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Bank of New York, As Trustee For the Certificate Holders Cwalt, Inc v. Mordechai Thaler

April 2, 2012


On appeal from the Superior Court of New Jersey, Chancery Division, Ocean County, Docket No. F-3798-09.

Per curiam.


Submitted March 13, 2012

Before Judges Reisner and Accurso.

Defendant Mordechai Thaler appeals from an April 15, 2011 order denying his motion to vacate a final judgment of foreclosure. We affirm.

In 2004, defendant obtained a $291,600 loan to finance the purchase of a residential investment property. To secure the loan he gave a mortgage on the property to GFI Mortgage, Inc. Defendant admits that he defaulted on the loan "on July 1, 2008." On January 20, 2009, a foreclosure complaint was filed by plaintiff "Bank of New York as Trustee for the Certificate Holders CWALT, Inc. Alternative Loan Trust 2004-J7, Mortgage Pass-Through Certificates Series 2004-J7."*fn1 Defendant failed to file an answer and default was entered.

On August 17, 2009, on notice to defendant, plaintiff filed a motion for entry of judgment by default. The motion was supported by a certification of Kathy Repka, an employee of Countrywide Home Loans Service, LP, the "mortgage servicing company authorized to service and handle mortgage transactions on behalf of plaintiff." Repka attested that, based on her personal review of Countrywide's records, defendant was in default, and owed $312,906.01 on the note. Attached to her certification were: a certified copy of the note, a signed allonge and an assignment of mortgage from GFI Mortgage, Inc. to GFI Mortgage Bankers, Inc. (GFIMB); an assignment from GFIMB to Countrywide Document Custody Services; and an assignment from Countrywide Home Loans, Inc. to Bank of New York Trustee Under Pooling and Servicing Agreement Series 04-J7.*fn2 A final judgment of foreclosure was entered on March 15, 2010.

On January 18, 2011, defendant filed a motion to vacate the default judgment and to stay an impending sheriff's sale. He gave no reasons for his failure to file an answer, but instead cited unspecified "newly discovered evidence." He asserted that he had never gotten notice of, or seen, "the assignment" of the mortgage and alleged there were questions about the ownership of the note. He did not deny that he was in default of the mortgage. At the oral argument of the motion on February 4, 2011, defendant's counsel asserted that Repka may have been a "robo-signer."

Due to the then-pending litigation over the filing of false certifications in foreclosure cases, Judge Buczynski required plaintiff to file an additional certification establishing plaintiff's standing and its right to foreclose the mortgage. Plaintiff filed a certification from a vice-president of Countrywide attesting, based on her personal knowledge, that all of the information in Repka's certification was correct, and attesting that plaintiff "was the holder of the subject note and mortgage" on the date the foreclosure complaint was filed and was "the current holder of the subject note and mortgage." Based on that certification, Judge Buczynski ruled, on April 15, 2011, that plaintiff had satisfied any possible concerns about its "right and . . . authority to proceed with the foreclosure" and defendant had shown no basis to vacate the default and the final foreclosure judgment. Accordingly, he denied the motion.

We review the trial court's decision for abuse of discretion. Coryell, L.L.C. v. Curry, 391 N.J. Super. 72, 79-80 (App. Div. 2006). To obtain relief from the default judgment, defendant needed to demonstrate excusable neglect and a meritorious defense. R. 4:50-1(a); US Bank N.A. v. Guillaume, ___ N.J. ___, ___ (2012) (slip op. at 18). On this appeal, defendant concedes that he defaulted on the mortgage in 2008. He continues to assert, however, that plaintiff did not establish that it had standing to foreclose on the mortgage. He also argues that he demonstrated "good cause" for failing to file a timely answer. We disagree.

Plaintiff provided undisputed, legally competent evidence of its standing to pursue this foreclosure action. See Wells Fargo Bank, N.A. v. Ford, 418 N.J. Super. 592, 597 (App. Div. 2011). In response, defendant offered the trial court, and continues to offer on this appeal, nothing but speculation. He has failed to raise a meritorious defense to the complaint. Further, in his submissions to the trial court, defendant did not establish excusable neglect for his failure to file a timely answer to the foreclosure complaint. In fact, he offered no explanation at all. We find no abuse of the trial court's discretion in directing plaintiff to provide a supplemental certification to ensure that it had standing, and in denying the motion after plaintiff filed that certification. See Guillaume, supra, ___ N.J. at ___ (slip op. at 27-28). Defendant's remaining arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).


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