MAIN STREET AT EDISON, LLC v. RAFAEL MARTINEZ

NOT FOR PUBLICATION WITHOUT THE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-1776-17T2

MAIN STREET AT EDISON, LLC,

           Plaintiff-Respondent,

v.

RAFAEL MARTINEZ,

           Defendant-Appellant,

and

RITZA MARTINEZ and OSOCOA
MARTINEZ,

     Defendants.
_________________________________

                    Submitted October 3, 2019 – Decided April 6, 2020

                    Before Judges Nugent and DeAlmeida.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Middlesex County, Docket No. DC-10829-17.

                    Kenneth Rosellini, attorney for appellant.

                    Lombardi & Lombardi, PA, attorneys for respondent
                    (Michael F. Lombardi, on the brief).
PER CURIAM

      Following the entry of a foreclosure judgment and the sheriff's sale of

defendant Rafael Martinez's former residence, he refused to vacate the premises.

Plaintiff, Main Street at Edison, LLC (Main Street) filed a summary dispossess

action in the Special Civil Part, and the court eventually entered a November 2, 2017

order for possession that led to defendant's eviction. Defendant appeals from the

November 2, 2017 order. He argues the court erred by issuing the order because

plaintiff had no standing to file the action in the Special Civil Part. He also argues

service of process was deficient. We affirm.

      This action has a lengthy history. Defendant purchased the Edison home in

November 1996. In July 2008, First Horizon Home Loans, a Division of First

Tennessee Bank, NA, filed a foreclosure complaint after defendant defaulted on a

refinancing loan. Defendant did not answer the foreclosure complaint. Following

entry of a final foreclosure judgment and the sheriff's sale of the home, defendant

filed a motion to vacate, claiming he was never served with process. On appeal from

the trial court's decision denying defendant's motion, we remanded the matter for an

evidentiary hearing on the issue of service of process. First Horizon Home Loans v.

Rafael Martinez, No. A-1646-12 (App. Div. Sep. 12, 2014) (slip op. at 11-13). In



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                                           2 September 2015, the trial court set aside the final foreclosure judgment and sheriff's

sale.

        A second foreclosure judgment was entered in March 2017, resulting in

another sheriff's sale. Frank Zappia, owner of Main Street, was the high bidder.

Main Street took title to the property in July 2017. Defendant, claiming he was never

served with a writ of possession, continued to occupy the home after it was sold at

the sheriff's sale. Thereafter, the parties each attempted to change the locks and even

contacted the local police.

        In August 2017, the month following the sheriff's sale, Main Street filed an

order to show cause, seeking an order for possession. Defendant responded by

moving to dismiss the complaint. In his motion, defendant alleged, as he does on

appeal, that the Special Civil Part had no jurisdiction to hear the action, and there

was improper service of process.

        Following oral argument, the trial court denied defendant's dismissal motion

and entered an order for possession. The court stayed the order for thirty days and

instructed the parties that "[i]f the defendant(s) fail to vacate the premises on or

before the date specified herein, the plaintiff may seek the issuance of a Writ of

Possession from the Special Civil Part Clerk's Office no more than [thirty] days

thereafter." Defendant has since been evicted. Defendant timely appealed.


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      Defendant does not dispute that as an entity "claiming the right of possession

of real property in the possession of another, or claiming title to such real property,"

Main Street was "entitled to have [its] rights determined in an action in the Superior

Court."    N.J.S.A. 2A:35-1.      Rather, defendant's first argument turns on his

interpretation of Rule 6:1-2, which includes as matters cognizable in the Special

Civil Part "[s]ummary actions for the possession of real property pursuant to

 N.J.S.A. 2A:35-1 et seq., where the defendant has no colorable claim of title or

possession[.]" R. 6:1-2(a)(4).

      Defendant contends he became a tenant at sufferance once title vested in Main

Street, and as such, he had a "colorable claim" to possession until the court issued a

writ of possession. He adds that in view of his alleged colorable claim to possession,

Rule 6:1-2 was inapplicable, and therefore Main Street had no standing to bring an

eviction action in the Special Civil Part because the Special Civil Part had no

jurisdiction. According to defendant, Main Street was required to obtain an order

for possession in the Chancery Division. We disagree with defendant's analysis.

      Once Main Street obtained the deed following the foreclosure sale, "as a

matter of law the right of possession followed." Fidelity Union Tr. Co. v. Cantillo,

 125 N.J.L. 282, 284-85 (E. & A. 1940). Defendant had no right to remain in

possession of the foreclosed property.


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      Defendant argues he became a tenant at sufferance when Main Street obtained

the deed to the property. His characterization of his status is irrelevant. Even if he

became a holdover tenant, Main Street was entitled to treat him as a tenant or a

trespasser. See Sheild v. Welch,  4 N.J. 563, 568 (1950). The record establishes

Main Street treated him as a trespasser, evidenced by Main Street's attempts to lock

him out of the property. Defendant had no expectation of remaining in possession

of the property.

      Defendant argues he had a colorable claim of possession. We disagree. A

colorable claim is "[a] plausible claim that may reasonably be asserted, given the

facts presented and the current law." Black’s Law Dictionary 312 (11th ed. 2019).

Defendant had no plausible claim to continued possession of the foreclosed property.

His argument that he had a colorable claim to possession of the property until a writ

or order of possession was entered confuses a legal right to possession with the

process required to evict one without a legal right of possession. Defendant had no

colorable claim to possess the property to the exclusion of Main Street.

      Defendant's second argument, that service of process was defective, is also

devoid of merit. He cites the October 3, 2017 order to show cause, which required

the complaint to be served several days before Main Street mailed it. The order to




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show cause required defendant to be served "within [seven] days of the date hereof,"

and defendant claims he was not served until October 21, 2017.

      "An elementary and fundamental requirement of due process in any

proceeding which is to be accorded finality is 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." Rosa v. Araujo,  260 N.J.

Super. 458, 463 (App. Div. 1992) (quoting O'Connor v. Altus,  67 N.J. 106, 126

(1975)). Thus, not every defect in service of process renders a subsequent judgment

void and unenforceable. Id. at 462. Rather, "[w]here due process has been afforded

a litigant, technical violations of the rule concerning service of process do not defeat

the court's jurisdiction." Id. at 463.

      Here, the untimely service upon defendant was a technical violation.

Notwithstanding this technical violation, defendant was aware of the proceedings,

as he appeared and participated in them. His argument is thus without merit.

      Moreover, the entire issue is moot, as Main Street argues. The foreclosure

judgment is final. Defendant does not argue otherwise. No stay was issued pending

this appeal. We consider an issue moot when “our decision sought in a matter, when

rendered, can have no practical effect on the existing controversy.” Deutsche Bank

Nat'l Tr. Co. v. Mitchell,  422 N.J. Super. 214, 221-22 (App. Div. 2011) (quoting


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                                           6
Greenfield v. N.J. Dep't of Corr.,  382 N.J. Super. 254, 257-58 (App. Div. 2006));

see also Sudersan v. Royal,  386 N.J. Super. 246, 251 (App. Div. 2005) (noting in a

landlord-tenant action, “[o]rdinarily, where a tenant no longer resides in the

property, an appeal challenging the propriety of an eviction is moot”).

      Affirmed.




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