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Aurora Loan Services, LLC v. Edward Einhorn

June 9, 2011

AURORA LOAN SERVICES, LLC, PLAINTIFF-RESPONDENT,
v.
EDWARD EINHORN, SARAH G. LAKS, EACH OF THEIR HEIRS, DEVISEES AND PERSONAL REPRESENTATIVES, AND HIS/HER/THEIR OR ANY OF THEIR SUCCESSORS IN RIGHT, TITLE AND INTEREST, DEFENDANTS-APPELLANTS, AND NCC HOLDINGS, LLC AND CHASE BANK, USA, N.A., DEFENDANTS.



On appeal from the Superior Court of New Jersey, Chancery Division, Ocean County, Docket No. F-30372-08.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted April 11, 2011

Before Judges Sabatino and Ostrer.

This is an appeal from a final judgment of foreclosure. On appeal, defendants, who are husband and wife and appear pro se, do not contest that the mortgage is valid and they have defaulted. They argue that plaintiff failed to provide them a notice required by the Fair Foreclosure Act, N.J.S.A. 2A:50-53 to -68, and the trial court erred when it declined to vacate final judgment. We disagree and affirm substantially for the reasons provided by the trial court.

I.

On September 8, 2004, Edward Einhorn and Sarah G. Laks, husband and wife (defendants), executed a mortgage on 1465 Cedar Row in Lakewood in favor of Mortgage Electronic Registration Systems, Inc. (MERS), as nominee for Lehman Brothers Bank, FSB (Lehman FSB), in connection with a $420,000 loan they received from Lehman FSB.*fn1 The loan was not a purchase money mortgage. Defendants had been title owners since February 13, 2001.

On May 19, 2005, defendants allegedly executed a second mortgage in favor of co-defendant NCC Holdings, LLC, to secure an additional $250,000. A little over a year later, they allegedly executed a third mortgage, in favor of co-defendant Chase Bank, USA, NA, to secure an additional $140,000.*fn2

MERS assigned the mortgage to plaintiff Aurora Loan Services (Aurora) on July 30, 2008. On August 8, 2008, Aurora filed a foreclosure complaint, alleging that the mortgagors had failed to pay installments due on the loan since April 2008. Defendants were duly served August 13, 2008. Service on the co-defendants was completed September 11, 2008. Aurora had served a notice of intention to foreclose on defendants by certified letter in late May 2008. After all defendants failed to answer, default was entered November 5, 2008.

Aurora then served, by certified and regular mail, a motion for entry of final judgment on April 13, 2009. The court filed the motion May 12, 2009. Although the motion was uncontested, action was delayed apparently due to a backlog in the Office of Foreclosure.

In the meantime, defendants filed an answer September 2, 2009, without moving to vacate the default. Consistent with Rule 1:5-6(c)(2), the clerk did not return the answer. Rather, deeming the answer to contest the foreclosure, the clerk forwarded the answer and the case to the trial court in Ocean County by letter dated December 17, 2009. However, over two weeks earlier, on December 1, 2009, the trial court in Mercer County, upon the recommendation of the Office of Foreclosure, had entered the requested final judgment. A writ of execution was signed and plaintiff sought a Sheriff's sale, which was scheduled for March 16, 2010.

In their answer, defendants did not contest that the mortgage was executed or that they defaulted. However, in their affirmative defenses, they challenged plaintiff's standing and compliance with the Fair Foreclosure Act.

After the file was forwarded to the trial court in Ocean County, the court entered a case management order requiring plaintiff to file a motion for summary judgment. The court did not formally enter an order vacating default.*fn3 Consistent with its case management order, plaintiff asked the Sheriff to cancel the foreclosure sale.

Plaintiff filed its motion for summary judgment in compliance with the court's case management order. Defendants opposed the motion and cross-moved for dismissal. The court granted plaintiff's motion, and denied defendants' cross-motion on April 16, 2010 for reasons that the court stated orally, but which have not been provided as part of the record on appeal. The court ordered plaintiff to ...


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