JUAN C. DELACRUZ v. ADMINISTRATIVE OFFICE OF FORECLOSURE

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

JUAN C. DELACRUZ and

MADHARSHINI DELACRUZ,

Plaintiffs-Appellants,

v.

ADMINISTRATIVE OFFICE OF FORECLOSURE,

Defendant-Respondent.

________________________________________

August 4, 2014

 

Submitted April 28, 2014 Decided

 

Before Judges Leone and Manahan.

 

On appeal from the Superior Court of New Jersey, Chancery Division, General Equity Part, Bergen County, Docket Nos. C-110-13 and L-102-13.

 

Denbeaux &Denbeaux, attorneys for appellants (Joshua W. Denbeaux and Nicholas A. Stratton, on the briefs).

 

John J. Hoffman, Acting Attorney General, attorney for respondent New Jersey Administrative Office of Foreclosure (Lisa A. Puglisi, Assistant Attorney General, of counsel; Kelly A. Samuels, Deputy Attorney General, on the brief).

 

Michael A. Alfieri, attorney for respondent Lynx Asset Services, LLC.

 

PER CURIAM

Plaintiffs Juan C. Delacruz and Madharshini Delacruz (the Homeowners) appeal from the order of the trial court dismissing their complaint in lieu of prerogative writs against respondent the Office of Foreclosure ("Office") within the Administrative Office of the Courts, and denying their request to restrain the foreclosure of their home by Lynx Asset Services, LLC. (Lynx). We affirm.

I.

Although the foreclosure action, Lynx Asset Servs. v. Delacruz, Docket F-3049-11, is not before us, we summarize its relevant history before and after our rendition of the history of this prerogative writs action.

A.

In 2011, Lynx filed a foreclosure complaint in the Bergen County Chancery Division. Lynx alleged that in 2007, the Homeowners signed a $570,000 note from GE Money Bank, secured by a mortgage on their Bergen County home; that GE Money Bank had assigned the note and mortgage to Lynx; and that the Homeowners were in default.

The Homeowners filed an answer admitting default, claiming that Lynx lacked standing, and raising defenses and a counterclaim. Lynx filed a motion to strike the answer and to transfer the matter back to the Office as an uncontested foreclosure. On March 2, 2012, the court granted the motion, struck the answer, ordered the clerk to enter default, and transferred the matter to the Office.

On May 24, 2012, Lynx filed a motion to enter judgment, accompanied by an affidavit setting forth the amount due, and counsel's affidavit of diligent inquiry. On June 4, 2012, the Homeowners' counsel mailed the Office a letter in opposition, complaining that the motion was not accompanied by the mortgage and other original documents, and that the affidavit of diligent inquiry was inadequate. The matter proceeded as uncontested, and on October 24, 2012, the Bergen County Chancery Division entered a final judgment for $701,530.50, and ordered the mortgaged property be sold at sheriff's sale.

B.

On January 13, 2013, the Homeowners commenced the action under review here, filing a complaint in lieu of prerogative writs in the Mercer County Law Division. The complaint named only the Office as a defendant, and alleged that after receiving their June 4, 2012 letter, the Office violated its duty under Rule 4:64-9 to deliver the foreclosure case to a judge for further proceedings, and that the Homeowners were not served with the final judgment and were unaware of it until December 27, 2012. The complaint demanded a stay of Lynx's rights in the forfeiture action, an injunction against the Office to comply with Rule 4:64-9, and counsel fees and costs.1

The Homeowners served the complaint upon the Attorney General by certified mail on February 5, 2013. On March 13, 2013, the Homeowners requested the entry of default against the Office. The clerk's office told the Homeowners their service of the complaint was non-conforming. The Homeowners filed a request for an order to show cause compelling a judicial hearing under Rule 4:64-9, and staying the sheriff's sale, based on the alleged deficiencies in Lynx's motion to enter judgment in the foreclosure action.

The Mercer County Law Division transferred the prerogative writs action to Bergen County. The Office filed a motion for summary judgment, which the court viewed as a motion to dismiss. On May 2, 2013, the Bergen County Chancery Division denied the Homeowners' request for an order to show cause, dissolved the existing restraints, and dismissed their complaint in the prerogative writs action. The court held that, "when a Court enters an order and whether it enters it properly or improperly, the remedy for that is not an administrative attack on the staff" or an "administrative challenge to what the judge had before him by way of [an] action [in lieu of] prerogative writ." Rather, the court ruled that the only proper ways to affect a final judgment were to move to vacate, move to reconsider, or appeal "in the existing forfeiture action."

The court also refused the Homeowners' request to restrain Lynx, a non-party to the action in lieu of prerogative writs. The court denied a stay on May 10, 2012. The Homeowners appealed, and this court granted a stay of the sheriff's sale.

C.

After dismissal of their prerogative writs action, the Homeowners filed a motion in the foreclosure action to vacate the final judgment under Rule 4:50-1. The motion to vacate likewise alleged that after receiving their June 4, 2012 letter, the Office was required by Rule 4:64-9 to deliver the foreclosure case to a judge for further proceedings, and that the Homeowners were not served with and were unaware of the final judgment. On July 12, 2013, the trial court denied their motion to vacate. We take judicial notice that the Homeowners have filed a separate appeal to this court from the forfeiture action under Docket A-0070-13. See N.J.R.E. 201(b)(4).

 

 

II.

The appeal before us concerns only the dismissal of the Homeowners' action in lieu of prerogative writs against the Office. We must first consider whether there was jurisdiction to bring that action. That poses an issue of law over which we have de novo review. See Baanyan Software Servs., Inc. v. Kuncha, 433 N.J. Super. 466, 476 (App. Div. 2013). We must hew to that standard of review.

It is helpful first to consider the nature of the Office. The Supreme Court by Rule 1:34-6 created the Office as "a unit of the Administrative Office of the Courts." ATFH Real Prop., LLC v. Winberry Realty P'ship, 417 N.J. Super. 518, 520 n.2 (App. Div. 2010), certif. denied, 208 N.J. 337 (2011).2 The Court intended the Office "to make the process regarding uncontested matters more efficient and to relieve judges of routine and ministerial tasks best carried out by the professional staff of the Office." Pressler & Verniero, Current N.J. Court Rules, comment on R. 1:34-6 (2014). The Office "is not empowered to make any rulings but instead provides a very valuable service to the courts in making recommendations on matters expressly described in R. 1:34-6." Wells Fargo Home Mortg., Inc. v. Stull, 378 N.J. Super. 449, 452 n.1 (App. Div.), certif. denied, 185 N.J. 267 (2005).

The Office can "recommend[] the entry of orders or judgments in uncontested foreclosure matters pursuant to R. 4:64-1 and R. 4:64-7 subject to the approval of a Superior Court Judge designated by the Chief Justice." R. 1:34-6. Under Rule 4:64-1(d)(2), "[t]he Office of Foreclosure may recommend entry of final judgment pursuant to R. 1:34-6" if the matter and motion are uncontested. However, if a party within ten days of service of a motion notifies the Office in writing "that the responding party objects to the entry of order," the Office "shall deliver the foreclosure case file to a judge in the county of venue, who shall schedule such further proceedings." R. 4:64-9; see generally First Union Nat'l Bank v. Penn Salem Marina, Inc., 190 N.J. 342, 356-57 (2007).

The Homeowners' complaint in lieu of prerogative writs alleged that the Office erroneously failed to recognize their June 4, 2012 letter as an objection to the entry of a final judgment of foreclosure, and thus failed to deliver the foreclosure case file to a judge for further proceedings in accordance with Rule 4:64-9. We do not comment on the merits of that allegation, or the Homeowners' allegation that they were not timely served with the final judgment, because those allegations should be raised in the foreclosure action, not by a complaint in lieu of prerogative writs.

As set forth above, the Office does not decide cases or motions; it only recommends decisions by the court. The action the Homeowners seek to overturn is the entry of the final judgment, an action by the trial court. If the Homeowners believed the court's entry of final judgment was erroneous, their remedy was to challenge it in the forfeiture action.

Such challenges to judicial action, including actions allegedly caused by the Office's errors, can be brought by several available procedures. A party aggrieved by a judgment may file a motion for rehearing or reconsideration of the judgment under Rule 4:49-2. See, e.g., Wells Fargo Bank, N.A. v. Garner, 416 N.J. Super. 520, 522-23 (App. Div. 2010). The party may file a motion for relief from the judgment under Rule 4:50-1. See, e.g., U.S. Bank Nat'l Ass'n v. Guillaume, 209 N.J. 449, 466-67 (2012). Finally, the party may appeal the judgment under Rule 2:2-3(a)(1). See, e.g., First Union Nat'lBank v. Penn Salem Marina, Inc., 383 N.J. Super. 562, 568 n.3 (App. Div. 2006), rev'd on other grounds, 190 N.J. 342, 356 (2007).

