October 5, 2009
WORLD SAVINGS BANK, FSB, PLAINTIFF-RESPONDENT,
INEZ SHARABY AND JACQUELINE KUSHNER, DEFENDANTS-APPELLANTS, AND ELI S. FIXLER, AS NOMINEE, DEFENDANT.
On appeal from Superior Court of New Jersey, Chancery Division, Monmouth County, Docket No. F-26319-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 5, 2009
Before Judges Skillman and Graves.
In this mortgage foreclosure action, defendant Inez Sharaby (Sharaby) executed an adjustable rate mortgage note payable to plaintiff in the amount of $198,000 on March 20, 2003, through a power of attorney that she gave to her daughter, defendant Jacqueline Kushner (Kushner). The note was secured by property located in Long Branch City, New Jersey, which was owned by Sharaby. In a complaint filed on October 3, 2007, plaintiff alleged that Sharaby defaulted under the terms of the note and mortgage by failing to make the monthly payment due on February 26, 2007, and all subsequent payments when due. Plaintiff obtained a default judgment on April 30, 2008.
In a certification submitted in support of her application to vacate the default judgment, Kushner claimed that plaintiff's complaint had not been properly served on either her or her mother. On September 12, 2008, the return date of an order to show cause, the court heard oral argument and took testimony from Kushner regarding the facts of the case. Following the hearing, the court rendered an oral decision and entered an order denying defendants' application. Pursuant to Rule 2:5- 1(b), the court set forth additional findings of fact and reasons for its decision in a letter dated September 25, 2008.
During the course of the hearing on September 12, 2008, Kushner confirmed that she lived at a different address in Long Branch during all relevant times. The record confirms that plaintiff's summons and complaint were served at that address on October 22, 2007, upon an adult male who accepted service but refused to provide his name to the process server. Moreover, the court's findings and conclusions included the following:
In December of 2007, a copy of the request to enter default was mailed to Ms. Sharaby at the home address of her Power of Attorney. She denied receiving same, despite a proof of mailing to the contrary. On the same date, supported by a proof of mailing, Ms. Sharaby was sent by certified and regular mail, a copy of the Notice to Residential Debtor pursuant to N.J.S.A. 2A:50-58, at both the Sternberger address and the address of the Power of Attorney. Again, delivery was denied. Finally, on April 30th the final judgment was entered and was also served upon the Defendant at the address of her daughter----the holder of the Power of Attorney.
It was my determination on September 12th in light of the proofs, that the Defendant[s'] position was incredible and undeserving of acceptance. In light of the foregoing, I found no excusable neglect.
In addition, the court rejected defendants' claim that they had a meritorious defense to the foreclosure action.
Defendants argue on appeal, as they did below, that they did not answer plaintiff's complaint because they were never properly served. Defendants also contend the judgment should be vacated because plaintiff has acted in bad faith. After reviewing defendants' arguments in light of the record, we are satisfied that they are clearly without merit. R. 2:11- 3(e)(1)(E). We affirm substantially for the reasons stated by
Judge Cavanagh in his oral decision on September 12, 2008, and his written decision on September 25, 2008.
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