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Onewest Bank, Fsb v. Mindy Follman

April 3, 2012

ONEWEST BANK, FSB, PLAINTIFF-RESPONDENT,
v.
MINDY FOLLMAN, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Chancery Division, Ocean County, Docket No. F-22355-09.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted: February 1, 2012

Before Judges Axelrad and Ostrer.

In this mortgage foreclosure case, defendant Mindy Follman appeals from an order of February 18, 2011, which denied her second motion to vacate a default judgment entered against her in August 2009. She challenges the trial court's finding of standing and asserts a newly-minted claim of excusable neglect. We affirm.

On August 31, 2006, defendant borrowed $149,000 from IndyMac Bank, FSB (IndyMac) to purchase an investment property located in Lakewood, secured by a note endorsed in blank by IndyMac and mortgage executed to Mortgage Electronic Registration Systems, Inc. (MERS) as the nominee for IndyMac. The mortgage was recorded with the Ocean County Clerk on September 7, 2006. IndyMac was closed by the Office of Thrift Supervision on July 11, 2008, and its assets were transferred to IndyMac Federal Bank, FSB (IndyMac Federal) at that time. On November 1, 2008, defendant defaulted on the loan.

On April 28, 2009, the mortgage, together with the underlying obligation, was assigned by MERS as nominee for IndyMac to IndyMac Federal. The assignment was recorded by the Ocean County Clerk on May 7, 2009.

On April 30, 2009, IndyMac Federal filed a foreclosure complaint against defendant. The complaint expressly recited the assignment information and that the mortgage was to be recorded. Defendant was personally served with process on June 24, 2009. She did not file an answer or respond to the complaint.

Default was entered by the court on August 18, 2009. On September 11, 2009, the mortgage, together with the underlying obligation, was assigned by IndyMac Federal to plaintiff OneWest Bank, FSB. The assignment was recorded by the Ocean County Clerk on September 23, 2009. On July 27, 2010, an order was entered substituting OneWest Bank, FSB as plaintiff. On the same date, plaintiff obtained a final judgment of foreclosure by default and a writ of execution.

Defendant obtained two statutory adjournments of a sheriff's sale. See N.J.S.A. 2A:17-36. On October 18, 2010, defense counsel filed a motion to stay the sheriff's sale and vacate default judgment, based on claimed lack of service of process. The motion was denied by order of December 3, 2010, and was not appealed.

On or about January 11, 2011, defense counsel refiled the same motion based on December 2010 administrative orders pertaining to "robo-signing" practices in residential foreclosures. Defendant certified that she never saw, nor was she advised of, the assignment of mortgage to plaintiff, that plaintiff never proved it owned or held the note, and claimed she was "losing [her] property without due process." Following oral argument on February 18, 2011, the court denied the motion, memorialized in an order of the same date. The judge recited the procedural history, noting the assignment was submitted for final judgment and defendant did not dispute the amount due, and found defendant presented no grounds to vacate the final judgment under Rule 4:50-l. This appeal ensued.

On appeal, defendant asserts error by the court in concluding plaintiff had standing to foreclose and provided sufficient documentation to prove standing. Plaintiff also argues that in addition to her meritorious defense of standing, see Marder v. Realty Constr. Co., 84 N.J. Super. 313, 318 (App. Div), aff'd, 43 N.J. 508 (l964), she demonstrated excusable neglect under Rule 4:50-l(a), consisting of "personal issues such as the death of her father and medical issues of her newborn child." We disagree.

In U.S. Bank, N.A. v. Guillaume, ___ N.J. ___ (2012) (slip op. at 18-19), a mortgage foreclosure case, our Supreme Court recently reiterated the purpose and application of Rule 4:50-l, the standard for a party seeking to vacate a default judgment. The Court stated:

The rule is "'designed to reconcile the strong interests in finality of judgments and judicial efficiency with the equitable notion that courts should have authority to avoid an unjust result in any given case.'" Mancini v. EDS, 132 N.J. 330, 334 ...


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