Opinion
DOCKET NO. A-2221-14T1 DOCKET NO. A-4628-14T1
12-19-2016
IVY HILL APARTMENTS, Plaintiff-Respondent, v. ELIE SAYAGH, Defendant-Appellant. ELIE SAYAGH, Plaintiff-Appellant, v. IVY HILL PARK SECTION V, Defendant-Respondent.
Elie Sayagh, appellant, argued the cause pro se. Gerard M. Brennan argued the cause for respondent Ivy Hill Park Section V. Respondent Ivy Hill Apartments 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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 Espinosa and Suter. On appeal from Superior Court of New Jersey, Law Division, Special Civil Part, Essex County, Docket Nos. DC-15619-13 and DC-16535-14. Elie Sayagh, appellant, argued the cause pro se. Gerard M. Brennan argued the cause for respondent Ivy Hill Park Section V. Respondent Ivy Hill Apartments has not filed a brief. PER CURIAM
In these back-to-back appeals that we have consolidated into one opinion, Elie Sayagh (Sayagh) appeals both the denial of his motion to vacate a default judgment entered in a Special Civil Part case brought against him by Ivy Hill Park Apartments, LLC (Ivy Hill), for past due rent, and the dismissal of his Special Civil Part complaint against Ivy Hill for the return of his security deposit and property.
I.
A.
Sayagh was a tenant of Ivy Hill until March 2013 when he was evicted because he stopped paying rent in November 2012 over an error in billing that was not resolved to his satisfaction. His eviction was delayed briefly after he agreed to an "orderly removal" order, which required Sayagh to move out by March 28, 2013. On March 27, 2013, Sayagh filed a Chapter 7 bankruptcy petition. His eviction occurred nonetheless because the judgment of possession had been entered before he filed for bankruptcy. See 11 U.S.C.A. § 362(b)(22) (a bankruptcy petition does not operate as a stay of a judgment for possession obtained prior to the filing of the bankruptcy petition). Sayagh was locked out of the apartment and its mailbox in early April 2013.
If a debtor files a certification under 11 U.S.C.A. § 362(1), he is given a thirty-day period after the filing of the bankruptcy petition before § 362(b)(22) shall apply. The certification must provide that the debtor is legally able to cure and that the debtor has deposited any rent that would become due with the court. There is no indication such a certification was submitted here.
Ivy Hill sued Sayagh in the Special Civil Part to recover the unpaid rent. A default judgment for $7280.82 was entered on September 9, 2013, against Sayagh. When Sayagh learned of this judgment in August 2014, he filed a motion to vacate the judgment. Sayagh claimed he was not served with the complaint, while at the same time acknowledging he owed rent to Ivy Hill but not in the amount of the default judgment.
On October 10, 2013, the judge denied Sayagh's motion to vacate the judgment, finding that none of the provisions of Rule 4:50-1 were satisfied because Sayagh admitted owing rent to Ivy Hill. The judge did not discuss Sayagh's claimed lack of service.
Inexplicably, the record includes an order dated October 17, 2014, that granted Sayagh's motion to vacate the default judgment because he "set forth excusable neglect in failing to answer the complaint due to defective service and has presented a meritorious defense contesting the amount of the judgment." Another order entered on November 5, 2014 then vacated the October 17, 2014 order but without an accompanying statement of reasons or record.
Sayagh appeals the October 10, 2013 decision based on lack of service, claiming he should have had the opportunity to respond to the complaint before entry of judgment.
B.
In a separate Special Civil Part complaint, Sayagh sued Ivy Hill for the return of his $1066 security deposit and his personal belongings, which he claimed were thrown out immediately after the eviction. At the December 3, 2014 trial of this action, the court rejected Sayagh's claims, finding that Ivy Hill had no responsibility for Sayagh's personal items in light of his agreement, in the order of removal, that "any personal property belonging to the defendant tenant, including furniture and . . . clothing that [was] left on the premises after such enforcement by an officer shall be considered to have been abandoned." The judge found, as well, that the landlord had not disposed of Sayagh's personal property, but only bags of garbage. The judge determined that the security deposit was forfeited because of the order for nonpayment of rent.
