Opinion
DOCKET NO. A-5916-10T2
06-26-2012
SPCP GROUP, LLC, Plaintiff-Appellant, v. F II, LLC and ANTHONY D. ERRICO, JR., Defendants-Respondents.
The Chartwell Law Offices, LLP, attorneys for appellant (Susan D. Grant and Thomas B. O'Connell, on the brief). Stephen J. Savva attorney for respondent.
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Fisher and Grall.
On appeal from the Superior Court of New Jersey, Chancery Division, Bergen County, Docket No. F-33679-10.
The Chartwell Law Offices, LLP, attorneys for appellant (Susan D. Grant and Thomas B. O'Connell, on the brief).
Stephen J. Savva attorney for respondent. PER CURIAM
Plaintiff SPCP Group, LLC, appeals the dismissal without prejudice of its foreclosure complaint against defendants F II, LLC, and Anthony D. Errico, Jr., on parcels of real property in Westwood and Mahwah. By way of a fifty-one page opinion, the trial judge concluded, among other things, that plaintiff SPCP lacked standing to commence this action because it had not filed a certificate of doing business in this State pursuant to N.J.S.A. 14A:13-11.
In this appeal, plaintiff SPCP argues:
I. THE TRIAL COURT ERRED IN ITS DETERMINATION THAT PLAINTIFF DID NOT HAVE STANDING.
A. The Trial Court Erred In Not Having A Commerce Clause Hearing To Determine Whether SPCP Group LLC Conducted Intrastate Commerce In New Jersey.II. EVEN IF THE COURT DID NOT ERR IN DETERMINING THAT SPCP GROUP DID NOT HAVE STANDING, IT SHOULD HAVE PERMITTED THE SUBSTITUTION OF BMR FUNDING PURSUANT TO COURT RULE 4:34-3.
III. IF THE TRIAL COURT WAS CORRECT THAT PLAINTIFF DID NOT HAVE STANDING, THE COURT SHOULD HAVE GIVEN PLAINTIFF THE OPPORTUNITY TO CURE THE DEFECT, RATHER THAN DISMISS THE ENTIRE MATTER.
We conclude that these issues have become moot because plaintiff SPCP assigned -- approximately two weeks prior to entry of the order under review -- the interests at stake in this lawsuit to BMR Funding, LLC. The record suggests that BMR, which apparently conducts business in New Jersey, has filed the statutorily-required certificate and would not suffer from the incapacitating circumstance that led to the dismissal of this action. As a result of the assignment, plaintiff SPCP no longer has an interest in the property involved in this suit and has no right to pursue foreclosure in this suit or to complain of the dismissal of the action by way of this appeal.
Plaintiff SPCP expresses concerns about BMR's ability to prosecute a foreclosure action in light of dictum appearing in the trial judge's written opinion in which the judge noted that an action by BMR would be "infected" by the disabling circumstances that barred plaintiff SPCP's claim. Those concerns are for BMR to assert; the ability of BMR to pursue an action was not properly considered by the judge because no motion was ever filed to amend the complaint to add BMR as a plaintiff. Until such time as BMR files an action and then suffers a dismissal for the reasons contained in the judge's opinion disposing of SPCP's action, plaintiff SPCP's concern for BMR's rights and the collateral effect of the trial judge's dictum have not yet ripened for our consideration.
Appeal dismissed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION