Le Club I Condominium Assoc., Inc. v. Shaun L. Kline ( 2024 )

NOT FOR PUBLICATION WITHOUT THE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-2590-22
LE CLUB I CONDOMINIUM
ASSOC., INC.,
Plaintiff-Respondent,
v.
SHAUN L. KLINE,
Defendant-Appellant.
__________________________
Submitted September 24, 2024 – Decided October 9, 2024
Before Judges Firko and Augostini.
On appeal from the Superior Court of New Jersey, Law
Division, Burlington County, Docket No. DC-008772-
19.
Law Office of Stephen J. Buividas, attorneys for
appellant (Stephen J. Buividas, on the brief).
McGovern Legal Services, LLC, attorneys for
respondent (Weston D. Dennen and Tiffany L.
Byczkowski, on the brief).
PER CURIAM
In this Special Civil Part collection action, defendant Shaun L. Kline
appeals from an April 12, 2023 order denying his order to show cause (OTSC)
to stay eviction, and an April 26, 2023 order denying stay of transfer of
ownership of his condominium unit. We affirm both orders on appeal.
I.
The facts are not in substantial dispute. Defendant owned a condominium
unit with plaintiff Le Club I Condominium Association, Inc., located in Mount
Laurel. On September 15, 2005, defendant purchased the unit for $165,000.00
and financed the purchase through a conventional mortgage. Defendant paid
plaintiff maintenance fees on time for fifteen years until he fell behind in
payments in July 2019. The maintenance fees were originally $195.00 per
month. In April 2022, the maintenance fees were increased to $215.00 per
month.
On October 30, 2019, plaintiff filed a complaint in the Special Civil Part
against defendant for unpaid maintenance fees due in the amount of $3,885.00,
attorney's fees, interest, and costs. Pursuant to Rules 6:2-2 and 6:2-3, the court
mailed the summons and complaint to defendant at his condominium unit
address, which was his last known address. Defendant did not respond to
plaintiff's complaint. On June 26, 2020, plaintiff filed a motion to enter default
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and default judgment out of time, which was granted on July 14, 2020.
Judgment was entered in favor of plaintiff and against defendant in the amount
of $10,368.14.
While the motion was pending in the Special Civil Part, defendant claims
he was dealing with significant health-related issues.1 Defendant also stated his
mother suffered a stroke, and he was her caretaker. In October 2020, defendant
asserts he underwent prostate cancer surgery. The next day, defendant
developed kidney failure and an embolism. Defendant then lost his job. In the
ensuing months, he underwent multiple radiation treatments.
After unsuccessful attempts to locate assets to satisfy the judgment,
plaintiff moved to obtain an order to sell defendant's condominium unit, which
was granted on September 9, 2021. Plaintiff also sought to enforce its judgment
by filing an application for wage execution. On January 5, 2022, the trial court
entered an order for wage execution against defendant's wages, which
apparently did not satisfy the judgment. Plaintiff filed four separate requests for
writs of execution against defendant's goods and chattels, which were all
unsuccessful in satisfying the judgment.
1
The record contains defendant's certification listing his health-related issues,
but he did not include any medical documents or reports to substantiate his
claim.
A-2590-22
3
On September 15, 2022, plaintiff filed a second application for execution
against defendant's wages. On December 17, 2022, plaintiff filed its fifth and
final request for a writ of execution against defendant's goods and chattels. On
January 9, 2023, the trial court entered an order granting plaintiff's fifth request
for a writ of execution. However, the judgment remained unsatisfied.
Ultimately, on March 2, 2023, defendant's condominium unit was listed
for a sheriff's sale. Under N.J.S.A. 2A:17-36, defendant exercised one of his
two statutory adjournments to adjourn the sheriff's sale from March 2 to March
28, 2023. Defendant did not exercise his second statutory adjournment. On
March 30, 2023, plaintiff sold defendant's condominium unit to an unidentified
third-party bidder.2 On April 4, 2023, defendant requested the redemption
figures from the Burlington County sheriff's office. On April 6 or 7, 2023, the
sheriff's office provided the redemption figures to defendant. However,
defendant did not take any steps to redeem the unit.