Sayagh did not include a copy of this complaint in his appendix.
An actual judgment or order dismissing the case is not included in our record on appeal. --------
Sayagh appeals the dismissal of his complaint, contending the trial court "ignored" a stay from the bankruptcy court.
II.
A.
Generally, applications "seeking relief from default judgments are to be 'viewed with great liberality, and every reasonable ground for indulgence is tolerated to the end that a just result is reached.'" Prof'l Stone, Stucco & Siding Applicators, Inc. v. Carter, 409 N.J. Super. 64, 68 (App. Div. 2009) (quoting Marder v. Realty Constr. Co., 84 N.J. Super. 313, 319 (App. Div.), aff'd, 43 N.J. 508 (1964)). Any doubts regarding the decision "should be resolved in favor of the part[y] seeking relief." Mancini v. EDS, 132 N.J. 330, 334 (1993) (citing Arrow Mfg. Co. v. Levinson, 231 N.J. Super. 527, 534 (App. Div. 1989)). We are also mindful that an order denying a motion to vacate a default judgment "should not be reversed unless it results in a clear abuse of discretion." U.S. Bank Nat. Ass'n v. Guillaume, 209 N.J. 449, 467 (2012).
Sayagh contends the court erred by not vacating the default judgment based on lack of service. Service of initial process in the Special Civil part is different from service under the procedures in Part IV of the Rules. Pressler & Verniero, Current N.J. Court Rules, comment 1 on R. 6:2-3 (2016). Under Rule 6:2-3(d)(4), an initial complaint in the Special Civil Part may be served by mail pursuant to Rule 4:4-4(c) or by the clerk pursuant to Rule 6:2-3(d). The clerk shall serve the complaint both by certified mail and ordinary mail within twelve days of the filing of the complaint. R. 6:2-3(d)(1). Service by mail pursuant to the Rule "shall have the same effect as personal service." R. 6:2-3(d)(4).
[T]he simultaneous mailing shall constitute effective service unless the mail is returned to the court by the postal service with a marking indicating it has not been delivered, such as "Moved, Left No Address," "Attempted - Addressee Not Known," "No Such Number/Street," "Insufficient Address," "Not Deliverable as Addressed - Unable to Forward," or the court has other reason to believe that service was not effected. However, if the certified mail is returned to the court marked "unclaimed" or "refused," service is effective provided that the ordinary mail has not been returned.
[R. 6:2-3(d)(4).]
When a default judgment is procured on the basis of defective service of process, a litigant need only show excusable neglect to set aside the judgment. Pressler & Verniero, Current N.J. Court Rules, comment 5.4.2 on R. 4:50-1 (2016) (citing Peralta v. Heights Med. Ctr., Inc., 485 U.S. 80, 84, 108 S. Ct. 896, 899, 99 L. Ed. 2d 75, 81 (1988) (vacating a default judgment where appellant had not been served regardless of meritorious defense, stating that "[f]ailure to give notice violates the most rudimentary demands of due process of law" (citation omitted)).
Here, the only documentation regarding service is the certified mailing made to Sayagh's former address that included the notation "unclaimed, unable to forward." There is no indication whether the complaint was sent by regular mail or the status of that mailing. We have reason to believe that service was not effected based on Sayagh's unrebutted testimony that he was not served with the complaint. Additionally, the judge made no findings on this issue to assist our review. The lack of service requires vacation of the default judgment whether Sayagh admitted he owed rent or not. We are constrained to reverse the order denying Sayagh's motion to vacate the default judgment and to remand the matter for further proceedings.
B.
We affirm the decision made in Sayagh's case against Ivy Hill that dismissed his claim for the return of personal property. There was substantial evidence Sayagh agreed that the property left behind would be treated as abandoned and that Ivy Hill only discarded bags of garbage.
Similarly, we are satisfied there is substantial evidence to affirm the trial judge's decision that Sayagh's security deposit was forfeited. Even though we have vacated the default judgment, Sayagh acknowledged owing rent arrears of at least $2792, which exceeded his $1066 security deposit.
Regarding A-2221-14, reversed and remanded for proceedings consistent with this opinion. Regarding A-4628-14, affirmed. We do not retain jurisdiction. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION