes of clarity. 

3 We consider defendant's arguments under Rule 4:50-1(a) and (f), despite its 

reliance on subsection (c), as that provision addresses instances when a final 

judgment was improperly entered based on claims of fraud or misrepresentation, 

which are neither asserted nor present here. We also consider Becker's 

contentions under subsections (a) and (f), as its merits arguments clearly relate 

to those two subsections. 
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property had been discontinued, and failed to provide any of the inspection 

records referenced in the Philip certification. 

We have considered Becker's first point concerning service and determine 

it is of insufficient merit to warrant discussion in a written opinion. R. 2:11–

3(e)(1)(E). We agree, however, with Becker's second contention and determine 

the court erred in failing to vacate the final judgment, considering the factual 

disputes in the record regarding Irvington's abandonment designation. Finally, 

we conclude Becker's failure to respond to the complaint was excusable under 

the circumstances.

II. 

We review a court's determination under Rule 4:50-1 for an abuse of 

discretion. Hous. Auth. of Morristown v. Little, 135 N.J. 274, 283 (1994). Rule

4:50-1 states "the court may relieve a party . . . from a final judgment . . . for the 

following reasons: (a) mistake, inadvertence, surprise, or excusable neglect; . . .

(d) the judgment or order is void; . . . or (f) any other reason justifying relief 

from the operation of the judgment or order." "The rule is 'designed to reconcile 

the strong interests in finality of judgments and judicial efficiency with the 

equitable notion that courts should have authority to avoid an unjust result in 
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any given case.'" U.S. Nat'l Bank Ass'n v. Guillaume, 209 N.J. 449, 467 (2012) 

(citation and internal quotation marks omitted).

In the context of a default judgment "[a] court should view 'the opening 

of default judgments . . . with great liberality,' and should tolerate 'every 

reasonable ground for indulgence . . . to the end that a just result is reached.'" 

Mancini v. EDS ex rel N.J. Auto. Full Ins. Underwriting Ass'n, 132 N.J. 330, 

334 (1993) (quoting Marder v. Realty Constr. Co., 84 N.J. Super. 313, 319 (App. 

Div. 1964)). "In the tax sale certificate foreclosure context considerations of 

public policy and equity are also taken into account." M&D Assocs. v. Mandara, 

366 N.J. Super. 341, 350 (App. Div. 2004).

Rule 4:50-1(a) requires a showing of excusable neglect and a meritorious 

defense. Guillaume, 209 N.J. at 468. "'Excusable neglect' may be found when 

the default was 'attributable to an honest mistake that is compatible with due 

diligence or reasonable prudence.'" Ibid. (quoting Mancini, 132 N.J. at 335). 

With respect to Rule 4:50-1(f), the Supreme Court stated: "'No 

categorization can be made of the situations which would warrant redress under 

[that subsection]. [T]he very essence of [subsection] (f) is its capacity for relief 

in exceptional situations. And in such exceptional cases its boundaries are as 

expansive as the need to achieve equity and justice.'" DEG, LLC v. Twp. of 
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Fairfield, 198 N.J. 242, 269-70 (2009) (quoting Court Inv. Co. v. Perillo, 48 N.J. 

334, 341 (1966)) (second alteration in original). We have stated that "general 

equitable principles . . . apply to the remedy of foreclosure. Foreclosure is a 

harsh remedy and equity abhors a forfeiture. A court of equity may invoke its 

inherent equitable powers to avoid a forfeiture and deny the remedy of 

foreclosure." Sovereign Bank v. Kuelzow, 297 N.J. Super. 187, 198 (App. Div. 

1997) (citation omitted).

APRA is intended as a tool for local governments to rehabilitate 

abandoned properties, avoid blight and declining property values, see N.J.S.A. 

55:19-79, and designate properties as abandoned and set them aside for special 

tax sales. N.J.S.A. 55:19-101. Under APRA, successful bidders of property 

sold at a special tax sale must immediately move to foreclose on the property in 

order to bar the owner's statutory right of redemption. N.J.S.A. 55:19-86(a)-(b). 

