June 17, 2013
WILLIAM STAHL, IRENE GADON STAHL, ROYLAN GADON and JOHN ERIC GADON, by their guardian ad litem, Plaintiffs-Appellants,
THE TOWNSHIP OF MONTCLAIR, ALAN TREMBULAK, KENNETH STRAIT, ROBERT MCLOUGHLIN, PATRICK CIANCITTO and EMIGRANT MORTGAGE COMPANY, INC., Defendants-Respondents.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued May 28, 2013
On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. L-251-11.
William Stahl, appellant, argued the cause pro se.
Arnold R. Gerst argued the cause for respondents The Township of Montclair, Alan Trembulak, Kenneth Strait, Robert McLoughlin and Patrick Ciancitto (Weiner Lesniak, LLP, attorneys; Mr. Gerst, of counsel and on the brief).
Richard A. Epstein argued the cause for respondent Emigrant Mortgage Company, Inc.
Before Judges Graves, Espinosa and Guadagno.
Plaintiffs William and Irene Stahl filed a complaint in lieu of prerogative writs in which they alleged that defendants had violated N.J.S.A. 46:10B-51. They appeal from an order entered June 10, 2011, that granted summary judgment to defendants Township of Montclair, Alan Trembulak, Kenneth Strait, Robert McLoughlin and Patrick Ciancitto (the Montclair defendants), and from an order entered December 2, 2011, that granted the motion to dismiss plaintiffs' complaint against defendant Emigrant Mortgage Company, Inc. (Emigrant). We affirm.
This appeal arises from the fourth action concerning property owned by plaintiffs in Montclair that is the subject of a mortgage granted by Emigrant. The first action was a foreclosure action filed by Emigrant against plaintiffs in January 2008. That action remains pending.
On August 29, 2008, Robert McLoughlin, the Construction Official for Montclair, served plaintiffs with a Notice of Unsafe Structure and a Notice of Imminent Hazard. The Notice of Imminent Hazard ordered plaintiffs to vacate their home and "[i]mmediately correct the . . . imminent hazards so as to render the structure temporarily safe and secure."
In October 2008, plaintiffs initiated the second action by filing a complaint against the Montclair defendants in which they sought a judgment ordering the Montclair defendants to rescind the order to vacate. Plaintiffs later filed a motion to enforce litigant's rights. By order dated April 1, 2009, the court denied plaintiffs' motion and ordered them to retain an architect, submit construction plans to the Township and obtain building permits, and complete all work in accordance with the permits.
On July 14, 2009, plaintiffs and the Montclair defendants appeared before the court and negotiated a consent order. Pursuant to the consent order, plaintiffs were permitted to "immediately resume occupancy of the dwelling[, ]" but were required to "complete all construction work" approved by the Township and to obtain and submit to the Township Certificates of Approval and Certificates of Occupancy for this work on or before August 14, 2009. The order stated that if plaintiffs failed to meet that deadline, they would be required to vacate the property by August 17, 2009, and refrain from resuming occupancy until the certificates were obtained. The order further stated that it should "not in any way be construed as a release of any claims or an admission by any party of any improper conduct or violation of any law or legal obligation."
Plaintiffs initiated a third action in July 2009, Docket No. L-7034-09, seeking damages from the Montclair defendants as a result of their ordered removal from the family residence. The consent order that was negotiated in July 2009 was entered on August 28, 2009. Pursuant to the April 1, 2009 order and the consent order, plaintiffs remedied the code violations at their own expense. On December 4, 2009, the court dismissed plaintiffs' complaint in the second action with prejudice after concluding that the case was settled in accordance with the terms of the consent order.
Plaintiffs raised the New Jersey Foreclosure Fairness Act, N.J.S.A. 46:10B-51 (the Act), for the first time approximately one year after they negotiated the consent order. On July 2, 2010,  plaintiffs sent letters to the Montclair defendants and Emigrant, demanding that they comply with the notice requirements of the Act.
The Act was designed to protect neighboring property owners when a foreclosed property fell into disrepair. It requires a creditor initiating a foreclosure proceeding to notify the municipality that a summons and complaint has been filed against the subject property. N.J.S.A. 46:10B-51(a)(1). Subsection (b) provides:
If the owner of a residential property vacates or abandons any property on which a foreclosure proceeding has been initiated or if a residential property becomes vacant at any point subsequent to the creditor's filing the summons and complaint in an action to foreclose on a mortgage against the subject property, but prior to vesting of title in the creditor or any other third party, and the property is found to be a nuisance or in violation of any applicable State or local code, the local public officer, municipal clerk, or other authorized municipal official shall notify the creditor, which shall have the responsibility to abate the nuisance or correct the violation in the same manner and to the same extent as the title owner of the property, to such standard or specification as may be required by State law or municipal ordinance.
Emigrant sent a letter to Montclair in August 2010, advising where notice of "any complaints of property maintenance and code violations" should be sent. The Montclair defendants took no action in response to either plaintiffs' letter or Emigrant's letter.
On July 18, 2010, plaintiffs filed a motion in the foreclosure action, alleging that Emigrant had violated the Act. Plaintiffs then filed a motion in its damages action against the Montclair defendants in September 2010, alleging that they had violated the Act, and seeking to amend the complaint, join Emigrant as a defendant in the action, and commence an action in lieu of prerogative writs. By order dated November 12, 2010, the court denied these requests, stating, "Motion is defective for failure to annex a copy of the proposed amended pleading or otherwise provide pursuant to R. 4:9-1."
Plaintiffs then filed a separate complaint in lieu of prerogative writs, Docket No. L-251-11, the action giving rise to this appeal, against the Montclair defendants and Emigrant. In this complaint, plaintiffs alleged that all defendants violated N.J.S.A. 46:10B-51. As noted, the case was dismissed with prejudice as to all defendants.
Plaintiffs present the following issues for our consideration:
THE TRIAL COURT'S HOLDING, CORRECT LAW BUT ERRONEOUS MISREADING: CORRECT LAW APPLIED, ACT MISREAD.
WELL SETTLED LAW-WHERE STATUTE UNAMBIGIOUS, COURT APPLIES PLAIN MEANING.
PURSUANT TO THE REGULATIONS OF THE UNIFORM CONSTRUCTION CODE, THE MUNICIPAL DEFENDANTS ORDERED THE RESIDENCE OF THE PLAINTIFFS VACATED.
ONE REQUIREMENT OF THE APPLICATION OF THE SECTION OF THE FORECLOSURE FAIRNESS ACT HERE IN QUESTION IS THAT THE "OWNER OF A RESIDENTIAL PROPERTY VACATES "OR" ABANDONS ANY PROPERTY" . . . "OR IF A RESIDENTIAL PROPERTY BECOMES "VACANT AT ANY POINT[.]" THE UNAMBIGUOUS DISJUNCTIVE LANGUAGE SAYS "OR" AND SINGULARLY SAYS "VACANT". PRIOR TO JANUARY 2009 AMENDMENT THE ACT DID NOT EVEN HAVE THE WORD "ABANDON".
THE LANGUAGE OF THE ACT HAS NO AMBIGUITY, IS PLAIN ON ITS FACE IN ITS MEANING AND THE COURT HAS NO AUTHORITY TO SUBSTITUTE WHAT IT MAY BELIEVE WOULD BE A BETTER STATUTE. THE TRIAL COURT RULED THERE WAS NO AMBIGUITY.
CASE LAW HAS DETERMINED THAT STATUTES LIKE THE ACT ARE REMEDIAL LEGISLATION.
CLOSELY ANALOGOUS AUTHORITY IS NEW JERSEY REAL ESTATE CONTRACT CASE LAW THAT CONSTRUES "VACATE OR ABANDON".
THE UNPUBLISHED OPINIONS OF THE APPELLATE DIVISION DEMONSTRATE THE COMMON USAGE OF THE TERM "VACATE" TO DESCRIBE A PARTICULAR RESIDENTIAL PROPERTY BEING SUBJECT TO REMEDIAL CONSTRUCTION WHICH WILL LATER BE REOCCUPIED.
ANOTHER NEW JERSEY STATUTE USES THE PHRASE "VACATE AND ABANDON" AND REQUIRES AN EXPRESS INTENT FOR APPLICATION.
PLAINTIFFS HAVE STANDING AS A MATTER OF NEW JERSEY LAW TO RAISE THE APPLICATION OF THE ACT BECAUSE THEY HAVE A GENUINE INTEREST IN THE OUTCOME OF THE MATTER AND ARE NOT SEEKING AN ADVISORY OPINION.
ISSUES PURELY OF LAW CONCERNING THE APPLICATION OF A NEW STATUTE TO UNCONTESTED FACTS ARE GIVEN DE NOVO REVIEW WITHOUT DEFERENCE TO THE TRIAL COURT LEGAL OPINION.
FOURTH AMENDMENT SEARCH AND SEIZURE LAW INVOLVING THE "ABANDONMENT" OF CONTRABAND HAS NO APPLICATION.
RES JUDICATA HAS NO APPLICATION WHERE THE PRIOR CASE WAS SETTLED, THE SAME PARTIES WERE ALL NAMED IN THE SUBSEQUENT DAMAGES ACTION AND ALL OTHER RIGHTS WERE EXPRESSLY RESERVED AND THE MORTGAGE COMPANY WAS NOT A PARTY.
After reviewing these arguments in light of the record and the applicable legal principles, we conclude that they lack sufficient merit to warrant discussion in a written opinion, Rule 2:11-3(e)(1)(E), beyond the following comments.
Defendants argue that plaintiffs lack standing to assert a claim under the Act and further that their action in lieu of prerogative writs was untimely These are meritorious arguments Turning however to the heart of this matter plaintiffs concede that it was their obligation to correct all code violations on their property but contend that the Act provides a basis for the imposition of liability upon defendants for the unspecified costs plaintiffs incurred during the period when the repairs were made and they were homeless There is no support in the language of the statute the public policy underlying the legislation or in common sense for the creation of a cause of action by defaulting mortgagors who have let their home become uninhabitable against the mortgagee and the municipality for allegedly violating this statute.