ATFH REAL PROPERTY, LLC v. WINBERRY REALTY PARTNERSHIP A-1189-09T1 11-30-10
In this action to foreclose a tax sale certificate, one member of the defendant-partnership, who was not an attorney, filed an answer. Rather than deem the matter uncontested in light of Rule 1:21-1(c), the judge indulged the partner and considered his arguments regarding the alleged insufficiency of service of process and the merits. The judge ultimately found the answer failed to contest the grounds for foreclosure and struck it. Following entry of final judgment, the defendant- partnership through counsel sought relief pursuant to Rule 4:50,arguing among other things that the trial court had not acquired jurisdiction due to the ineffective service of process. The trial judge granted relief on the conditions that the defendant- partnership (a) reimburse plaintiff for its counsel fees and other expenses and (b) indemnify plaintiff from any future claims resulting from the fact that that the plaintiff had contracted to sell the property to a third person after entry of judgment.
In the defendant-partnership’s appeal concerning the conditions imposed, the court affirmed, concluding that the slim grounds upon which relief was sought justified the imposition of conditions and that the conditions were not punitive but appropriately addressed the potential prejudice to plaintiff. In addition, the court held that even though the manner in which the partnership appeared in the case was impermissible, the partnership nonetheless appeared; accordingly, service of process pursuant to Rule 4:4-4(c) was sufficient.