The Act also requires notice to the property owner "[a]t least 30 days before 

filing the complaint" that "inform[s] the owner and interested parties . . . of those 

criteria that led to a determination of abandonment." Ibid.

APRA also sets forth the criteria for an "abandoned" designation. "[A]ny 

property that has not been legally occupied for a period of six months" will be 

deemed abandoned if it meets at least one of four additional criteria. N.J.S.A. 
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55:19-81. A squatter or trespasser, however, will not qualify as a "legal 

occupier" of the property. See State v. Linton, 356 N.J. Super. 255, 259 (App. 

Div. 2002) (finding that a squatter had no constitutionally reasonable 

expectation of privacy where they had no legal right to occupy abandoned 

property). If the threshold occupancy requirement is met, the municipality must 

also show one of four elements: 

a. [t]he property is in need of rehabilitation in the 

reasonable judgment of the public officer, and no 

rehabilitation has taken place during that six-month 

period; b. [c]onstruction was initiated on the property 

and was discontinued . . . ; c. [a]t least one installment 

of property tax remains unpaid and delinquent . . . ; or

d. The property has been determined to be a nuisance. 

[N.J.S.A. 55:19-81(a)-(d) (emphasis added).]

Once an abandoned designation has been made, the purchaser of the tax 

sale certificate may commence a foreclosure proceeding, but the abandoned 

property owner may redeem his rights at any time, subject to court order. 

N.J.S.A. 54:19–58 ("After the foreclosure action is instituted, the right to 

redeem shall exist and continue to exist until barred by the judgment of the 

Superior Court."). A tax sale certificate "creates only a lien on the premises" 

and it is "not an outright conveyance;" it conveys the lien interest of the taxing

authority. Town of Phillipsburg v. Block 1508, Lot 12, 380 N.J. Super. 159, 
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163 (App. Div. 2005). Additionally, the "interest of the holder of the tax sale

certificate is entirely subordinate to the statutory right of redemption of the 

property owner." Id. at 164 (citing Manning v. Kasdin, 97 N.J. Super. 406, 417, 

(App. Div. 1967)). 

Applying these principles, we conclude the court misapplied its discretion 

in denying Becker's motion. The propriety of Irvington's abandonment 

designation was a critical and necessary determination for the court to make as 

it necessarily informs whether vacating the default judgment was appropriate 

under Rule 4:50-1. This is so because the holder of a tax sale certificate—like 

plaintiff—has no right to foreclose sooner than two years from the certificate's 

acquisition unless the property is abandoned within the meaning of APRA, in 

which case the foreclosure action may be commenced "any time" after the 

certificate's acquisition. See N.J.S.A. 54:5-86(a)-(b). As plaintiff commenced 

this action sooner than two years based on Irvington's abandonment designation, 

that finding was of critical import.

Here, Philip possessed no firsthand knowledge of the condition of the 

property, nor whether any individual legally occupied the premises in the six 

months preceding the abandonment designation or the foreclosure proceedings. 

See, e.g., Wells Fargo Bank, N.A. v. Ford, 418 N.J. Super. 592, 599 (App. Div. 
13 A-1054-20

2011) ("A certification will support the grant of summary judgment only if the 

material facts alleged therein are based, as required by Rule 1:6–6, on 'personal 

knowledge.'") (quoting Claypotch v. Hesller, Inc., 360 N.J. Super. 472, 289 

(App. Div. 2003)). Her conclusion that the property was abandoned was based 

entirely on certain unidentified records, and those prepared by Vilson. Further, 

she never appended to her certification the referenced and unauthenticated 

documents that supported those conclusions, nor were they submitted to the 

court for its consideration. 

These deficiencies were not inconsequential. Indeed, while Becker's 

failure to pay its taxes was conceded, the remaining facts supporting the 

abandonment designation were not. For example, as noted, a threshold 

requirement before a property is deemed abandoned under N.J.S.A. 55:19-81 is 

the absence of proof that it was lawfully occupied for six months. Although 

Philip so certified, again without appending any supporting records or firsthand 

knowledge, Levi attested that before commencing the ejectment proceeding, his 

father had "someone living at the property" to ensure it was not vandalized. 

While he later successfully ejected the individual as an unauthorized "squatter,"

his certification can fairly be read to support the conclusion that the squatter, or 

another unidentified individual, was lawfully residing in the residence at some 
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period during the relevant six-month period before Philip certified the property 

as abandoned. 

Second, contrary to Philip's attestations that construction at the property 

was "discontinued" and "no construction has taken place for at least six months," 

Levi presented competent proofs that a construction permit was issued by 

Irvington on April 10, 2019, less than two months prior to Philip's certification. 

Levi also submitted additional proofs showing extensive work at the residence. 

Further, without appending supporting documentation to her certification, 

and specifically those which memorialized Vilson's observations from his 

inspection, we cannot discern how Philip or Vilson knew the property had not 

been legally occupied for the six months prior to the certification, or any other 

fact that would support the abandonment determination except for Becker's 

failure to pay the required taxes. 

We also cannot determine if the materials relied upon by Philip were 

appropriate business records under N.J.R.E. 803(c)(6), and particularly if they 

were made "at or near the time of the observation by a person with actual 

knowledge or from information supplied by such a person," or if the referenced 

documents were "made in the regular course of business." That, of course, was 

not the fault of Becker, as it disputed critical factual statements regarding 
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Irvington's abandonment designation made in Philip's certification after making 

timely OPRA requests and being informed that no such documents existed

related to that finding. 

We, of course, draw no conclusions on the abandonment issue except to 

observe the presence of genuine factual disputes that should be litigated and 

adjudicated. Becker has demonstrated a meritorious defense under Rule 4:50-

1(a) and (f), not only because of Levi's own affirmative allegations about the 

property but also because of the inadequacies in the Philip certification. 

We are also satisfied that Levi provided sufficient reasons for failing to 

file a timely answer or otherwise participate in the foreclosure proceedings. 

Approximately three months after service of the complaint, his father and 

partner in Becker, died from COVID-19 after being sick for "some time" prior. 

Levi also verified that his mother cared for Sam at their residence in Brooklyn 

before his death, and out of caution during the pandemic, he did not return to 

New Jersey. Levi stated that Sam's illness meant "normal business practices" 

were not followed and the "office was not being visited normally" during this 

time period. 

While Becker could, and should have, participated in the permissive 

proceeding spelled out in N.J.S.A. 55:19-55(e)-(f), which likely would have 
16 A-1054-20

avoided the default judgment in the first instance, we do not consider that failure 

to be a dispositive jurisdictional defect as plaintiff argues, and are satisfied that 

Becker's failure to answer the complaint, or otherwise respond, was excusable. 

That conclusion is supported by the unique circumstances presented which 

include Sam's death, Becker's filing of a motion to vacate less than a month after 

the entry of judgment, and, as noted, the absence of a competent certification 

supporting the abandonment determination, coupled with Irvington's subsequent 

denial that any documents related to that designation existed. See, e.g., BV001 

Reo Blocker, LLC v. 53 W. Somerset St. Props., LLC, 467 N.J. Super. 117, 128-

30 (App. Div. 2021).

In sum, we conclude the court mistakenly failed to "view with great 

liberality," see Mancini, 132 N.J. at 334, Becker's reasonable arguments 

regarding both its claim of excusable neglect and its meritorious defense. We 

accordingly reverse the court's decision to deny the motion to vacate the default 

judgment and remand the matter for entry of an order granting Becker leave to 

file a pleading responsive to the complaint and for necessary proceedings to 

resolve this foreclosure action. The final judgment is consequently vacated, 

effective immediately, without prejudice to the outcome of the remanded

proceedings. 
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Reversed and remanded. We do not retain jurisdiction.