DOMINIC MARIANI v. STEVEN WINTERS (DC-004192-20, BURLINGTON COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-2151-20

DOMINIC MARIANI,

Plaintiff-Respondent,

v.

STEVEN WINTERS and
MARYANN B. WINTERS,

Defendants-Appellants.
________________________

Submitted February 15, 2022 – Decided February 18, 2022

Before Judges Fisher and Smith.

On appeal from the Superior Court of New Jersey,
Law Division, Burlington County, Docket No. DC-
004192-20.

Ira J. Metrick, attorney for appellants.

Zeller & Wieliczko, LLP, attorneys for respondent
(Matthew B. Wieliczko and Dean R. Wittman, on the
brief).

PER CURIAM
 In this action – and a companion lawsuit – plaintiff Dominic Mariani

alleged that, in April 2016, he lent defendants Steven and Maryann Winters

$180,000, and to secure repayment, defendants executed a promissory note and

gave plaintiff a mortgage and a deed – apparently to be held in escrow – on

their Voorhees home. Plaintiff also alleged that in August 2018, he lent

defendants another $420,000, and defendants provided another promissory

note and mortgage to secure repayment. Defendants apparently defaulted, and

plaintiff recorded the deed in the Camden County Clerk's office in July 2019.

Notwithstanding obtaining title to the property, plaintiff commenced suit

against defendants for the repayment of the full amount of the unpaid balance

on the loans.

On March 19, 2020, Governor Murphy issued Executive Order 106,

which, in light of the COVID-19 pandemic, placed a statewide moratorium on

residential evictions. Ten days later, plaintiff filed a second complaint against

defendants, claiming he was the true owner of the Voorhees property; the

action sought a writ of possession and defendants removal from the property.

Both suits were transferred to Burlington County, where an order was entered

requiring defendants to show cause why an order of possession should not

issue. After a number of proceedings in the second suit, the trial judge

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determined that Executive Order 106 did not apply to this situation and, on

February 23, 2021, entered an order which directed defendants to vacate the

property by May 1, 2021, or else a writ of ejectment would issue. After further

proceedings, a writ was entered.

Having been denied in the trial court a stay of their eviction from the

Voorhees property, defendants moved on an expedited basis for the entry of a

stay in this court and filed a notice of appeal. On June 11, 2021, we granted

defendants' motion for a stay pending appeal and have since denied plaintiff's

motions for relief from the stay or for summary disposition of the issues on

appeal. More recently – citing the fact that the moratorium contained in

Executive Order 106 was ended by Executive Order 249 – plaintiff moved to

dismiss this appeal as moot; we reserved decision.

In their appeal, defendants argue that their eviction was barred by

Executive Order 106, and that plaintiff's separate action for damages provided

an adequate remedy that would obviate a need for their eviction.

We start our analysis of the issues by expressing our concern about the

multiple lawsuits commenced by plaintiff about the same operative facts. We

observed above that plaintiff alleged multiple loan transactions and that

defendants defaulted. Part of these transactions called for defendants'

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execution and delivery of a deed in plaintiff's favor on their Voorhees home. It

is not clear from the record on appeal what it was about their agreement that

would permit plaintiff to record the deed and take title to the property. Nor is it

clear how or to what extent plaintiff's recording of that deed would reduce or

eliminate the indebtedness on the loans. Those questions will presumably be

answered in the action for damages; the parties' submissions reveal that issue

was joined in that action and the matter was sent out to mediation.

Meanwhile, the second suit was moving forward on its own track with

plaintiff seeking to remove defendants from the property because he had

become the titleholder. Plaintiff obtained an order granting him possession

after the judge determined that Executive Order 106 did not apply to residents

in defendants' position. We disagree with plaintiff's contention that the trial

judge properly interpreted the Governor's order.

Executive Order 106 directed that "[a]ny lessee, tenant, homeowner or

any other person shall not be removed from a residential property as the result

of an eviction or foreclosure proceeding" and declared that "enforcement of all

judgments for possession, warrants of removal, and writs of possession shall

be stayed while this [o]rder is in effect, unless the court determines . . . that

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enforcement is necessary in the interest of justice." The order described the

duration of its directions in the following way:

This [o]rder shall take effect immediately and remain
in effect for no longer than two months following the
end of the Public Health Emergency or State of
Emergency established by Executive Order No. 103
(2020), whichever ends later, unless this [o]rder is
first revoked or modified by the Governor in a
subsequent executive order.

Plaintiff argues that Executive Order 106 did not constitute an obstacle

to his securing possession of the property. We do not agree. We see nothing

about the broad language utilized in the executive order that would exempt this

situation from the moratorium. Plaintiff obtained title through the recording of

what appears to be a deed in lieu of foreclosure. The pursuit of a writ of

possession when that is the way in which a borrower obtains title undoubtedly

was intended to be swept into the broad description in Executive Order 106.

As we said in our order granting a stay pending appeal, in quoting Couri v.

Gardner, 173 N.J. 328, 340 (2002), "[i]t is not the label placed on the action

that is pivotal but the nature of the legal inquiry." There is no question that the

nature of plaintiff's suits to obtain relief from defendants is based on his

position as the holder of notes, mortgages, and a deed in lieu of foreclosure.

We interpret Executive Order 106 as including this action to remove

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defendants from the property that was deeded to plaintiff through these

transactions in a way no different than we would had plaintiff sought to

foreclose his mortgages. Consequently, we find the far different circumstances

in Talmadge Vill., LLC v. Wilson, 468 N.J. Super. 514 (App. Div. 2021), in

which other equities were present, to be distinguishable from the matter at

hand.

In any event, as plaintiff accurately argues, Executive Order 106 no

longer poses an obstacle to his pursuit of relief. On August 4, 2021, the

Governor issued Executive Order 249, which ended Executive Order 106's

moratorium. Although the order in question was entered while Executive Order

106 was in effect, the order and the stay were not thereby rendered void.

Executive Order 106 did not preclude the issuance of such relief, only its

enforcement. We have ensured compliance with Executive Order 106 by way

of our stay pending appeal.

Despite the return to the status quo ante now permitted by Executive

Order 249, we nevertheless continue the stay of eviction in this case because of

other considerations. As noted, plaintiff's double-barrel attack in the trial court

has raised questions about the potential for plaintiff obtaining a windfall.

While it certainly appears that the parties' transactions may have given

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plaintiff a number of ways to go in securing repayment of defendants'

obligation, he is not entitled to recover more than the full amount of the debt.

Brunswick Bank & Tr. v. Affiliated Bldg. Corp., 440 N.J. Super. 118, 125

(App. Div. 2015). Because the first suit remains undecided, it is not clear what

if anything may remain due to plaintiff after determining and reducing the

indebtedness by the fair market value of the Voorhees property.

In short, we are concerned about the separate adjudications that have or

may occur regarding the parties' transactions and how these separate

adjudications may potentially lead to an inequitable result. And so, in

remanding, we direct that the two suits be consolidated and that the trial court

schedule a case management conference during which, after hearing and

considering the parties' positions, the judge should direct the manner in which

the claims plaintiff has asserted in the two suits should proceed. Until then our

stay of the eviction will remain in place but, once all parties are before the trial

court, the judge may determine, based on the equities, whether the stay should

continue or be lifted.

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 Remanded with directions. 1 We do not retain jurisdiction.

1
In light of our disposition of the merits, the motion to dismiss the appeal has
been rendered moot and is, for that reason, denied. A separate order has been
entered on the motion.
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