ULTIMATE HOLDING, LLC VS. ANGEL HERNANDEZ (F-043758-10, HUDSON COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-4982-17T3
ULTIMATE HOLDING, LLC,
Plaintiff-Respondent,
v.
ANGEL HERNANDEZ,
Defendant-Appellant.
___________________________
Submitted May 28, 2019 – Decided June 13, 2019
Before Judges Fasciale and Gooden Brown.
On appeal from Superior Court of New Jersey,
Chancery Division, Hudson County, Docket No. F-
043758-10.
Angel Hernandez, appellant pro se.
Traina & Traina, attorneys for respondent (Jack A.
Traina, on the brief).
PER CURIAM
In this tax sale foreclosure action, defendant appeals from a May 25, 2018
order denying his motion to vacate an order of possession entered on September
28, 2012.1 Judge Barry P. Sarkisian entered the May 25, 2018 order and
rendered a statement of reasons. We affirm.
I.
In August 2010, plaintiff, Ultimate Holding, LLC, filed a foreclosure
complaint in connection with a tax sale certificate encumbering defendant's
property. In 2011, default was entered against defendant. In September 2012,
before final judgment was entered, the court entered an order for possession. In
June 2013, defendant moved to vacate the order for possession, which was
denied in September 2013. Defendant contends that he was evicted from the
property in April 2014.
In May 2014, defendant filed a motion for a stay pending appeal, which
the trial judge denied. On August 25, 2014, the trial judge entered another order
for possession in relation to another tenant on the property. The tenant allegedly
resided in defendant's former apartment, which defendant asserted he leased to
the tenant. The trial judge conducted a plenary hearing, and concluded that the
alleged lease between defendant and the tenant was "an attempt to frustr ate the
1
The May 25, 2018 order refers to a September 18, 2012 order. But in the
judge's decision, he refers to both September 18 and September 28 as the date
of the order of possession. The correct date of the order, which is in plaintiff's
appendix, is September 28, 2012. In a May 8, 2018 letter from the judge to the
parties, the judge correctly refers to the order as dated September 28, 2018.
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orders" of the court. In October 2014, the court entered an order fixing a date
and time for redemption.
In November 2014, this court denied defendant's pro se motion for a stay
of the proceedings below. When defendant did not redeem the tax certificate, a
final judgment of foreclosure was entered on March 11, 2015. The judgment
was recorded with the county clerk's office. On March 24, 2015, in an
unpublished opinion, we reversed the court's September 2013 order denying
defendant's motion to vacate the order for possession. Ultimate Holding, LLC
v. Hernandez, No. A-1018-13 (App. Div. Mar. 24, 2015). We concluded that
the order of possession was improperly entered before a final judgment of
foreclosure had been entered. Id. at 3-4.
Over three years later, in April 2018, defendant moved to vacate the
September 2012 order of possession and restore his ownership of the property;
defendant argued that his eviction was illegal. On May 25, 2018, Judge
Sarkisian entered an order and rendered a statement of reasons denying
defendant's motion to vacate the order for possession. The judge found that
defendant's motion was barred by the doctrine of laches. The judge also noted
that defendant's argument that he was wrongfully evicted was based on the
court's entry of the order for possession before it entered a final judgment, and
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since plaintiff subsequently obtained a final judgment, defendant's allegations
were moot.
II.
Defendant raises a single point on appeal. He contends that the doctrine
of laches is not applicable in this case, and that his failure to take action sooner
was excusable. Defendant asserts that the reason for the three-year delay was
that his lawyer was negligent and he mistakenly believed that his lawyer was
handling the matter.
"Laches[,] in a general sense[,] is the neglect, for an unreasonable and
unexplained length of time, under circumstances permitting diligence, to do
what in law should have been done." Lavin v. Bd. of Educ. of Hackensack, 90
N.J. 145, 151 (1982). Moreover, it "involves more than mere delay, mere lapse
of time. There must be delay for a length of time which, unexplained and
unexcused, is unreasonable under the circumstances and has been prejudicial to
the other party." Northwest Covenant Med. Ctr. v. Fishman, 167 N.J. 123, 140
(2001). "Factors considered in determining whether to apply laches include
'[t]he length of delay, reasons for delay, and changing conditions of either or
both parties during the delay.'" Id. at 141 (alteration in original) (quoting Lavin,
90 N.J. at 152). "The primary factor to consider when deciding whether to apply
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laches is whether there has been a general change in condition during the passage
of time that has made it inequitable to allow the claim to proceed." Ibid."[W]hether laches should be applied depends upon the facts of the particular
case and is a matter within the sound discretion of the trial court." Mancini v.
Twp. of Teaneck, 179 N.J. 425, 436 (2004) (quoting Garrett v. Gen. Motors
Corp., (8th Cir. 1988)). There is an abuse of discretion "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 (2012) (quoting Iliadis v. Wal-Mart Stores, Inc.,
191 N.J. 88, 123 (2007)).
Here, in his statement of reasons, the judge noted that defendant waited
three years after our decision in March 2015 to bring the motion to vacate, and
defendant gave no justification as to why he waited until April 2018 to file it.
The judge also found that plaintiff would be "significantly prejudiced" if the
court entertained defendant's motion because plaintiff had obtained a final
judgment three years earlier, and presumably had rented the property to other
tenants. The judge noted that our reasoning for concluding that defendant was
wrongfully evicted in 2014 was because the order of possession was entered
before the entry of final judgment. However, the judge reasoned that defendant's
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argument was now moot because plaintiff had since obtained a final judgment,
in March 2015.
Accordingly, we agree that there is no excuse for defendant's three-year
delay in bringing the motion. Defendant waited too long to bring the motion,
he has been off of the property since 2014, and plaintiff obtained a foreclosure
judgment in 2015. Defendant cannot wait nearly four years after he has been
removed from his apartment to attempt to regain possession. Defendant offers
no support for his assertions that his lawyers made misrepresentations to him
regarding the status of his motion. Thus, the judge did not abuse his discretion
in applying the doctrine of laches.
III.
We briefly note that even if the doctrine of laches does not apply,
defendant's motion was untimely under Rule 4:50-2.
A motion to vacate a final judgment is governed by Rule 4:50-1. "The
rule is 'designed to reconcile the strong interests in finality of judgments and
judicial efficiency with the equitable notion that courts should have authority to
avoid an unjust result in any given case.'" Guillaume, 209 N.J. at 467 (quoting
Mancini v. EDS, 132 N.J. 330, 334 (1993)). A party seeking relief under Rule
4:50-1(a), must show both excusable neglect and a meritorious defense. See
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Guillaume, 209 N.J. at 469. Excusable neglect can be found if "the default was
'attributable to an honest mistake that is compatible with due diligence or
reasonable prudence.'" Id. at 468 (quoting Mancini, 132 N.J. at 335). Rule 4:50-
2 provides that a motion to vacate a final judgment "shall be made within a
reasonable time, and for reasons (a), (b), and (c) of R[ule] 4:50-1 not more than
one year after the judgment, order or proceeding was entered or taken."
Here, defendant could not show either excusable neglect or a meritorious
defense to warrant relief from the final judgment of foreclosure. Defendant did
not raise any defense to his obligation to pay his taxes, and he was aware of the
foreclosure proceedings. Defendant was aware of plaintiff's motion to set a date
and time to redeem the tax sale certificate. Now, more than three years since
final judgment was entered, defendant moves to vacate the judgment.
Defendant's motion in April 2018 is more than one year since the final judgment
was entered in March 2015, and thus, defendant's motion is untimely under Rule
4:50-2.
Affirmed.
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