By Fredrick P. Niemann, Esq. of Hanlon Niemann & Wright, a Freehold Township, Monmouth County NJ Trial & Litigation Attorney
To start a lawsuit you must serve your complaint (a litigation term that means you “list of allegations and claims against another”) upon the defendant. The law says you must personally serve your complaint upon the defendant (meaning hand it to him/her it). But what happens if you can’t find the defendant to serve your complaint? Read this case to find out.
In this tax sale foreclosure action, the defendant appealed from a trial court judge’s order denying its motion to discharge the final judgment against it on the ground it had not been served with the complaint in accordance with the Rules of Court. Plaintiff’s predecessor in interest (predecessor) purchased a tax sale certificate for unpaid property taxes against the subject property. The predecessor filed a complaint in foreclosure against defendant and the State of New Jersey. The predecessor sought to foreclose on the tax sale certificate.
The predecessor’s attorney filed a certification of mailing, which stated that the summons and complaint were sent by regular and certified mail to the attorney as defendant’s principal, to an address in Connecticut. The attorney also certified the regular mail was not returned, and the certified mail return receipt (the “green card”) was returned and signed.
The attorney claimed to have made diligent inquiry of the defendant’s whereabouts. The attorney also obtained a skip trace report which showed the defendant to be at a named address. With no answer being filed the tax sale certificate was assigned to plaintiff.
Sometime thereafter defendant filed a motion to set aside the judgment and permit redemption of the certificate pursuant to Rule 4:50-1(d). Defendant premised its argument on the ground the judgment was void because defendant had not been served with the summons and complaint. In a certification filed in support of the motion, defendant claimed he did not know about the foreclosure action.
It was not disputed plaintiff did not attempt to personally serve the summons and complaint upon defendant.
In our next blog, I will discuss the Court’s legal analysis.
To discuss your NJ trial or litigation matter, please contact Fredrick P. Niemann, Esq. toll-free at (855) 376-5291 or email him at firstname.lastname@example.org. Please ask us about our video conferencing consultations if you are unable to come to our office.