Instead, on April 10, 2023, defendant filed an OTSC seeking to delay "the
deed transfer of ownership" or "order back the transfer of the deed until his
appeal could be decided." On April 12, 2023, the first trial court conducted a
2
In their merits briefs, both parties mention that TD Bank was involved in the
sheriff's sale. However, there is nothing contained in the record to support this
representation.
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hearing on defendant's OTSC. The first trial court considered defendant's
certification in support of his OTSC application, which addressed his "serious
health issues over the past several years." Defendant also certified that he
planned to undergo "open-heart surgery" on May 1, 2023, and needed to "rest"
for a period of time thereafter.
Defendant claimed he would suffer irreparable harm if the OTSC and stay
were denied as the redemption period "recently ended," and the sheriff "will or
has transferred the deed of ownership" to a third-party bidder. The first trial
court applied the Crowe v. De Gioia 3 factors and considered defendant's request
to stay in the unit for another four weeks. The first trial court was sympathetic
to defendant's health problems but noted defendant has "been battling,
unfortunately, those health conditions for quite some time."
The first trial court highlighted there was the "potential for harm to the
purchaser" of the unit, who was not a party, and did not have "a voice" in the
OTSC proceeding. In addition, the first trial court emphasized defendant "had
ample opportunity to pay this judgment or to otherwise make arrangements to
pay this judgment," or "to seek an adjournment of the sheriff's sale" a second
3
90 N.J. 126, 132-34 (1982).
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time, or "had the option of making a payment during the redemption period ,"
but failed to do so.
The first trial court also determined that defendant had not established "a
reasonable probability of success on the merits," and in weighing the hardships
to the parties, the balance weighed in favor of plaintiff. The OTSC was denied.
A memorializing order was entered.
On April 14, 2023, defendant filed a motion to stay transfer of ownership
of the condominium unit. On April 26, 2023, the second trial court denied
defendant's motion for the reasons expressed by the first trial court, noting
defendant offered no new or additional information to warrant a stay. A
memorializing order was entered. On or after May 10, 2023, the sheriff's office
tendered the deed to the third-party bidder. This appeal followed.
On appeal, defendant raises the following sole argument for our
consideration:
THE TRIAL COURT ERRED IN DENYING [THE]
[OTSC] TO STAY . . . EXECUTION OF THE
JUDGMENT AND STOP THE FORECLOSURE AND
VACATE THE DEFAULT JUDGMENT BECAUSE
DEFENDANT[] FAILED TO RECEIVE PROPER
NOTICE, FAILED TO RECEIVE THE PAYOFF IN
TIME TO MAKE THE PAYOFF DURING THE
REDEMPTION PERIOD AND FURTHER
SUFFERED HEALTH ISSUES, ALL THIS DURING
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COVID[-19] PERIOD, THAT PREJUDICED
DEFENDANT IN HIS POSITION[.]
These assertions are not supported by the record.
II.
We first address the standard of review with respect to the two orders
before us. [A] trial court's determination "will be left undisturbed unless it
represents a clear abuse of discretion." DEG, LLC v. Twp. of Fairfield, 198 N.J.
242, 261 (2009); see Horizon Health Ctr. v. Felicissimo, 135 N.J. 126, 137
(1994) ("The authority to issue injunctive relief falls well within the discretion
of a court . . .") An abuse of discretion arises when a "decision is 'made without
a rational explanation, inexplicably departed from established policies, or rested
on an impermissible basis.'" U.S. Bank Nat'l Ass'n v. Guillaume, 209 N.J. 449,
467-68 (2012) (quoting Iliadis v. Wal-Mart Stores, Inc., 191 N.J. 88, 123
(2007)). We next apply these foundational principles to the matter before us.
Defendant contends that the trial court abused its discretion and erred in
denying his OTSC to stay eviction and motion to stay transfer of ownership. In
support of his argument, defendant argues: (1) he did not receive proper notice
of the sheriff's sale of the unit as he was dealing with major health issues; (2) he
was unable to invoke the second statutory adjournment due to his major health
issues; (3) he did not receive the payoff figures upon request, and thus, was
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unable to exercise his right to redeem timely; and (4) the amount to redeem,
compared to the actual value of the property, is prejudicial. 4
Similarly, "a trial court's decision pertaining to injunctive relief is
reviewed for an abuse of discretion." N. Bergen Mun. Utils. Auth. v.
I.B.T.C.W.H.A. Loc. 125, 474 N.J. Super. 583, 590 (App. Div. 2023).
"However, appellate review is de novo where the disputed issue relating to the
injunctive relief is a question of law." Ibid.A.
We first turn to defendant's argument that plaintiff sold the condominium
unit with unclean hands and without proper notice. Defendant alleges he did not
receive any correspondence by mail or was not personally served with the notice
of sale. Defendant's contentions are belied by the record. Pursuant to Rule 4:65-
2,
If real or personal property is authorized by . . . writ of
execution to be sold at public sale, notice of the sale
shall be posted in the office of the sheriff of the county
or counties where the property is located, and also, in
4
Defendant also seeks to vacate the default judgment for the first time on
appeal. Because a motion to vacate default judgment was not raised in the trial
court prior to defendant's filing the notice of appeal, our review is limited to the
orders denying defendant's motions to stay eviction and transfer of ownership.
Pressler & Verniero, Current N.J. Court Rules, cmt. 3 on Rule 2:6-2 (2025); see
Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973).
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the case of real property, on the premises to be sold,
. . . . The party who obtained the order or writ shall, at
least [ten] days prior to the date set for sale, serve a
notice of sale by registered or certified mail, return
receipt requested, upon (1) every party who has
appeared in the action giving rise to the order or writ
...
[Rule 4:65-2]
In addition, Rule 1:5-4(b) states,
. . . service by mail of any paper referred to in R[ule]
1:5-1, when authorized by rule or court order, shall be
complete upon mailing of the ordinary mail. . . .
[S]ervice shall be deemed complete upon the date of
acceptance of the certified or registered mail. If service
is simultaneously made by ordinary mail and certified
or registered mail, service shall be deemed complete on
mailing of the ordinary mail.
[Rule 1:5-4(b)]
Prior to notice of the sheriff's sale, plaintiff sent court documents to
defendant in April 2020, April 2021, September 2021, and November 2021 at
his condominium unit address. Moreover, plaintiff sent the notice of the sheriff
sale to defendant via regular mail and certified mail, return receipt requested, on
or around February 7, 2023, to his condominium unit address. On February 11,
2023, defendant signed the green card, acknowledging receipt of the notice.
In his April 4, 2023 letter to the Burlington County sheriff's department
to request the redemption figures, defendant included a copy of his driver's
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license, which states the condominium unit as his residence. And, plaintiff
produced return receipt green cards from letters that it sent out to defendant's
condominium unit.
After defendant exercised his first statutory adjournment of the sheriff's
sale, plaintiff sent notice of the adjourned sale date to defendant via regular and
certified mail to his condominium unit address. The certified mail was
unclaimed, but the regular mail notice was never returned. Thus, service was
achieved in accordance with Rules 4:4-3 and 4:4-4. Consequently, the notice of
the sale was duly mailed more than ten days before the March 30, 2023 sale date
as required by Rule 4:65-2.
In addition, the undisputed record shows defendant had been receiving
notices pertaining to the within proceedings prior to his health issues. Thus,
contrary to defendant's assertions, the record shows he was properly noticed and
served throughout every stage of these proceedings. Therefore, nothing in the
record before us suggests either the first or second trial court abused their
discretion.
B.
Next, defendant contends that both trial courts abused their discretion in
denying his OTSC and motion to stay as he was unable to use his second
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statutory adjournment due to his health conditions. Under N.J.S.A. 2A:17-36, a
sheriff or other officer selling real estate by virtue of an execution may make
five adjournments of the sale, . . . two at the request of the debtor and . . . , and
no more, to any time, not exceeding [thirty] calendar days for each adjournment.
. . . Defendant was able to exercise his first statutory adjournment but did not
use his second adjournment.
At the OTSC hearing, the first trial court found defendant's health and
treatment procedures were not enough to grant a stay under Crowe. The first
trial court aptly observed that defendant had the opportunity to exercise his
statutory second adjournment of the sheriff's sale but chose not to and filed an
OTSC instead. We find no abuse of discretion in the denial of defendant's OTSC
and motion seeking to stay transfer of ownership of his condominium unit.
C.
Defendant next contends the first and second trial courts abused their
discretion because he did not receive the redemption payoff figures on time and
was unable to redeem the owed amount within the minimum period, warranting
his requested relief. Defendant cites to Hardyston, where our Supreme Court
affirmed the trial court's decision holding a mortgagor is entitled to redeem
within the ten-day statutory period allowing for objections to a foreclosure sale
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and until an order confirming sale if no objection is filed. Hardyston National
Bank v. Tartamella, 56 N.J. 507, 513 (1970). We have held that a sheriff's sale
is automatically confirmed after ten days absent an objection being filed.
Brookshire Equities, LLC v. Montaquiza, 346 N.J. Super. 310, 316 (App. Div.
2002). However, if a timely objection is filed within the ten-day period, the
mortgagor's right to redeem is extended through the period of court confirmation
and a court order confirming the sale. Ibid.Here, on March 30, 2023, plaintiff sold defendant's condominium unit to
a third-party bidder. Five days later, on April 4, 2023, defendant sent a request
for a redemption payoff figure to the Burlington County sheriff's office. On
April 6 or 7, 2023, the sheriff's office provided defendant with the requested
figures. Pursuant to the controlling case law, the adjourned sheriff sale was
therefore automatically confirmed on April 10, 2023, because there was no
objection raised as to the sheriff's sale. Id. Defendant had the responsibility to
exercise his second statutory adjournment of the sheriff's sale. As stated, he did
not do so. The filing of the OTSC and motion to stay extended defendant's right
to redeem, but he failed to seek a second adjournment of the sheriff's sale.
We discern no "fraud, accident, surprise, or mistake, irregularities in the
conduct of the sale, or . . . other equitable considerations" to conclude there was
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an abuse of discretion by either trial court. See Karel v. Davis, 122 N.J. Eq.
526, 529 (E. & A. 1937). Therefore, we reject defendant's argument.
D.
Finally, defendant avers the redemption amount, compared to the actual
value of the condominium unit, resulted in prejudice to him because he paid
$165,000.00 to purchase the unit, and the redemption amount was $23,796.86. 5
Our Supreme Court has noted that [foreclosure sales rarely], if ever, bring
the fair market value of the foreclosed property. 6 Carteret Sav. & Loan Ass'n,
F.A. v. Davis, 105 N.J. 344, 351 (1987). Although our courts will set aside a
sheriff's sale for fraud, accident, surprise, or mistake, irregularities in the
conduct of the sale, or for other equitable considerations, inadequacy of price is
not sufficient alone to justify equitable relief. First Tr. Nat. Ass'n v. Merola,
319 N.J. Super. 44, 50 (App. Div. 1999). Defendant's argument on this issue
lacks merit.
5
Defendant represents that the unit was sold for $11,000.00. Plaintiff
represents that the unit was sold for $13,000.00. Nothing contained in the record
indicates the exact price.
6
We note the unit was encumbered by two mortgages totaling $184,088.00 at
the time of the sheriff's sale. One of the mortgages was in default.
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We conclude that the remaining arguments—to the extent we have not
addressed them—lack sufficient merit to warrant any further discussion in a
written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
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