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Wells Fargo Bank, Na, As Trustee v. Thaer Hanna


September 22, 2011


On appeal from Superior Court of New Jersey, Chancery Division, Somerset County, Docket No. F-17435-07.

Per curiam.


Submitted September 6, 2011

Before Judges Payne and Messano.

Defendant, Thaer Hanna, appeals from a January 7, 2011 order of a judge of the Chancery Division denying, without prejudice, his motion to vacate a default judgment of foreclosure entered against him on December 4, 2007 and to set aside the sheriff's sale of defendant's residence on August 4, 2010. The order additionally provided:

Plaintiff may not proceed to eviction until 14 days after counsel has filed and served upon defendant's counsel, a certification of diligent inquiry in the form specified in the Notice to the Bar of January 7, 2011.

The record discloses that on June 2, 2005, defendant gave to Argent Mortgage Company, L.L.C., an adjustable-rate mortgage encumbering property located in Bound Brook, New Jersey to secure a loan, evidenced by a note of the same date, for $178,000 at an initial rate of interest of 6.725 percent. The mortgage was recorded on June 30, 2005. On June 9, 2005, the mortgage was assigned to plaintiff, and the assignment was recorded on March 7, 2006.

On April 1, 2007, defendant defaulted on his loan repayment obligation. As a consequence, a mortgage foreclosure complaint was filed on July 16, 2007. Service of process was made, default was requested on September 5, 2007, and an uncontested final judgment in foreclosure was entered for $183,319.57 on September 21, 2007. A writ of execution was issued on December 24, 2007.

A sheriff's sale was scheduled for February 26, 2008. However, as the result of the filing of defendant's February 22, 2008 petition for Chapter 13 bankruptcy, the sheriff's sale was stayed. Defendant's bankruptcy petition was dismissed on October 8, 2008.

Following the dismissal of defendant's bankruptcy petition, a sheriff's sale was again scheduled for December 2, 2008. As the result of defendant's use of his two statutory adjournments, the sale was re-scheduled for January 6, 2009. However, that morning, defendant filed a second petition for bankruptcy pursuant to Chapter 13 of the Bankruptcy Code. As had been the case with the first petition, defendant listed Wells Fargo as his sole creditor. Plaintiff received relief from the automatic stay on July 8, 2009, and on August 24, 2009, defendant's petition was again dismissed as the result of defendant's inability to maintain either the required trustee payment or the post-petition mortgage payments.

A sheriff's sale was scheduled for August 25, 2009, but it was adjourned to permit an evaluation of defendant's eligibility for Freddie Mac's Home Affordable Modification Program (HAMP). When it was determined that defendant was ineligible, a sheriff's sale was scheduled for April 20, 2010, at which time defendant's residence was sold to plaintiff for a nominal bid of $100. The sheriff's deed was recorded on September 7, 2010.

On November 9, 2010, defendant moved through counsel to vacate the 2007 default judgment and to set aside the sale that had occurred almost seven months earlier. In support of the motion, defendant submitted a lengthy certification in which he claimed that he had a twenty-year history of supraventricular tachycardia and that he underwent a radiofrequency catheter ablation on March 5, 2008 - a date after the judgment of foreclosure had been entered. Additionally, on July 20, 2008 he had an operation on his left foot because a heavy object had fallen on it, and on January 8, 2010 he had an aortic valve replacement. As a consequence, defendant stated that he had not been able to regularly engage in his profession of laying carpets and thus had lost income. Defendant claimed that "[d]ue to my medical problems and the lack of income, I did not file an Answer to the foreclosure complaint." Defendant further stated:

I feel that there may have been improper foreclosure procedures in my matter. I have heard on the television that Wells Fargo Bank has admitted to having fifty five thousand mortgage files with problems. I believe that my mortgage loan may have been one of the many mortgage files with document problems.

At oral argument, defendant's counsel argued that the assignment of mortgage by Argent to Wells Fargo had been executed on June 9, 2005, but it contained information regarding the recordation of the mortgage that did not take place until June 30, 2005. Plaintiff's counsel explained that discrepancy by stating that the details of the recordation had been added to the assignment after its execution.

Following argument in the matter, the motion judge denied relief pursuant to Rule 4:50-1 without prejudice, determining that defendant had not demonstrated excusable neglect, but rather, willful disregard of the foreclosure matter, evidenced by the fact that defendant consciously chose to pursue bankruptcy rather than contest the foreclosure proceedings against him. Additionally, the judge found that defendant had not provided evidence of any meritorious defense. In that regard, the judge noted that defendant acknowledged the mortgage and note, and he acknowledged he was in default in his payments. However, given the existence of recognized concerns regarding plaintiff's internal procedures, the judge denied defendant's motion without prejudice and conditioned eviction upon submission of certifications of diligent inquiry pursuant to the December 20, 2010 amendments to the Rules of Civil Procedure as set forth in the court's January 7, 2011 Notice to the Bar.

Although defendant has appealed the judge's order, we decline to address that appeal, determining that the order was interlocutory in nature and thus defendant lacked authority to appeal as of right pursuant to Rule 2:2-3(a), and he did not seek leave to appeal pursuant to Rule 2:2-4. Further, we decline to grant leave to appeal nunc pro tunc, as in Caggiano v. Fontoura, 354 N.J. Super. 111, 125 (App. Div. 2002), determining that an adequate remedy in the trial court remains as the result of the judge's determination to enter her order without prejudice and to condition eviction upon plaintiff's compliance with certification of diligent inquiry requirements.

Appeal dismissed.


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