Opinion
DOCKET NO. A-2362-15T2
04-13-2017
MILL POINTE CONDOMINIUM ASSOCIATION, INC., Plaintiff-Appellant, v. ASAD A. RIZVI a/k/a SYED RIZVI, Defendant-Respondent.
Jeffrey S. Mandel argued the cause for appellant (Mr. Mandel, attorney; Mr. Mandel and Joseph A. Kutschman, III, on the briefs). Brett L. Messinger argued the cause for respondent Deutsche Bank National Trust Company (Duane Morris LLP, attorneys; Mr. Messinger, Stuart I. Seiden, and Kelly K. Bogue, of counsel and on the briefs). Respondent Asad Rizvi a/k/a Syed Rizvi has not filed a brief.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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. Before Judges Sabatino, Haas and Currier. On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-3706-14. Jeffrey S. Mandel argued the cause for appellant (Mr. Mandel, attorney; Mr. Mandel and Joseph A. Kutschman, III, on the briefs). Brett L. Messinger argued the cause for respondent Deutsche Bank National Trust Company (Duane Morris LLP, attorneys; Mr. Messinger, Stuart I. Seiden, and Kelly K. Bogue, of counsel and on the briefs). Respondent Asad Rizvi a/k/a Syed Rizvi has not filed a brief. PER CURIAM
This matter stems from the failures of a condominium unit owner to make payments on both his delinquent residential mortgage loan due to his lender's assignee and unpaid common expense assessments due to appellant, Mill Pointe Condominium Association, Inc. ("the Association").
The Association obtained a judgment in the Law Division in February 2015 against the unit owner, Asad A. Rizvi, for the unpaid assessments, pursuant to the terms of the condominium property's master deed and N.J.S.A. 46:8B-17 (authorizing common expense assessments). The amount of the judgment was $19,444.61.
Rizvi, who is also known as Syed Rizvi, has not participated in this appeal, nor did he participate in the motion proceeding below.
In the meantime, respondent Deutsche Bank National Trust Company ("the Bank") in its capacity as trustee for a trust covering certain home equity mortgage loans, including Rizvi's loan, filed a foreclosure complaint in the Chancery Division under Docket No. F-36787-13, to foreclose on the unpaid mortgage note. The Association was named as a defendant in the foreclosure case and filed a non-contesting answer.
It is undisputed that the condominium unit has been vacant for a substantial period of time and has not been rented out to a tenant. Given the continued pendency of the mortgage foreclosure litigation and the Association's difficulties in collecting on its unpaid judgment, the Association moved in the Law Division for the appointment of a rent receiver, relying on the general terms of N.J.S.A. 2A:17-66. The Association anticipated that, if such a rent receiver were appointed, the unit could be leased and the proceeds of the monthly rent could be applied, in full or in part, to the Association's outstanding judgment and debts due to other creditors. The Association does not dispute, however, that the bank's secured mortgage rights generally have priority over its own judgment as an unsecured creditor, subject to lien issues we need not discuss here.
Over objection, the Law Division required the Association to serve its motion for the appointment of a rent receiver on the Bank as an interested party. The Bank then filed opposition to the motion, asserting that the requested relief and the commencement of a leasehold with a third-party tenant in the unit would interfere with the orderly completion of the foreclosure litigation. The tenancy would also force the Bank allegedly against its will to, in effect, become a landlord. The Association countered that the literal terms of N.J.S.A. 2A:17-66 permit it to seek a rent receiver, and that the Bank's concerns about interference with its foreclosure rights were overstated. The Association urged that the property not remain vacant and unproductive while the foreclosure case dragged on indefinitely. Meanwhile, the Chancery judge in the foreclosure action entered default against Rizvi, the unit owner.
The Law Division judge denied the Association's motion, without prejudice to the Association's ability to pursue an application for the appointment of a rent receiver in the foreclosure action. The Association then filed the present appeal. Although the order appealed from was expressly "without prejudice," it effectively terminated the case on the Law Division docket, and we shall treat it as final for purposes of our appellate jurisdiction. See R. 2:2-3(a)(1); Silviera-Francisco v. Bd. of Educ., 224 N.J. 126, 136 (2016).
