Pro Cap 8 Fbo Firsttrust Bank v. Block 133.03, Lot 11, 401 Lawnton Avenue

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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. SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-3168-24 PRO CAP 8 FBO FIRSTTRUST BANK, Plaintiff-Respondent, v. BLOCK 133.03, LOT 11, 401 LAWNTON AVENUE, TOWNSHIP OF WEST DEPTFORD, STATE OF NEW JERSEY, ASSESSED TO: CHESTER E. DAUGHERTY and RUTH HELEN DAUGHERTY, his wife, Defendants. ______________________________ MICHAEL RAY DAUGHERTY, Intervenor-Appellant. ______________________________ Argued September 15, 2026 – Decided September 25, 2026 Before Judges Firko and Bergman. On appeal from the Superior Court of New Jersey, Chancery Division, Gloucester County, Docket No. F-002374-24. John M. Loalbo argued the cause for appellant (Schumann Hanlon Margulies, LLC, attorneys; John M. Loalbo, of counsel and on the brief; Joseph Elmo Cauda, on the briefs). Amber Monroe argued the cause for respondent (Gary C. Zeitz LLC, attorneys; Robin I. London-Zeitz, on the brief). PER CURIAM In this tax sale certificate foreclosure action, intervenor Michael Ray Daughtery (intervenor) appeals from three Chancery Division orders: (1) an August 16, 2024 order granting default final judgment; (2) an April 11, 2025 order denying his motion to intervene and to vacate default judgment; and (3) a May 23, 2025 order denying his motion for reconsideration. We affirm all three orders. A-3168-24 2 I. Factual Background We discern the following facts from the motion record. On March 6, 1972, Chester E. Daugherty, Sr. 1 and Ruth Helen Daugherty acquired title to the subject property, 401 Lawnton Avenue in West Deptford (the Property) , as tenants by the entirety. On February 2, 2016, Ruth passed away, vesting title in the Property to her husband, Chester, Sr., by operation of law. On March 25, 2016, Chester, Sr. passed away. Neither Ruth nor Chester, Sr. had published obituaries, and their estates were never probated. On January 31, 2022, Chester, Jr. passed away intestate and had no children or direct line of heirs. Chester, Jr.'s estate was also never probated. On June 8, 2023, counsel for Michael Zweig, Esq., the proposed administrator of Chester, Jr.'s estate, and intervenor sent correspondence to the Gloucester County Surrogate Court (Surrogate Court or office) enclosing a verified complaint and an order to show cause (OTSC) seeking to obtain Chester, Jr.'s death certificate. Intervenor alleges he is Chester, Jr.'s first cousin. 1 There are two Chester E. Daughtery's involved in this case, father and son. To avoid confusion, we refer to the father as Chester, Sr., and the son as Chester, Jr. Further, because there are multiple family members involved sharing the same last name, we refer to them by their first names to avoid confusion. By doing so, we intend no disrespect. A-3168-24 3 The Surrogate Court returned the documents noting it was unable to create a docket without proof that Chester, Jr. was a Gloucester County resident and instructed counsel to file a complaint in the Chancery Division, General Equity Part. The Litigation On August 22, 2023, Zweig's and intervenor's counsel refiled the complaint and OTSC in the Chancery Division, General Equity Part to obtain Chester, Jr.'s death certificate. The complaint listed twenty-three individuals as interested parties and intestate heirs to Chester, Jr., and included their addresses. On September 26, 2023, the court entered an order allowing Zweig to obtain a death certificate for "Chester Daugherty." Zweig did not obtain the death certificate until March 11, 2024, which was for Chester, Jr., the son of Chester, Sr. and Ruth. On October 18, 2023, plaintiff Pro Cap 8 FBO First Trust Bank (Pro Cap) 2 purchased tax sale certificate number 23-00042 at a public sale from the West Deptford tax collector for $5,351.43, representing unpaid municipal real estate taxes and $361.90 in unpaid water and sewer bills on the Property for the 2 We refer to Pro Cap and PC8REO, LLC as "plaintiff" interchangeably because as detailed later in our opinion, the tax sale certificate was later assigned from Pro Cap to the current plaintiff, PC8REO, LLC. A-3168-24 4 calendar year 2022. The total certificate amount was $6,833.02, which included accrued interest and sale costs. Pro Cap then assigned the tax sale certificate to PC8REO, LLC (PC8REO). On November 24, 2023, Dino M. Cavalieri, a licensed construction official, issued an abandoned property certification for the Property pursuant to N.J.S.A. 55:19-81. Cavalieri noted on the property certification that "[t]he Property is in need of rehabilitation and no rehabilitation has taken place during the last six months"; "[a]t least one installment of property tax remains unpaid and delinquent on the Property"; "[t]he condition and vacancy of the Property materially increases the risk of fire"; there was "overgrown landscape"; and the Property was in a "dilapidated appearance." A broken down car was also in the driveway with a flat tire. On December 22, 2023, Pro Cap conducted a title search on the Property, which revealed no proof of death was found for Chester, Sr. or Ruth in the Surrogate's office. On March 6, 2024, Pro Cap filed an in rem tax foreclosure complaint pursuant to N.J.S.A. 54:5-86(b), alleging the Property was abandoned as a matter of law. Chester, Sr. and Ruth were the only named defendants. On March 10, 2024, a process server attempted to serve defendants with the foreclosure complaint and a pre-foreclosure notice at the Property but was A-3168-24 5 unsuccessful. The process server noted the Property was vacant, there was a car in the driveway with an expired registration, the mailbox was "stuffed full," and observed debris in the yard. On March 11, 2024, Chester, Jr.'s death certificate was issued. The death certificate states he died on January 31, 2022, and his address was listed as the Property. On March 26, 2024, Pro Cap's complaint was recorded in the clerk's office and acted as a lis pendens under N.J.S.A. 2A:15-6. On April 10, 2024, Pro Cap requested the Surrogate's office search for the estates of "Chester E. Daugherty," and Ruth from 2016 to the present. The request also sought letters of administration and any probated wills. No search request was made or conducted for Chester, Jr. On April 12, 2024, the Surrogate's office responded that no estate had been opened for Chester, Sr. or Ruth. On April 12, 2024, Pro Cap obtained an updated title search, which found no proof of death on record for Chester, Sr. or Ruth. Pro Cap conducted a computerized skip trace for "Chester E. Daugherty," which revealed Ruth was his wife and Chester, Jr. was his son. On May 3, 2024, a notice of in rem foreclosure was published in the South Jersey Times, which is circulated in Camden, Cumberland, Gloucester, and Salem counties. On May 6, 2024, a notice of publication was posted at the A-3168-24 6 Property as required by Rule 4:64-7(d). Pro Cap also mailed the foreclosure complaint and notice of foreclosure to the State of New Jersey, the West Deptford tax collector, Chester, Sr., Ruth, and Chester, Jr. at the Property, and the Superior Court clerk's office. Pro Cap posted notice of foreclosure at various conspicuous places in West Deptford and the Property. The record shows the tax bills were mailed to the deceased owners at the Property. On May 9, 2024, Pro Cap filed a motion to deem the Property abandoned. The motion was served upon defendants at the Property and "c/o" the Superior Court clerk's office. In support of its motion, Pro Cap submitted a certification by Cavalieri. The motion was unopposed. On June 7, 2024, the court granted Pro Cap's motion and declared the Property abandoned pursuant to N.J.S.A. 55:19-81 and 54:5-86(b). Attempts to serve defendants at the Property were unsuccessful. On July 8, 2024, ostensibly unaware of the pending foreclosure, intervenor submitted an estate information form and a copy of Chester, Jr.'s death certificate to the Surrogate identifying twenty-three heirs, who all reside outside the State of New Jersey. The form was deemed deficient under Rule 4:80-1(a)-(c), and the Surrogate's website, which requires a payment, a government form of identification, a list and value of all assets, names and A-3168-24 7 addresses of the next-of-kin, an original death certificate with a raised seal, renunciations, and a surety bond. Due to these deficiencies, a probate file was never opened for any of the decedents. On July 30, 2024, by way of purchase, Pro Cap assigned its tax sale certificate to PC8REO. Pro Cap's Motions for Default and Final Judgment On July 31, 2024, Pro Cap filed a motion for entry of default and final judgment of foreclosure and to substitute PC8REO as plaintiff. Pro Cap certified that an estate search was conducted for Chester, Sr. by the Surrogate, and no probate estate was found. Notices of both motions were sent to the Property, addressed to Chester, Sr. and Ruth, "Chester E. Daughterty[,] Jr., possible heir to Chester E. Daughtery, Sr.," and "his [or her] heirs, devisees, and personal representatives and their or any of their successors in right, title, and interest," and "c/o" the Superior Court clerk's office in Trenton. At the time of final judgment, Pro Cap obtained a comparative market analysis (CMA), which estimated the Property was worth approximately $135,000.00. On August 16, 2024, the court granted Pro Cap's motions and entered a final judgment of foreclosure by default, which vested title of the Property with Pro Cap. The order stated the default was entered "against any and all persons having any right, title, or interest in or to, or lien upon " the A-3168-24 8 Property. On August 21, 2024, Pro Cap served the final judgment on defendants at the Property and "c/o" the Superior Court Clerk's office. According to intervenor, he only learned of the final judgment when his counsel called the West Deptford tax office around January 2, 2025. On October 24, 2024, Pro Cap entered into a construction contract in the amount of $143,000.00 for the Property, and also incurred costs for debris removal, yard work, a new roof, and miscellaneous expenses amounting to $37,337.23. Pro Cap's expenses totaled $180,337.23. An updated CMA estimated the Property's value had increased to approximately $450,000.00, as a result of Pro Cap's improvements. The Motion to Intervene, Redeem the Tax Sale Certificate, and Vacate Judgment On March 11, 2025, six months after entry of the final judgment, intervenor filed a motion to intervene, redeem the tax sale certificate, and vacate the final judgment of foreclosure. On March 19, 2025, PC8REO's title company confirmed there was still no record of estates for Chester, Sr. or Ruth on file with the Surrogate. On March 25, 2024, PC8REO obtained a computerized skip trace from the West Deptford tax collector's office, which showed the tax bills were being mailed to the Property and were addressed to the deceased property A-3168-24 9 owners, Chester, Sr. and Ruth. The search indicated Chester, Jr. was previously living at the Property, and this was the only address listed for him. PC8REO opposed the motion and countered it was based upon "speculation" and did not have a certification from intervenor or any other individual having first-hand knowledge regarding the Property or the decedents. PC8REO argued the motion was based solely on Zweig's self-serving certification requesting a death certificate for "Chester Daugherty." PC8REO contended the motion did not have documentary proof of the identity of the purported heirs to the Property or that an estate had been probated for the Property. PC8REO asserted the motion also did not confirm that Chester, Jr. was the only heir to the Property. On April 11, 2025, the court conducted oral argument on intervenor's motion. That day, the court determined Pro Cap complied with the court rules for service of process of the complaint and notice for an in rem tax foreclosure proceeding, reasoning Pro Cap "did everything in [its] power" to locate and notify the heirs. The court emphasized Pro Cap was entitled to rely on the search for the estates conducted by the Surrogate's office, which confirmed no estates were opened for any of the decedents. The court noted Zweig tried to file Chester, Jr.'s death certificate but the Surrogate's office "had no record of it." A-3168-24 10 The court explained that PC8REO did not have to search "eCourts" and could "rely upon information that's provided by the probate court." The court determined the final judgment of foreclosure is "not void" and reiterated that PC8REO "followed all of the rules" and did "everything that [it] needed to do in order to put everybody on notice." The court noted it was a court of equity, and Pro Cap had provided a "valuable service" by purchasing the tax sale certificate and removing "the blight" on the Property by immediately rehabilitating it. A memorializing order was entered. On May 1, 2025, intervenor filed a motion for reconsideration. On May 23, 2025, the court denied the motion for reconsideration and issued a written memorandum of decision. The court held intervenor failed to establish any defense, which would justify the extraordinary relief of vacating the final judgment. The court highlighted the Property "was judicially determined to be abandoned" and that "our new statutory scheme does not allow for a judicial sale of the [P]roperty under those circumstances in order to obtain any excess equity." The court found its April 11, 2024 order was not "based upon an incorrect or irrational basis." A memorializing order was entered. On June 10, 2025, intervenor filed a notice of appeal. On August 14, 2025, PC8REO moved for summary judgment regarding the April 11 and May A-3168-24 11 23, 2025 orders, which intervenor opposed. On October 2, 2025, the court denied PC8REO's summary judgment motion. Before us, intervenor argues: (1) the court erred in denying his right to intervene pursuant to Rule 4:33-1, as the intestate heirs are the real parties in interest; (2) due process requires the final judgment of foreclosure be vacated pursuant to Rule 4:50-1(d) and (f); (3) PC8REO's judgment is void because it failed to comply with the 2023 revision to the court rules regarding in rem and in personam tax foreclosures; (4) the default judgment should be voided because the Property was taken without due process; and (5) the court failed to consider the equities weighing heavily in favor of vacating the judgment, contrary to Rule 4:50-1(f). We reject intervenor's arguments. II. A reviewing court will not disturb the trial court's decision on a motion for reconsideration "unless it represents a clear abuse of discretion." Kornbleuth v. Westover, 241 N.J. 289 , 301 (2020) (quoting Hous. Auth. of Morristown v. Little, 135 N.J. 274, 283 (1994)). "An abuse of discretion 'arises when a decision is made without a rational explanation, inexplicably departed from A-3168-24 12 established policies, or rested on an impermissible basis.'" Id. at 302 (quoting Pitney Bowes Bank, Inc. v. ABC Caging Fulfillment, 440 N.J. Super. 378, 382 (App. Div. 2015)). We review a trial judge's decision on whether to grant or deny a motion for reconsideration in accordance with Rule 4:49-2. Branch v. Cream-O-Land Dairy, 244 N.J. 567 , 582 (2021). "The [R]ule applies when the court's decision represents a clear abuse of discretion based on plainly incorrect reasoning or failure to consider evidence or a good reason for the court to reconsider new information." Pressler & Verniero, Current N.J. Court Rules, cmt. 2 on R. 4:49- 2 (2027). See Kornbleuth, 241 N.J. at 301-02. Relief under Rule 4:50-1, except for relief from default judgments, is "granted sparingly," and in exceptional circumstances. F.B. v. A.L.G., 176 N.J. 201, 207 (2003). "The decision whether to vacate a judgment on one of the six specified grounds is a determination left to the sound discretion of the trial court, guided by principles of equity." Ibid. On appeal, "[t]he decision granting or denying an application to open a judgment will be left undisturbed unless it represents a clear abuse of discretion." Hous. Auth. of Morristown, 135 N.J. at 283 . A-3168-24 13 III. First, we address intervenor's argument that the court erred in denying his right to intervene pursuant to Rule 4:33-1. Intervenor maintains the court was "mandated" to grant his motion because he satisfied all four criteria under Rule 4:33-1, and as such, the Rule is not discretionary, citing Meehan v. K.D. Partners, L.P., 317 N.J. Super. 563, 568 (App. Div. 1998). According to intervenor, when Ruth died, the Property vested in Chester, Sr., and when he died, the Property vested in Chester, Jr. Thereafter, Chester, Jr. died, and the Property vested in his heirs—intervenor being one of them. As "property owners," intervenor asserts the heirs were the real parties in interest and were entitled to intervene. Intervenor challenges Pro Cap's failure to locate or name Chester, Jr. in the litigation arguing Pro Cap "knew" the Property's taxes were being paid for six years after Chester, Sr.'s death, and therefore, Chester, Jr. was living at the Property for a period of time. Intervenor contends without being served or notified by Pro Cap that it filed an in rem tax foreclosure complaint, it was impossible for him or the other "heirs" to be aware of the complaint without "going well beyond a reasonable diligence." A-3168-24 14 Intervenor also asserts this is not a scenario where a party was "standing on the sidelines," and "watching the proceedings only to express disagreement when the results are unsatisfactory," citing Hanover Twp. v. Town of Morristown, 118 N.J. 136 , 143 (Ch. Div. 1972). Rather, he contends this is a case where Pro Cap failed to name the proper defendants. Rule 4:26-1 requires an action to be "prosecuted in the name of the real party in interest." Rule 4:33-1 addresses a party's ability to file a motion to intervene in an action as of right, permitting "intervention as of right" in the following circumstances: Upon timely application[,] anyone shall be permitted to intervene in an action if the applicant claims an interest relating to the property or transaction which is the subject of the action and is so situated that the disposition of the action may as a practical matter impair or impede the ability to protect that interest, unless the applicant's interest is adequately represented by existing parties. [R. 4:33-1.] Our courts have defined the requirements for a moving party to satisfy this Rule: (1) claim an interest relating to the property or transaction which is the subject of the transaction, A-3168-24 15 (2) show that the movant is "so situated that the disposition of the action may as a practical matter impair or impede its ability to protect that interest," (3) demonstrate that the movant's interest is not adequately represented by existing parties, and (4) make a timely application to intervene. [N.J. Dep't of Envt'l Prot. v. Exxon Mobil Corp., 453 N.J. Super. 272, 286 (App. Div. 2018).] Rule 4:33-1 is construed "liberally." Meehan, 317 N.J. Super. at 568 . "Consistent with this liberal construction, our courts take a practical approach in determining whether a moving party has a cognizable interest in litigation that it is entitled to protect by intervention." Allstate N.J. Ins. Co. v. Neurology Pain Assocs., 418 N.J. Super. 246, 254-55 (App. Div. 2011). See In re Camden Cnty., 170 N.J. 439 , 449 (2002) (to have standing, "a party must present a sufficient stake in the outcome of the litigation, a real adverseness with respect to the subject matter, and a substantial likelihood that the party will suffer harm in the event of an unfavorable decision."). In considering factor four, whether a party made a timely application to intervene, "the court must consider the purpose for which intervention is sought." Chesterbrooke Ltd. P'ship v. Plan. Bd. of Twp. of Chester, 237 N.J. Super. 118, 125 (App. Div. 1989). It must consider "[o]ther factors . . . in A-3168-24 16 connection with timeliness[, including] whether the granting of the motion would entail appreciable prejudice to the other parties or the court, and at what state in the total proceedings the motion to intervene is made." Clarke v. Brown, 101 N.J. Super. 404, 411 (Law Div. 1968); see also M.M. v. Dep't of Child., 479 N.J. Super. 471 , 489 (App. Div. 2024) (intervention cannot "unduly delay or prejudice the adjudication of the rights of the original parties."). Intervention after final judgment is "unusual and not often granted." Twp. of Hanover v. Town of Morristown, 121 N.J. Super. 536, 538 (App. Div. 1972). "[T]he trial court's interpretation of [Rule 4:33-1] is subject to our de novo review." N.J. Dep't of Envt'l Prot., 453 N.J. Super. at 285 . However, a court's findings as to timeliness are reviewed for an abuse of discretion. Am. Civ. Liberties Union of N.J., Inc. v. Cnty. of Hudson, 352 N.J. Super. 44, 64 (App. Div. 2002). Here, as applied, intervenor seemingly satisfies the first three criteria under N.J. Dep't of Envt'l Prot., 453 N.J. Super. at 289 as (1) he can ostensibly claim an interest relating to the Property because he is a purported intestate heir of Chester, Jr.; (2) intervenor can show the disposition of the action would impede his ability to protect his interest in the Property; and (3) he is not adequately represented by existing parties because no other heirs of Chester, Jr. A-3168-24 17 are parties to the action—the only other parties are the Township of West Deptford and the two deceased prior owners, Chester, Sr. and Ruth. However, based upon our de novo review under the fourth criteria, we conclude intervenor did not meet his burden, and therefore, there was no error. The record shows Pro Cap mailed a copy of the final judgment of foreclosure on August 21, 2024 by first class mail to the Property. Intervenor waited almost seven months to file a motion to intervene and vacate the final judgment despite being granted the authority to obtain Chester, Jr.'s death certificate on September 26, 2023. We reject intervenor's argument that he satisfied the fourth criteria and conclude he did not file the motion "as soon as practicable" after discovering the existence of the final judgment of foreclosure. The court properly relied on the considerable amount of money Pro Cap invested to rehabilitate the Property. The court duly found Pro Cap wanted to "clean" the Property up, "[m]ake sure everybody's safe," and refused to "un-ring a bell." We likewise conclude intervenor did not satisfy his heavy burden to intervene at this point of the litigation. Clarke, 101 N.J. Super. at 411 . See Twp. of Hanover, 121 N.J. Super. at 536 . The doctrine of laches also applies and "is invoked to deny a party enforcement of a known right when the party engages in an inexcusable and unexplained delay in exercising that right to the A-3168-24 18 prejudice of the other party." Knorr v. Smeal, 178 N.J. 169, 180-81 (2003). Therefore, the motion to intervene and vacate the final judgment was properly denied. IV. Next, we address intervenor's argument that the final judgment of foreclosure should be vacated pursuant to Rule 4:50-1(d) and (f). Rule 4:50-1 provides for relief from a judgment [or order] in six enumerated circumstances. D.M.C. v. K.H.G., 471 N.J. Super. 10 , 26 (App. Div. 2022) (quoting In re Est. of Schifftner, 385 N.J. Super. 37, 41 (App. Div. 2006)). It provides: On motion, with briefs, and upon such terms as are just, the court may relieve a party or the party's legal representative from a final judgment or order for the following reasons: (a) mistake, inadvertence, surprise or excusable neglect; (b) newly discovered evidence which would probably alter the judgment or order and which by due diligence could have been discovered in time to move for a new trial under R[ule] 4:49; (c) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (d) the judgment or order is void; (e) the judgment or order has been satisfied, released or discharged, or a prior judgment or order upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment or order should have prospective application; or (f) any other reason justifying relief from the operation of the judgment or order. A-3168-24 19 [R. 4:50-2. (emphasis added).] Rule 4:50-2 states that a party must file such a motion "within a reasonable time, and for reasons (a), (b) and (c) of R[ule] 4:50-1 not more than one year after the judgment, order or proceeding was entered or taken." An application to vacate a judgment under Rule 4:50-1 falls within "the sound discretion of the trial court" and when exercising that discretion the court should be "guided by equitable principles." Hous. Auth. of Morristown, 135 N.J. at 283 . Here, intervenor contends the court should have vacated Pro Cap's judgment under Rule 4:50-1(d) and (f). Subsection (d) - The Judgment Or Order Is Void Intervenor maintains that, under Rule 4:50-1(d), a "[d]efendant need not show excusable neglect, or even fraud or misrepresentation when the judgment is void for failure of process" (emphasis added). City of Passaic v. Shennett, 390 N.J. Super. 475, 486 (App. Div. 2007). He contends that Pro Cap obtained its judgment without serving any interested parties, which renders it void for lack of personal jurisdiction, and therefore, the judgment should be set aside under Rule 4:50-1(d) on due process grounds. "A Rule 4:50-1(d) motion, based on a claim that the judgment is void, does not require a showing of excusable neglect but must be filed within a A-3168-24 20 reasonable time after entry of the judgment." Deutsche Bank Nat'l Tr. Co. v. Russo, 429 N.J. Super. 91, 98 (App. Div. 2012). "If a judgment is void and, therefore, unenforceable, it is a particularly worthy candidate for relief [under Rule] 4:50-1(d)[,] provided that the time lapse is not unreasonable and an innocent third party's rights have not intervened." Bank v. Kim, 361 N.J. Super. 331, 336 (App. Div. 2003). A tax sale foreclosure judgment may be void where service of process on the owner of the property was defective. See M & D Assocs. v. Mandara, 366 N.J. Super. 342 , 352-53 (App. Div. 2004). "A default judgment will be considered void when a substantial deviation from service of process rules has occurred, casting reasonable doubt on proper notice." Jameson v. Great Atl. & Pac. Tea Co., 363 N.J. Super. 419, 425 (App. Div. 2003). In property tax foreclosures specifically, our courts are solicitous of defendants who would have been entitled to redeem the property "where there is [(1)] substituted service, as well as [(2)] a tremendous disparity between the amount due on the tax certificates and the value of the property subject to foreclosure." M & D Assocs., 366 N.J. Super. at 354. Additionally, "[i]f defective service renders the judgment void, a meritorious defense is not required to vacate the judgment under [Rule] 4:50- A-3168-24 21 1(d)." Jameson, 363 N.J. Super. at 425 . However, "[w]here due process has been afforded [to] a litigant, technical violations of the rule concerning service of process do not defeat the court's jurisdiction." Romero v. Gold Star Distrib., LLC, 468 N.J. Super. 274 , 301 (App. Div. 2021) (first alteration in original) (quoting O'Connor v. Altus, 67 N.J. 106, 127-28 (1975)). "[N]ot every defect in the manner in which process is served renders the judgment upon which the action is brought void." Ibid. (quoting Rosa v. Araujo, 260 N.J. Super. 458, 462 (App. Div. 1992)). A default judgment will only be considered void when "a substantial deviation from service of process rules has occurred, casting reasonable doubt on proper notice." Jameson, 363 N.J. Super. at 425 . In the matter under review, the judgment is not void based on improper service of process, as Pro Cap complied with the rules most applicable to the matter at hand and did not "substantial[lly] deviat[e] from service of process rules," that would "cast[] reasonable doubt on proper notice." M & D Assocs., 366 N.J. Super. at 353. Although service by publication is "the mode of service least calculated and least likely to result in notice to a party," Pro Cap certified "a diligent inquiry [was] made and that the defendant [wa]s not available for service within the State." Ibid.; Modan v. Modan, 327 N.J. Super. 44, 48 (App. A-3168-24 22 Div. 2000 ) (quoting Camden Cnty. Bd. of Soc. Servs. v. Yocavitch, 251 N.J. Super. 24, 29 (Ch. Div. 1991)). The record supports that determination. Subsection (f) - Any Other Reason Justifying Relief From Judgment Intervenor also contends that while relief under subsection (f) is reserved for truly exceptional circumstances, our Supreme Court found such circumstances to exist in 257-261 20th Ave., Realty, LLC v. Roberto, 259 N.J. 417 (2025). In that case, a property owner sought to vacate a judgment on the grounds he forfeited hundreds of thousands of dollars in equity. Id. at 437 . Although the property owner was aware of the action, and failed to contest service, the court vacated the foreclosure judgment, finding the loss of equity was an exceptional circumstance. Id. at 429 . See also Nowosleska v. Steele, 400 N.J. Super. 297, 303 (App. Div. 2008) (finding defendant was entitled to relief when failure to respond to a foreclosure complaint was neither willful nor calculated and resulted in loss of possession of and equity in the home). Additionally, intervenor contends the court failed to consider the Property had no mortgage, was worth almost $400,000.00, and was owned by the Daughtery family for fifty-three years. Intervenor argues the court abused its discretion in not conducting a hearing to ascertain the value of the Property and A-3168-24 23 the expenses incurred, and instead, simply accepted Pro Cap's claim $180,000.00 of expenses. The "catch-all" provision of Rule 4:50-1, is subpart (f), which "authorizes a court to relieve a party . . . from a final judgment or order for . . . any . . . reason justifying relief from the operation of the judgment or order." R. 4:50- 1(f). DEG, LLC, v. Twp. of Fairfield, 198 N.J. 242, 269-70 (2009). However, in practice, courts have found relief "is available only in 'exceptional circumstance.'" Roberto, 259 N.J. at 436 (quoting Hous. Auth. of Morristown, 135 N.J. at 290 ). Vacation of a judgment should be "granted sparingly." Hous. Auth. of Morristown, 135 N.J. at 290 . Our Supreme Court has "repeatedly noted the broad parameters of a court's discretion under subsection (f) . . . and that a court should have authority under it to reopen a judgment where such relief is necessary to achieve a fair and just result." Manning Eng'g, Inc. v. Hudson Cnty. Park Comm'n, 74 N.J. 113, 122 , (1977). A court deciding a motion to vacate default judgment must weight "two oft-competing goals: resolving disputes on the merits, and providing finality and stability to judgments." BV001 REO Blocker, LLC v. 53 W. Somerset St. Props., LLC, 467 N.J. Super. 117 , 123 (App. Div. 2021). "Whether to grant relief 'is left to the sound discretion of the trial court,' . . . and A-3168-24 24 that decision is reviewed for abuse of discretion." Mancini v. Eds ex rel. N.J. Auto. Full Ins. Underwriting Ass'n, 132 N.J. 330, 334 (1993). Application of the rule is limited to situations in which, where if not granted, "a grave injustice would occur.'" U.S. Bank Nat'l Ass'n v. Guillaume, 209 N.J. 449, 484 (2012) (quoting Hous. Auth. of Morristown, 135 N.J. at 289 ). In deciding whether to grant the motion under this subsection, a court will consider, among other factors: "(1) the extent of the delay in making the application; (2) the underlying reason or cause; (3) the fault or blamelessness of the litigant; and (4) the prejudice that would accrue to the other party." Parker v. Marcus, 281 N.J. Super. 589, 593 (App. Div. 1995). Any doubts "should be resolved in favor of the parties seeking relief.'" Mancini, 132 N.J. at 334 . We conclude the court did not misuse its discretion in denying relief under Rule 4:50-1(f). Initially, we determine intervenor's motion for relief, filed over seven months after the judgment was entered and he was on notice of it, was not made within a reasonable time as required under Rule 4:50-2. Moreover, as we previously discussed, Pro Cap and PC8REO would be greatly prejudiced by any granted relief. In addition, we conclude intervenor did not establish exceptional or compelling circumstances. Again, we note the seven-month delay in moving for A-3168-24 25 relief and the prejudice to Pro Cap and PC8REO if relief was granted. "In foreclosure matters, equity must be applied to plaintiffs as well as defendants." Capital One, N.A. v. Peck, 455 N.J. Super. 254, 260 (App. Div. 2018) (quoting Deutsche Bank Tr. Co. Ams. v. Angeles, 428 N.J. Super. 315, 320 (App. Div. 2012)). The Doctrine of Unclean Hands Intervenor contends the doctrine of unclean hands should be applied to vacate the final judgment of foreclosure. He argues Pro Cap's counsel previously certified the named defendants were deceased, acknowledged Chester, Jr. was deceased, had lived at the Property, and taxes were being paid for the Property. Intervenor maintains Pro Cap's counsel was aware letters addressed to the deceased defendants and to the Superior Court clerk in Trenton had a "zero percent chance" of providing notice to the real parties in interest. Because Pro Cap's counsel failed to perform due diligence in finding Chester, Jr.'s heirs, intervenor asserts the unclean hands doctrine should apply. Under the doctrine of unclean hands, "a suitor in equity must come into court with clean hands and he [or she] must keep them clean after his [or her] entry and throughout the proceedings." U.S. Bank Nat'l Ass'n v. Curcio, 444 N.J. Super. 