June 30, 2011
RIVERSIDE COURT CONDOMINIUM ASSOCIATION, INC., PLAINTIFF-RESPONDENT,
ELIZABETH BERNABE, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Chancery Division, Hudson County, Docket No. F-29846-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 14, 2011
Before Judges A.A. Rodriguez and Grall.
Defendant Elizabeth Bernabe appeals from the denial of a motion to vacate a default judgment entered in an action commenced by plaintiff Riverside Court Condominium Association to foreclose its lien for past-due assessments on her condominium. There is no dispute that the complaint was properly served, and defendant never filed an answer or appeared in the proceeding.
Default was entered on January 14, 2008, and on February 1, 2008, Judge Olivieri awarded plaintiff unpaid association fees as well as counsel fees in the amount of $3145.70. The final judgment was entered on May 15, 2008. Thereafter, the Association purchased the property at a sheriff's sale on November 6, 2008, and Judge Olivieri entered an order granting the Association exclusive possession on January 9, 2009. On February 2, 2009, defendant entered into an agreement pursuant to which the Association would re-convey title to her for $1.00 if she paid $5000 by February 6, 2009 and $1000 per month for one year thereafter.
On December 15, 2009, defendant moved to vacate the default judgment, reduce the amount of legal fees awarded to the Association and rescind the subsequent rental agreement. The judge denied that relief, concluding defendant failed to establish grounds to vacate the default judgment, that the counsel fees awarded were reasonable and that defendant could pursue her challenges to the post-judgment agreement reached by the parties in a separate proceeding.
On appeal, defendant contends that the court erred in failing to vacate the judgment and rescind the rental agreement.
After considering her arguments in light of the record, we find them without sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(1)(E). The "decision whether to grant" a motion to vacate a default judgment "is left to the sound discretion of the trial court, and will not be disturbed absent an abuse of discretion." Mancini v. EDS ex rel. N.J. Auto. Full Ins. Underwriting Ass'n, 132 N.J. 330, 334 (1993). Under that standard, there is no basis to intervene here, and we affirm substantially for the reasons stated by Judge Olivieri in his January 22, 2010 oral decision. With respect to defendant's challenges to the post-judgment, post-sheriff's sale agreement, the judge did not err in concluding that defendant could and should pursue those claims, which involved a controversy that arose after this case was concluded, in a separate action. R. 4:30A; R. 4:64-5. See generally Thornton v. Potamkin Chevrolet, 94 N.J. 1, 5 (1983).
© 1992-2011 VersusLaw Inc.