BANKRUPTCY LAWYER HACKENSACK NJ (201) 646-3333 - BANKRUPTCY ARTICLE

 

975 HOLDINGS, LLC, Plaintiff,
v.
CITY OF EGG HARBOR, Defendant.

Docket No. 010346-2016.

Tax Court of New Jersey.

Decided: June 20, 2017.Released for publication: August 4, 2017^[1]

Salvatore Perillo for plaintiff (Perskie, Nehmad & Perillo, attorneys).

James J. Carroll, III for defendant.

CIMINO, J.T.C.

Plaintiff taxpayer, 975 Holdings, LLC is the current owner of an improved parcel in Egg Harbor City. The taxpayer purchased the property in a bankruptcy asset sale allowed pursuant to 11 U.S.C. § 363(f). Prior to the sale, the bankrupt debtor acting as a debtor-in-possession failed to respond to a Chapter 91 request. N.J.S.A. 54:4-34. Taxpayer argues that both the fact that the prior owner was in a bankruptcy proceeding and that the property was purchased through a section 363(f) sale somehow excuses noncompliance with Chapter 91. For the reasons set forth in greater detail in this opinion, the court rejects both of these arguments.

The parcel in question is eight acres and is improved with a hotel with restaurant and catering facilities and is part of what is known as the Renault Winery. The parcel is designated on the tax maps of Egg Harbor City as the entirety of Block 73.07 which consists of Lots 1 through 16. The parcel fronts onto Bremen Avenue. The other winery facilities include a winery, restaurant, golf course, and vineyards which are located across Bremen Avenue in Galloway Township and are not the subject of this appeal.

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On November 13, 2014, Renault Winery, Inc. filed for bankruptcy under Chapter 11 of the United States Bankruptcy Code and was designated as the debtor-in-possession of the parcel with powers and duties pursuant to 11 U.S.C. § 1107.

On April 16, 2015 defendant municipality mailed by United States Postal Service certified mail, return receipt requested, a request in accordance with N.J.S.A. 54:4-34, otherwise known as a Chapter 91 request. The certified mail was signed for by the debtor-in-possession on April 18, 2015. The debtor-in-possession did not respond to the request.

On September 22, 2015, 975 Holdings entered into a contract to purchase the parcel and on October 1, 2015 the Bankruptcy Court approved the sale pursuant to 11 U.S.C. § 363(f). Thereafter, the parties closed on the sale on November 16, 2015.

On July 13, 2016, 975 Holdings filed a complaint with this Court challenging the 2016 assessment on the parcel. On December 15, 2016, a motion was filed by the municipality to dismiss the complaint in accordance with Chapter 91 for failure to provide a response to the April 16, 2015 request.

The current owner, taxpayer 975 Holdings, argues that the provisions of Chapter 91 do not apply to it since the Chapter 91 notice was sent to the debtor-in-possession. In the alternative, the taxpayer alleges that the sale of the property to taxpayer pursuant to 11 U.S.C. § 363(f) somehow abrogates the municipality's Chapter 91 defense.

As to the first argument, taxpayer argues that since the notice was sent to the debtor-in-possession while the prior owner was under the supervision of the Bankruptcy Court, the failure to comply with Chapter 91 is excused.

Since 1918, taxpayers have been required to provide certain requested information to the assessor. L. 1918, c. 236, § 403. While the law was amended a number of times through the years, it was not until 1979, with the adoption of Chapter 91, that the failure to respond to a request could result in the municipality moving to dismiss the complaint. Chapter 91 amended N.J.S.A. 54:4-34 in pertinent part by adding the following sentence:

No appeal shall be heard from the assessor's valuation and assessment with respect to income-producing property where the owner has failed or refused to respond to such written request for information within 45 days of such request or to testify on oath when required, or shall have rendered a false or fraudulent account.

[L. 1979, c. 91, § 1]

As indicated by the Senate Revenue, Finance and Appropriations Committee's statement as to the bill which would become Chapter 91, the "problem addressed" was that "the property owner is not subject to any penalty for not disclosing property income information. The property owner is free to appeal the assessment, notwithstanding his refusal to provide information which would have affected the valuation, and, perhaps, avoided the appeal from the assessment." Senate Revenue, Finance and Appropriations Comm., Statement to S., No. 309, at 1 (Jan. 26, 1978). The other "problem addressed" was when "an appeal has been filed, the assessor currently has no access to information on which the appellant is basing his appeal and thus the assessor is unprepared to testify in argument to the appellant's representations." Id.

As explained by the New Jersey Supreme Court, if a taxpayer could withhold the information until the time of appeal, "the assessor would then be required either to prepare a second valuation of the property — a tremendous waste of valuable time and resources — or to defend the original valuation on the taxpayer's appeal." Ocean Pines Ltd. v. Borough of Point Pleasant, 112 N.J. 1, 7 (1988). Either result runs contrary to the purpose of the statute as set forth by the Senate committee. See Id.

The prior owner, Renault Winery, Inc., filed a petition pursuant to Chapter 11 of the Bankruptcy Code. 11 U.S.C. § 1101-1175. The primary purpose of Chapter 11, which is entitled "reorganization," is the rehabilitation of financially troubled businesses. Kernan v. One Washington Park, 154 N.J. 437, 446 (1998). Upon the filing of the bankruptcy petition, the assets of the debtor become part of what is termed the bankruptcy estate of the debtor. 11 U.S.C. § 541. Broadly overseeing the process is the United States Trustee. 28 U.S.C. § 586, 11 U.S.C. § 307. Shortly after the filing of a bankruptcy petition, the United States Trustee conducts a section 341 meeting of creditors in which the debtor is required to appear and answer questions of the United States Trustee and creditors. 11 U.S.C. §§ 341, 343.

In most Chapter 11 bankruptcy cases, the United States Trustee does not seek the appointment of a case trustee. Rather, the debtor remains as a "debtor-in-possession." Kernan, supra, 154 N.J. at 446-447, 11 U.S.C. § 1101(1). With certain limited exceptions, a debtor-in-possession has all the rights and powers, and shall perform all the functions and duties of a case trustee. 11 U.S.C. § 1107(a). Even though a debtor-in-possession, there is a duty of loyalty to creditors. Wolf v. Weinstein, 372 U.S. 633, 642, 83 S. Ct. 969, 975-76, 10 L. Ed. 2d 33, 42 (1963). The debtor-in-possession is a fiduciary for the bankruptcy estate and creditors. In re United Healthcare Sys. Inc., 200 F.3d 170, 177 n. 9 (3rd Cir. 1999), cert. denied, 530 U.S. 1204, 120 S. Ct. 2199, 147 L. Ed. 2d 234 (2000). The United States Trustee broadly oversees the process through the promulgation of operating guidelines and reporting requirement to be followed by debtors-in-possession. U.S. Dept. of Justice, United States Trustee Program Policy and Practices Manual, Vol. 3 (July 2016).

The taxpayer initially argued that the obligation to file a response to a Chapter 91 request belongs with whomever is the trustee. However, there was not a trustee specifically appointed to the bankruptcy case. Instead, the day-to-day operations of the debtor and the assets of the bankruptcy estate were handled by the debtor-in-possession, Renault Winery, Inc.

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In Kernan, the New Jersey Supreme Court had to confront this issue in a slightly different context. Kernan slipped and fell on property owned by One Washington Park. Kernan, supra, 154 N.J. at 442. At the time of the fall, One Washington Park was in reorganization pursuant to Chapter 11 of the Bankruptcy Code. Id. The debtor was not permitted to remain in possession and a case trustee was appointed by the Bankruptcy Court. Id. The Court noted that upon appointment, not only would the case trustee operate the business, the case trustee is automatically substituted for the debtor-in-possession in any pending action, proceeding or matter. Id. at 449. The case trustee was vested with title to all the debtor's property. Id. at 450 (citing Hanover Insurance Company v. Tyco Industries, Inc., 500 F.2d 654, 656 (3rd Cir. 1974)). See also Kernan, supra, 154 N.J. at 450. As a result, One Washington Park argued that it did not have a duty to third persons such as Kernan. Id. The Court determined that upon being ousted from control as debtor-in-possession by the appointment of a case trustee, One Washington Park had no duty to maintain the property. Id. at 452. However, the Court noted that the outcome would have been different had One Washington Park remained as the debtor-in-possession. Id. at 453.

In this case, taxpayer's predecessor, Renault Winery, Inc., was a debtor-in-possession. Notably, the obligation to file a response to the Chapter 91 request did not fall upon a case trustee. There is not any dispute the debtor-in-possession received the Chapter 91 notice and did not respond. This failure to respond is not excused by the taxpayer's predecessor being a debtor-in-possession.^[2] "The Chapter 91 defect runs with the land. . ." ADP of New Jersey v. Parsippany Troy Hills, 14 N.J. Tax 372, 378 (Tax 1994); Carriage Four Associates v. Teaneck, 13 N.J. Tax 172, 180 (Tax 1993). A subsequent owner is "saddled with that failure to comply with the statute." Id. at 180. Thus, the taxpayer here is saddled with the failure of Renault Winery, Inc., the debtor-in-possession, to file a Chapter 91 response.

Taxpayer's remaining argument is that upon the sale of the property pursuant to 11 U.S.C. § 363(f), any impediment resulting from the failure to file a Chapter 91 response would be extinguished. The debtor-in-possession can exercise the power of a trustee to sell property of the estate "free and clear" of "any interest" that any entity has in such property. 11 U.S.C. § 363(f).^[3] The term "any interest" is not defined anywhere in the bankruptcy code. The trend seems to be towards a broad interpretation that includes obligations beyond in rem interests that may flow from the ownership of property. Folger Adam Security, Inc. v. Dematteis/MacGregor, JV, 209 F.3d 252, 258 (3rd Cir. 2000). "Any interest" is intended to refer to obligations that are connected to, or arise from, the property being sold. Id. at 259.

