Opinion
DOCKET NO. A-5970-13T2
06-18-2015
PIKE RUN II, L.L.C., Plaintiff-Appellant, v. VOKAYE PARKER, Defendant-Respondent.
Haber Silver & Simpson, attorneys for appellant (Sherry L. Silver, of counsel and on the brief). Respondent has not filed a brief.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fuentes and Ashrafi. On appeal from the Superior Court of New Jersey, Law Division, Special Civil Part, Somerset County, Docket No. LT-1427-14. Haber Silver & Simpson, attorneys for appellant (Sherry L. Silver, of counsel and on the brief). Respondent has not filed a brief. PER CURIAM
This case is an action under Rule 6:3-4 for possession of residential premises and eviction of the tenant. Plaintiff-landlord Pike Run II, L.L.C., appeals from the July 18, 2014 order of the Special Civil Part vacating a warrant of removal it had obtained pursuant to a consent judgment with defendant- tenant Vokaye Parker. Defendant did not respond to the appeal. We reverse the Special Civil Part's order in part and remand for further consideration of the landlord's right to evict the tenant.
Defendant has occupied the subject apartment since 2003. The landlord alleges she has been late in paying rent during her tenancy, and it has previously filed actions to dispossess her for nonpayment of rent.
On or about May 12, 2014, the landlord filed a verified complaint for possession alleging that defendant had failed to pay May's rent of $1,185.48 and that a total of $1,393.48 was then due, including a late charge and attorney's fees in accordance with the lease. The landlord further alleged that the amount due would increase by rent and other charges for June if defendant did not pay all amounts due before the matter could be heard by the court.
On June 20, 2014, the parties entered into a settlement using the form approved by the court entitled Consent to Enter Judgment (Tenant to Stay in Premises). See Appendix XI-V, Rules Governing the Courts of the State of New Jersey. In paragraph 1 of the "consent judgment," defendant admitted that $2,329.85 was then due to the landlord, and defendant also agreed to "the immediate entry of a judgment for possession." In paragraph 2b, the consent judgment stated that defendant had made a "web payment of $340.00" and that she would pay an additional $1,989.85 by bank check or money order by June 30, 2014.
Defendant failed to pay $1,989.85 by June 30. On July 3, the landlord requested a warrant of removal, at the same time providing notice of its request to defendant. A warrant was issued by court staff, and the eviction was scheduled for July 18, 2014.
Neither the warrant of removal nor the date scheduled for eviction are included in our record on appeal. We discern the scheduled eviction date from subsequent proceedings and orders entered by the court.
On July 16, defendant applied to the court for a stay of the eviction. She stated she did not make the payment due at the end of June because of a delay in receiving financial assistance from a social services organization, which she did not identify at that time. By order dated July 16, 2014, the court denied a stay, indicating in a written statement of reasons that defendant had not demonstrated she had the funds to pay the arrears. The court added in its statement: "Notwithstanding, if the tenant pays the amount due [$1,989.85] by noon on July 18, 2014 the landlord shall accept it and the Warrant of Removal shall be vacated."
On July 17, defendant returned to the court and apparently provided proof that she had $1,989.85 available to pay. The court entered an order on that date directing defendant to pay that amount to the landlord by noon on July 18 or the eviction could proceed. The order also contained the judge's handwritten statement of reasons for the order, which we cannot decipher entirely. The handwritten notation seems to state that defendant's application for a stay was now being conditionally granted upon payment of the arrears because defendant identified the organization that would assist her in making the payment.
On July 18, the landlord moved to vacate the July 17 order and to proceed with the eviction. A certification of the landlord's representative stated that defendant had failed to make payment by noon on July 18, and that the addition of July rent and other charges increased the amount due from defendant to $3,296.22. In a letter-brief, landlord argued that a stay of the eviction would be improper under N.J.S.A. 2A:42-10.6 and Housing Authority of Morristown v. Little, 135 N.J. 274 (1994), unless defendant paid the full amount due, including July rent and related charges.
The court initially entered an order on July 18 permitting the eviction to proceed on the ground that defendant had failed to make the payment of $1,989.85 by noon on that date. The court found no need to reach the landlord's contentions at that time about the payment of July rent.
In the late afternoon of July 18, defendant appeared before the court again, seeking relief from the warrant of removal. The court heard testimony in person from defendant and argument telephonically from the landlord's attorney. Defendant said she had been misinformed by a member of the court's staff about the necessity of making payment to the landlord by noon on that date. She said she had received an assistance check of $750 from "the Actors' Fund" sometime in the middle of July, and was then prepared to tender that check and additional money orders to the landlord for a total payment of $1,989.85. Defendant said she would pay July's rent "next week."
