                                NOT FOR PUBLICATION WITHOUT THE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-1586-17T4

PCIREO-1, LLC,

          Plaintiff-Appellant,

v.

RONALD J. MARKER; STATE
OF NEW JERSEY; BURDETTE
TOMLIN MEMORIAL HOSPITAL
n/k/a CAPE REGIONAL MEDICAL
CENTER; C&R OF NORTHFIELD,
ASSIGNEE; NEW JERSEY CASUALTY
INSURANCE CO.; ABC BAIL BONDS, INC.;
RONALD MARKER, HEIR TO RONALD
MARKER; MRS. MARKER, SPOUSE
OF PETER MARKER a/k/a PETE MARKER;
MARIANNE T. INMAN; CONNIE L. STOH;
CAPE MAY COUNTY CWA; BARRY N.
LOZUKE, and WEAVER OIL COMPANY,

          Defendants,

and

PETER MARKER a/k/a PETE
MARKER,1

1
  Misidentified in the complaint as Peter Marker, and identified in the record as
Peter Zanetich.
     Defendant-Respondent.
__________________________________

            Argued October 24, 2018 – Decided November 2, 2018

            Before Judges Reisner and Mawla.

            On appeal from Superior Court of New Jersey,
            Chancery Division, Cape May County, Docket No. F-
            018120-14.

            Amber J. Monroe argued the cause for appellant (Gary
            C. Zeitz, LLC, attorneys; Amber J. Monroe, on the
            briefs).

            Michelle Altenpohl argued the cause for respondent
            (South Jersey Legal Services, Inc., attorneys; Elizabeth
            Cunningham and Michelle Altenpohl, on the brief).

PER CURIAM

      In this tax lien foreclosure matter, plaintiff PCIREO-1, LLC, appeals from

an April 28, 2017 order, vacating the final judgment of foreclosure entered

against defendant. Plaintiff also appeals from a May 26, 2017 order, which

vacated a dismissal of defendant from the foreclosure proceedings and permitted

him to file an answer and conduct discovery. Additionally, plaintiff appeals

from a November 14, 2017 order dismissing its complaint. We affirm.

      The following facts are taken from the record.       In 2011, a tax sale

certificate for defendant's residence in North Wildwood was purchased by US


                                                                        A-1586-17T4
                                       2
Bank Cust for Pro Capital I, LLC. The lien originated from unpaid taxes of

$495.01 and sewer charges of $397.36 in 2011. These sums plus interest and

the lien premium totaled $1100. In November 2016, the lien was assigned to

plaintiff and recorded with the clerk.

      The last recorded deed on defendant's property was dated December 12,

1995. The deed identified Ronald J. Marker as the grantee, and Ronald J. Marker

and his wife, Joan Ann Marker, as grantors. Defendant is the son of Joan and

the step-son of Ronald.2 He has been residing in the property since 1990, after

his parents moved to another North Wildwood property. Joan predeceased

Ronald, and Ronald passed away on September 8, 2010.

      Defendant paid nearly all of the taxes and sewer charges for the property

since his parents moved out. He provided records from the City of Wildwood

to corroborate the payments he made between 2010 and 2016. However, a lien

attached for the unpaid tax and sewer charge in 2011.

      After plaintiff acquired the lien and before it filed the tax lien foreclosure

complaint, it conducted an estate search through the Cape May County Surrogate

office and obitsarchive.com. No record of an estate was found. Plaintiff filed



2
   We utilize first names for Joan and Ronald Marker for ease of reference and
to distinguish them from defendant. No disrespect is intended.
                                                                            A-1586-17T4
                                         3
the complaint on May 6, 2014, naming Joan, Ronald, Jane Doe, and John Doe

as defendants. On May 18, 2014, a process server served a copy of the summons

and complaint upon John Doe at the property. An individual identifying himself

as Pete Marker, later identified as defendant, accepted service on behalf of John

Doe. Defendant also accepted service on behalf of Ronald, identifying himself

as his brother.