In the case at hand, the taxpayer took title to the property by virtue of a sale conducted pursuant to 11 U.S.C. § 363(f). The taxpayer now argues that the sale was free and clear of any interest which the municipality had in filing a Chapter 91 defense. A defense under Chapter 91 must be raised affirmatively by the municipality within 180 days after the filing of the complaint or 30 days before the first trial date. R. 8:6(e).^[4] If not affirmatively raised by the municipality, the defense is considered waived and the case moves forward.

The taxpayer filed a complaint on July 13, 2016. Thereafter, the municipality timely filed a motion to dismiss the complaint on the basis of Chapter 91 on December 15, 2016. The taxpayer now argues that despite the municipality having timely filed a motion to dismiss alleging a Chapter 91 defense, such defense has been extinguished by the section 363(f) sale since the Chapter 91 defense consists of an "interest" in the property. Despite the broad reading of "any interest" in section 363(f), the Third Circuit has indicated that affirmative defenses are not interests and therefore are not extinguished by a section 363(f) sale. Folger Adam, supra, 209 F.3d at 261.

In Folger Adam, the Third Circuit considered whether the affirmative defense of recoupment could be raised despite a section 363(f) sale. The section 363(f) purchaser brought suit to recover accounts receivable which were acquired as part of the assets in the section 363(f) sale. In turn, the defendants raised the defense of recoupment to diminish the claim or defeat the recovery. Id. at 260. The Third Circuit determined that this defense was not an interest. Id. at 261. By its nature, the defense of recoupment only arose after the section 363(f) purchaser asserted its claim.

The taxpayer, as a section 363(f) purchaser, took the parcel and either knew, or should have known, the status of the property taxes including the amount of taxes and Chapter 91 compliance status. "It is the obligation of a purchaser to ascertain the facts concerning the property tax and the property tax assessment and to protect itself in its agreement with the seller as to any rights that it may wish to assert with respect to the property tax." ADP of New Jersey, Inc., supra, 14 N.J. Tax, at 378-379.

Setting aside the Chapter 91 issue, the taxpayer had to or should have realized that even if the tax appeal goes forward, there is not any guarantee that there would be any adjustment of the assessment. The sale documents are not conditioned upon any reduction in the assessment resulting from a tax appeal. In other words, the taxpayer willingly purchased the property prior to and regardless of the outcome of the tax appeal.

In summary, the municipality is not asserting an "interest" under section 363(f). Rather, the municipality is affirmatively asserting a defense under Chapter 91. This defense is not an interest of the municipality, but is a defense waivable by the municipality through inaction or indifference. But for the tax appeal of taxpayer, the Chapter 91 defense would have never arisen. The essence of a defense is something affirmatively raised in response to a claim. Only interests can be extinguished in a section 363(f) sale. Since defenses are not interests under section 363(f), a Chapter 91 defense is not abrogated. The municipality's motion to dismiss the complaint is granted in part subject to a reasonableness hearing under Ocean Pines, supra.

[1] This opinion was originally issued in unpublished form on June 20, 2017.

[2] To be clear, in bankruptcy cases, there is an automatic stay of all actions pursuant to 11 U.S.C. § 362(a). However, the automatic stay does not apply to post-petition claims. Kernan, supra, 154 N.J. at 454. Rather the stay applies solely to claims against the debtor that arose prior to the bankruptcy petition. Id.

[3] The proceeds of the sale are then utilized to reorganize the debtor, including the satisfaction of creditors. 11 U.S.C. § 1123.

[4] The rule, adopted by the Supreme Court, serves as the mechanism through which the municipality raises the defense. Lucent Technologies, Inc. v. Township of Berkeley Hts., 201 N.J. 237, 247-248 (2010).

WAGE GARNISHMENT - LAWYER IN HUDSON COUNTY NEW JERSEY (201) 646-3333

 

PETER DALEDDA, Plaintiff-Appellant,
v.
LORETTA GUARDINO, Defendant-Respondent.

No. A-3215-15T3.
Superior Court of New Jersey, Appellate Division.

Argued August 1, 2017.Decided August 17, 2017.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FM-02-1937-10.

Jenny Berse argued the cause for appellant.

Francesca S. Blanco argued the cause for respondent.

Before Judges O'Connor and Whipple.

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.

PER CURIAM.

Plaintiff appeals from a March 22, 2016 Family Part order denying his motion for reconsideration. We affirm for the reasons that follow.