When it became apparent from the parties' appellate briefing that the trial court had not furnished adequate reasons in ruling on the motion, see Rule 1:7-4(a), we remanded the matter to the court to supply such a statement. The motion judge recently issued the requested statement in a two-page letter. The parties thereafter were afforded the opportunity to file supplemental briefs addressing the trial court's reasons, which they respectively submitted. Those supplemental briefs revealed that a final judgment of foreclosure was very recently entered in favor of the Bank on March 7, 2017. The Bank has requested the Sheriff to schedule a sale of the property, which is expected to occur in approximately the next month or two.
At our request, counsel also briefed whether the Administrative Director's Notice to the Bar dated September 16, 1982 concerning certain issues relating to the handling of foreclosure matters has any bearing on the issues raised here.
Although we appreciate the diligent and forceful advocacy of counsel in addressing the issues on appeal, we decline to address them, due to mootness consideration. In general, "our courts normally will not entertain cases when a controversy no longer exists and the disputed issues have become moot." De Vesa v. Dorsey, 134 N.J. 420, 428 (1993) (citing Oxfeld v. N.J. State Bd. of Educ., 68 N.J. 301, 303-04 (1975)). An issue has become moot "when the decision sought in a matter, when rendered, can have no practical effect on the existing controversy." N.Y. Susquehanna & W. Ry. Corp. v. State Dep't of Treasury, Div. of Taxation, 6 N.J. Tax 575, 582 (Tax Ct. 1984) (internal citations omitted), aff'd, 204 N.J. Super. 630 (App. Div. 1985); see also Betancourt v. Trinitas Hosp., 415 N.J. Super. 301, 311 (App. Div. 2010).
Here, as we have noted, there is now a final judgment in the foreclosure matter, which conclusively establishes the Bank's rights of priority and to have the property sold. Although the sheriff's sale has not yet occurred, and it is theoretically possible that the Association or some other creditor may wish to bid on the property, the "practical effect" of adjudicating the issues posed on appeal by the Association at this time is virtually negligible. Susquehanna, supra, 6 N.J. Tax at 582.
We appreciate that the Association has raised interesting and novel legal issues that could have widespread importance. Even so, we conclude that this particular appeal is not currently an appropriate setting to adjudicate those issues, let alone issue any precedential opinion on the subject. The rent receiver issues are not of a nature "capable of repetition, yet evading review." Roe v. Wade, 410 U.S. 113, 125, 93 S. Ct. 705, 713, 35 L. Ed. 2d 147, 161 (1973); see also Finkel v. Twp. Comm. of Twp. of Hopewell, 434 N.J. Super. 303, 313 (App. Div. 2013) (internal citations omitted). If the issue arises again in a similar situation at the trial level, the unsuccessful party may file an appeal and, if it or its adversary so chooses, move to accelerate the appeal, advising this court of the time factors involved. Although we cannot presume that such acceleration would be granted, an expedited appeal could provide a possible manner to adjudicate the issues before a final judgment of foreclosure and a sheriff's sale.
Appellant's counsel represented to us during oral argument that he is aware of at least one instance in another county in which a Law Division judge has appointed a rent receiver for a condominium unit while a mortgage foreclosure action for the property was pending in the Chancery Division. --------
In any event, to the extent that the respective counsel or their clients in this appeal are "repeat players" in matters of this type, we invite them to write to the Civil Practice Division of the Administrative Office of the Courts, and suggest methods for statewide standardized practice to deal with such overlapping dockets and issues.
That said, for sake of completeness, we are not persuaded that this matter, as the Association urges, should be remanded to the Law Division. Given the present posture of this matter, we discern no sensible justification to impose such a remedy at this time. It is clear that if the trial court considered such an appointment on remand, and the final judgment of foreclosure still remained intact, it would not be an abuse of discretion for the court to decline such a request. We need not otherwise address the merits of this case, including the various points expressed in the trial court's amplification letter.
For the foregoing reasons, the appeal is dismissed, without prejudice to the Association pursuing other remedies to collect on its judgment. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION