Showing posts with label FORECLOSURE. Show all posts
Showing posts with label FORECLOSURE. Show all posts
Tuesday, August 17, 2021
Friday, May 21, 2021
FORECLOSURE ATTORNEY IN HACKENSACK NJ - FORECLOSURE ARTICLE (201)646-3333
BANK OF AMERICA, N.A., Plaintiff-Respondent,
v.
WADELL P. SMITH, Defendant-Appellant.
No. A-0912-18T1.
Submitted May 29, 2019. Decided June 19, 2019.
On appeal from Superior Court of New Jersey, Chancery Division, Union County, Docket No. F-007676-16.
Wadell P. Smith, appellant pro se.
Parker McCay, PA, attorneys for respondent (Eugene R. Mariano, of counsel; Stacy L. Moore, Jr., on the brief).
Before Judges Hoffman and Suter.
On appeal from Superior Court of New Jersey, Chancery Division, Union County, Docket No. F-007676-16.
Wadell P. Smith, appellant pro se.
Parker McCay, PA, attorneys for respondent (Eugene R. Mariano, of counsel; Stacy L. Moore, Jr., on the brief).
Before Judges Hoffman and Suter.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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.
PER CURIAM.
Defendant Wadell Smith appeals from the August 17, 2018 trial court order denying his motion to set aside the sheriff's sale and allow redemption on a foreclosed property due to plaintiff's alleged failure to file proper proofs. For the reasons that follow, we affirm.
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.
PER CURIAM.
Defendant Wadell Smith appeals from the August 17, 2018 trial court order denying his motion to set aside the sheriff's sale and allow redemption on a foreclosed property due to plaintiff's alleged failure to file proper proofs. For the reasons that follow, we affirm.
I.
In December 2008, defendant executed a note to Allied Mortgage Group, Inc. (Allied) for the sum of $403,987. On the same day, defendant executed a mortgage to Mortgage Electronic Registration Systems, Inc. as nominee for Allied. Plaintiff came into possession of the debt as successor to an assignee of the mortgage.
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In August 2010, defendant defaulted. Plaintiff filed a foreclosure complaint in March 2016. In December 2016, the trial court granted plaintiff's motion for summary judgment. In December 2017, plaintiff submitted an application for final judgment, which the court granted in January 2018.
In April 2018, defendant filed a motion to vacate final judgment. The court denied the motion the following month. In June 2018, defendant filed a motion to dismiss, which the court denied. The same month, a sheriff's sale was held and plaintiff purchased the property. Subsequently, in July 2018, defendant filed a motion to set aside the sheriff's sale. The trial court denied this motion in August 2018. This appeal followed, based only on the motion to set aside the sheriff's sale.
In December 2008, defendant executed a note to Allied Mortgage Group, Inc. (Allied) for the sum of $403,987. On the same day, defendant executed a mortgage to Mortgage Electronic Registration Systems, Inc. as nominee for Allied. Plaintiff came into possession of the debt as successor to an assignee of the mortgage.
I'm detective Gerard Robbins. I worked in law enforcement with the prosecutor's office and public defenders officer more than 34 years I've worked in all types of cases and numerous attorneys some of the best in the state of New Jersey. I highly recommend Rafael Gomez who I've known for several years, probably more than 20, 20 years have known Rafael Gomez.
In August 2010, defendant defaulted. Plaintiff filed a foreclosure complaint in March 2016. In December 2016, the trial court granted plaintiff's motion for summary judgment. In December 2017, plaintiff submitted an application for final judgment, which the court granted in January 2018.
In April 2018, defendant filed a motion to vacate final judgment. The court denied the motion the following month. In June 2018, defendant filed a motion to dismiss, which the court denied. The same month, a sheriff's sale was held and plaintiff purchased the property. Subsequently, in July 2018, defendant filed a motion to set aside the sheriff's sale. The trial court denied this motion in August 2018. This appeal followed, based only on the motion to set aside the sheriff's sale.
II.
To succeed in a foreclosure action, a plaintiff need merely prove: (1) the validity of the note and mortgage; (2) the defendant defaulted on the loan; and (3) plaintiff has the right to resort to the mortgaged property in satisfaction of the loan. Great Falls Bank v. Pardo, 263 N.J. Super. 388 (Ch. Div. 1993). Defendant does not contest any of these material elements. Rather, defendant argues plaintiff failed to comply with amended foreclosure Rules 4:64-1 and 4:64-2. Essentially, defendant argues plaintiff erred by filing certifications rather than affidavits.
We review motions to set aside a sheriff's sale for abuse of discretion. United States v. Scurry, 193 N.J. 492, 502-03 (2008). To set aside, we require a showing of fraud, accident, surprise or mistake, irregularities in the sale, or other similar circumstances. See R. 4:50-1; Karel v. Davis, 122 N.J. Eq. 526, 528 (E & A 1937).
Here, even assuming the bank's attorneys made mistakes, we find no circumstances to justify an order under Rule 4:50-1 vacating the judgment. Indeed, after reviewing the record, we find insufficient merit in defendant's arguments to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We add the following brief comments.
On June 9, 2011, our Supreme Court adopted amendments to the rules governing foreclosure actions. See N.J. Judiciary, Residential Mortgage Foreclosure Rules: Amendments to Rules 4:64-1 and 4:64-2; Revised Form Certifications/Affidavits (June 9, 2011).
The amendments require an attorney for a foreclosure plaintiff to execute a Certification of Diligent Inquiry confirming the attorney has communicated with an employee of the plaintiff or its loan servicer and confirmed the accuracy of the Note and other foreclosure documents. Pressler & Verniero, Current N.J. Court Rules, cmt. 1 on R. 4:64-1 and cmt. 1 on R. 4:64-2 (2019). Likewise, the plaintiff must file an affidavit of amount due. R. 4:64-2.
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However, despite defendant's argument to the contrary, the rule "permits proof of the amount due to be submitted by certification...." See Pressler & Verniero, cmt. 1 on R. 4:64-2 (2019). Likewise, the rule explicitly allows for a certification for the diligent inquiry. See R. 4:64-1.
Additionally, defendant only appealed the denial of his motion to set aside the sheriff's sale. He did not appeal the orders denying his motion to vacate final judgment or his motion to dismiss. Thus, we are unable to set aside the final judgment as defendant requests. See Pressler & Verniero, cmt. 6.1 on R. 2:5-1(f)(1) (2017) (citing Sikes v. Twp. of Rockaway, 269 N.J. Super. 463, 465-66 (App. Div. 1994)) (rejecting review of the trial court's denial of a request for special interrogatories because the issue was not listed in the notice of appeal).
Affirmed.
To succeed in a foreclosure action, a plaintiff need merely prove: (1) the validity of the note and mortgage; (2) the defendant defaulted on the loan; and (3) plaintiff has the right to resort to the mortgaged property in satisfaction of the loan. Great Falls Bank v. Pardo, 263 N.J. Super. 388 (Ch. Div. 1993). Defendant does not contest any of these material elements. Rather, defendant argues plaintiff failed to comply with amended foreclosure Rules 4:64-1 and 4:64-2. Essentially, defendant argues plaintiff erred by filing certifications rather than affidavits.
We review motions to set aside a sheriff's sale for abuse of discretion. United States v. Scurry, 193 N.J. 492, 502-03 (2008). To set aside, we require a showing of fraud, accident, surprise or mistake, irregularities in the sale, or other similar circumstances. See R. 4:50-1; Karel v. Davis, 122 N.J. Eq. 526, 528 (E & A 1937).
Here, even assuming the bank's attorneys made mistakes, we find no circumstances to justify an order under Rule 4:50-1 vacating the judgment. Indeed, after reviewing the record, we find insufficient merit in defendant's arguments to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We add the following brief comments.
On June 9, 2011, our Supreme Court adopted amendments to the rules governing foreclosure actions. See N.J. Judiciary, Residential Mortgage Foreclosure Rules: Amendments to Rules 4:64-1 and 4:64-2; Revised Form Certifications/Affidavits (June 9, 2011).
The amendments require an attorney for a foreclosure plaintiff to execute a Certification of Diligent Inquiry confirming the attorney has communicated with an employee of the plaintiff or its loan servicer and confirmed the accuracy of the Note and other foreclosure documents. Pressler & Verniero, Current N.J. Court Rules, cmt. 1 on R. 4:64-1 and cmt. 1 on R. 4:64-2 (2019). Likewise, the plaintiff must file an affidavit of amount due. R. 4:64-2.
I've known Rafael Gomez approximately 12 years, he's a very good attorney more than capable of handling any difficult matter and when I became an attorney 12 years ago he was very nice to me being one of the younger attorneys in Bergen County, so good guy, good attorney, I would recommend them.
However, despite defendant's argument to the contrary, the rule "permits proof of the amount due to be submitted by certification...." See Pressler & Verniero, cmt. 1 on R. 4:64-2 (2019). Likewise, the rule explicitly allows for a certification for the diligent inquiry. See R. 4:64-1.
Additionally, defendant only appealed the denial of his motion to set aside the sheriff's sale. He did not appeal the orders denying his motion to vacate final judgment or his motion to dismiss. Thus, we are unable to set aside the final judgment as defendant requests. See Pressler & Verniero, cmt. 6.1 on R. 2:5-1(f)(1) (2017) (citing Sikes v. Twp. of Rockaway, 269 N.J. Super. 463, 465-66 (App. Div. 1994)) (rejecting review of the trial court's denial of a request for special interrogatories because the issue was not listed in the notice of appeal).
Affirmed.
Monday, April 12, 2021
FORECLOSURE ARTICLE - LAWYER IN ESSEX COUNTY NEW JERSEY (201) 656-3333
DEUTSCHE BANK TRUST COMPANY AMERICAS, AS TRUSTEE FOR RESIDENTIAL ACCREDIT LOANS, INC., Mortgage Asset-Backed Pass-Through Certificates, Series 2005-QSI4, Plaintiff-Respondent,
v.
Debbie A. WEINER and Clifford R. Weiner, Defendants-Appellants.
DOCKET No. A-2110-17T4.
Submitted October 23, 2018. Decided November 8, 2018.
On appeal from Superior Court of New Jersey, Chancery Division, Somerset County, Docket No. F-026288-16.
Christopher D. Ferrara LLC, attorneys for appellants (Christopher D. Ferrara, on the brief).
Blank Rome LLP, attorneys for respondent (Michael P. Trainor, on the brief).
Before Judges Fisher, Geiger and Firko.
122The opinion of the court was delivered by
FISHER, P.J.A.D.
For many years, New Jersey lacked a statute of limitations for residential foreclosure actions. Instead, for more than a century, our courts applied the time-bar used in adverse possession actions: twenty years. See Depew v. Colton, 60 N.J. Eq. 454, 464, 46 A. 728 (E. & A. 1900); Security National Partners L.P. v. Mahler, 336 N.J. Super. 101, 106-07, 763 A.2d 804 (App. Div. 2000). In 2009, the Legislature made up for lost time and enacted N.J.S.A. 2A:50-56.1, which codified Security National Partners[1] by declaring that a residential foreclosure action "shall not be commenced following the earliest of" three points in time:
• Six years from "the date fixed for the making of the last payment or the maturity date set forth in the mortgage or the note," N.J.S.A. 2A:50-56.1(a);
• Thirty-six years from the date the mortgage was recorded or, if not recorded, from the date of execution, N.J.S.A. 2A:50-56.1(b); and
• Twenty years from the date of a default that "has not been cured," N.J.S.A. 2A:50-56.1(c).[2]
Defendants' contention that N.J.S.A. 2A:50-56.1(a)'s six-year time-frame applies and bars this foreclosure action, which was filed seven years after their uncured default, is without merit.
The record reveals that defendant Debbie A. Weiner borrowed $657,500 from Weichert Financial Services in 2005 and then executed in Weichert's favor a promissory note that required monthly payments, 123the last of which was scheduled for June 2035. To secure the note's repayment, both defendants executed a mortgage that was recorded in 2005 and ultimately assigned to plaintiff Deutsche Bank Trust Company Americas.[3]
There is no dispute that defendants failed to make a scheduled August 2009 payment and all later monthly payments. After four discontinued suits, Deutsche Bank commenced this foreclosure action in September 2016, more than seven years after defendants' uncured default.
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The parties eventually cross-moved for summary judgment. The judge granted Deutsche Bank's motion, denied defendants' motion, and later denied defendants' motion for reconsideration. Once final judgment was entered in December 2017, defendants filed this timely appeal, arguing: (1) summary judgment should not have been entered because discovery was incomplete and there were genuine disputes about Deutsche Bank's claim, its standing to sue, and its status as a holder; (2) their answer should not have been stricken; and (3) the complaint was barred by the statute of limitations. We reject these arguments and affirm.[4]
In arguing the action was time-barred, defendants claim the six-year time frame in subsection (a) was triggered in 2009 when their default triggered the loan's acceleration. We disagree. Subsection (c) specifically provides a time frame to be considered upon an uncured default. To interpret subsection (a) as triggering the same event encompassed by subsection (c) would wreak havoc with the clearly delineated provisions of N.J.S.A. 2A:50-56.1. We refuse to inject such confusion into what the Legislature carefully planned when it adopted this multi-part statute of limitations.
Defendants' interpretation would also require that we ignore subsection (a)'s plain language. That provision declares that the six-year period runs from the date of the last payment or the maturity date "set forth in the mortgage or the note." N.J.S.A. 2A:50-56.1(a). June 1, 2035 was the date "set forth" in the note and mortgage here, and that date is the one and only date that triggers the six-year period in subsection (a). There is no ambiguity; that conclusion is what the plain language of the statute compels. See DiProspero v. Penn, 183 N.J. 477, 492, 874 A.2d 1039 (2005). Any other conclusion would mangle the Legislature's carefully phrased statute. State v. Clarity, 454 N.J. Super. 603, 608, 186 A.3d 919 (App. Div. 2018).
In short, the three events described in subsections (a), (b), and (c) of N.J.S.A. 2A:50-56.1, were scheduled to occur in 2041 (six years after the 2035 maturity date), 2041 (thirty-six years after the 2005 recording of the mortgage), and 2029 (twenty years from defendants' uncured 124 default), respectively. Since the earliest has yet to occur, this suit, commenced in September 2016, was not time-barred.[5]
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Affirmed.
[1] See Assemb. Fin. Insts. & Ins. Comm. Statement to S. No. 250 — L. 2009, c. 105 (Oct. 6, 2008).
[2] For brevity's sake, we have omitted statutory language from the descriptions of each subsection that has no bearing here.
[3] The mortgage was first assigned to Deutsche Bank Trust Company Americas, as trustee for certain certificate holders, in 2009, and later assigned to Deutsche Bank, as trustee for Residential Accredit Loans, Inc., 2005-QS14, the plaintiff here, in 2013. The assignments were duly executed and recorded.
[4] We find insufficient merit in defendants' first two points to warrant further discussion in a written opinion. R. 2:11-3(e)(1)(E). We add only as to the first that, in moving for summary judgment, Deutsche Bank provided undisputed evidence that it was in possession of the note, which was endorsed to it, and that the mortgage assignments were duly executed and recorded. See Deutsche Bank Trust Co. v. Angeles, 428 N.J. Super. 315, 318, 53 A.3d 673 (App. Div. 2012).
[5] Although not raised, we assume N.J.S.A. 2A:50-56.1 applies to defendants' argument that Deutsche Bank's suit was untimely even though the statute did not become effective until August 6, 2009, approximately the same time as defendants' default. Even if the statute had no application here, the result would be the same, since the pre-statute twenty-year time-bar described in Colton and Security National Partners would allow for the maintenance of this suit.
Tuesday, March 23, 2021
FORECLOSURE ARTICLE - BANKRUPTCY LAWYER IN NEW JERSEY (201) 646-3333
v.GARRETT F. GRIGGS and LAURA F. GRIGGS, Defendants-Appellants, andSTATE OF NEW JERSEY, Defendant.
No. A-0705-15T1.
Submitted July 25, 2017. Decided August 4, 2017.
On appeal from the Superior Court of New Jersey, Chancery Division, Union County, Docket No. F-11977-10.
Garrett F. Griggs and Laura F. Griggs, appellants pro se.
Phelan Hallinan Diamond & Jones, PC, attorneys for respondent (Sonya Gidumal Chazin, on the brief).
Before Judges Reisner and Suter.
On appeal from the Superior Court of New Jersey, Chancery Division, Union County, Docket No. F-11977-10.
Garrett F. Griggs and Laura F. Griggs, appellants pro se.
Phelan Hallinan Diamond & Jones, PC, attorneys for respondent (Sonya Gidumal Chazin, on the brief).
Before Judges Reisner and Suter.
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.
PER CURIAM.
Defendants Garrett and Laura Griggs (defendants) appeal an August 21, 2015 order that denied their motion to vacate a May 11, 2015 final judgment foreclosing their interest in certain residential real estate. We affirm.
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.
PER CURIAM.
Defendants Garrett and Laura Griggs (defendants) appeal an August 21, 2015 order that denied their motion to vacate a May 11, 2015 final judgment foreclosing their interest in certain residential real estate. We affirm.
I.
In September 2006, defendants executed a $315,000 note to U.S. Mortgage Corporation (U.S. Mortgage) and a non-purchase money mortgage to Mortgage Electronic Registration Systems, Inc. (MERS), as nominee for U.S. Mortgage, on a residential property in the City of Union, Union County. The mortgage was recorded.
Defendants defaulted on the note in August 2009. In October 2009, a notice of intention to foreclose the mortgage was sent to defendants at their address in Union, which advised defendants they were in default and the amount needed to cure.
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Defendants' mortgage was assigned by MERS to Sovereign Bank in February 2010 and recorded. Also in February 2010, Sovereign Bank filed a foreclosure complaint, which was personally served on defendants. Defendants did not respond and a default was entered.
Sovereign Bank, N.A. was substituted for Sovereign Bank. Plaintiff Santander Bank, N.A. (plaintiff), formerly known as Sovereign Bank, N.A., filed an amended foreclosure complaint in December 2013. Defendants were served by mail when personal service on defendants was not successful. Defendants acknowledge receiving the amended foreclosure complaint by mail on March 10, 2014. Defendants did not answer the amended complaint, explaining that they were "trying to get in touch with the mortgage lender for some time" and were both ill. A default was entered against defendants on December 2, 2014.
Plaintiff requested entry of a final judgment of foreclosure in May 2015. Defendants claim they did not receive notice of this, but the record shows the notice of motion was sent to defendants' address in Union. When there was no opposition to the application, a final judgment of foreclosure was entered on May 11, 2015. wclaim not to have received a copy of the final judgment, but the record shows it was mailed to their address in Union.
Efforts commenced by plaintiff to sell the property at a sheriff's sale. Defendants filed a motion to vacate the final judgment of foreclosure, but on August 21, 2015, the trial court denied defendants' motion. The foreclosed property was sold to plaintiff on August 26, 2015.
On appeal, defendants contend the court erred in denying the motion to vacate the final judgment of foreclosure because they "raised legally sufficient questions as to the merits of respondent's foreclosure action and legal justification." Defendants also claim plaintiff lacked standing to foreclose.
We do not know whether the court issued a memorandum decision or placed its reasons on the record when it denied defendants' motion, but the record does not include the court's findings nor have the parties supplied a transcript or written decision. See R. 1:7-4(a) ("The court shall by an opinion or memorandum decision, either written or oral, find the facts and state its conclusions of law thereon in all actions tried without a jury. . . ."). We could remand the case to the trial court for clarification, but under Rule 2:10-5, we also "may exercise such original jurisdiction as is necessary to the complete determination of any matter on review." Here, the record enables us to resolve the issues without a remand.
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We review the trial court's order denying defendants' Rule 4:50-1 motion to vacate the final judgment of foreclosure, under an abuse of discretion standard. Hous. Auth. of Morristown v. Little, 135 N.J. 274, 283 (1994) (citations omitted). Defendants have not disputed the amount owed in the final judgment of foreclosure or that the mortgage is in default. Defendants never contested the application of this mortgage to their residential property. As such, they acknowledge the primary facts needed to foreclose on the property. See Great Falls Bank v. Pardo, 263 N.J. Super. 388, 394 (Ch. Div. 1993) (citations omitted) ("The only material issues in a foreclosure proceeding are the validity of the mortgage, the amount of the indebtedness, and the right of the mortgagee to resort to the mortgaged premises."), aff'd, 273 N.J. Super. 542 (App. Div. 1994).
Defendants' principal contention is that plaintiff lacks standing to pursue the foreclosure action. In a foreclosure matter, a party seeking to establish its right to foreclose on the mortgage must generally "own or control the underlying debt." Deutsche Bank Nat'l Tr. Co. v. Mitchell, 422 N.J. Super. 214, 222 (App. Div. 2011) (quoting Wells Fargo Bank, N.A. v. Ford, 418 N.J. Super. 592, 597 (App. Div. 2011)). See also Bank of N.Y. v. Raftogianis, 418 N.J. Super. 323, 327-28 (Ch. Div. 2010) (citations omitted). In Deutsche Bank Trust Co. Americas v. Angeles, 428 N.J. Super. 315, 318 (App. Div. 2012), we held that "either possession of the note or an assignment of the mortgage that predated the original complaint confer[s] standing," thereby reaffirming our earlier holding in Mitchell, supra, 422 N.J. Super. at 216.
Here, in making application for the final judgment of foreclosure, the bank's representative certified that plaintiff Santander Bank, N.A. was the "holder of the aforesaid note." Also, an attorney for plaintiff certified as required by Rule 4:64-2(d) about communications with plaintiff's employee who personally reviewed the affidavit of the amount due and the original note, mortgage and assignments. The mortgage to Sovereign Bank was recorded before any foreclosure complaint was filed. Sovereign Bank then became Santander Bank. "Given that the mortgage was properly recorded and appears facially valid, under New Jersey law there is a presumption as to its validity, and the burden of proof as to any invalidity is on the party making such an argument." In re S.T.G. Enters., Inc., 24 B.R. 173, 176 (Bankr. D.N.J. 1982) (citations omitted). Defendants submitted nothing to the court to overcome this presumption. Therefore, the trial court did not abuse its discretion in denying the motion to vacate because plaintiff was assigned the mortgage and held the note prior to filing the complaint or amended complaint.
After carefully reviewing the record and the applicable legal principles, we conclude that defendants' further arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
In September 2006, defendants executed a $315,000 note to U.S. Mortgage Corporation (U.S. Mortgage) and a non-purchase money mortgage to Mortgage Electronic Registration Systems, Inc. (MERS), as nominee for U.S. Mortgage, on a residential property in the City of Union, Union County. The mortgage was recorded.
Defendants defaulted on the note in August 2009. In October 2009, a notice of intention to foreclose the mortgage was sent to defendants at their address in Union, which advised defendants they were in default and the amount needed to cure.
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Defendants' mortgage was assigned by MERS to Sovereign Bank in February 2010 and recorded. Also in February 2010, Sovereign Bank filed a foreclosure complaint, which was personally served on defendants. Defendants did not respond and a default was entered.
Sovereign Bank, N.A. was substituted for Sovereign Bank. Plaintiff Santander Bank, N.A. (plaintiff), formerly known as Sovereign Bank, N.A., filed an amended foreclosure complaint in December 2013. Defendants were served by mail when personal service on defendants was not successful. Defendants acknowledge receiving the amended foreclosure complaint by mail on March 10, 2014. Defendants did not answer the amended complaint, explaining that they were "trying to get in touch with the mortgage lender for some time" and were both ill. A default was entered against defendants on December 2, 2014.
Plaintiff requested entry of a final judgment of foreclosure in May 2015. Defendants claim they did not receive notice of this, but the record shows the notice of motion was sent to defendants' address in Union. When there was no opposition to the application, a final judgment of foreclosure was entered on May 11, 2015. wclaim not to have received a copy of the final judgment, but the record shows it was mailed to their address in Union.
Efforts commenced by plaintiff to sell the property at a sheriff's sale. Defendants filed a motion to vacate the final judgment of foreclosure, but on August 21, 2015, the trial court denied defendants' motion. The foreclosed property was sold to plaintiff on August 26, 2015.
On appeal, defendants contend the court erred in denying the motion to vacate the final judgment of foreclosure because they "raised legally sufficient questions as to the merits of respondent's foreclosure action and legal justification." Defendants also claim plaintiff lacked standing to foreclose.
We do not know whether the court issued a memorandum decision or placed its reasons on the record when it denied defendants' motion, but the record does not include the court's findings nor have the parties supplied a transcript or written decision. See R. 1:7-4(a) ("The court shall by an opinion or memorandum decision, either written or oral, find the facts and state its conclusions of law thereon in all actions tried without a jury. . . ."). We could remand the case to the trial court for clarification, but under Rule 2:10-5, we also "may exercise such original jurisdiction as is necessary to the complete determination of any matter on review." Here, the record enables us to resolve the issues without a remand.
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We review the trial court's order denying defendants' Rule 4:50-1 motion to vacate the final judgment of foreclosure, under an abuse of discretion standard. Hous. Auth. of Morristown v. Little, 135 N.J. 274, 283 (1994) (citations omitted). Defendants have not disputed the amount owed in the final judgment of foreclosure or that the mortgage is in default. Defendants never contested the application of this mortgage to their residential property. As such, they acknowledge the primary facts needed to foreclose on the property. See Great Falls Bank v. Pardo, 263 N.J. Super. 388, 394 (Ch. Div. 1993) (citations omitted) ("The only material issues in a foreclosure proceeding are the validity of the mortgage, the amount of the indebtedness, and the right of the mortgagee to resort to the mortgaged premises."), aff'd, 273 N.J. Super. 542 (App. Div. 1994).
Defendants' principal contention is that plaintiff lacks standing to pursue the foreclosure action. In a foreclosure matter, a party seeking to establish its right to foreclose on the mortgage must generally "own or control the underlying debt." Deutsche Bank Nat'l Tr. Co. v. Mitchell, 422 N.J. Super. 214, 222 (App. Div. 2011) (quoting Wells Fargo Bank, N.A. v. Ford, 418 N.J. Super. 592, 597 (App. Div. 2011)). See also Bank of N.Y. v. Raftogianis, 418 N.J. Super. 323, 327-28 (Ch. Div. 2010) (citations omitted). In Deutsche Bank Trust Co. Americas v. Angeles, 428 N.J. Super. 315, 318 (App. Div. 2012), we held that "either possession of the note or an assignment of the mortgage that predated the original complaint confer[s] standing," thereby reaffirming our earlier holding in Mitchell, supra, 422 N.J. Super. at 216.
Here, in making application for the final judgment of foreclosure, the bank's representative certified that plaintiff Santander Bank, N.A. was the "holder of the aforesaid note." Also, an attorney for plaintiff certified as required by Rule 4:64-2(d) about communications with plaintiff's employee who personally reviewed the affidavit of the amount due and the original note, mortgage and assignments. The mortgage to Sovereign Bank was recorded before any foreclosure complaint was filed. Sovereign Bank then became Santander Bank. "Given that the mortgage was properly recorded and appears facially valid, under New Jersey law there is a presumption as to its validity, and the burden of proof as to any invalidity is on the party making such an argument." In re S.T.G. Enters., Inc., 24 B.R. 173, 176 (Bankr. D.N.J. 1982) (citations omitted). Defendants submitted nothing to the court to overcome this presumption. Therefore, the trial court did not abuse its discretion in denying the motion to vacate because plaintiff was assigned the mortgage and held the note prior to filing the complaint or amended complaint.
After carefully reviewing the record and the applicable legal principles, we conclude that defendants' further arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
Thursday, February 18, 2021
FORECLOSURE ARTICLE - BANKRUPTCY LAWYER IN NEW JERSEY (201) 646-3333
196 A.3d 121 (2018)456 N.J. Super. 546 v.Debbie A. WEINER and Clifford R. Weiner, Defendants-Appellants.DOCKET No. A-2110-17T4. Superior Court of New Jersey, Appellate Division.Submitted October 23, 2018. Decided November 8, 2018.
On appeal from Superior Court of New Jersey, Chancery Division, Somerset County, Docket No. F-026288-16.
Christopher D. Ferrara LLC, attorneys for appellants (Christopher D. Ferrara, on the brief).
Blank Rome LLP, attorneys for respondent (Michael P. Trainor, on the brief).
Before Judges Fisher, Geiger and Firko.
122*122 The opinion of the court was delivered by
FISHER, P.J.A.D.
For many years, New Jersey lacked a statute of limitations for residential foreclosure actions. Instead, for more than a century, our courts applied the time-bar used in adverse possession actions: twenty years. See Depew v. Colton, 60 N.J. Eq. 454, 464, 46 A. 728 (E. & A. 1900); Security National Partners L.P. v. Mahler, 336 N.J. Super. 101, 106-07, 763 A.2d 804 (App. Div. 2000). In 2009, the Legislature made up for lost time and enacted N.J.S.A. 2A:50-56.1, which codified Security National Partners[1] by declaring that a residential foreclosure action "shall not be commenced following the earliest of" three points in time:
• Six years from "the date fixed for the making of the last payment or the maturity date set forth in the mortgage or the note," N.J.S.A. 2A:50-56.1(a);
• Thirty-six years from the date the mortgage was recorded or, if not recorded, from the date of execution, N.J.S.A. 2A:50-56.1(b); and
• Twenty years from the date of a default that "has not been cured," N.J.S.A. 2A:50-56.1(c).[2]
Defendants' contention that N.J.S.A. 2A:50-56.1(a)'s six-year time-frame applies and bars this foreclosure action, which was filed seven years after their uncured default, is without merit.
The record reveals that defendant Debbie A. Weiner borrowed $657,500 from Weichert Financial Services in 2005 and then executed in Weichert's favor a promissory note that required monthly payments, 123 the last of which was scheduled for June 2035. To secure the note's repayment, both defendants executed a mortgage that was recorded in 2005 and ultimately assigned to plaintiff Deutsche Bank Trust Company Americas.[3]
There is no dispute that defendants failed to make a scheduled August 2009 payment and all later monthly payments. After four discontinued suits, Deutsche Bank commenced this foreclosure action in September 2016, more than seven years after defendants' uncured default.
The parties eventually cross-moved for summary judgment. The judge granted Deutsche Bank's motion, denied defendants' motion, and later denied defendants' motion for reconsideration. Once final judgment was entered in December 2017, defendants filed this timely appeal, arguing: (1) summary judgment should not have been entered because discovery was incomplete and there were genuine disputes about Deutsche Bank's claim, its standing to sue, and its status as a holder; (2) their answer should not have been stricken; and (3) the complaint was barred by the statute of limitations. We reject these arguments and affirm.[4]
In arguing the action was time-barred, defendants claim the six-year time frame in subsection (a) was triggered in 2009 when their default triggered the loan's acceleration. We disagree. Subsection (c) specifically provides a time frame to be considered upon an uncured default. To interpret subsection (a) as triggering the same event encompassed by subsection (c) would wreak havoc with the clearly delineated provisions of N.J.S.A. 2A:50-56.1. We refuse to inject such confusion into what the Legislature carefully planned when it adopted this multi-part statute of limitations.
Defendants' interpretation would also require that we ignore subsection (a)'s plain language. That provision declares that the six-year period runs from the date of the last payment or the maturity date "set forth in the mortgage or the note." N.J.S.A. 2A:50-56.1(a). June 1, 2035 was the date "set forth" in the note and mortgage here, and that date is the one and only date that triggers the six-year period in subsection (a). There is no ambiguity; that conclusion is what the plain language of the statute compels. See DiProspero v. Penn, 183 N.J. 477, 492, 874 A.2d 1039 (2005). Any other conclusion would mangle the Legislature's carefully phrased statute. State v. Clarity, 454 N.J. Super. 603, 608, 186 A.3d 919 (App. Div. 2018).
In short, the three events described in subsections (a), (b), and (c) of N.J.S.A. 2A:50-56.1, were scheduled to occur in 2041 (six years after the 2035 maturity date), 2041 (thirty-six years after the 2005 recording of the mortgage), and 2029 (twenty years from defendants' uncured 124*124 default), respectively. Since the earliest has yet to occur, this suit, commenced in September 2016, was not time-barred.[5]
Affirmed.
[1] See Assemb. Fin. Insts. & Ins. Comm. Statement to S. No. 250 — L. 2009, c. 105 (Oct. 6, 2008).
[2] For brevity's sake, we have omitted statutory language from the descriptions of each subsection that has no bearing here.
[3] The mortgage was first assigned to Deutsche Bank Trust Company Americas, as trustee for certain certificate holders, in 2009, and later assigned to Deutsche Bank, as trustee for Residential Accredit Loans, Inc., 2005-QS14, the plaintiff here, in 2013. The assignments were duly executed and recorded.
[4] We find insufficient merit in defendants' first two points to warrant further discussion in a written opinion. R. 2:11-3(e)(1)(E). We add only as to the first that, in moving for summary judgment, Deutsche Bank provided undisputed evidence that it was in possession of the note, which was endorsed to it, and that the mortgage assignments were duly executed and recorded. See Deutsche Bank Trust Co. v. Angeles, 428 N.J. Super. 315, 318, 53 A.3d 673 (App. Div. 2012).
[5] Although not raised, we assume N.J.S.A. 2A:50-56.1 applies to defendants' argument that Deutsche Bank's suit was untimely even though the statute did not become effective until August 6, 2009, approximately the same time as defendants' default. Even if the statute had no application here, the result would be the same, since the pre-statute twenty-year time-bar described in Colton and Security National Partners would allow for the maintenance of this suit.
Friday, February 12, 2021
FORECLOSURE ARTICLE - BANKRUPTCY ATTORNEY IN HACKENSACK NEW JERSEY (201) 646-3333
EDWIN L. SIEGEL, Plaintiff-Appellant,
v.
LEONARD BLASUCCI, Defendant.No. A-0998-12T3. Superior Court of New Jersey, Appellate Division.
Argued September 11, 2013. Decided February 21, 2014.
Arnold G. Shurkin argued the cause for appellant.
Robert L. Grundlock, Jr., argued the cause for respondent Venkat Gourkanti (Rubin, Ehrlich & Buckley, P.C., attorneys; Mr. Grundlock, on the brief).
Before Judges Grall, Nugent and Accurso.
Arnold G. Shurkin argued the cause for appellant.
Robert L. Grundlock, Jr., argued the cause for respondent Venkat Gourkanti (Rubin, Ehrlich & Buckley, P.C., attorneys; Mr. Grundlock, on the brief).
Before Judges Grall, Nugent and Accurso.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
PER CURIAM.
Plaintiff Edwin L. Siegel appeals from the denial of his application pursuant to Rule 4:59-1(d)(1) for an order permitting the sale of real property for satisfaction of a judgment debt. The property he desired sold no longer belonged to the judgment debtor, Leonard Blasucci, but to Venkat Gourkanti, who acquired it from sellers who purchased the property at sheriff's sale following foreclosure of Blasucci's mortgage. We affirm.
The essential facts are undisputed. Blasucci and his wife took title to the residential property in 1976. The Blasuccis gave a first mortgage to First Fidelity Bank in 1986 and a second mortgage to Washington Savings Bank in 1987. Washington Savings instituted a foreclosure action against the Blasuccis in May 1990 and obtained final judgment of foreclosure the following October. First Fidelity and Washington Savings subsequently assigned their mortgages to Martin Tave and the Sylvia T. Cohen Revocable Trust (Tave and Cohen). The property was sold at sheriff's sale in June 1994 to Tave and Cohen, who took subject to the First Fidelity mortgage which they held and subsequently discharged. Tave and Cohen conveyed the property to Gourkanti in October 1997.
Siegel did not obtain his default judgment against Blasucci until July 1992, almost two years after the entry of the foreclosure judgment. Siegel claims that his judgment, docketed in July 1992 and revived in November 2011, was a lien against Blasucci's real property that was not extinguished by the
October 1990 foreclosure judgment and subsequent sheriff's sale. He contends that either Washington Savings or Tave and Cohen was required to amend the foreclosure complaint to include him as a subsequent encumbrancer in order to bind him to the foreclosure judgment. We disagree.
We addressed this issue in Morsemere Fed. Sav. & Loan Ass'n v. Nicolaou, 206 N.J. Super. 637 (App. Div. 1986). Morsemere, a foreclosing mortgagee, obtained final judgment of foreclosure against Nicolaou. Id. at 640-41. After entry of the foreclosure judgment, DiPrima obtained a default judgment against Nicolaou. Id. at 641. DiPrima subsequently purchased the property at sheriff's sale. DiPrima then filed a motion to intervene in the foreclosure action and for payment of surplus funds. Ibid.
We held that a lien claimant such as DiPrima cannot be made a party to a foreclosure suit after entry of final judgment. Morsemere, supra, 206 N.J. Super. at 641-42. We reasoned that N.J.S.A. 2A:50-30, which operates to bind the holders of unrecorded interests existing at the filing of the foreclosure to the judgment and allows those holding such interests to intervene as of right upon recording, did not apply "because DiPrima's lien did not exist `at the time of the filing of the complaint' or even at the time the foreclosure judgment was entered." Ibid. Instead, we held that N.J.S.A. 2A:50-37 was controlling, and thus a creditor who obtains a money judgment subsequent to entry of the foreclosure judgment "may participate in any surplus after prior claiming lienholders (at the time of the foreclosure judgment) have been paid or satisfied." Morsemere, supra, 206 N.J. Super. at 642-43.
Siegel, who obtained his judgment after Washington Savings obtained its foreclosure judgment against Blasucci, is in the same position as was DiPrima in Morsemere. The lien of his judgment only allowed him to participate in any surplus remaining after sheriff sale. The holding is in accord with the general rule "that surplus funds take on the character of the land, at least with respect to junior encumbrancers whose liens existed at the time of the foreclosure." Ibid.
Because Siegel's remedy was limited to participation in any surplus funds arising from the sheriff's sale, the trial court correctly denied his motion for sale of Gourkanti's property to satisfy Siegel's 1992 judgment against Blasucci. Siegel's remaining arguments relating to the priority of his judgment and the conduct of the sheriff's sale conducted in 1994 are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
PER CURIAM.
Plaintiff Edwin L. Siegel appeals from the denial of his application pursuant to Rule 4:59-1(d)(1) for an order permitting the sale of real property for satisfaction of a judgment debt. The property he desired sold no longer belonged to the judgment debtor, Leonard Blasucci, but to Venkat Gourkanti, who acquired it from sellers who purchased the property at sheriff's sale following foreclosure of Blasucci's mortgage. We affirm.
The essential facts are undisputed. Blasucci and his wife took title to the residential property in 1976. The Blasuccis gave a first mortgage to First Fidelity Bank in 1986 and a second mortgage to Washington Savings Bank in 1987. Washington Savings instituted a foreclosure action against the Blasuccis in May 1990 and obtained final judgment of foreclosure the following October. First Fidelity and Washington Savings subsequently assigned their mortgages to Martin Tave and the Sylvia T. Cohen Revocable Trust (Tave and Cohen). The property was sold at sheriff's sale in June 1994 to Tave and Cohen, who took subject to the First Fidelity mortgage which they held and subsequently discharged. Tave and Cohen conveyed the property to Gourkanti in October 1997.
Siegel did not obtain his default judgment against Blasucci until July 1992, almost two years after the entry of the foreclosure judgment. Siegel claims that his judgment, docketed in July 1992 and revived in November 2011, was a lien against Blasucci's real property that was not extinguished by the
October 1990 foreclosure judgment and subsequent sheriff's sale. He contends that either Washington Savings or Tave and Cohen was required to amend the foreclosure complaint to include him as a subsequent encumbrancer in order to bind him to the foreclosure judgment. We disagree.
We addressed this issue in Morsemere Fed. Sav. & Loan Ass'n v. Nicolaou, 206 N.J. Super. 637 (App. Div. 1986). Morsemere, a foreclosing mortgagee, obtained final judgment of foreclosure against Nicolaou. Id. at 640-41. After entry of the foreclosure judgment, DiPrima obtained a default judgment against Nicolaou. Id. at 641. DiPrima subsequently purchased the property at sheriff's sale. DiPrima then filed a motion to intervene in the foreclosure action and for payment of surplus funds. Ibid.
We held that a lien claimant such as DiPrima cannot be made a party to a foreclosure suit after entry of final judgment. Morsemere, supra, 206 N.J. Super. at 641-42. We reasoned that N.J.S.A. 2A:50-30, which operates to bind the holders of unrecorded interests existing at the filing of the foreclosure to the judgment and allows those holding such interests to intervene as of right upon recording, did not apply "because DiPrima's lien did not exist `at the time of the filing of the complaint' or even at the time the foreclosure judgment was entered." Ibid. Instead, we held that N.J.S.A. 2A:50-37 was controlling, and thus a creditor who obtains a money judgment subsequent to entry of the foreclosure judgment "may participate in any surplus after prior claiming lienholders (at the time of the foreclosure judgment) have been paid or satisfied." Morsemere, supra, 206 N.J. Super. at 642-43.
Siegel, who obtained his judgment after Washington Savings obtained its foreclosure judgment against Blasucci, is in the same position as was DiPrima in Morsemere. The lien of his judgment only allowed him to participate in any surplus remaining after sheriff sale. The holding is in accord with the general rule "that surplus funds take on the character of the land, at least with respect to junior encumbrancers whose liens existed at the time of the foreclosure." Ibid.
Because Siegel's remedy was limited to participation in any surplus funds arising from the sheriff's sale, the trial court correctly denied his motion for sale of Gourkanti's property to satisfy Siegel's 1992 judgment against Blasucci. Siegel's remaining arguments relating to the priority of his judgment and the conduct of the sheriff's sale conducted in 1994 are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
Monday, February 1, 2021
FORECLOSURE ARTICLE - ATTORNEY IN BERGEN COUNTY NEW JERSEY (201) 646-3333
53 A.3d 673 (2012)428 N.J. Super. 315 DEUTSCHE BANK TRUST COMPANY AMERICAS, f/k/a Banker's Trust Company, as Trustee, Plaintiff-Respondent,v.No. A-2522-11T1.
674*674 Gary D. Grant, Florham Park, argued the cause for appellant.
Robert D. Bailey, Vineland, argued the cause for respondent (Zucker, Goldberg & Ackerman, L.L.C., attorneys; Mr. Bailey, of counsel and on the brief).
Before Judges KOBLITZ, ACCURSO and LISA.
The opinion of the court was delivered by
KOBLITZ, J.A.D.
In this residential foreclosure case, Yony R. Angeles appeals from a November 6, 2009 final judgment in favor of Deutsche Bank Trust Company Americas (Deutsche) and a subsequent December 16, 2011 oral order, dismissing his application to vacate the judgment or dismiss the complaint. Angeles argues that because the mortgage on his property was not assigned to Deutsche until two weeks after Deutsche filed the original foreclosure complaint, Deutsche lacked standing and the judgment should be dismissed. Because Angeles did not raise the standing issue, or contest the foreclosure in any way, until two years after default judgment was entered and three-and-one-half years after the complaint was filed, we affirm the decision of the Chancery judge.
On January 10, 2007, Angeles executed a note for the sum of $454,400 with First Equity Financial Corporation (First Equity). To secure payment of the note, Angeles executed a mortgage that same day to Mortgage Electronic Registration Systems, Inc. (MERS), as nominee for First Equity.[1]
Angeles made the first ten contractual payments on the note, but failed to make the installment payment due on February 1, 2008 or any time thereafter. On May 29, 2008, Deutsche filed a foreclosure complaint, two weeks prior to the June 12, 2008, assignment of the mortgage by MERS to Deutsche. The complaint states that "[o]n or before the date the within complaint was drafted, the plaintiff herein became the owner of the note and mortgage being foreclosed herein."
Hi my name is Daiana Palacio I'm a client of Rafael Gomez. I just came out of court and everything went well I highly recommend him for every case you need.
675*675 On July 23, 2008, Deutsche filed an amended complaint. Angeles was served with the summons and amended complaint on July 26, 2008. He failed to file a responsive pleading and a default was entered on September 11, 2008. Final judgment of foreclosure was entered more than a year later on November 6, 2009.
On February 25, 2010, the court stayed the sheriff's sale scheduled for the following day until May 28, 2010, and ordered the parties to participate in the court-sponsored mediation program.[2] Mediation apparently failed, as Deutsche purchased the property at a sheriff's sale on August 20, 2010. Angeles did not object to the sale at that time. See R. 4:65-5 (requiring any objection to be made within ten days after the sheriff's sale or any time prior to the delivery of the deed). The deed was delivered by the sheriff to Deutsche and recorded on September 16, 2010.
The court granted Angeles' May 16, 2011 hardship application to stay the eviction so that his children could complete the school year. Deutsche subsequently stayed the eviction further in an attempt to negotiate a short sale of the property back to Angeles.
After negotiations failed, Angeles filed an order to show cause on November 16, 2011, seeking to: (1) vacate the sheriff's sale; (2) enjoin Deutsche from conveying title; and (3) permit Angeles to either file an answer to Deutsche's foreclosure complaint or, alternatively, dismiss the complaint for lack of standing. After this application was denied, the eviction and lock-out were completed on January 3, 2012.[3]
In his appeal, Angeles relies on our recently decided case of Deutsche Bank National Trust Co. v. Mitchell, 422 N.J.Super. 214, 27 A.3d 1229 (App.Div. 2011), asserting that the facts are similar. In Mitchell, we held that either possession of the note or an assignment of the mortgage that predated the original complaint conferred standing. Id. at 216, 225, 27 A.3d 1229. We determined that an amended complaint can not cure an initial lack of standing. Ibid.
In Mitchell, however, the defendant actively engaged in the litigation, filing an answer and counterclaims in response to the plaintiff's foreclosure complaint. Id. at 220, 27 A.3d 1229. The defendant also contested the plaintiff's standing to file the foreclosure complaint long before the end of the litigation. Id. at 220-21, 27 A.3d 1229.
Rule 4:50-1 governs an applicant's motion for relief from default when the case has proceeded to judgment. U.S. Bank Nat'l Assoc. v. Guillaume, 209 N.J. 449, 466, 38 A.3d 570 (2012). The Guillaume Court explained that "[t]he rule is `designed to reconcile the strong interests in finality of judgments and judicial efficiency with the equitable notion that courts should have authority to avoid an unjust result in any given case.'" Id. at 467, 38 A.3d 570 (quoting Mancini v. EDS, 132 N.J. 330, 334, 625 A.2d 484 (1993)).
A reviewing court must accord "substantial deference" to a trial court's 676*676 determination under the rule and its decisions will be left undisturbed "unless [they] result[] in a clear abuse of discretion." Ibid. (citing DEG, LLC v. Twp. of Fairfield, 198 N.J. 242, 261, 966 A.2d 1036 (2009)). "[A]n abuse of discretion occurs when a decision is `made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis.'" Id. at 467-68, 38 A.3d 570 (quoting Iliadis v. Wal-Mart Stores, Inc., 191 N.J. 88, 123, 922 A.2d 710 (2007)).
In the context of a foreclosure case, the Guillaume Court reiterated the grounds on which a party may seek to vacate a default judgment pursuant to Rule 4:50-1. The grounds are:
(a) mistake, inadvertence, surprise, or excusable neglect; (b) newly discovered evidence which would probably alter the judgment or order and for which by due diligence could not have been discovered in time to move for a new trial under R. 4:49; (c) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (d) the judgment or order is void; (e) the judgment or order has been satisfied, released or discharged, or a prior judgment or order upon which it is based has been reversed or otherwise vacated, or 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.
[Id. at 467, 38 A.3d 570 (quoting R. 4:50-1).]
Hi my name is Crystal Diaz I'm a client of Rafael Gomez, we just leave court, everything went fine, the case got dismissed, I definitely recommend him to anyone.
Motions made under any Rule 4:50-1 subsection "must be filed within a reasonable time." See Orner v. Liu, 419 N.J.Super. 431, 437, 17 A.3d 266 (App.Div.), certif. denied, 208 N.J. 369, 29 A.3d 741 (2011) (citing Bascom Corp. v. Chase Manhattan Bank, 363 N.J.Super. 334, 340, 832 A.2d 956 (App.Div.2003)). In addition, Rule 4:50-2 bars relief outright to "motions based on Rule 4:50-1(a), (b) and (c)" when filed "`more than one year after the judgment, order or proceeding was entered or taken.'" Id. at 436-37, 17 A.3d 266 (quoting R. 4:50-2).
Angeles argues under Rule 4:50-1(d) that the final judgment is void for lack of standing. Although he has raised a valid concern, since the complaint was filed prior to the assignment of mortgage, he has not definitively demonstrated a lack of standing. Deutsche may well have had possession of the note, conferring standing, at the time it filed the original complaint.[4] We remanded the matter in Mitchell in order for the trial court to determine whether the plaintiff had possession of the note or another basis to achieve standing when the original foreclosure complaint was filed. Mitchell, supra, 422 N.J.Super. at 225, 27 A.3d 1229; see also N.J.S.A. 12A:3-101 to -605.
In foreclosure matters, equity must be applied to plaintiffs as well as defendants. Defendant did not raise the issue of standing until he had the advantage of many years of delay. Some delay stemmed from the New Jersey foreclosure system, other delay was afforded him through the equitable powers of the court, and additional delay resulted from plaintiff's attempt to amicably resolve the matter. Defendant at no time denied his responsibility for the debt incurred nor can he reasonably argue that Deutsche is not the party legitimately in possession of the property. Rather, when all hope of further delay expired, after his home was sold and he was evicted, he made a last-ditch effort to relitigate the case. The trial court did not abuse its discretion in determining that defendant 677*677 was not equitably entitled to vacate the judgment.
Affirmed.
[1] Angeles also executed a second mortgage on the property to MERS, as nominee for First Equity, in the amount of $113,600.
[2] The New Jersey Judiciary Foreclosure Mediation Program was implemented to handle the increased number of foreclosure proceedings. Press Release, New Jersey Office of the Attorney General, Statewide Mortgage Foreclosure Mediation Program Launched (Jan. 9, 2009), available at http://www.nj.gov/oag/newsreleases09/pr20090109a.html.
[3] On January 26, 2012, we denied Angeles' emergent application for a stay of the then-pending sale of the property to a third party. For other reasons, that sale was not completed.
[4] As we stated, the original complaint alleged that plaintiff had possession of the note at the time of filing. Defendant has never challenged that assertion.
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