SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3874-17T4

EBURY RE LLC,

Plaintiff-Respondent,

v.

ANTONIA SURO,

Defendant-Appellant,

and

THOMAS SURO and SOVEREIGN

BANK, n/k/a SANTANDER BANK, 

NA,

Defendants.

_______________________________

Submitted June 4, 2019 – Decided June 13, 2019

Before Judges Hoffman and Geiger.

On appeal from Superior Court of New Jersey, 

Chancery Division, Mercer County, Docket No. F002372-17.

Antonia Suro, appellant pro se.

NOT FOR PUBLICATION WITHOUT THE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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Pellegrino & Feldstein, LLC, attorneys for respondent 

(Michael G. Pellegrino, on the brief).

PER CURIAM

Defendant Antonia Suro appeals from a Chancery Division order denying 

her motion to vacate the default and final judgment entered against her, and to 

dismiss the complaint. Finding no merit in any of defendant's arguments, we 

affirm. 

In this tax lien foreclosure action, plaintiff Tower Fund Services as 

Custodian for Ebury Fund 2NJ LLC filed its complaint to foreclose a tax sale 

certificate affecting property in Trenton (the subject property) on January 31, 

2017. The complaint named both Thomas Suro and Antonia Suro (collectively 

defendants)

1

as defendants based on the recorded deed conveying the subject 

property to them. Plaintiff subsequently moved to substitute Ebury Re LLC as 

the name of plaintiff due to changes in its corporate structure and the resulting 

assignment of the tax sale certificate. 

In February 2017, plaintiff arranged for Guaranteed Subpoena Service to 

serve the summons and complaint on defendants. The attempt was unsuccessful; 

the return of service stated the house was "possibly vacant and abandoned." 

 

1

 We refer to Thomas and Antonia Suro by their first names to avoid confusion. 

We intend no disrespect. 
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Counsel for plaintiff conducted several searches to determine any other 

whereabouts of defendants, but those searches were unsuccessful. Counsel 

represented that it appeared defendants were avoiding service. 

Postal inquiries confirmed mail was delivered to Thomas and Antonia at 

the subject property. Plaintiff's counsel then mailed the summons and complaint 

to the subject property on March 1, 2017. Both mailings were delivered as 

confirmed by certified mail green receipt cards signed by Antonia. Plaintiff also 

published a Notice to Absent Defendants in The Times of Trenton, a newspaper 

of general circulation in Mercer County, on April 28, 2017, in accordance with 

Rule 4:4-4(a). Additionally, plaintiff's counsel represented to the trial court that 

he spoke to both Antonia and her sister regarding the foreclosure, and that 

Antonia was properly served with process and had actual knowledge of the 

foreclosure action as early as March 2017. 

On July 18, 2017, an order setting time to redeem was entered setting 

September 1, 2017, as the time to redeem the tax sale certificate, and $50,608.41 

as the amount to redeem. The order was sent to defendants by regular and 

certified mail on July 19, 2017, and published in The Times of Trenton on July 

21, 2017. Defendants did not redeem the tax sale certificate or file any pleadings 

or motions with the court. On September 15, 2017, plaintiff moved for entry of 
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judgment. The motion papers were sent to defendants by regular and certified 

mail. An uncontested final judgment of foreclosure was entered against 

defendants on October 20, 2017. Copies of the judgment were mailed to 

defendants by regular and certified mail on October 31, 2017. In all three 

instances, the certified mail was returned stamped "Unclaimed." The regular 

mail was not returned by the Postal Service as undeliverable.

On December 19, 2017, Antonia received notice that physical eviction 

from the subject property would occur on February 15, 2018, through execution 

of a writ of possession. On February 7, 2018, Antonia moved to vacate the 

default and final judgment and to dismiss the complaint. She claimed service of 

process was defective and the property taxes were paid while the foreclosure 

action was pending. Antonia disputed plaintiff was unable to personally serve 

her at the subject property and took issue with the service by mail. Plaintiff 

opposed the motion. Plaintiff represented defendants were properly credited for 

all payments made. Correspondence from the Tax Collector confirmed 

defendants were credited for tax payments on the 2017 taxes but did not 

complete redemption of the taxes that fell due from 2010 to 2016.

The motion was considered on the papers without oral argument. The trial 

court issued a March 14, 2018 order and written statement of reasons denying 
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the motion. The court recognized that while motions to vacate default "should 

be viewed with great liberality," quoting Marder v. Realty Construction Co., 84

N.J. Super. 313, 319 (App Div.) aff'd, 43 N.J. 508 (1964), motions for relief 

from judgments based on any of the six grounds specified in Rule 4:50 "should 

be granted sparingly," citing U.S. Bank National Ass'n v. Guillaume, 209 N.J. 

449, 467 (2012). The court noted "[a] default judgment will not be disturbed 

unless the failure to answer or otherwise appear and defend was excusable under 

the circumstances and unless the defendant has a meritorious defense," citing 

Guillaume, 209 N.J. 468-69.

Applying those principles, the trial court concluded:

Here, there is no issue with service of the 

complaint upon [d]efendant. Plaintiff made a diligent 

effort to serve [d]efendant at the subject property. 

Having been unable to serve [d]efendants by personal 

service, plaintiff served by the alternative means for 

service pursuant to [Rule] 4:4-[5] and [Rule] 4:64-7. 

Furthermore, [d]efendant has not redeemed the tax lien 

in full. Defendant and [d]efendant's sister have 

confirmed that [d]efendant is unable to pay off the tax 

lien. 

Based upon the foregoing, [d]efendant has failed 

to demonstrate good cause for vacating the Final 

Judgment in this matter.

The order was not stayed pending appeal. The subject property was sold 

by plaintiff to a third party on September 24, 2018 for the sum of $33,000. 
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Defendant raises the following arguments: (1) the trial court erred and 

abused its discretion in refusing to vacate the default judgment under Rules

4:50-1(d) and (f), and 4:50-3; (2) plaintiff deprived Antonia of the opportunity 

to protect her interest by not serving her with a summons with the complaint; 

(3) plaintiff prevented the Estate of Thomas Suro from protecting its interest by 

omitting the Estate from the complaint despite having knowledge of his death; 

and (4) plaintiff is guilty of unclean hands. 

We affirm substantially for the reasons expressed by the trial court in its 

written statement of reasons. Defendant's arguments lack sufficient merit to 

warrant further discussion in this opinion, Rule 2:11-3(e)(1)(E), except for the 

following comments. 

Antonia states Thomas died on March 28, 2009 and asserts his estate was 

prejudiced by the lack of service on it. Thomas and Antonia owned the subject 

property as tenants by the entirety. "A tenancy by the entirety is a form of joint 

property ownership available only to spouses that is created 'when property is 

held by a husband and wife with each becoming seized and possessed of the 

entire estate.'" Jimenez v. Jimenez, 454 N.J. Super. 432, 436 (App. Div. 2018)

(quoting N.T.B. v. D.D.B., 442 N.J. Super. 205, 218 (App. Div. 2015)). Each 

tenant by the entirety has a right to survivorship; upon the death of one spouse, 
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the surviving spouse "takes the whole." Ibid. (quoting N.T.B., 442 N.J. Super. 

at 218). Upon the death of her husband, Antonia became sole owner of the 

subject property by operation of law. Consequently, the Estate of Thomas Suro 

was not a necessary party to the foreclosure action as it had no interest in the 

subject property.

The record demonstrates plaintiff was unable to personally serve Antonia 

with process despite diligent inquiry. Rule 4:4-5(a)(2) permits service of 

process by mail and Rule 4:4-5(a)(3) permits service of process by publication 

of a notice to absent defendants in tax lien foreclosures when "a defendant

cannot, after diligent inquiry . . . be served within the State." R. 4:4-5(a). The 

service of process on Antonia by mail and publication was in conformance with 

those rules and consistent with due process in this in rem foreclosure action. 

Affirmed.