      On May 3, 2016, a second amended complaint was filed joining additional

parties, namely, defendant, who was incorrectly named as Pete Marker; Ronald

J. Marker Jr.; and Ronald J. Marker Jr.'s heirs. On May 5, 2017, the North

Wildwood post office confirmed Peter Marker received mail at the property.

Therefore, the following day, plaintiff attempted service on defendant via

regular first-class mail and certified mail at the property.      Plaintiff then

unsuccessfully attempted service of the summons and complaint by process

server on May 7, 9, and 17, 2016, at the property. Plaintiff also published a

"Notice to Absent Defendants" in The Press of Atlantic City on May 7, 2016.

      On June 28, 2016, default judgment was entered against defendant. A

subsequent order dated August 22, 2016 was entered, setting December 12, 2016

as the last date of redemption. Defendant was served with the August order, as




                                                                         A-1586-17T4
                                       4
well as a motion to substitute plaintiff, via regular first-class mail and certified

mail on November 9, 2016, at the property.

      On January 9, 2017, final judgment of the foreclosure action was entered .

Defendant was served with the judgment on January 10, 2017, via first-class

mail. A writ of possession was entered against Ronald, his heirs, and personal

representatives on February 14, 2017. On March 3, 2017, Christine Zanetich

who is Ronald's niece, and Peter Zanetich filed an emergent application to stay

the eviction. The application was denied because the judge determined the writ

of possession did not apply to Christine.

      On March 9, 2017, plaintiff filed an ejectment complaint. Defendant filed

an order to show cause in opposition. At the hearing for the order to show cause,

defendant provided a certification, which represented he was Ronald's step-son,

and stated his name was not Pete Marker, but Peter Zanetich. Defendant alleged

he was never served with the summons and foreclosure complaint. He certified

he was able to redeem the tax lien.

      On April 28, 2017, the motion judge heard argument on defendant's

motion to vacate the final judgment and granted it. The judge found plaintiff

did not prove due diligence in attempting personal service on defendant before

attempting service by mail. On the same date, plaintiff voluntarily dismissed


                                                                            A-1586-17T4
                                         5
defendant from the foreclosure, which prevented defendant from filing an

answer to the complaint.

      On May 3, 2017, plaintiff filed a second application for final judgment.

In response, defendant filed a motion to intervene, which was granted on May

26, 2017. Defendant filed an answer to the complaint on June 1, 2017. As a

result, plaintiff's application for final judgment was denied.

      Therefore, plaintiff filed a motion for summary judgment on September

19, 2017, which defendant opposed. The tax lien was redeemed on October 19,

2017. On November 14, 2017, a different motion judge filed an order plaintiff

submitted withdrawing its motion for summary judgment, deeming all issues as

to all parties in the foreclosure proceedings disposed of, and dismissing the

foreclosure complaint. This appeal followed.

                                        I.

      Generally, a court's determination under Rule 4:50-1 warrants substantial

deference and should not be reversed unless it results in a clear abuse of

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

abuse of discretion occurs when a decision is "made without a rational

explanation, inexplicably depart[s] from established policies, or rest[s] on an

impermissible basis." U.S. Nat'l Bank Ass'n v. Guillaume, 209 N.J. 449, 467-


                                                                       A-1586-17T4
                                        6
68 (2012) (quoting Iliadis v. Wal-Mart, 191 N.J. 88, 123 (2007) (internal

quotations omitted)). Rule 4:50-1 provides various avenues for relief from a

judgment or order and, in relevant part, reads:

            On motion, with briefs, and upon such terms as are just,
            the court may relieve a party . . . from a final judgment
            or order for the following reasons: (a) mistake,
            inadvertence, surprise, or excusable neglect; . . . (c)
            fraud[,] . . . misrepresentation, or other misconduct
            . . . ; (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 the

authority to avoid an unjust result in any given case." Guillaume, 209 N.J. at

467 (citation and internal quotation marks omitted).

