STATE OF NEW JERSEY VS. JAMES A. STUARTÂ (13-09-0949, GLOUCESTER COUNTY AND STATEWIDE) ( 2017 )

NOT FOR PUBLICATION WITHOUT THE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-2362-15T2
MILL POINTE CONDOMINIUM
ASSOCIATION, INC.,
Plaintiff-Appellant,
v.
ASAD A. RIZVI a/k/a SYED
RIZVI,
Defendant-Respondent.
_________________________________
Telephonically argued April 4, 2017 – Decided April 13, 2017
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,1 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.
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
1 Rizvi, who is also known as Syed Rizvi, has not participated in
this appeal, nor did he participate in the motion proceeding below.
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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.
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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.2 Those supplemental briefs revealed that
a final judgment of foreclosure was very recently entered in favor
2 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.
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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.
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
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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,3 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.
3 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.
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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.
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