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Concordia Holdings, L.L.C. v. M.A. Food Enterprises

A-6801-01T2 (N.J. Super. App. Div. 2003) (Unpublished)

LANDLORD-TENANT; EVICTION—A court clerk, by herself or himself, is not authorized to issue a warrant of removal on breach of a settlement agreement.

In a commercial non-payment of rent dispute, a stipulation of settlement was entered calling for certain payments to be made. The first payment was made on the very day the parties appeared in court, but the check bounced. The form of the stipulation was supplied by the court. It included language that if the tenant did not fully meet the conditions of the stipulation, the landlord could file an “affidavit of Default (sworn, notarized statement) with the Clerk of the Special Civil Part-Middlesex County… .” The landlord did so and “the Clerk made an electronic entry in the court’s Automated Case Management Summary… .” Three days later, a warrant of removal was issued. The tenant complained that the clerk did not have the authority to issue a warrant of removal. A relevant court rule allows the clerk “on affidavit if the defendant fails to appear, plead or otherwise defend,” to enter a judgment for possession. In this case, however, the tenant appeared on the day of trial. “A settlement agreement is not the legal equivalent of a default. The clerk’s notation on the court list is insufficient to enter consent judgment in a summary dispossess proceeding absent a jural act.” Consequently, the clerk did not have the legal authority to enter the judgment of possession. According to the Court, “[t]his legal impediment was created as a result of [the landlord’s] failure to utilize the form of settlement prescribed by our Supreme Court in summary dispossess cases.” It should have filed a motion, with notice to the tenant, seeking to enforce the settlement.

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