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Plaintiff and defendant were married on June 21, 1987, and had one child. The couple divorced March 8, 2011, entering into a property settlement and support agreement (the agreement). The agreement obligates plaintiff to pay defendant $42,500 per year in permanent alimony in equal installments of $817.31 per week. The agreement states plaintiff was fifty-two years of age at the time of the divorce and worked as an executive chef in New York City, making a salary of $180,400 per year. He also had a 401K savings plan through his employer and an Individual Retirement Agreement (IRA). Defendant had worked as a secretary, earning $20,800 annually, but was unemployed at the time of the divorce. She also had an IRA. The parties agreed to an equal equitable division of the marital portions of the various retirement and other accounts.

In March 2015, plaintiff lost his job. In June 2015, he stopped paying his alimony obligation. Defendant moved to enforce litigant's rights in July 2015. Plaintiff cross-moved seeking to terminate his alimony obligation, revisit his alimony obligation upon obtaining employment, and emancipate the parties' child.

On September 30, 2015, the Family Part judge found plaintiff's unemployment to be temporary in nature, denied modification, and issued an order requiring plaintiff to pay defendant $11,442.34 in alimony arrears and $2100 in child support arrears within fourteen days and to resume regular payments. The Family Part judge also denied emancipation of the parties' child.

On October 9, 2015, plaintiff moved for reconsideration of the September 30, 2015 order. In October 2015, plaintiff secured a new position earning $114,000 per year. On December 2, 2015, the Family Part judge entered an order granting plaintiff's motion for reconsideration in part, granting plaintiff's request for emancipation of the parties' child, denying plaintiff's request for modification of alimony, and denying both parties' requests for counsel fees. The Family Part judge discredited the discrepancy in income between plaintiff's former position and his new position, noting the cost of living in Florida, where plaintiff resides, is lower than in New Jersey/New York, and plaintiff's $114,000 per year salary was not in and of itself prima facie evidence he was unable to earn what he previously earned to establish changed circumstances.

Defendant received no alimony payments from plaintiff and filed another motion on December 8, 2015, seeking wage garnishment and probation monitoring. Plaintiff again moved for modification of alimony. On March 22, 2016, the Family Part judge granted defendant's request for wage garnishment and probation monitoring and ordered plaintiff to make a lump sum payment of $11,442.34 within thirty days. Plaintiff appealed from the March 22, 2016 order. On appeal, plaintiff argues the court erred by denying modification of alimony and requests the matter be remanded to a different judge; plaintiff also contends he should be awarded counsel fees. We disagree and affirm.

Appellate review is particularly deferential to family courts' findings of fact because of their unique expertise. Cesare v. Cesare, 154 N.J. 394, 413 (1998). However, "[a] trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Manalapan Realty v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995) (citing State v. Brown, 118 N.J. 595, 604 (1990); Dolson v. Anastasia, 55 N.J. 2, 7 (1969); Pearl Assurance Co. Ltd. v. Watts, 69 N.J. Super. 198, 205 (App. Div. 1961)).

Plaintiff asserts the record does not support the judge's determination and factual findings because the judge took no testimony and overlooked the parties' agreement, the applicable statutory factors, case law, and the substantial change in plaintiff's circumstances. He asserts he is entitled to a plenary hearing.

As noted above, plaintiff appeals only the motion for reconsideration and not the original order. See Fusco v. Bd. of Educ., 349 N.J. Super. 455, 461-62 (App. Div.) (citing Pressler, Current N.J. Court Rules, cmt. 6 on R. 2:5-1(f)(3)(i) (2002)) (explaining this court only considers judgments and orders listed in a notice of appeal), certif. denied, 174 N.J. 544 (2002). Accordingly, we review for an abuse of discretion. Ibid. We also note "[m]otions for reconsideration are granted under very narrow circumstances." Ibid.

Reconsideration should be used only for those cases which fall into that narrow corridor in which either (1) the Court has expressed its decision based upon a palpably incorrect or irrational basis, or (2) it is obvious that the Court either did not consider, or failed to appreciate the significance of probative, competent evidence.

[Ibid. (quoting D'Atria v. D'Atria, 242 N.J. Super. 392, 401 (Ch. Div. 1990); R. 4:49-2).]

We discern no abuse of discretion on the part of the Family Part judge. As the judge correctly explained, when a party seeks to modify any support obligation under an agreement, the party must demonstrate "changed circumstances" supporting such a modification. See J.B. v. W.B., 215 N.J. 305, 327 (citing Lepis v. Lepis, 83 N.J. 139, 146-48 (1980)). A reduced income may qualify as "changed circumstances." Ibid. Family Part judges, however, have considerable discretion in determining whether a changed circumstance warrants an alimony modification. Larbig v. Larbig, 384 N.J. Super. 17, 23 (App. Div. 2006). This discretion turns on a Family Part judge's "experience as applied to all the relevant circumstances presented." Ibid. We further note the party seeking modification has the burden of demonstrating such changed circumstances as would warrant relief from his or her obligation. Lepis, supra, 83 N.J. at 157. When a supporting spouse brings an application for a downward modification, the central focus is on "the supporting spouse's ability to pay." Miller v. Miller, 160 N.J. 408, 420 (1999).