The landlord's attorney argued that the July rent and additional charges also had to be paid to justify relief for defendant. The court rejected the landlord's argument and stated that inclusion of the July rent as a condition of granting relief would effectively waive any defenses defendant might have to payment of July rent, such as a potential defense that the residential premises were uninhabitable pursuant to Marini v. Ireland, 56 N.J. 130 (1970).
The court entered a handwritten order, which again is not entirely legible in our record. The crux of the order is that the court vacated the warrant of removal upon defendant's tender to the landlord of the prior arrears of $1,989.85. The court refused to include the amount due for July in defendant's current obligation and stated that the July rent could be the subject of a separate action by the landlord for possession of the premises. The court repeated its reasoning that inclusion of the July rent in its current order would result in a waiver of any potential defenses defendant may have to the rent due for that month. The court also stated that defendant had not willfully failed to pay the arrears by the deadlines previously set and that various equitable factors weighed in favor of defendant's application to vacate the warrant of removal.
We understand that the judge's efforts to hear and resolve the matter in the late hours of the day hindered the court's ability to issue a formally-prepared, typewritten order. We are also aware that the imminence of the eviction may have left no time for the court to request assistance on the law from the parties or to research the law independently.
On appeal, the landlord contends the court's decision was contrary to the provisions of N.J.S.A. 2A:42-10.6, which is the heart of the Tenant Hardship Act, L. 1957, c. 110, N.J.S.A. 2A:42-10.6 to -10.9. The statute provides:
Judge to use sound discretion in issuing warrants or writs for removal or writs of possession; stay of issuance; limitationThe landlord emphasizes the underscored clauses of the statute providing that a hardship stay requires payment of future rent as it becomes due.
Notwithstanding any other provisions of law, in any action brought by a landlord against a tenant to recover possession of premises or unit used for dwelling purposes, to which this act is applicable, whether by summary dispossess proceedings, civil action for the possession of land, or otherwise, the judge of the court having jurisdiction shall use sound discretion in the issuance of a warrant or writ for removal or writ of possession, and if it shall appear that by the issuance of the warrant or writ the tenant will suffer hardship because of the unavailability of other dwelling accommodations the judge may stay the issuance of the warrant or writ and cause the same to issue at such time as he shall deem proper under the circumstances, but in no case shall such judge stay the issuance of any such warrant or writ for possession for a longer period than 6 months after the date of entry of the judgment of possession; provided, however, that in no case shall the issuance of the warrant or writ be stayed or the stay thereof be longer continued, as the case may be, if the tenant should (a) fail to pay to the landlord all arrears in rent and the amount that would have been payable as rent if the tenancy had continued, together with the accrued costs of the action; or (b) during the stay, fail to continue to pay to the landlord the amount of rent that would be due if the tenancy had continued; or (c) during the stay, become so disorderly as to destroy the peace and quiet of the other tenants living in the same building or in the neighborhood; or (d) during the stay, willfully destroy, damage or injure the premises.
[N. J.S.A. 2A:42-10.6 (emphasis added).]
Our reading of the record, however, indicates that the court did not grant a hardship stay to defendant but rather vacated the warrant of removal pursuant to Rule 4:50-1. The court did not specifically state that it was also vacating the consent judgment for possession and dismissing the landlord's complaint, but that result was the implication of its decision and final July 18, 2014 order.
In Housing Authority of Morristown, supra, 135 N.J. at 289, the Supreme Court held that the landlord-tenant court has "residual power to vacate a judgment pursuant to Rule 4:50-1" in addition to its statutory power to grant a hardship stay under N.J.S.A. 2A:42-10.6. The Court confirmed generally that: "A motion under Rule 4:50-1 is addressed to the sound discretion of the trial court, which should be guided by equitable principles in determining whether relief should be granted or denied." Hous. Auth. of Morristown, supra, 135 N.J. at 283.
Here, similar to the circumstances of Housing Authority of Morristown, supra, 135 N.J. at 283, the trial court did not specify which provision of Rule 4:50-1 it was relying upon in vacating the warrant of removal. Subsections (a), (e), and (f) of the rule are potentially applicable. The court's oral statements at the July 18 proceedings and its written notations on the July 18, 2014 orders give no indication that the court accepted defendant's excuse that she had been misled by court staff when she failed to make payment by noon on July 18. However, the court may have viewed as "mistake, inadvertence, surprise, or excusable neglect" defendant's failure to make payment of the $1,989.85 by the June 30th deadline of the consent judgment because of delay beyond her control in the issuance of the assistance check from the Actors' Fund. Alternatively, the court may have found in accordance with subsection (e) of the rule that it was no longer equitable for the judgment to have prospective application to future rent that would become due, or under subsection (f) that another reason justified relief from the judgment. With respect to subsection (f), we note that the Supreme Court restricted reliance on that provision "in summary-dispossess proceedings" to "exceptional circumstances." Hous. Auth. of Morristown, supra, 135 N.J. at 294.
