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Ameri v. Reaves

A-1697-02T2 (N.J. Super. App. Div. 2004) (Unpublished)

LANDLORD-TENANT; EVICTION; NOTICE—Despite a lower court judge stating in the appeal record that there was a return receipt card, an appellate court remanded a default judgment matter to the lower court because the return receipt card was not part of the appeal record.

Shortly after a tenant and landlord entered into a lease agreement, the landlord sought to evict the tenant based on non-payment of rent. When the tenant failed to appear, a default judgment was entered. Five days later, the tenant filed a motion to vacate the default. The matter was resolved with an agreement to apply the security deposit toward the rent payment.

A few months later, the landlord once again sought possession based on non-payment of rent. This time the tenant appeared and raised a lack of habitability defense. Contingent upon the tenant paying the owed rent to the Court on the day of the hearing, the trial was to continue after an inspection of the condition of the apartment. When payment was not made, possession was granted to the landlord. The tenant claimed she was unaware of the hearing date because the notice and subpoena had been mailed to the wrong address. She also argued that even if that had not been the case, she had jury duty on the day of the hearing and would not have been unable to attend anyway.

The lower court refused to dismiss the judgment based on the fact that there was a return receipt card in the jacket mailed to the tenant. Accordingly, it concluded that service was received, and even more, the tenant had not made out a case entitling her to relief.

On the tenant’s appeal, the Appellate Division noted that the record did not include the return receipt relied upon by the lower court in concluding that service was rendered. Thus, without evidence of service, the Court assumed the tenant was not served. As a matter of due process, default judgment is set aside where the default was based on defective service of process. Furthermore, the Court held that the lower court failed to provide support for its conclusion that the tenant lacked a meritorious defense. Therefore, the Court reversed and remanded for further hearings.

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