Although the judge noted plaintiff's reduced income, he also noted the reduced reported income did not appear to be a permanent circumstance. In order to prove changed circumstances, the change must be permanent. Lepis, supra, 83 N.J. at 151. Accordingly, we conclude the Family Part judge's decision was not based on a palpably incorrect basis.

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Plaintiff's income at the time of the agreement was $180,000. Plaintiff asserts his current income from his new job is thirty-seven percent lower, but plaintiff has not demonstrated he cannot earn more. "Courts have consistently rejected requests for modification based on circumstances which are only temporary." Ibid. The issue is whether changed circumstances are enduring enough to warrant a modification. In other words, plaintiff must demonstrate his decline in income and his ability to earn are permanent. The motion judge correctly concluded plaintiff's evidence did not evince a showing of permanent changed circumstances. Accordingly, there was no basis upon which the Family Part was required to conduct a plenary hearing. See id. at 157 (explaining a court should hold a plenary hearing if "a party clearly demonstrate[s] the existence of a genuine issue as to a material fact").

We also conclude the court appropriately considered all of the relevant probative and competent evidence. See D'Atria, supra, 242 N.J. Super. at 401. The trial court reviewed plaintiff's submissions and found plaintiff did not demonstrate his earning capacity had substantially changed since the time the parties' executed agreement. We find no error on the judge's part in this regard.

Plaintiff's argument the Family Part judge disregarded the provision in the agreement permitting an application to modify it is unpersuasive. Plaintiff was permitted to, and did, make such an application, but he fell short of the proofs required to establish changed circumstances. Moreover, we reject the argument plaintiff is entitled to a modification merely based on defendant's employment status.

In light of our decision, we need not address plaintiff's argument for a new judge to hear this matter. Plaintiff's remaining arguments lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(11)(E).

Affirmed.

CHAPTER 13 ATTORNEY - HACKENSACK NEW JERSEY (201) 646-3333

 

MICHAEL BANDLER, Plaintiff-Appellant,
v.
GEORGE KOSTAS, Defendant-Respondent.

No. A-2650-19.

Superior Court of New Jersey, Appellate Division.

Argued February 11, 2021.Decided March 3, 2021.

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Docket No. L-2515-18.

Michael Bandler argued the cause pro se.

Joseph P. McGroarty argued the cause for respondent (Fitzgerald McGroarty attorneys; Joseph P. McGroarty on the brief).

Before Judges Mawla and Natali.

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.

PER CURIAM.

Plaintiff Michael Bandler appeals from a January 14, 2020 order denying his application to stay the proceedings on his fraud-based complaint against defendant Joseph McGroarty because he filed a Chapter 13 bankruptcy petition. He also appeals a February 25, 2020 order dismissing the complaint without prejudice for his failure to appear for trial. Because the orders under review are not final, we dismiss the appeal as interlocutory.

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Plaintiff obtained a $10,000 judgment against defendant's daughter and subsequently discovered that she owned a vehicle, later sold, which would have partially satisfied the judgment. After post-judgment discovery, where defendant initially stated that the vehicle was transferred to him, and then later admitted it was not, plaintiff filed a complaint alleging fraud. In defendant's answer, he denied all the allegations and asserted twelve affirmative defenses, including an assertion that "plaintiff's claims against [defendant] are frivolous in nature and in violation of N.J.S.A. 2A:15-59 and... Rule 1:4-8(b) and therefore plaintiff should be sanctioned."

On November 4, 2019, plaintiff filed for Chapter 13 bankruptcy protection. A few days after his petition was filed, plaintiff attended a previously scheduled arbitration but refused to participate.

On December 23, 2019, plaintiff filed an application to stay the proceedings pursuant to United States Bankruptcy Code, 11 U.S.C. § 362(a), arguing that the automatic stay applied because defendant's affirmative defense seeking counsel fees was "a claim against the bankruptcy estate." Judge James P. Savio denied plaintiff's motion in a January 14, 2020 order. In his accompanying written statement of reasons, the judge explained that plaintiff was not entitled to a stay because "[s]ection 362 is only applicable where a judgment is rendered against a debtor, not suits by a debtor." The court further stated that "[a] bankruptcy judgment would have no bearing on a [p]laintiff bringing a claim, as any potential award would not be forthcoming from the [p]laintiff but rather from a defendant."

Plaintiff failed to appear for the February 24, 2020 trial believing that if he attended the proceedings, he would be in violation of the automatic stay. He also asserts in his merits brief that he had "contacted the court several times, seeking a delay in the trial, without success." On February 25, 2020, Judge Savio dismissed plaintiff's complaint without prejudice for lack of prosecution, a remedy expressly permitted by Rule 1:2-4(a).^[1]

On appeal, plaintiff maintains that the judge's January 14, 2020 order refusing to stay the trial proceedings under 11 U.S.C. § 362(a) was erroneous. He also argues that Judge Savio's February 25, 2020 order dismissing his complaint was improper as the automatic stay provision prevented the court from scheduling trial and entering the dismissal order.

