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Chase Home Finance, LLC v. Frank P. Cunder

December 14, 2011

CHASE HOME FINANCE, LLC, PLAINTIFF-RESPONDENT,
v.
FRANK P. CUNDER, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Chancery Division, Middlesex County, Docket No. F-14067-06.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted March 23, 2011

Before Judges Axelrad and R. B. Coleman.

In this foreclosure action on a mortgage, defendant Frank P. Cunder, the mortgagor, appeals from orders granting summary judgment in favor of plaintiff Chase Home Finance, LLC, the mortgagee bank, and denying defendant's subsequent motions for relief. We affirm.

On December 2, 1985, defendant obtained from Carteret Savings and Loan a mortgage loan on property located at 1101 Hickory Court in South Brunswick in the amount of $99,000 which was subsequently assigned to plaintiff Chase Manhattan Mortgage. Defendant defaulted on the mortgage loan and a final judgment of foreclosure was entered on January 4, 2004. On July 28, 2004, the mortgaged property was sold at a sheriff's sale to third-party bidder, Nicholas Bouloubasis, and a deed was issued to Bouloubasis on August 11, 2004.

On September 21, 2004, defendant moved to vacate the sheriff's sale, asserting that he had not been notified. On October 4, 2004, Judge Travis L. Francis entered an order vacating the sheriff's sale and declaring that both the sheriff's deed issued to the third-party bidder as well as the County Clerk's recording of that deed were deemed "null and void." The order, however, did not vacate the final judgment. The October 4, 2004 order required defendant to reimburse the third-party bidder for all out-of-pocket expenses in connection with the vacated sale. It was later determined the order was never recorded due to an error by attorneys, the firm of Fein, Such, Khan & Shepard (FSKS), in transmitting it to the County Clerk's office. On November 29, 2004, defendant paid $4,006 to the bidder for out-of-pocket expenses.

Defendant failed again to make timely mortgage loan payments and in March 2005, plaintiff filed a second notice of sheriff's sale on the property. Defendant paid monies due to plaintiff sufficient to reinstate the defaulted mortgage loan and on May 18, 2005, the second sheriff's sale was canceled. On June 30, 2005, the final judgment of foreclosure in connection with the March 2005 complaint was vacated.

From February 1, 2006 forward, defendant failed to make payments to plaintiff on the mortgage loan. On May 19, 2006, plaintiff sent defendant a notice of its intent to foreclose on the defaulted loan. On September 14, 2006, plaintiff notified defendant of options for assistance to mitigate the delinquent status of his mortgage loan.

On October 11, 2006, the trial court issued another order, which corrected the recording reference of the October 4, 2004 order and vacated the earlier sheriff's sale to the third-party bidder. Defendant's counsel recorded a certified copy of the October 4 order with the Clerk of Middlesex County on November 29, 2006.*fn1

Based on defendant's non-payment to the mortgagee, plaintiff filed a new foreclosure complaint. Defendant answered and admitted that he had defaulted on the loan. Plaintiff moved for summary judgment and on August 3, 2007, the trial court granted the unopposed motion and permitted the matter to proceed to final judgment. Ten months after plaintiff's motion for summary judgment was granted, defendant filed a motion to vacate the judgment, arguing that he did not have an opportunity to be heard because he was not advised of a new return date. On August 4, 2008, defendant's motion to vacate the prior summary judgment and re-list the matter for hearing on September 19, 2008 was granted by Judge Frank M. Ciuffani.

Thereafter, defendant's counsel filed opposition to plaintiff's motion for summary judgment alleging that FSKS was responsible for recording the October 4, 2004 order that vacated the sheriff's sale and nullified the deed of the third-party bidder. Defendant also alleged that as a result of FSKS's failure to record the order, he did not have record title and was unable to obtain refinancing from other lenders to lower the 11.875 percent interest rate on his mortgage loan.

On October 21, 2008, Judge Ciuffani issued an oral decision, memorialized in an order of the same date, granting plaintiff summary judgment, striking defendant's defenses, and permitting the matter to proceed to judgment as uncontested. The judge reasoned that: (1) the order of October 4, 2004 automatically gave title of the property to defendant; (2) that FSKS had no legal duty to record the order vacating the sale for defendant's benefit; and (3) that defendant himself or his counsel could have readily recorded the order at any time.

On December 3, 2009, final judgment was entered by Judge Maria M. Sypek foreclosing any equity of redemption and ordering that the property be sold at a sheriff's sale to satisfy the amount due under the defaulted mortgage loan. On May 10, 2010, the Chancery Division denied defendant's motion to stay the sheriff's sale, scheduled on May 12, 2010. Defendant filed an emergent application to stay the ...


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