NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 7, 2013
On appeal from the Superior Court of New Jersey, Law Division, Salem County, Docket No. LT-773-12.
Albert J. Fields, Jr., appellant pro se.
Respondent has not filed a brief.
Before Judges Ashrafi and Leone.
Defendant Albert Fields, Jr. rented an apartment in a public housing facility operated by plaintiff Housing Authority of the City of Salem (Authority). The Authority filed a complaint for a judgment of possession, which was granted when defendant failed to appear in court. Because defendant was incarcerated, and not properly served with the complaint, we vacate the default judgment and remand for further proceedings regarding the complaint.
On May 15, 2 012, defendant met with an Authority representative and agreed that he had a $158 credit which would be applied to his June rent of $2 06. On May 16, however, defendant was incarcerated and lost his job. On July 20, defendant sent a letter requesting a financial hardship exemption based on his loss of employment, and stating that his bank would pay the rent. See 24 C.F.R. § 5.630(b). The Authority granted the hardship exemption and reduced his rent to $50 per month effective July 1.
On August 17, in response to defendant's July 20 letter, the executive director of the Authority sent a letter addressed to defendant at the Salem County Correctional Facility (SCCF). The executive director reported that the bank was unable to pay the rent, and warned that the Authority would proceed with an eviction action. Defendant received that letter at the SCCF, and wrote back on August 2 0 asserting that his request for a hardship exemption precluded eviction. On August 23, the executive director responded by a letter addressed to defendant both at the SCCF and the apartment. The executive director repeated that the Authority was moving forward with its eviction procedure, and stated that "this letter is my last written correspondence to you concerning this issue." During the rest of August, defendant sent several letters to the Authority stating that he did not know when he was getting out of the SCCF.
On August 31, the Authority filed a landlord-tenant complaint in the Special Civil Part, alleging non-payment of rent and demanding possession. The Authority served the summons and complaint by asking the clerk of the court to send them regular and certified mail to the apartment. On September 21, defendant failed to appear in court, and the judge entered a judgment of possession by default. A warrant for removal was posted on the apartment door, and defendant was locked out of the apartment.
After his release, defendant filed an order to show cause, seeking emergent relief. The Special Civil Part judge set an October 19 return date. Defendant appeared and argued that he had not received notice. The Authority argued that it was not required to send notices to the jail, and that everything was properly sent to the apartment.
The judge ruled that service of the summons and complaint was proper because it was sent to the apartment by regular and certified mail, return receipt requested, and the regular mail was not returned. The judge also ruled that it was proper to post the warrant of execution on the apartment door, even if defendant did not receive it. The judge declined to vacate the judgment under Rule 4:50-1, reasoning:
There's got to be excusable neglect and a meritorious defense in order for me to vacate the judgment. ... I find that there was excusable neglect because he was incarcerated. He couldn't show up in court, couldn't defend himself. And that's certainly excusable ...