January 28, 2010
GREENPOINT MORTGAGE FUNDING, INC., PLAINTIFF-RESPONDENT,
DORIS ODOEMENE AND EMMANUEL ODOEMENE, DEFENDANTS-APPELLANTS.
On appeal from the Superior Court of New Jersey, Chancery Division, General Equity Part, Essex County, Docket No. F-8155-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 14, 2009
Before Judges Rodríguez and Yannotti.
Defendants Doris Odoemene and Emmanuel Odoemene appeal from an order entered by the General Equity Part of the Chancery Division on April 24, 2009, denying their motion for reconsideration of an order entered on January 23, 2009, which had denied their motion to vacate the default entered in favor of plaintiff, Greenpoint Mortgage Funding, Inc. (Greenpoint). We affirm.
The following facts are pertinent to our decision. On July 25, 2006, defendants executed and delivered a note to Wall Street Financial Corporation (Wall Street) in the amount of $520,000, payable over a period of thirty years with interest. Plaintiff funded the loan and Wall Street assigned the note to plaintiff at the closing. To secure the note, defendants executed and delivered a first mortgage against certain property located on Crawford Street in Newark, New Jersey. The mortgage was issued to Mortgage Electronic Registration Systems, Inc. (MERS) as nominee for plaintiff.
Defendants apparently made payments on the note through October 1, 2007. They failed, however, to make the payment due on November 1, 2007, or any payment since that date. On December 18, 2007, plaintiff mailed to defendants, by certified mail, return receipt requested, a notice of intent to foreclose on the mortgage. The notices advised defendants of their right to cure the default. They failed to do so.
On February 27, 2008, plaintiff filed its complaint in the trial court seeking to foreclose on the mortgage. Defendants were personally served with the complaint on March 9, 2008, and they filed an answer on April 10, 2008, contesting the foreclosure.
On May 15, 2008, plaintiff filed a motion for summary judgment, seeking to strike defendant's answer on the ground that it failed to set forth a valid defense to the action. Defendants did not oppose the motion. Accordingly, on June 30, 2008, the trial court entered an order granting plaintiff's motion and striking defendants' answer. On the order, the court wrote, "[n]o genuine issue of fact has been raised as to the existence of a default in the mortgage. A mere denial in defendants' [a]nswer does not suffice." The order was served upon defendants by regular mail on July 7, 2008.
On or about October 28, 2008, defendants filed a motion seeking to vacate the June 30, 2008 order. In support of that motion, defendants asserted that they had retained an entity called Home Rescue and Recovery Services, Inc. (Home Rescue) to assist them in the foreclosure action. According to defendants, Home Rescue failed to oppose plaintiff's motion for summary judgment. Defendants argued that, because they had relied upon Home Rescue, their failure to respond to plaintiff's summary judgment motion should be considered excusable neglect.
The trial court considered the motion on December 12, 2008. At the hearing on the motion, the issue arose as to whether plaintiff had standing to initiate the action because MERS had assigned the mortgage to plaintiff on April 8, 2008, which was after the action was commenced. The court directed plaintiff to provide proof that it was the holder of the note and mortgage before the assignment. Plaintiff thereafter provided the court with a copy of the HUD-1 Settlement Statement and Title Insurance Policy, which indicated that plaintiff was the lender and the mortgage has been issued to MERS at the closing as nominee for plaintiff.
The trial court entered an order dated January 23, 2009, denying defendants' motion to vacate the default. On the order, the court wrote that plaintiff had provided the court "with satisfactory proof that the mortgage was originated/held by plaintiff prior to the assignment[.]" Defendants thereafter filed a motion for reconsideration, which the court considered on April 24, 2009. The court found that defendants had not established any basis for reconsideration of the January 23, 2009 order.
Final judgment was entered in the matter on April 23, 2009. On April 24, 2009, the trial court entered an order denying defendants' motion for reconsideration. Defendants filed a notice of appeal on May 14, 2009. A Sheriff's sale was scheduled on September 15, 2009. On July 28, 2009, defendants filed a motion for a stay of the judgment pending appeal. We entered an order on September 4, 2009, granting the stay. On October 9, 2009, we entered another order extending the stay through November 30, 2009. The latter order stated that, "no further stays will be granted."
In this appeal, defendants argue that the trial court erred: 1) by failing to vacate the summary judgment order and granting them leave to file an amended answer; 2) by rejecting their claim that plaintiff had not provided timely notice of their right to cure the default, as required by the Fair Foreclosure Act (FFA), N.J.S.A. 2A:58-53 to -68;" and 3) by concluding that plaintiff had standing to bring this lawsuit. We are convinced that these arguments are without merit.
Defendants first argue that the trial court erred by denying their motion to vacate the default and order entered on June 30, 2008, granting plaintiff's motion for summary judgment. Defendants contend that they provided a reasonable explanation for failing to oppose plaintiff's summary judgment motion because they retained Home Rescue to assist them in the foreclosure action and Home Rescue did not arrange for the filing of opposition to the motion.
We are convinced, however, that defendants failed to establish a basis for setting aside the default and the order of summary judgment. Even if we assume that defendants reasonably relied upon Home Rescue to see that a response was filed to plaintiff's summary judgment motion, defendants failed to establish that that they had "a meritorious defense worthy of a judicial determination." Trustees of Local 478 Trucking and Allied Industries Pension Fund v. Baron Holding Corp., 224 N.J. Super. 485, 489 (App. Div. 1988) (citing O'Connor v. Abraham Altus, 67 N.J. 106, 128-29 (1975)).
Defendants further argue that the trial court erred by rejecting their contention that Greenpoint did not provide adequate notice of their opportunity to cure the default. The FFA provides in pertinent part that before a residential mortgage lender may commence a foreclosure action, the lender must "give the residential mortgage debtor notice of such intention at least [thirty] days in advance of such action[.]" N.J.S.A. 2A:50-56(a).
Defendants assert that, in its complaint, Greenpoint stated that it provided notice on December 17, 2007, when notice actually was mailed on December 18, 2007. The apparent error in the complaint is of no moment. Plaintiff commenced this action on February 27, 2008, which was more than thirty days after notice was mailed to defendants. Therefore, defendants were given a sufficient time within which to cure the default, as required by the FFA.
Defendants additionally contend that plaintiff did not have standing to commence this action on February 27, 2008 because, as of that date, MERS had not formally assigned the mortgage to plaintiff. The record shows, however, that at the July 25, 2007 closing, defendants issued the mortgage to MERS, as assignee for plaintiff. The record also shows that MERS formally assigned the mortgage to plaintiff on April 8, 2008, which was before plaintiff submitted its proof for entry of final judgment and well before the entry of final judgment in this case, which occurred on April 23, 2009. The record thus fully supports the trial court's finding that plaintiff had presented satisfactory proof of its standing to pursue this action.
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