INDIAN FIELD AT HARDYSTON HOMEOWNERS ASSOCIATION, INC v. MARK TRUDNOS

NOT FOR PUBLICATION WITHOUT THE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-0797-14T4

INDIAN FIELD AT HARDYSTON
HOMEOWNERS ASSOCIATION, INC.,

        Plaintiff-Respondent,

v.

MARK TRUDNOS,

     Defendant-Appellant.
_______________________________

              Argued November 28, 2017 – Decided January 29, 2018

              Before Judges Reisner and Gilson.

              On appeal from Superior Court of New Jersey,
              Chancery Division, Sussex County, Docket No.
              F-005265-13.

              Mark Trudnos, appellant, argued the cause pro
              se telephonically.1

              Richard B. Linderman argued the cause for
              respondent   (Ansell  Grimm   &  Aaron,  PC,
              attorneys; Richard B. Linderman, of counsel;
              Jay B. Feldman, on the brief).

PER CURIAM




1
   At appellant's request, the court permitted him to argue by
telephone.
     Defendant Mark Trudnos appeals from a July 10, 2014 final

judgment of foreclosure in favor of plaintiff, Indian Field at

Hardyston Homeowners Association, Inc. (Association).2     He raises

the following issues for our consideration:

          I. CAN A RESIDENT AND AMERICAN CITIZEN IN THE
          STATE OF NEW JERSEY BE DEPRIVED OF LIFE,
          LIBERTY OR PROPERTY, UNDER COLOR OF LAW,
          WITHOUT DUE PROCESS OF LAW.

          II. IN ORDER TO HAVE STANDING TO FORECLOSE, A
          PLAINTIFF MUST SHOW BOTH (1) THAT DEFENDANT
          OWES A DEBT TO THE PLAINTIFF AND (2) THAT
          PLAINTIFF HAS A SECURITY INTEREST IN THE
          PROPERTY.

          III. IS A DEFENDANT ENTITLED TO ANY FORM OF
          NOTICE UNDER 
N.J.S.A. 2A:50-53 ET SEQ. BEFORE
          A FORECLOSURE SUIT IS FILED BY AN HOA OR OTHER
          ALLEGED CREDITOR.

          IV. CAN A PLAINTIFF ACTING ULTRA VIRES CREATE
          A SECURITY INTEREST IN PROPERTY WHERE NONE
          EXISTED BY REPEATEDLY FILING UNPERFECTED LIENS
          ONTO THE COUNTY RECORD.

          V. THE APPELLATE DIVISION MUST DECIDE IF TWO
          SEPARATE COMPLAINTS BOTH RESULTING IN JUDGMENT
          FILED BY THE SAME PLAINTIFF AGAINST THE SAME
          DEFENDANT ON THE SAME OR SIMILAR CAUSES OF
          ACTION VIOLATES THE DOCTRINE(S) OF COLLATERAL
          ESTOPPEL/RES   JUDICATA    OR   WHETHER   THIS
          CONSTITUTES A MALICIOUS ABUSE OF PROCESS
          AND/OR A MALICIOUS USE OF PROCESS.




2
   After this appeal was filed, the property at issue was sold at
a sheriff's sale, and defendant was evicted. However, this appeal
is limited to the final foreclosure judgment entered on July 10,
2014, as opposed to any later orders entered by the court.

                                2                            A-0797-14T4
     Having reviewed the record, we conclude that those arguments

are without sufficient merit to warrant discussion in a written

opinion.     R. 2:11-3(e)(1)(E).       We affirm substantially for the

reasons stated by Judge William J. McGovern, III, in his written

statements of reasons issued with the October 1, 2013 order denying

all of defendant's pending motions; the February 18, 2014 order

granting plaintiff partial summary judgment and referring the case

to the Office of Foreclosure as an uncontested matter; and the

April 11, 2014 order assessing counsel fees to be included in the

final foreclosure judgment.      We add the following brief comments.

     The Association's governing documents require homeowners to

pay assessments to the Association.            They also authorize the

Association to impose late fees for overdue assessments, pursue

collection    actions,   file   liens    against   properties   owned    by

delinquent homeowners, foreclose on the liens, and obtain counsel

fees for actions to enforce the Association's right to collect the

assessments.     Defendant admittedly failed to pay some of the

Association's assessments.       As a result, the Association filed

liens against defendant's property, obtained judgments for the

delinquent assessments, and filed an action to foreclose on the

liens.

     The     Association's   actions    were   lawful.    "It   is    well

established that membership obligations requiring homeowners in a

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community to join an association and to pay a fair share toward

community maintenance are enforceable as contractual obligations."

Highland Lakes Country Club & Cmty. Ass'n v. Franzino, 
186 N.J.
 99, 111 (2006) (citing Paulinskill Lake Ass'n v. Emmich, 
165 N.J.

Super.      43,   45    (App.    Div.     1978)).   "Moreover,    such   recorded

covenants also can create a lien on the property."                 Ibid. (citing

Leisuretowne Ass'n, Inc. v. McCarthy, 
193 N.J. Super. 494, 501

(App. Div. 1984)).

      If, as occurred here, the liens remain unpaid, the Association

has the right to foreclose on the property.                    Leisuretowne, 
193 N.J. Super. at 501-02.               Plaintiff was not required to serve

defendant with a pre-suit notice of intent to foreclose, because

the Fair Foreclosure Act, 
N.J.S.A. 2A:50-53 to -61, only applies

to foreclosures of residential mortgages.                 See 
N.J.S.A. 2A:50-54.

The   Act    does      not   apply   to    foreclosures   of   liens   for    unpaid

association assessments.

      Defendant, who represented himself throughout the litigation,

filed multiple motions which the trial court found were both

without merit and reflected fundamental misunderstandings as to

the applicable law.             He also forestalled plaintiff's collection

and foreclosure litigation by filing for bankruptcy twice.                        His

actions greatly increased plaintiff's expenses for what otherwise

would have been relatively straightforward litigation to collect

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about $6500 in overdue assessments.      As a result, we find no abuse

of the trial court's discretion in adding a substantial amount of

counsel fees to the foreclosure judgment.       See Packard-Bamberger

& Co. v. Collier, 
167 N.J. 427, 444 (2001) (absent "a clear abuse

of discretion," a trial court's fee award will not be overturned).

     Defendant   also   misunderstands    the   legal   effect   of   his

bankruptcy filings.     When defendant emerged from bankruptcy, his

personal debts were discharged.       However, under the bankruptcy

laws, the pre-existing liens against his property remained, as did

plaintiff's right to foreclose on those liens.      See Party Parrot,

Inc. v. Birthdays & Holidays, Inc., 
289 N.J. Super. 167, 174 (App.

Div. 1996) (citing Johnson v. Home State Bank, 
501 U.S. 78, 82-83

(1991)).

     Affirmed.




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