                                        II.

      On appeal, plaintiff argues the final judgment was erroneously vacated

because defendant was Ronald's step-son, had no legal interest in the property,

and plaintiff was not required to serve him. In the alternative, plaintiff asserts

defendant was properly served. Plaintiff also claims defendant did not have the

funds to redeem the lien. It argues there was no excusable neglect established

pursuant to Rule 4:50-1(a), the judgment was not void to warrant relief pursuant

to Rule 4:50-1(d), nor were there extraordinary circumstances for relief from the

                                                                          A-1586-17T4
                                        7
judgment under Rule 4:50-1(f). Plaintiff argues if the decision to vacate the

judgment stands, it should receive counsel fees for its efforts to obtain the

judgment. We address these arguments in turn.

                                        A.

      At the outset, we reject plaintiff's argument defendant was not entitled to

notice and should not have been served with the foreclosure pleadings because

he was not Ronald's heir pursuant to N.J.S.A. 3B:1-1. Although N.J.S.A. 3B:1-

1 excludes step-children from intestate succession, and N.J.S.A. 3B:5-4(f) states

a step-child may only inherit an intestate share where there are no surviving

descendants of the decedent's grandparents, the facts here do not concern an

intestate inheritance. Plaintiff concedes, defendant "was vested with a right to

redeem the [t]ax [l]ien as an occupant of the [p]roperty." See N.J.S.A. 54:5-54.

Therefore, proper service on defendant was required.

                                        B.

      "The requirement that a court have personal jurisdiction over a defendant

is designed to protect the defendant's individual liberty interest flowing from the

Due Process clause." Rosa v. Araujo, 260 N.J. Super. 458, 462–63 (App. Div.

1992) (citing Ins. Corp. v. Compagnie des Bauxites, 456 U.S. 694, 702 (1982).

"[W]here a default judgment is taken in the face of defective personal service,


                                                                           A-1586-17T4
                                        8
the judgment is [generally] void." Id. at 462 (citing Garza v. Paone, 44 N.J.

Super. 553 (App. Div. 1957)). "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) (citing Sobel v. Long Island Entm't Prod.,

Inc., 329 N.J. Super. 285, 293-94 (App. Div. 2000)). "If defective service

renders the judgment void, a meritorious defense is not required to vacate the

judgment under [Rule] 4:50-1(d)." Ibid.

      "It is elementary that service must be accomplished in accordance with

the pertinent rules in such a way as to afford notice reasonably calculated, under

all the circumstances, to apprise interested parties of the pendency of the action

and afford them an opportunity to present their objections." Ibid. (citations

omitted).

      "The primary method of obtaining in personam jurisdiction over a

defendant in this State is by causing the summons and complaint to be personally

served within this state pursuant to [Rule] 4:4-3[.]" R. 4:4-4(a). The person

serving process shall make a return by filing an affidavit establishing proof of

service. R. 4:4-7. Return of service creates a "presumption that the facts recited

therein are true." Garley v. Waddington, 177 N.J. Super. 173, 180 (App. Div.


                                                                          A-1586-17T4
                                        9
1981). Although this presumption may be rebutted, it may only be by clear and

convincing evidence the return is false.          Id. at 180-81.     A defendant's

uncorroborated testimony alone cannot overcome the presumption raised by a

return of service. Goldfarb v. Roeger, 54 N.J. Super. 85, 90 (App. Div. 1959).

      "If personal service cannot be effectuated 'after a reasonable and good

faith attempt,' other methods are available." City of Passaic v. Shennett, 390

N.J. Super. 475, 483 (App. Div. 2007) (quoting R. 4:4-3). Indeed, "in personam

jurisdiction may [also] be obtained by mail under the circumstances and in the

manner provided by [Rule] 4:4-3." R. 4:4-4(a)(8). "A party's good faith effort

to personally serve a defendant must be 'described with specificity in the proof

of service.'" Shennet, 390 N.J. Super. at 483 (quoting Rule 4:4-3; -7).

      Ordinarily, an affidavit of diligent inquiry that evinces an earnest effort to

serve a defendant personally satisfies these requirements. Sablic v. Croatia

Line, 315 N.J. Super. 499, 505-06 (App. Div. 1998). However, a court may

reject an affidavit where it reveals a plaintiff failed to undertake basic efforts to

effect personal service, or where an injustice "might result if adequate scrutiny

of the affidavit of inquiry is not undertaken." See M & D Assocs. v. Mandara,

366 N.J. Super. 341, 353-54 (App. Div. 2004) (rejecting service by publication

where an affidavit of diligent inquiry showed the plaintiff did not search motor


                                                                             A-1586-17T4
                                        10
vehicle or voter registration records, which would have shown defendant resided

in-state).

      Rule 4:4-3(a) provides, in pertinent part:

             If personal service cannot be effected after a reasonable
             and good faith attempt, . . . service may be made by
             mailing a copy of the summons and complaint by
             registered or certified mail, return receipt requested, to
             the usual place of abode of the defendant. . . . The party
             making service may, at the party's option, make service
             simultaneously by registered or certified mail and
             ordinary mail, and if the addressee refuses to claim or
             accept delivery of registered mail and if the ordinary
             mailing is not returned, the simultaneous mailing shall
             constitute effective service. . . . Return of service shall
             be made as provided by [Rule] 4:4-7.

      Rule 4:4-7 states:

             If service is made by mail, the party making service
             shall make proof thereof by affidavit which shall also
             include the facts of the failure to effect personal service
             and the facts of the affiant's diligent inquiry to
             determine defendant's place of abode, business or
             employment. With the proof shall be filed the affidavit
             or affidavits of inquiry, if any, required by [Rule] 4:4-
             4 and [Rule] 4:4-5.

      We addressed the aforementioned rules in U.S. Bank Nat. Ass'n v. Curcio,

444 N.J. Super. 94 (App. Div. 2016), where a plaintiff attempted service in a

foreclosure. There, plaintiff's counsel sent a notice of intent to foreclose to a

defaulting defendant at the address of the encumbered property via regular mail


                                                                           A-1586-17T4
                                        11
and certified mail, which the defendant acknowledged by certified mail return

receipt. Id. at 102. Approximately eight months later, plaintiff instituted a

foreclosure action.      Ibid.    Over the course of a month, the plaintiff

unsuccessfully attempted to serve the defendant through a process server at least

three times at the property.      Ibid.   Plaintiff's counsel then hired a private

investigator to perform a skip trace, which revealed the defendant was still

residing at the property. Ibid. The private investigator report also detailed the

efforts to locate defendant through his creditors, multiple databases, and

neighbors.   Id. at 103.     Plaintiff's counsel then mailed the defendant the

complaint and summons via regular and certified mail. Ibid. The regular mail

was not returned, but the certified mail was returned marked "unclaimed." Ibid.

The plaintiff's efforts at attempted service were detailed in a certification, which

explained:

             the process server's affidavit of unsuccessful personal
             service; the postmaster's finding of no change of
             address; the results of the inquiries to the DMV and Tax
             Assessor's Office showing defendant still lived at the
             encumbered property; the private investigator's report;
             and the USPS "Track & Confirm" printout showing that
             the certified mail was "[u]nclaimed."

             [Ibid. (alteration in original).]




                                                                            A-1586-17T4
                                          12
      We concluded the process server's three attempts to serve the defendant

met the standard of Rule 4:4-3 requiring a reasonable and good faith attempt to

effectuate service. Curcio, 444 N.J. Super. at 106. Furthermore, we found the

"plaintiff made a 'diligent inquiry to determine defendant's place of abode'

before making mail service," which met the requirements of Rule 4:4-7. Ibid.

(quoting Rule 4:4-7). We concluded plaintiff had provided sufficient proof of a

diligent inquiry. Id. at 106-07.

      Here, plaintiff attempted to serve the second amended complaint via a

process server on May 6, 9, and 17, 2016.              However, plaintiff also

simultaneously attempted service by regular mail and certified mail on May 6,

2016, and attempted service by publication before the second and third attempts

at in-person service were made. The motion judge concluded the sequence of

events did not constitute a good faith attempt at in-person service. He explained:

            [I]t's ultimate service, not simultaneous service. For
            example, if you're serving motion papers after a
            person's been attached, been brought in and you've
            established jurisdiction over them, you do it by regular
            and certified mail. In case they don't accept the
            certified, you still have the regular.

            That's not what is provided for in the rules. It is
            sequential: You first try personal service and you try it
            diligently.  Then you move onto certified mail.
            Otherwise, to do it any other way would encourage


                                                                          A-1586-17T4
                                       13
            mischief, where you just kind of make these cursory
            attempts at service.

            But I don't even have proof of service in this case,
            [there] was . . . [in]adequate proof that a service was
            attempted. I have an affidavit or what purports to be an
            affidavit, the signatory of it, [is] clearly . . . it looks like
            a "J" to me or an "F." It's either an "F" or a "J," but
            there's no way that that’s a "W." . . .

            [I]t doesn't even look like the right person. And in
            addition, the problem that I have is that they went and
            somebody changed this document and added in this
            extra date after it was signed. They only went out twice
            and tried it. They didn't try three times, they tried
            twice. And I find that's not adequate service in this
            case.

      We agree.     Plaintiff's attempts at effectuating service here were the

opposite of Curcio. Indeed, in Curcio, plaintiff's counsel attempted personal

service three times and then hired a private investigator to locate the defendant

before finally resorting to service via mail. This methodology complied with

the "sequential" hierarchy for achieving valid service pursuant to Rule 4:4-3,

which prioritizes personal service as a means of assuring proper notice to a

defendant. Plaintiff's attempts at service here did not provide such assurances.

      Furthermore, the motion judge did not abuse his discretion questioning

the credibility of the process server's affidavit. The judge stated:

            First off, I have an [a]ffidavit of [s]ervice that looks like
            it's signed by the person who didn't perform the service,

                                                                               A-1586-17T4
                                         14
            and now [plaintiff's] counsel says well maybe more
            than one person performed service. Well, then you
            need two affidavits.

            In addition, the affidavit stated [May 16th and was]
            notarized on [May 16th.]         However, somebody
            scribbled in "5-17-16" to make that the third attempt.

The judge also stated he did not "have proof that there was an adequate attempt

[at service because] there's no description of what they tried to do."

      It was within the motion judge's discretion to scrutinize and reject the

affidavit. M & D, 366 N.J. Super. at 354. The record supports his conclusions

regarding the questionable nature of plaintiff's efforts to effectuate service.

Plaintiff has provided us no basis to second-guess the determination. 3

                                        C.

      Finally, we reject plaintiff's argument that defendant should not have been

permitted to redeem the tax lien because he did not have the funds to

immediately satisfy it. Plaintiff presumes it had a valid judgment to enable it to

assert such an argument. As we have noted, plaintiff did not achieve proper

service, which therefore negates the validity of its judgment.


3
   Because we have affirmed the motion judge's determination that service of
process was invalid, the April 28, 2017 order vacating plaintiff's judgment was
also valid. For these reasons, we do not reach plaintiff's arguments challenging
the April order pursuant to Rule 4:50-1(a), (d) and (f), or the argument it was
entitled to fees and costs on account of the alleged validity of the judgment.
                                                                          A-1586-17T4
                                       15
      Furthermore, the record reveals the genesis of this dispute was one unpaid

tax and sewer bill from 2011, totaling $895. As we noted, with the exception of

these bills the taxes and sewer for the property have been paid. Also, as noted

in the November 14, 2017 order, the lien was ultimately redeemed by defendant.

      Affirmed.




                                                                        A-1586-17T4
                                      16