We first address the finality of the trial court's January 14, 2020 and February 25, 2020 orders. The Rules that warrant dismissal of interlocutory appeals are clear. We consider appeals from final orders of a trial court and other orders expressly designated as final for purposes of appeal. R. 2:2-3(a)(1), (3). "To be a final judgment, an order generally must `dispose of all claims against all parties.'" Janicky v. Point Bay Fuel, Inc., 396 N.J. Super. 545, 549-50 (App. Div. 2007) (quoting S.N. Golden Ests., Inc. v. Cont'l Cas. Co., 317 N.J. Super. 82, 87 (App. Div. 1998)). This "final judgment rule[] reflects the view that `piecemeal [appellate] reviews, ordinarily, are [an] anathema to our practice.'" Janicky at 550 (all but first alterations in original) (quoting S.N. Golden Ests., 317 N.J. Super. at 87).

If an order is not final, or among those orders expressly designated as final for purposes of appeal, a party must seek leave to appeal from the Appellate Division. R. 2:5-6(a). A grant of leave to appeal from an interlocutory order is left to the discretion of this court, and that discretion is exercised sparingly and "in the interest of justice." R. 2:2-3(b); R. 2:2-4; Janicky, 396 N.J. Super. at 551. It is clear that we will not decide an appeal from an interlocutory order merely because the appellant's notice of appeal mischaracterized the order, the respondent did not move to dismiss, or the appeal was "fully briefed." Vitanza v. James, 397 N.J. Super. 516, 519 (App. Div. 2008).

Here, the orders under review were not final as they did not resolve all issues against the parties. Further, the February 25, 2020 dismissal order was expressly without prejudice.^[2] A dismissal without prejudice is generally not a final order from which an appeal as of right can be taken. Kwiatkowski v. Gruber, 390 N.J. Super. 235, 237 (App. Div. 2007) (order dismissing plaintiff's complaint without prejudice pursuant to Rule 4:23-5 is not a final order). Further, "if a dismissal without prejudice is entered under a particular rule that itself provides for vacation of the dismissal... the order of dismissal may not be appealable unless vacation is first sought." Pressler & Verniero, Current N.J. Court Rules, cmt. 2.2.4 on R. 2:2-3 (2021).^[3]

We recognize that we may, in appropriate cases, grant leave to appeal nunc pro tunc. R. 2:4-4(b)(2); see e.g., Yuhas v. Mudge, 129 N.J. Super. 207, 209 (App. Div. 1974) (granting leave to appeal nunc pro tunc "in the interest of prompt disposition of the matter"). However, such relief is not automatic and should not be presumed as granting leave to appeal nunc pro tunc is "most extraordinary relief." Hallowell v. Am. Honda Motor Co., 297 N.J. Super. 314, 318 (App. Div. 1997) (quoting Frantzen v. Howard, 132 N.J. Super. 226, 227-28 (App. Div. 1975)). In dismissing an appeal as interlocutory after it was fully briefed, we stated:

[I]f we treat every interlocutory appeal on the merits just because it is fully briefed, there will be no adherence to the Rules, and parties will not feel there is a need to seek leave to appeal from interlocutory orders.

At a time when this court struggles to decide over 7,000 appeals a year in a timely manner, it should not be presented with piecemeal litigation and should be reviewing interlocutory determinations only when they genuinely warrant pretrial review.

[Parker v. City of Trenton, 382 N.J. Super. 454, 458 (App. Div. 2006) (citations omitted).]

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We are convinced that the interests of justice do not warrant consideration of plaintiff's interlocutory appeal from the trial court's orders of January 14, 2020 and February 25, 2020. R. 2:2-3(b); R. 2:2-4. In sum, we conclude the January 14, 2020 and February 25, 2020 orders were not final orders. We also decline to treat plaintiff's improvidently filed appeal as a request for leave to appeal nunc pro tunc as there is nothing about the issues on appeal that warrant such "extraordinary" relief. See Hallowell, 297 N.J. Super. at 318.

Appeal dismissed without prejudice.

[1] The parties have not included in the record a copy of the transcript from the February 24, 2020 proceeding.

[2] Plaintiff's notice of appeal and corresponding case information statement incorrectly state that the court's February 25, 2020 order was not a without prejudice dismissal.

[3] We acknowledge that unlike Rules 1:13-7(a) and 4:23-5(a), Rule 1:2-4(a) does not, itself, specify the procedures for reinstating a dismissal without prejudice. See, e.g., Scalza v. Shop Rite Supermarkets, 304 N.J. Super. 636, 638 (App. Div. 1997). We are satisfied, however, that such a remedy is clearly contemplated by that Rule. Indeed, defendant conceded at oral argument that neither Rule 1:2-4(a), nor the court's February 25, 2020 order, precluded plaintiff from filing such an application, subject to defendant's opposition.

