FEDERALHOME LOAN MORTGAGE CORPORATION v. SUWAN HAHN

NOT FOR PUBLICATION WITHOUT THE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-2863-16T1

FEDERAL HOME LOAN
MORTGAGE CORPORATION,

        Plaintiff-Respondent,

v.

SUWAN HAHN,

     Defendant-Appellant.
___________________________________

              Submitted February 13, 2018 – Decided March 1, 2018

              Before Judges Yannotti and Mawla.

              On appeal from Superior Court of New Jersey,
              Law Division, Special Civil Part, Mercer
              County, Docket No. LT-000566-17.

              Kasuri Byck, LLC, attorneys for appellant
              (Harrison Ross Byck, on the brief).

              Fein, Such, Kahn & Shepard, PC, attorneys for
              respondent (Douglas J. McDonough and Ashleigh
              L. Marin, on the brief).

PER CURIAM

        Defendant Suwan Hahn appeals from a February 17, 2017 judgment

of possession entered in favor of plaintiff Federal Home Loan

Mortgage Corporation.          We affirm.
     The following facts are taken from the record.      On June 7,

2008, Willa Mae Sherman, the sole mortgagor and obligor under a

mortgage and note associated with real property located in Ewing,

which is the subject of this matter, died.   On August 9, 2010, the

mortgagee, CitiMortgage, Inc. (CitiMortgage), filed a foreclosure

complaint on the property.     Charles C. Sherman, Willa Mae's 1

executor and heir, as well as Timothy H. Sherman and Bruce K.

Sherman as heirs, were each named defendants in order to foreclose

any lien, claim, or interest they had in the property.

     On March 28, 2010, Charles passed away.     Thus, Charles was

served with the foreclosure complaint via publication on September

21, 2010.   On September 3, 2010, Timothy was served when a copy

of the summons and complaint was served upon defendant, his fiancé.

On September 2, 2010, Bruce was personally served as well.

     Default was entered against Charles, Timothy, and Bruce in

the foreclosure matter on November 16, 2010.    Final judgment was

entered in the foreclosure matter on December 12, 2014.    On March

3, 2015, Timothy and Bruce filed a motion to vacate the judgment.

The motion was denied by the Chancery Division judge in an order




1
  We utilize the parties' first names in order to differentiate
them because they share a common surname.     No disrespect is
intended.

                                2                            A-2863-16T1
dated April 10, 2015.          No appeal from the foreclosure judgment was

taken.

      On May 20, 2015, a sheriff's sale was held and CitiMortgage

was the successful bidder.            CitiMortgage then assigned its bid to

plaintiff. A sheriff's deed recorded on October 14, 2015, conveyed

the property to plaintiff.

      On August 1, 2016, plaintiff received a writ of possession.

The writ was sent to the Sheriff of Mercer County for execution.

The writ was returned unexecuted because the Sheriff obtained a

lease from a tenant at the property. Plaintiff thereafter received

a   copy   of    a   lease    agreement       between       Timothy   as    lessor,   and

defendant       as   lessee   dated     May       1,   2015.    Notably,     the   lease

agreement was dated three weeks after the Chancery Division order

denied     Timothy     and    Bruce's    motion        to   vacate    the   foreclosure

judgment, and two-and-one-half weeks prior to the sheriff's sale.

      As the owner of the property, on January 20, 2017, plaintiff

filed a landlord-tenant complaint against defendant.                            After a

hearing, the trial judge entered a judgment of possession in

plaintiff's favor against defendant for $20,054.00.                         This appeal

followed.

      On appeal, defendant argues CitiMortgage did not properly

serve Timothy with the complaint in the foreclosure action.                        Thus,



                                              3                                 A-2863-16T1
defendant claims the landlord-tenant judgment is invalid because

plaintiff never received valid title to the residence.

       A trial court's findings "should not be disturbed unless

'. . . they are so wholly insupportable as to result in a denial

of justice[.]'"      Rova Farms Resort, Inc. v. Inv'rs Ins. Co. of

Am., 
65 N.J. 474, 483-84 (1974) (alteration in original) (quoting

Greenfield v. Dusseault, 
60 N.J. Super. 436, 444 (App. Div. 1960)).

When   the   trial   court's   findings    are   "supported   by   adequate,

substantial and credible evidence[,]" those findings should be

upheld on appeal. Id. at 484 (citing N.J. Tpk. Auth. v. Sisselman,


106 N.J. Super. 358 (App. Div. 1969)).

       "[O]ur appellate function is a limited one: we do not disturb

the factual findings and legal conclusions of the trial judge

unless we are convinced that they are so manifestly unsupported

by or inconsistent with the competent, relevant and reasonably

credible     evidence   as   to   offend   the   interests    of   justice."

Fagliarone v. N. Bergen, 
78 N.J. Super. 154, 155 (App. Div. 1963);

see also Rova Farms, 
65 N.J. at 484.         The function of this court

is to determine whether there is "substantial evidence in support

of the trial judge's findings and conclusions . . . ."              Weiss v.

I. Zapinsky, Inc., 
65 N.J. Super. 351, 357 (App. Div. 1961).




                                      4                              A-2863-16T1
     Defendant    challenges     the   judgment    of    possession     in   this

landlord-tenant    matter   by   arguing      service    of   process   in   the

foreclosure matter was invalid.            We are not persuaded.

     Rule 4:4-4 states:

          Service of summons, writ and complaints shall
          be made as follows:

          (a) Primary Method of Obtaining In Personam
          Jurisdiction. 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 . . . as follows:

          (1) Upon a competent individual of the age of
          [fourteen] or over, by delivering a copy of
          the summons and complaint to the individual
          personally, or by leaving a copy thereof at
          the individual's dwelling place or usual place
          of abode with a competent member of the
          household of the age of [fourteen] or over
          then residing therein[.]

"[T]he term 'household,' . . . include[s] all competent persons

over fourteen years who make their home with the person to be

served[.]"   Resolution Tr. Co. v. Associated Gulf Contractors,

Inc., 
263 N.J. Super. 332, 343 (App. Div. 1993).              "The likelihood

of prompt notice of the suit to defendant is the basis for

permitting the substituted service."           Warfield v. Fischer, 
94 N.J.

Super. 142, 147 (Law Div. 1967).

     Here, defendant was Timothy's fiancé.              As a competent member

of Timothy's household, she was served with the summons and


                                       5                                A-2863-16T1
foreclosure complaint, and thus accepted service on behalf of

Timothy.   Defendant has failed     to present any evidence that

demonstrates she was neither a member of the household or that the

address of service was not Timothy's "dwelling or place of abode."

Indeed, during the trial of this matter defendant's counsel, who

also had represented Timothy, stated that Timothy had "been in the

property" and "[Timothy and defendant] had made the mortgage

payments for [twenty-seven and one-half] years."     Therefore, the

trial court's determination the foreclosure complaint was properly

served was based upon adequate credible evidence in the record.

     Furthermore, the record demonstrates, despite defendant's

arguments to the contrary, that plaintiff is the record owner of

the property and entitled to possession.      "The foreclosure of a

mortgage vests in the purchaser at the foreclosure sale a legal

right to the property free of easements and encumbrances imposed

upon it subsequent to the mortgage . . . ."    Camp Clearwater, Inc.

v. Plock, 
52 N.J. Super. 583, 599 (Ch. Div. 1958).    "The purchaser

at the foreclosure acquire[s] the estate of the . . . mortgagee,

and his title is absolute and indefeasible."     Champion v. Hinkle,


45 N.J. Eq. 162, 166 (E. & A. 1888).          After delivery of the

sheriff's deed, the purchaser is entitled to collect all rent

generated by the mortgaged property.   See Thompson v. Ramsey, 
72 N.J. Eq. 457, 461 (Ch. 1907).

                                6                            A-2863-16T1
    As we noted, a judgment of foreclosure had been entered

against the defendants, including Timothy, prior to defendant's

entry into the lease agreement.      No appeal was taken from that

judgment.    Moreover, defendant does not challenge the fact that

CitiMortgage was the successful bidder at the sheriff's sale, or

challenge the bid assignment from CitiMortgage to plaintiff.    The

record is also devoid of any objection filed during the sheriff's

sale process.    Therefore, the sheriff's deed granting plaintiff

title is valid, and plaintiff could prosecute the landlord-tenant

complaint.   For these reasons, the judgment of possession granted

in favor of plaintiff was not an abuse of discretion.

    Affirmed.




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