The Homeowners cannot evade, delay, or supplement those avenues for relief by instead suing the Office in a complaint in lieu of prerogative writs. Under the provision of the New Jersey Constitution of 1947 superseding prerogative writs, actions in lieu thereof are afforded "on terms and in the manner provided by rules of the Supreme Court." N.J. Const., Art. VI, V, 4. Under the Court's rules, actions in lieu of prerogative writs may be filed only for "[r]eview, hearing and relief heretofore available by prerogative writs and not available under R. 2:2-3 or R. 8:2." R. 4:69-1. This provision bars the Homeowners' action on two grounds.

First, relief against judicial agencies was not available by prerogative writs before 1947. Prior to that date, review, hearing, and relief under prerogative writs were available only to challenge the actions of local administrative agencies and legislatively-created state administrative agencies. Paruszewski v. Twp. of Elsinboro, 154 N.J. 45, 58 (1998); In re Application of LiVolsi, 85 N.J. 576, 595-96 (1981). The Office falls in neither category; rather, it was created by Court rule as an agency of the state judiciary. The Supreme Court has concluded that, before 1947, prerogative writs were "not available for review of judicial as opposed to ordinary administrative agencies, and that therefore N.J. Const. (1947), Art. VI, V, par. 4, does not mandate that an action in lieu of prerogative writs lie by right from the determinations of judicially created agencies." LiVolsi, supra, 85 N.J. at 596; see O'Boyle v. District I Ethics Comm., 421 N.J. Super. 457, 472-73 (App. Div.), certif. denied, 208 N.J. 601 (2011).

Second, even if the Office could be treated as a state administrative agency, the review, hearing, and relief previously available by prerogative writs from a "state administrative agency" is now available only "in the Appellate Division pursuant to Rule 2:2-3(a)(2) and Rule 4:69-1." Williams v. N.J. Dep't of Corr., 423 N.J. Super. 176, 182 (App. Div. 2011).

The overarching rule in New Jersey has long been that "every proceeding to review the action or inaction of a local administrative agency [is] by complaint [in lieu of prerogative writs] in the Law Division and that every proceeding to review the action or inaction of a state administrative agency [is] by appeal to the Appellate Division."

 

[Infinity Broadcasting Corp. v. N.J. Meadowlands Commc'n, 187 N.J. 212, 223 (2006) (first and third alteration in original) (quoting Cent. R.R. Co. v. Neeld, 26 N.J. 172, 184-85, cert. denied, 357 U.S. 928, 78 S. Ct. 1373, 2 L. Ed. 2d 1371 (1958))].

 

Thus, even if the Office were a state administrative agency, it would be improper to challenge its actions by "'a proceeding in lieu of prerogative writs filed in the Law Division.'" Id. at 225.

In any event, we see no reason to create an action in lieu of prerogative writs against the Office because its alleged error resulted in the entry of an unfavorable court order. Unfavorable court orders can be challenged by the normal avenues of judicial review under Rule 2:2-3(a)(1), Rule 4:49-2, and Rule 4:50-1.3 Accordingly, the Homeowners' action in lieu of prerogative writs against the Office lacked any jurisdictional basis, and was properly dismissed.

The Homeowners' argument that a default judgment should have been entered against the Office despite the absence of jurisdiction is without sufficient merit to warrant discussion. R. 2:11-3(e)(1)(E). Because the action was properly dismissed, we do not reach the remaining arguments.

Affirmed. Our stay in this appeal of the sheriff's sale is dissolved.

1 The complaint also contained a second count alleging that the Office had violated their federal constitutional rights in violation of 42 U.S.C.A. 1983. Because the Homeowners make no argument challenging the dismissal of this count, we do not address it.

2 The Administrative Office of the Courts is "a State office" within the judiciary. N.J.S.A. 2A:12-1; see N.J. Const., Art. VI, VII, 1.

3 Because the Homeowners had an unfavorable court order which they could appeal to this court, or ask the trial court to reconsider or vacate, their situation does not resemble DeHart v. Bambrick, 177 N.J. Super. 541 (App. Div. 1981). There, the plaintiffs obtained a favorable court order directing the entry of a judgment, but the clerk of the Superior Court refused to sign and file the judgment. We held that "the proper remedy to challenge the clerk's refusal . . . was by a complaint in lieu of prerogative writs" in the Law Division under Rule 4:69-1, rather than "by a direct appeal to the Appellate Division pursuant to R. 2:2-3." Id. at 546-47.