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U.S. Bank National Association v. Fredi M. Bertoli

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


January 31, 2012

U.S. BANK NATIONAL ASSOCIATION AS TRUSTEE FOR THE HOLDER OF BEAR STEARNS ASSET BACKED SECURITIES 1 TRUST 2006-IM1, PLAINTIFF-RESPONDENT,
v.
FREDI M. BERTOLI, DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Chancery Division, Essex County, Docket No. F-10263-08.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted January 10, 2012

Before Judges Simonelli and Hayden.

Defendant Fredi Bertoli appeals from the March 8, 2010 Chancery Part order denying her motion for a stay of the Sheriff's sale of her foreclosed property. For the reasons that follow, we affirm.

We discern from the sparse record on appeal that plaintiff U.S. Bank National Association filed a mortgage foreclosure complaint against defendant on March 13, 2008, and obtained a final judgment of foreclosure and a writ of execution on September 9, 2008. Thereafter, defendant received two statutory adjournments of the Sheriff's sale.

On February 9, 2009, defendant obtained a stay of the pending Sheriff's sale in order to participate in the foreclosure mediation program. Mediation occurred but was not successful due to defendant's inability to qualify for a loan modification. Thereafter, defendant obtained three additional stays of the Sheriff's sale to prove her eligibility for a loan modification. Next, in August 2009, defendant filed a bankruptcy petition, resulting in an automatic stay of the sale. After the bankruptcy stay was lifted, another Sheriff's sale was scheduled.

On January 12, 2010, defendant appeared before the Chancery judge to obtain another stay, again alleging that she was able to meet the financial requirements to modify her mortgage loan. The judge adjourned the sale until February 16 for defendant to provide documentation of her claim and to attempt mediation directly with plaintiff.

On February 16, 2010, defendant sought another stay and informed the judge, as she had at the January 12 hearing, that she had secured employment that would enable her to meet the criteria for a loan modification. However, defendant again failed to provide proof of her financial eligibility and did not document any efforts to mediate directly with plaintiff. At the hearing, plaintiff opposed the additional stay, arguing that for a year defendant had received numerous stays based upon her claims that she could qualify for a loan modification, but she had never produced any supporting documentation or obtained a modification.

Based upon the numerous stays defendant had received and her consistent failure to provide proof of eligibility for a loan modification, the judge denied the stay. The Sheriff's sale occurred that day and plaintiff purchased the property. On March 8, 2010, defendant again applied for a stay, which the judge denied.*fn1 However, the judge extended the redemption period to March 28, 2010 but, unfortunately, defendant was unable to redeem the property. This appeal followed.

On appeal, defendant argues that the judge should have given her more time to negotiate a loan modification because the loss of her family home would create an extreme hardship.

However, she does not challenge the legality of the foreclosure proceeding or raise any defenses to the merits of plaintiff's action. Plaintiff argues that the denial of the stay was reasonable because defendant had provided no competent evidence to establish her ability to secure a loan modification.

We will not disturb a Chancery judge's decision on an application to open, vacate or otherwise set aside a foreclosure judgment or proceedings subsequent thereto absent an abuse of discretion. United States ex rel USDA v. Scurry, 193 N.J. 492, 504 (2008). "[A]n abuse of discretion only arises on demonstration of 'manifest error or injustice[,]'" Hisenaj v. Kuehner, 194 N.J. 6, 20 (2008) (quoting State v. Torres, 183 N.J. 554, 572 (2005)), and occurs when the trial judge's "'decision [was] made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis.'" Scurry, supra, 193 N.J. at 504 (alteration in original) (quoting Flagg v. Essex Cnty. Prosecutor, 171 N.J. 561, 571 (2002)). We discern no abuse of discretion here. We find that defendant has raised no contentions sufficient to warrant a written discussion. R. 2:11-3(e)(1)(E). We affirm substantially for the reason provided in the Chancery Part judge's February 16, 2010 oral opinion.

Affirmed.


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