CHAPTER 7 ARTICLE - BANKRUPTCY ATTORNEY IN HUDSON COUNTY NEW JERSEY (201) 646-3333

 

JOAN MARIE HOFFMAN, Plaintiff-Appellant,
v.
J.P. MORGAN CHASE and CALIBER HOME LOANS, Defendants-Respondents.No. A-4566-17T4.Superior Court of New Jersey, Appellate Division.

Argued telephonically May 13, 2019.Decided June 5, 2019.

On appeal from Superior Court of New Jersey, Chancery Division, Somerset County, Docket No. C-012005-18.

Joan Marie Hoffman, appellant, argued the cause pro se.

Robert T. Yusko argued the cause for respondent Caliber Home Loans (Perkins Coie LLP, attorneys; Robert T. Yusko, on the brief).

Eva K. Carey argued the cause for respondent J.P. Morgan Chase Bank (Bertone Piccini, LLP, attorneys; Eva K. Carey, of counsel and on the brief).

Before Judges Fasciale and Rose.

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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.

PER CURIAM.

Plaintiff appeals from two orders: an April 30, 2018 order dismissing the amended complaint against defendant Caliber Home Loans (Caliber); and a June 8, 2018 order dismissing the complaint against defendant JPMorgan Chase Bank, N.A. (Chase), improperly pled as J.P. Morgan Chase. Judge Margaret Goodzeit entered the orders and rendered comprehensive and thorough opinions. We affirm.

Almost eleven years ago, a bank instituted a residential foreclosure complaint against plaintiff, who immediately filed an answer contesting the bank's allegations. In November 2009, the bank obtained final judgment, which the court amended. The Sheriff then scheduled the sale of the property. Thereafter, plaintiff filed a Chapter 13 petition, which stayed the sale. The bankruptcy court dismissed the petition in October 2016, and although the Sheriff re-listed the sale, plaintiff stayed it again by filing a Chapter 7 petition. The bankruptcy court lifted the stay, refusing to stay the sale any further, despite multiple applications by plaintiff.^[1] Plaintiff filed this complaint in January 2018, and the Sheriff sale of the property occurred in June 2018.

In this complaint, plaintiff alleged she proposed to redeem the property in March 2010, Chase failed to respond, Caliber became the servicer of the loan in July 2015, and Caliber provided a pay-off figure to plaintiff in November 2017. The judge entered the orders under review dismissing the complaint under Rule 4:6-2(e), the entire controversy doctrine (ECD), res judicata, and collateral estoppel.

On appeal, plaintiff argues the judge erred by dismissing the complaint by relying on the ECD. Indeed, her merits brief focuses solely on the ECD, although at oral argument before us, she contended that the judge erroneously relied on the other bases for dismissing this case. Plaintiff urges us to reverse the orders and award her damages.

We conclude that plaintiff's contentions are without sufficient merit to warrant attention in a written opinion. R. 2:11-3(e)(1)(E). We reach that conclusion even considering plaintiff's new arguments on appeal, on the record that she expanded without court order. We affirm substantially for the reasons expressed by Judge Goodzeit.

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Affirmed

[1] Plaintiff filed at least three other bankruptcy petitions, seeking further stays of the sale. The bankruptcy court dismissed the petitions and denied each of her requests to stay the sale of the property.

FORECLOSURE ARTICLE - LAWYER IN ESSEX COUNTY NEW JERSEY (201) 656-3333

 

DEUTSCHE BANK TRUST COMPANY AMERICAS, AS TRUSTEE FOR RESIDENTIAL ACCREDIT LOANS, INC., Mortgage Asset-Backed Pass-Through Certificates, Series 2005-QSI4, Plaintiff-Respondent,
v.
Debbie A. WEINER and Clifford R. Weiner, Defendants-Appellants.

DOCKET No. A-2110-17T4.
Superior Court of New Jersey, Appellate Division.

Submitted October 23, 2018.Decided November 8, 2018.

On appeal from Superior Court of New Jersey, Chancery Division, Somerset County, Docket No. F-026288-16.

Christopher D. Ferrara LLC, attorneys for appellants (Christopher D. Ferrara, on the brief).

Blank Rome LLP, attorneys for respondent (Michael P. Trainor, on the brief).

Before Judges Fisher, Geiger and Firko.

122The opinion of the court was delivered by

FISHER, P.J.A.D.

For many years, New Jersey lacked a statute of limitations for residential foreclosure actions. Instead, for more than a century, our courts applied the time-bar used in adverse possession actions: twenty years. See Depew v. Colton, 60 N.J. Eq. 454, 464, 46 A. 728 (E. & A. 1900); Security National Partners L.P. v. Mahler, 336 N.J. Super. 101, 106-07, 763 A.2d 804 (App. Div. 2000). In 2009, the Legislature made up for lost time and enacted N.J.S.A. 2A:50-56.1, which codified Security National Partners^[1] by declaring that a residential foreclosure action "shall not be commenced following the earliest of" three points in time:

• Six years from "the date fixed for the making of the last payment or the maturity date set forth in the mortgage or the note," N.J.S.A. 2A:50-56.1(a);

• Thirty-six years from the date the mortgage was recorded or, if not recorded, from the date of execution, N.J.S.A. 2A:50-56.1(b); and

• Twenty years from the date of a default that "has not been cured," N.J.S.A. 2A:50-56.1(c).^[2]

Defendants' contention that N.J.S.A. 2A:50-56.1(a)'s six-year time-frame applies and bars this foreclosure action, which was filed seven years after their uncured default, is without merit.

The record reveals that defendant Debbie A. Weiner borrowed $657,500 from Weichert Financial Services in 2005 and then executed in Weichert's favor a promissory note that required monthly payments, 123the last of which was scheduled for June 2035. To secure the note's repayment, both defendants executed a mortgage that was recorded in 2005 and ultimately assigned to plaintiff Deutsche Bank Trust Company Americas.^[3]

There is no dispute that defendants failed to make a scheduled August 2009 payment and all later monthly payments. After four discontinued suits, Deutsche Bank commenced this foreclosure action in September 2016, more than seven years after defendants' uncured default.

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The parties eventually cross-moved for summary judgment. The judge granted Deutsche Bank's motion, denied defendants' motion, and later denied defendants' motion for reconsideration. Once final judgment was entered in December 2017, defendants filed this timely appeal, arguing: (1) summary judgment should not have been entered because discovery was incomplete and there were genuine disputes about Deutsche Bank's claim, its standing to sue, and its status as a holder; (2) their answer should not have been stricken; and (3) the complaint was barred by the statute of limitations. We reject these arguments and affirm.^[4]

In arguing the action was time-barred, defendants claim the six-year time frame in subsection (a) was triggered in 2009 when their default triggered the loan's acceleration. We disagree. Subsection (c) specifically provides a time frame to be considered upon an uncured default. To interpret subsection (a) as triggering the same event encompassed by subsection (c) would wreak havoc with the clearly delineated provisions of N.J.S.A. 2A:50-56.1. We refuse to inject such confusion into what the Legislature carefully planned when it adopted this multi-part statute of limitations.

Defendants' interpretation would also require that we ignore subsection (a)'s plain language. That provision declares that the six-year period runs from the date of the last payment or the maturity date "set forth in the mortgage or the note." N.J.S.A. 2A:50-56.1(a). June 1, 2035 was the date "set forth" in the note and mortgage here, and that date is the one and only date that triggers the six-year period in subsection (a). There is no ambiguity; that conclusion is what the plain language of the statute compels. See DiProspero v. Penn, 183 N.J. 477, 492, 874 A.2d 1039 (2005). Any other conclusion would mangle the Legislature's carefully phrased statute. State v. Clarity, 454 N.J. Super. 603, 608, 186 A.3d 919 (App. Div. 2018).

In short, the three events described in subsections (a), (b), and (c) of N.J.S.A. 2A:50-56.1, were scheduled to occur in 2041 (six years after the 2035 maturity date), 2041 (thirty-six years after the 2005 recording of the mortgage), and 2029 (twenty years from defendants' uncured 124 default), respectively. Since the earliest has yet to occur, this suit, commenced in September 2016, was not time-barred.^[5]

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Affirmed.

[1] See Assemb. Fin. Insts. & Ins. Comm. Statement to S. No. 250 — L. 2009, c. 105 (Oct. 6, 2008).

[2] For brevity's sake, we have omitted statutory language from the descriptions of each subsection that has no bearing here.

[3] The mortgage was first assigned to Deutsche Bank Trust Company Americas, as trustee for certain certificate holders, in 2009, and later assigned to Deutsche Bank, as trustee for Residential Accredit Loans, Inc., 2005-QS14, the plaintiff here, in 2013. The assignments were duly executed and recorded.

[4] We find insufficient merit in defendants' first two points to warrant further discussion in a written opinion. R. 2:11-3(e)(1)(E). We add only as to the first that, in moving for summary judgment, Deutsche Bank provided undisputed evidence that it was in possession of the note, which was endorsed to it, and that the mortgage assignments were duly executed and recorded. See Deutsche Bank Trust Co. v. Angeles, 428 N.J. Super. 315, 318, 53 A.3d 673 (App. Div. 2012).

[5] Although not raised, we assume N.J.S.A. 2A:50-56.1 applies to defendants' argument that Deutsche Bank's suit was untimely even though the statute did not become effective until August 6, 2009, approximately the same time as defendants' default. Even if the statute had no application here, the result would be the same, since the pre-statute twenty-year time-bar described in Colton and Security National Partners would allow for the maintenance of this suit.