94, 113 (App. Div. 2016) (quoting Marino v. Marino, 200 N.J. 315 , A-3168-24 26 345 (2009)). In other words, "he [or she] who seeks equity must do equity." Thompson v. City of Atlantic City, 190 N.J. 359, 384 (2007). When "iniquitous conduct" relates to the very matter of transaction on which judicial protection is sought, a court will deny that wrongdoer relief. United Bd. & Carton Corp. v. Britting, 61 N.J. Super. 340, 344 (App. Div. 1960). Application of the unclean hands doctrine is "limited and [it] should be used sparingly." Hageman v. 28 Glen Park Assoc., L.L.C., 402 N.J. Super. 43, 55 (Ch. Div. 2008). "The defense of unclean hands is cognizable in a foreclosure action." Leisure Tech.-Ne., Inc. v. Klingbeil Holding Co., 137 N.J. Super. 353, 356 (App. Div. 1975). When considering whether to apply the doctrine, a court must contemplate the totality of the circumstances alongside the relative equities of the parties. Warrender v. Warrender, 79 N.J. Super. 114, 121 (App. Div. 1963). "It is the effect of the inequitable conduct on the total transaction which is determinative of whether the maxim of unclean hands shall or shall not be applied." Heritage Bank, N.A. v. Ruh, 191 N.J. Super. 53, 71 (Ch. Div. 1983). Here, Pro Cap's actions do not warrant application of the doctrine of unclean hands. Our court rules do not require a plaintiff to exercise every imaginable method of locating any individual having an interest in the property before turning to service by publication. See Modan, 327 N.J. Super. at 48 . The A-3168-24 27 court recognized Pro Cap "did everything in their power to try to get information as to whether or not there might be somebody missing that they needed to notify." Saliently, unclean hands is an affirmative defense, and our courts have found that "[a]n affirmative defense is waived if not pleaded or otherwise timely raised," Brown v. Brown, 208 N.J. Super. 372, 384 (App. Div. 1986). Intervenor did not raise unclean hands as an affirmative defense in his answer, and therefore, has waived that defense. V. Intervenor next argues Pro Cap violated Rule 4:64-1(d) by failing to personally serve any and all parties having the right of redemption—including him—with the motion for entry of final judgment. He also contends Pro Cap violated Rule 4:64-7(c) by failing to serve the foreclosure complaint and prejudgment notices on the Property's owner. In pertinent part, the Rule states: (c) Service. The plaintiff shall, within [seven] days after the date of publication of the notice of foreclosure, serve a copy thereof in the manner hereinafter provided on each person whose name appears as an owner in the tax foreclosure list at his or her last known address as it appears on the last municipal tax duplicate. The plaintiff shall also make such service upon all other persons having an ownership or lien interest recorded in the office of the Superior Court Clerk or the county recording officer on the date of the filing of the complaint and upon all other persons who, pursuant to N.J.S.A. 54:5-104.48, as amended, have filed a notice A-3168-24 28 with the tax collector specifying a title, lien, claim or interest in any of the lands sought to be affected by said complaint. Such service shall be made in the manner provided by R[ule] 4:4-4(a)(1) or (c) or by simultaneously mailing to the last known address by registered or certified mail, return receipt requested, and by ordinary mail. . . . [R. 4:64-7(c) (emphasis added).] Intervenor urges that "knowledge of delinquency in the payment of taxes is not equivalent to notice that a tax sale is pending." Jones v. Flowers, 547 U.S. 220, 232-33 (2006) (quoting Mennonite Bd. of Missions v. Adams, 462 U.S. 791, 800 (1983)). He also contends that service by publication in a newspaper did not cure Pro Cap's failure to identify and serve the actual parties in interest, as it is not calculated to provide actual notice. Intervenor points out the heading of the legal notice did not identify the Property at issue or defendant. Intervenor asserts that "[c]hance alone" would bring to the attention of "even a local resident an advertisement in small type inserted in the back pages of a newspaper," and "if he [or she] makes his [or her] home outside the area of the newspaper's normal circulation[,] the odds that the information will never reach him [or her] are large indeed," citing Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 315 (1950). That chance is "further reduced when . . . the notice required does not even name those whose attention it is supposed to A-3168-24 29 attract," Ibid., and there was "zero probability" that any of the twenty-three heirs, who all live outside of this State, would have seen the notice in the South Jersey Times. Intervenor contends that in a tax foreclosure sale, service by publication does not satisfy service of process requirements where defendant's name and address are "reasonably ascertainable," and that Pro Cap failed to conduct due diligence to ascertain Chester, Jr.'s heirs, which would have identified intervenor. He explains Pro Cap's search of Chester, Sr. was limited to "probated estates," and failed to search records of "Chester, Jr." altogether. According to intervenor, an expanded search would have revealed the estate information form, which listed Chester, Jr.'s twenty-three heirs, and an eCourts search would have shown this information. Again, we are unpersuaded. At the onset, we note intervenor's reliance on Rule 4:64-1 is misguided as it addresses, "Uncontested Judgment Other Than In Rem Tax Foreclosures," and this matter involves an in rem tax foreclosure. We now turn to the issue of whether Pro Cap complied with Rule 4:64-7(c), which also governs service for in rem tax foreclosure matters. Rule 4:64-7(c) requires a plaintiff to serve a copy of the foreclosure notice "on each person whose name appears as an owner in the tax foreclosure list at A-3168-24 30 his or her last known address as it appears on the last municipal tax duplicate " within seven days of the date of publication of the notice of foreclosure. The Rule specifies that such service must be made "in the manner provided by R[ule] 4:4-4(a)(1) or (c) or by simultaneously mailing to the last known address by registered or certified mail, return receipt requested, and by ordinary mail. " Ibid. Under Rule 4:64-7(d), "within [fifteen] days after the date of the publication of the notice," a plaintiff must also post a copy "in the office of the tax collector of the plaintiff municipality and in the office of the county recording officer of the county in which the land to be affected by the action is, and in [three] other conspicuous places within the taxing district in which the land is located." The Rule also requires plaintiff to mail a copy of the notice of foreclosure "by ordinary mail, to the Attorney General." R. 4:64-7(c). Here, we are satisfied that the dictates of due process were met consistent with Rule 4:64-7(b), (c) and (d). Under subsection (b), notice of the in rem tax foreclosure complaint was published in The South Jersey Times. Under subsection (c), Pro Cap mailed notices of foreclosure to the State of New Jersey, the West Deptford tax collector, to Chester, Sr., Ruth, and Chester, Jr. at the Property, and the Superior Court clerk's office. Notice was also posted in A-3168-24 31 accordance with Rule 4:64-7(d) at various conspicuous places in the taxing district where the Property is located including the Property itself. Rules 4:4-5(a) and 4:26-5(c) apply when a defendant is absent, in place of traditional tax foreclosure service rules. Rule 4:4-5(a) allows a party to resort to this method so long as the party serving the notice conducted a "diligent inquiry as required by this rule" to find them initially: (a) Methods of Obtaining In Rem Jurisdiction. Whenever, in actions affecting specific property, or any interest therein, or any res within the jurisdiction of the court. . . . wherein it shall appear by affidavit of the plaintiff's attorney or other person having knowledge of the facts, that a defendant cannot, after diligent inquiry as required by this rule, be served within the State, service may, consistent with due process of law, be made by any of the following four methods: (1) personal service outside this State as prescribed by R[ule] 4:4-4(b)(1)(A) and (B); or (2) service by mail as prescribed by R[ule] 4:4- 4(b)(1)(C); or (3) by publication of a notice to absent defendants once in a newspaper published or of general circulation in the county in which the venue is laid; and also by mailing, within [seven] days after publication, a copy of the notice as herein provided and the complaint to the defendant, prepaid, to the defendant's residence or the place where the defendant usually receives mail, . . . or unless the defendants are proceeded against as unknown owners or claimants pursuant to R[ule] 4:26- 5(c). . . . If defendants are proceeded against pursuant A-3168-24 32 to R[ule] 4:26-5(c), a copy of the notice shall be posted upon the lands affected by the action within [seven] days after publication. The notice of publication to absent defendants required by this rule shall be in the form of a summons, without a caption. [R. 4:4-5(a).] Subsection (b) of Rule 4:26-5 also requires that if the "affiant has been unable to ascertain whether or not such person is still alive, or if such person is known or believed to be dead," affiant must submit an affidavit of inquiry stating the following: (b) Contents of Affidavit of Inquiry. The inquiry required by this [R]ule shall be made by the plaintiff, plaintiff's attorney actually entrusted with the conduct of the action, or by the agent of the attorney; it shall be made of any person who the inquirer has reason to believe possesses knowledge or information as to the defendant's residence or address or the matter inquired of; . . . the inquirer shall state that an action has been or is about to be commenced against the person inquired for, and that the object of the inquiry is to give notice of the action in order that the person may appear and defend it. The affidavit of inquiry shall be made by the inquirer fully specifying the inquiry made, of what persons and in what manner, so that by the facts stated therein it may appear that diligent inquiry has been made for the purpose of effecting actual notice. [R. 4:4-5 (emphasis added).] Similarly, Rule 4:26-5(c) requires: A-3168-24 33 (c) Designation of Unknown Owner or Claimant. When it shall appear by the affidavit of inquiry required by R[ule] 4:4-5(a)(3) that the affiant has been unable to ascertain the name or names of any unknown owner or claimant, such unknown owner or claimant may be made a party defendant and shall be sufficiently described for all purposes including service of process by the designation "Unknown Owner (or Unknown Claimant), his or her heirs, devisees and personal representatives, and his, hers, their or any of their successors in right, title and interest." Where title to real property or an interest therein or a lien or encumbrance thereon is involved, the inquiry shall include, and the affidavit of inquiry shall recite, reasonable diligence in searching the title . . . . [R. 4:26-5(c).] As such, "[i]f such search does not disclose the name of a person who it is alleged or claimed owns the same or a part thereof, or some interest therein, or holds a lien or encumbrance thereon, the action may proceed against unknown owners or unknown claimants." R. 4:26-5(c). Our Supreme Court has recognized the following factors in determining whether a name and address are reasonably ascertainable: (1) the public recording system for the property; (2) the likelihood the plaintiff had actual knowledge or reasonable access to the names and addresses of the affected parties; and (3) the relative ease or difficulty with which the plaintiff may find A-3168-24 34 those addresses not on the public record. New Brunswick Sav. Bank v. Markouski, 123 N.J. 402, 419-20 (1991). First, we conclude Pro Cap properly resorted to service by publication because Chester, Jr.'s heirs were not reasonably ascertainable after being reasonably diligent in attempting to find such heirs. Pro Cap properly complied with Rule 4:64-1(a)(2), which requires, "[i]n all residential foreclosure actions," that the plaintiff's counsel "shall annex to the complaint a certification of diligent inquiry." See also R. 4:4-5. Moreover, Pro Cap's foreclosure complaint was recorded in the clerk's office on March 26, 2024, which acted as a lis pendens. See N.J.S.A. 2A:15-6 ("plaintiff or his attorney shall, after the filing of the complaint, file in the office of the county clerk or register of deeds and mortgages . . . of the county in which the affected real estate is situate, a written notice of the pendency of the action."); N.J.S.A. 3B:14-48 ("Service of process . . . shall be made by leaving a copy of the process with the surrogate or clerk, or with a deputy or a clerk employed in his office"); R. 1:5-2 ("[i]f no address is known, despite diligent effort, the filing of papers with the clerk shall be deemed to satisfy that service requirement and there need be no separate service upon the clerk."). A-3168-24 35 As to the second and third factors, the Surrogate's office was unable to locate any information regarding Chester, Sr.'s or Ruth's heirs as Pro Cap requested. And, no estate was ever probated for Chester, Sr., Ruth, or Chester, Jr. Thus, Pro Cap's service of process by first class certified mail, and its title search rendering no results, were sufficient to permit service by publication, as the heirs were not reasonably ascertainable. See R. 4:64-1(a) ("Prior to filing an action to foreclose a . . . tax lien . . . plaintiff shall receive and review a title search of the public record for the purpose of identifying . . . other persons and entities with an interest in the property."). Service of process was sent to the address listed on the Property's tax bill, which was the only address later found after the skip trace was conducted. Second, we are convinced Pro Cap properly complied with the court rules pertaining to publication by service. On May 3, 2024, after personal service failed, Pro Cap utilized service by mail, and a notice of in rem foreclosure was published in the South Jersey Times, which is circulated in four counties. We are satisfied the South Jersey Times qualifies as a "newspaper published or of general circulation in the county in which the venue is laid." Rule 4:4-5(a). Three days later, the notice of publication was posted on the residential property, well within the seven-day requirement. R. 4:4-5(a). A-3168-24 36 Additionally, and in accordance with Rule 4:4-5(a), Pro Cap's counsel submitted a certification of diligent inquiry to the court on July 31, 2024, stating in relevant part: A computerized skip trace was conducted for Chester [], Jr.[,] and provided the following as a current address, 401 Lawnton Ave, West Deptford . . . . Service of the [c]omplaint could not be made upon . . . [d]efendant at the aforementioned address because it is vacant and abandoned. On June 7, 2024, an [o]rder declaring the Property abandoned was entered. The computerized skip trace did not provide any additional addresses for service upon . . . [d]efendant. In as much as Chester, [] . . . Jr. could not be personally served with the [c]omplaint, service was sent, by way of first class and certified mail, return receipt requested to ["]c/o ["] Superior Court of New Jersey-Clerk, . . . [in], Trenton . . . . The certified mail was delivered and signed for and the first class mail was not returned. Intervenor's reliance on Simmons is distinguishable from this case. In Simmons, the foreclosure was vacated based on improper notice because the plaintiff failed to search the multiple alternative names for the decedent, which would have been apparent from the property's deed and tax sale certificate. 392 N.J. Super. 520 -37. In contrast here, no named heirs were listed on either the deed or tax sale certificate other than Chester, Sr. and Ruth. It was only after Pro Cap diligently searched who had been paying the property taxes that it was A-3168-24 37 discovered it was Chester, Jr. Again, no named heirs, let alone alternatives, were ever found. The court duly recognized that Pro Cap complied with Rule 4:64-7(d), which states that, "[t]he plaintiff shall, within [fifteen] days after the date of the publication of the notice," post a copy of the foreclosure complaint, in "the office of the tax collector of the plaintiff municipality and in the office of the county recording officer of the county in which the land to be affected by the action is, and in [three] other conspicuous places within the taxing district in which the land is located." When the court granted Pro Cap's motion to enter final judgment, it determined "plaintiff has filed a copy of the [c]omplaint in the Office of the Tax Collector of the Township of West Deptford, and in the Office of the Clerk/Register of the County of Gloucester, and in the Office of the Attorney General of the State of New Jersey." We conclude the court scrutinized Pro Cap's affidavit of inquiry and "demand[ed] more than cursory inquiries or recital[s]," and their service comported with "due process, and fundamental fairness." M & D Assocs., 366 N.J. Super. at 354. VI. We reject intervenor's argument that the court erred in determining he was not entitled to excess equity under Tyler v. Hennepin Cnty., 598 U.S. 631 A-3168-24 38 (2023), because the Property was found to be abandoned. The New Jersey Tax Sale Law (TSL), N.J.S.A. 54:5-1 to -137, "serves 'as a framework to facilitate the collection of property taxes.'" In re Princeton Off. Park L.P. v. Plymouth Park Tax Servs., LLC, 218 N.J. 52, 61 (2014) (quoting Varsolona v. Breen Cap. Servs. Corp., 180 N.J. 605, 620 (2004)). When a property owner has unpaid property taxes, a municipal government is provided with a "continuous lien" on the property for the amount owed plus penalties and costs of collection. N.J.S.A. 54:5-6. "The [TSL] converts that lien into a stream of revenue by encouraging the purchase of tax certificates on tax-dormant properties." In re Princeton Off. Park L.P., 218 N.J. at 62 (quoting Simon v. Cronecker, 189 N.J. 304, 318 (2007)). The Property Was Abandoned The Abandoned Properties Rehabilitation Act (APRA), N.J.S.A. 55:19-78 to -107, provides an avenue for local governments to avoid conditions of declining property, and rehabilitate those properties that have been abandoned. The APRA permits a holder of a tax certificate to an abandoned property to foreclose so long as certain requirements are satisfied. The APRA does not permit the holder to foreclose on the property within two years of when it A-3168-24 39 acquired such certificate, unless the property is adequately deemed "abandoned" by law. N.J.S.A. 54:5-86(a). If the holder can demonstrate the property meets the meaning of abandoned under the APRA, it may commence a foreclosure action "either at the time of the tax sale or thereafter." N.J.S.A. 54:5-86(b). The holder may "at any time file an action with the Superior Court in the county wherein said municipality is situate, demanding that the right of redemption on such property be barred." Ibid. The APRA enumerates two ways for a tax sale certificate holder to demonstrate to the court that a property is abandoned. First, the holder may (1) file a complaint, along with a complaint "a certification by the public officer or the tax collector that the property is abandoned." N.J.S.A. 54:5-86(b). Second, a court may (2) deem a property abandoned if it finds sufficient, after weighing both party's evidence, that the plaintiff's submission of "evidence that the property is abandoned," and it was "accompanied by a report and sworn statement by an individual holding appropriate licensure or professional qualifications." Ibid. The APRA lists the following criteria for a holder to use in certifying that the property is abandoned: any property that has not been legally occupied for a period of six months and which meets any one of the A-3168-24 40 following additional criteria may be deemed to be abandoned property upon a determination by the public officer that: a. The 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. Construction was initiated on the property and was discontinued prior to completion, leaving the building unsuitable for occupancy, and no construction has taken place for at least six months as of the date of a determination by the public officer pursuant to this section; c. At least one installment of property tax remains unpaid and delinquent on that property in accordance with [N.J.S.A. 54:4-1 to -136] as of the date of a determination by the public officer pursuant to this section; or d. The property has been determined to be a nuisance by the public officer in accordance with [N.J.S.A. 55:19-82]. [N.J.S.A. 55:19-81(a) to (d) (emphasis added).] Here, Pro Cap filed its complaint on March 6, 2024, under N.J.S.A. 54:5- 104.32, to foreclose a party's right of redemption on the Property based on abandonment, under N.J.S.A. 54:5-86(b). Pro Cap represented it was an "[a]bandoned property certificate holder," under N.J.S.A. 54:5-104.30(h), and that it "has unsuccessfully sought a certificate of abandonment from the public A-3168-24 41 officer or tax collector," the first way to deem a Property abandoned under N.J.S.A. 54:5-86(b). Instead, Pro Cap requested the court to declare the Property abandoned under the second method enumerated in N.J.S.A. 54:5- 86(b). Ibid. On May 9, 2024, Pro Cap filed a motion requesting the court declare the Property abandoned, attaching a certification from Pro Caps' CEO Marc Rubinsohn (Rubinsohn), which stated that "based upon [his] personal knowledge," the Property is abandoned. Rubinsohn certified Cavalieri performed a property inspection and listed his professional qualifications as a licensed building inspector, a licensed construction official, and an inspector of hotels and dwellings, which "qualifies him to deliver an opinion as to the abandonment of real property." Rubinsohn also certified that Cavalieri inspected the Property on November 24, 2023, and attached his report. The report explained that on March 10, 2024, when a private process server was unsuccessful in serving the complaint and pre-foreclosure notice at the Property, he noticed the Property was vacant, an expired car was in the driveway, the mailbox was "stuffed full," and there was "debris in [the] yard." A-3168-24 42 An abandoned property certification was also attached, which indicated: "Property is in need of rehabilitation and no rehabilitation has taken place during the last six months" and noted there was "scrape [and] paint garage door," "paint trim" "broken down car flats in driveway," and "overgrown landscape," citing to N.J.S.A. 55:19-81(a). We conclude the court properly determined the Property was abandoned under N.J.S.A. 54:5-86(b) and 55:19-81(a). Because Pro Cap unsuccessfully sought a certification from a public officer or tax collector, it properly submitted compelling evidence to the court that the Property was abandoned. Moreover, Pro Cap provided copies of a report and a sworn statement by "an individual holding appropriate licensure or professional qualifications." N.J.S.A. 54:5- 86(b). Intervenor avers that our courts have acknowledged that the taking of surplus equity in a tax foreclosure action by an entity holding a tax sale certificate, whether by the municipality or a private lienholder, without just compensation, violates the Takings Clause of the Fifth Amendment applied to the States through the Fourteenth Amendment. Roberto, 259 N.J. at 438, 443- 48. Adopting the United States Supreme Court decision Tyler, 598 U.S. at 646- 47 (2023). Our Supreme Court in Roberto found: "property owners in New A-3168-24 43 Jersey have a recognized property right to surplus equity," and "lienholders . . . are not entitled to surplus equity in property," defined as the "value of property taken from them beyond the debt they owe." Id. at 443, 448. Importantly, the Court found, "[p]roperty owners challenging a tax foreclosure on direct review therefore have a plausible claim for the value of property taken from them beyond the debt they owe." Id. at 448. In Tyler, 598 U.S. at 646-47, the Court found, after a Minnesota county foreclosed a homeowner's property due to unpaid taxes and then retained excess equity from that sale, she had standing to bring a claim under the Takings Clause. Tyler, 598 U.S. at 646-47. The Tyler Court rejected the county's argument that the plaintiff did not have a property interest in the surplus equity because "she constructively abandoned her home by failing to pay her taxes." Id. at 646. It argued the state imposes "reasonable conditions," on property ownership, like paying property taxes, and therefore the homeowner failed "to comply with a reasonable condition imposed by the State." Ibid. However, the Court rejected this reasoning and found that a mere failure to pay taxes cannot amount to constructive abandonment, because "no [Minnesota] case suggest[s] that failing to pay property taxes is itself sufficient for abandonment." Id. at 646-47. Further, Minnesota law defines abandonment A-3168-24 44 as the "surrender or relinquishment or disclaimer of" all rights in the property. Id. at 647. (quoting Rowe v. Minneapolis, 49 Minn. 148 , 51 N.W. 907, 908 (1892)) (emphasis added). In sum, under Minnesota's statutory scheme and respective case law, if an individual is still using the property—e.g., occupying it, but fails to pay property taxes while doing so, does not constitute abandonment. Ibid.; §281.70; See Krueger v. Market, 124 Minn. 393, 397 (1914). A property owner must relinquish all rights related to the property to abandon it, which includes physical occupation. The Tyler Court distinguished its finding, that a mere failure to pay taxes cannot amount to constructive abandonment, with another United States Supreme Court case, Texaco, Inc. v. Short, 454 U.S. 516 (1982), which interpreted an Indiana statute. In Texaco, a property owner failed to make any use of their interest in the property for twenty years, and therefore such interest was reverted back to the owner by law. Texaco, 454 U.S. at 521 . The Court found the Indiana statute did not violate the Takings Clause because a State "has the power to condition the permanent retention of [a] property right on the performance of reasonable conditions that indicate a present intention to retain the interest." Id. at 526 (emphasis added). "It is the owner's failure to make any A-3168-24 45 use of the property"—and for a lengthy period of time—"that causes the lapse of the property right." Id. at 530 (emphasis added). The Tyler Court emphasized that the case before it interprets Minnesota law, which "is not about abandonment at all," because the law "gives no weight to the taxpayer's use of the property." Tyler, 598 U.S. at 647 (emphasis added). Stated another way, because Minnesota's forfeiture scheme does not list failure to pay taxes as a way to find abandonment of a property, and implies that a party must "surrender or relinquish[]" "all rights" in one's property to be deemed as abandonment—mere failure to pax taxes does not render such property abandoned. Importantly, the Tyler Court concluded that its decision was highly dependent on an interpretation of Minnesota law. In Roberto, 259 N.J. 417 , our Supreme Court adopted, in part, the findings of Tyler, determining that a prior version of the New Jersey Tax Sale Law was unconstitutional under the Takings Clause of the Fifth Amendment, recognizing surplus equity in real property as a property right recognized by the New Jersey Constitution. However, as it relates to a property owner that abandoned their property, our Supreme Court explicitly stated: "we make no finding about whether today's ruling extends to in rem foreclosures of abandoned property," an issue the Attorney General raised in the case. Roberto, 259 N.J. at 449 n.4 A-3168-24 46 (emphasis added). The Supreme Court recognized it as an issue "best resolved in later disputes among adverse parties." Ibid. In the matter at hand, the court found Tyler did not universally find that a property owner has a right to surplus equity when they abandon such property . The court held: But the question is really whether or not [the court] at this point in time, [is] going to vacate a final judgment for a tax sale foreclosure, which was entered after that whole change in the statute, because of Tyler . . . . Since it's done after the fact, where it's an abandoned property. So, they follow . . . the new statute that deals with what's going to be required by abandoned property. It's abandoned; .... Now, the due process rights, because of Tyler, you know you have a right to excess equity. It may have been. But this was an abandoned property, it followed the new procedure, which hasn't necessarily been tested yet. But it's abandoned property, there was nobody there. The court also noted in denying intervenor's motion for reconsideration that "[t]he [P]roperty was judicially determined to be abandoned and our new statutory scheme does not allow for a judicial sale of the property under those circumstances in order to obtain any excess equity." The court was correct in its analysis. A-3168-24 47 Here, we construe the recent amendment of N.J.S.A. 54:5-104.64(a), effective July 10, 2024, to expressly foreclose a plaintiff's claim of right to surplus equity subsequent to a trial court's entry of final judgment: In an action commenced by any person or municipality holding a tax sale certificate for an abandoned property pursuant to [N.J.S.A. 54:5-86(b), which grants the court authority to deem the property abandoned under N.J.S.A. 55:19-81] the judgment shall give full and complete relief, in accordance with the provisions of [N.J.S.A. 54:5-104.29], and in accordance with any other statutory authority . . . to bar claims to surplus equity. [N.J.S.A. 54:5-104.64(a); see also N.J.S.A. 54:5-87(a) ("in an action to foreclose the right of redemption brought [under N.J.S.A. 54:5-86(b)], may give full and complete relief . . . to bar claims of surplus equity. . .").] Our holding is consistent with our understanding of the Court's interpretation of a state's forfeiture scheme, which does not explicitly provide guidance as to whether a property owner has a right to surplus equity in an abandoned property subsequent to a foreclosure sale. This State's forfeiture scheme sets forth a definition of abandonment within the statute itself. For instance, unlike Minnesota law, N.J.S.A. 55:19-81 specifically lists failing to pay property taxes as a "criteria" that "may be deemed to be abandoned property." The statute defines abandonment as: "[a]t least one installment of property tax remains unpaid and delinquent on that property in accordance with A-3168-24 48 chapter 4 of Title 54 of the Revised Statutes as of the date of a determination by the public officer pursuant to this section." N.J.S.A. 55:19-81(c). New Jersey's forfeiture scheme specifically lists a failure to make use of a property as a reason for abandonment. For instance, in addition to defining abandonment as a property owner's failure to pay taxes, the statute provides another way to prove abandonment: any property that has not been legally occupied for a period of six months . . . may be deemed to be abandoned property upon a determination by the public officer that . . . [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. [N.J.S.A. 55:19-81(a) (emphasis added).] Moreover, as stated under New Jersey's property forfeiture law, a public officer can find a property owner has abandoned their property because they have failed to make any use of their property for a period of six months. Alternatively, they can bring evidence of this to the court, and request that the court deem the property abandoned—the latter of which occurred here. New Jersey's statutory scheme, unlike Minnesota, explicitly gives weight to the taxpayer's use of the property when it determines if it was abandoned or not. We conclude the court properly found Tyler applies to the case at hand, but A-3168-24 49 that intervenor had no right to surplus equity because the Property was abandoned. Intervenor also fails to present any evidence establishing equity from the sale of the Property being greater than the taxes that went unpaid. We observe Pro Cap also sufficiently complied with our Supreme Court's Order issued on July 10, 2023, subsequent to the Tyler decision, which requires a plaintiff in a tax foreclosure proceeding to advise a property owner of their right to surplus equity. Specifically, Pro Cap included in its complaint a "notice of surplus equity affirmative defense," stating, "Pursuant to Tyler[, 598 U.S. 631 ,]" "a property owner may be entitled to the surplus which would be realized over and above the amount due to the plaintiff lienholder," directing a claimant to "assert [such claim] in a responsive pleading," "if you believe there is a surplus beyond the amount owed to the[m]," and defined surplus in accordance with Black's Law Dictionary. Therefore, we reject intervenor's argument. To the extent we have not addressed any of intervenor's remaining arguments, they lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). Affirmed. A-3168-24 50