In relevant part, Rule 4:50-1 provides:
[U]pon such terms as are just, the court may relieve a party . . . from a final judgment or order for the following reasons: (a) mistake, inadvertence, surprise, or excusable neglect; . . . (e) . . . it is no longer equitable that the judgment or order should have prospective application; or (f) any other reason justifying relief from the operation of the judgment or order.
In its final July 18, 2014 order, the court stated the following reasons for granting relief to defendant on equitable grounds:
the financial hardship to the tenant, the fact that tenant has the $1,989.85 due under the June 30 [sic], 2014 Consent to Stay Judgment and that the court is not convinced that other than the delay in receipt of the funds that tenant willfully refused to pay it to the landlord. And that tenant represented that she has July rent next week.The court added that it did not read Ivy Hill Park Section Five, Inc. v. Handa, 121 N.J. Super. 366 (App. Div. 1972), as precluding the relief the court was granting. In Ivy Hill Park, we held the court may not grant a hardship stay of eviction unless the stay is conditioned on payment of back and future rent. Id. at 367. The court in this case stated that Ivy Hill Park, and presumably the other legal authorities cited by the landlord, should not be read "as waiving defenses that tenant may have [illegible] during the month of July without due process, a trial, and an opportunity to defend. Also, landlord is not prejudiced because it [illegible] July rent and eviction for habitual late payment by separate complaints."
While the court's factual reasons may support a discretionary stay of the eviction, its emphasis on preserving potential defenses is neither supported by the factual record nor by the law. Defendant had not raised any potential defenses to her obligation to pay July's rent and additional charges imposed by her lease. The court has discretion to stay a warrant of removal, and also has discretion to vacate a judgment under Rule 4:50-1. Nevertheless, the balance struck by the Legislature between a tenant's need for housing and a landlord's rights includes payment of additional rent as it becomes due in exchange for the tenant's continuing occupancy of residential premises despite a judgment for possession. Nothing in N.J.S.A. 2A:42-10.6 suggests that the tenant's potential defenses to monthly rent payment must be preserved through requiring the landlord to file successive complaints for summary dispossession and eviction.
Nor does the court's approved form for a Consent to Enter Judgment (Tenant to Stay in Premises) contain any such requirement. In fact, the provisions of that form judgment also require that the tenant make timely payments of future rent. In this case, paragraph 3 of the consent judgment stated: "The Tenant also agrees to pay $1,186.37 each month as required by the rental agreement, in addition to payment required in paragraph 1, until this settlement agreement is over." Paragraph 4 stated that all payments from tenant "shall be applied first to the rents that become due after today, and then they shall be applied to pay the balance of the arrears stated in paragraph 1." Paragraph 5 stated that the agreement would end when tenant paid the full amount of the rent stated in paragraph 1, which under the last-quoted provision in paragraph 4 would follow payment of additional rent that has become due. Only after all payments are made and the tenant no longer owes a balance to the landlord would the judgment for possession be vacated and the landlord's complaint dismissed.
The court's exclusion of the July rent from defendant's payment obligation was contrary to the terms of the parties' settlement and the resulting consent judgment, as well as inconsistent with the balance the Legislature struck for a hardship stay of a warrant of removal. The court should not have disregarded defendant's failure to maintain her rent payments as required by her lease and by the consent judgment of June 20, 2014. The court mistakenly relegated the landlord to the remedy of a future action for possession based on nonpayment or habitual late payment of rent.
Although defendant made no showing that she did not have alternative housing available, the court's factual findings may have justified a discretionary stay of the eviction, but not permanently vacating the warrant of removal and the consent judgment. Those would be vacated upon defendant's meeting all the requirements of the consent judgment to which she was bound, including payment of subsequent months' rent and related charges.
Because the court mistakenly exercised its discretion in presumably vacating the landlord's judgment for possession and dismissing its complaint, that inferred aspect of its July 18, 2014 order must be reversed. The consent judgment shall be reinstated pending further proceedings to weigh the equities and to consider defendant's application to vacate the judgment. With the passage of time and defendant's continued occupancy, the equities may have changed. We remand to the court to make a fresh determination under Rule 4:50-1 and the terms of the consent judgment, based on current circumstances, whether the landlord may enforce the judgment or it should be vacated. We have reached no conclusion as to the appropriate final outcome of this case.
Reversed in part and remanded. We do not retain jurisdiction. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION