YERUKHAM GELB VS. YOEL OSHRI (DC-001503-19, OCEAN COUNTY AND STATEWIDE)

CourtNew Jersey Superior Court Appellate Division
DecidedJune 11, 2020
DocketA-3435-18T1
StatusUnpublished

This text of YERUKHAM GELB VS. YOEL OSHRI (DC-001503-19, OCEAN COUNTY AND STATEWIDE) (YERUKHAM GELB VS. YOEL OSHRI (DC-001503-19, OCEAN COUNTY AND STATEWIDE)) is published on Counsel Stack Legal Research, covering New Jersey Superior Court Appellate Division primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
YERUKHAM GELB VS. YOEL OSHRI (DC-001503-19, OCEAN COUNTY AND STATEWIDE), (N.J. Ct. App. 2020).

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-3435-18T1

YERUKHAM GELB,

Plaintiff-Respondent,

v.

YOEL OSHRI, a/k/a JOEL OSHRI,

Defendant-Appellant. ________________________

Argued telephonically May 18, 2020 – Decided June 11, 2020

Before Judges Ostrer and Vernoia.

On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Docket No. DC-001503-19.

Yoel Oshri, appellant, argued the cause pro se.

Lori C. Greenberg argued the cause for respondent (Lori C. Greenberg & Associates, attorneys; Lori C. Greenberg, on the brief).

PER CURIAM In this action claiming unlawful detainer and seeking the ejectment of

defendant Yoel Oshri from residential property (the property) owned by plaintiff

Yerukham Gelb, defendant appeals from a February 25, 2019 Order For Writ of

Possession [and] Ejectment, and a March 29, 2019 order entered by a different

judge denying defendant's motion to disqualify the first judge, dismiss the

complaint, and for a stay of the writ of possession. We find no merit to

defendant's numerous contentions, and we therefore affirm.

The facts pertinent to the cause of action asserted in plaintiff's complaint

for ejectment are undisputed. Defendant mortgaged the property to secure his

payment of a $65,000 promissory note. See PNC Bank, NA v. Yoel Oshri, No.

A-5121-15 (App. Div. Oct. 16, 2018) (slip op. at 2). Defendant defaulted on the

promissory note in January 2013, and PNC Bank, NA filed a foreclosure action

and obtained a final judgment of foreclosure against him. Id. at 3-4. Plaintiff

purchased the property at a November 2017 sheriff sale that was held in

accordance with orders issued by the court in the foreclosure case. Defendant

appealed from the final judgment of foreclosure and other orders entered in the

foreclosure case, and, in our October 2018 opinion, we affirmed the foreclosure

court's judgment and orders. Id. at 9.

A-3435-18T1 2 Defendant also sought relief from the final judgment of foreclosure in an

action in the United States District Court for the District of New Je rsey, but he

did not name plaintiff a party in that litigation. On February 1, 2019, the District

Court entered an order denying with prejudice defendant's motion to set aside

the November 2017 sheriff's sale of the property to plaintiff.

Plaintiff recorded the sheriff's sale deed with the Ocean County Clerk on

January 24, 2019. Almost two weeks later, he filed a verified complaint and

order to show cause in the Law Division Special Civil Part alleging he was the

property owner, defendant continued to occupy the property, and defendant

refused to vacate it. 1 Plaintiff alleged he was deprived of the use and possession

of the property by defendant's unlawful detainer of the property in violation of

"N.J.S.A. 2A:39-1 et seq.," and plaintiff sought a judgment for unlawful detainer

and a writ of possession directing the sheriff to remove defendant from the

property.

Defendant does not include in the record on appeal the order to show cause

entered by the court, but there is no dispute the court entered an order requiring

1 Defendant's appendix includes a January 31, 2019 "3-DAY NOTICE TO QUIT PURSUANT TO N.J.S.A. 2A:35-1" from plaintiff's counsel to defendant demanding defendant vacate the property by February 3, 2019, because defendant is "not a tenant, was never a tenant, and [has] no legal right to the property." A-3435-18T1 3 defendant show cause on February 25, 2019, why the court should not order his

ejectment from the property. Defendant's appendix includes a February 21, 2019

letter he claims he sent to the court in which he acknowledges receipt of the

order to show cause and plaintiff's verified complaint. In his letter, defendant

notes that he filed a motion to dismiss the complaint returnable on March 20,

2019, and he requested an adjournment of the February 25, 2019 return date of

the order to show cause.2

The court did not grant defendant's adjournment request. At the February

25, 2019 proceeding, plaintiff testified he purchased the property at a sheriff's

sale in November 2017, and, with the issuance of this court's October 2018

decision affirming the final judgment of foreclosure, he was authorized to record

the sheriff's sale deed transferring title of the property to him. He also testified

the United States District Court entered the February 1, 2019 order dismissing

with prejudice defendant's challenge to the sheriff's sale.

2 In defendant's appendix on appeal, he includes a copy of a February 21, 2019 "NOTICE OF MOTION TO DISMISS THE COMPLAINT FOR LACK OF JURISDICTION AND FRAUD UPON THE COURT." The notice of motion states "[d]efendant will rely upon the within certification and annexed [e]xhibits in support of this motion," but defendant did not include the purported certification or exhibits in the record on appeal. A-3435-18T1 4 Plaintiff further testified defendant was not a tenant and never paid rent;

defendant continued to occupy the property; and defendant refused to vacate it.

Plaintiff requested the court enter an ejectment order requiring defendant vacate

the property. Defendant cross-examined plaintiff about the manner in which

plaintiff funded the purchase of the property and the timing of the payments to

the sheriff to complete the purchase following the sheriff's sale.

After hearing plaintiff's testimony, the court granted defendant's request

for a writ of possession and for ejectment of defendant from the property. The

court's February 25, 2019 order directed defendant vacate the property "pursuant

to N.J.S.A. 2A:35-1 et seq." and provided that, if defendant failed to vacate the

property as directed, defendant could seek a writ of possession from the Special

Civil Part Clerk's Office directing the sheriff remove defendant from the

Defendant subsequently filed a motion to disqualify the trial judge,

dismiss the complaint for lack of jurisdiction and fraud, and stay the writ of

possession. On the return date of the motion, the trial judge was unavailable,

and the motion was heard by the Assignment Judge of the vicinage.

After hearing argument on the motions, the judge explained that following

entry of the final judgment of foreclosure in the PNC Bank, NA action, plaintiff

A-3435-18T1 5 purchased the property at a November 2017 sheriff's sale and recorded the deed

in January 2019. The judge also noted that this court affirmed the final judgment

of foreclosure on defendant's appeal, and the United States District Court

dismissed with prejudice defendant's challenge to the validity of the sheriff's

sale of the property to plaintiff. The judge found plaintiff was the owner of the

property and had moved for the ejectment of defendant.

The judge considered defendant's motion in part as one for

reconsideration. The judge found no basis supporting the disqualification of t he

first judge, and determined an action for ejectment could properly proceed, as it

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YERUKHAM GELB VS. YOEL OSHRI (DC-001503-19, OCEAN COUNTY AND STATEWIDE), Counsel Stack Legal Research, https://law.counselstack.com/opinion/yerukham-gelb-vs-yoel-oshri-dc-001503-19-ocean-county-and-statewide-njsuperctappdiv-2020.