April 4, 2012
INDYMAC BANK, F.S.B., PLAINTIFF-RESPONDENT,
SHALOM H. KESSELMAN AND SHARRA W. KESSELMAN, DEFENDANTS-APPELLANTS,
AND WACHOVIA BANK AND NATIONAL ASSOCIATION, DEFENDANTS.
On appeal from the Superior Court of New Jersey, Chancery Division, Ocean County, Docket No. F-6129-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 13, 2012
Before Judges Kennedy and Guadagno.
Defendants Shalom H. Kesselman and Sharra W. Kesselman appeal from the April 29, 2011 order denying their motion to vacate a final judgment of foreclosure in favor of plaintiff Indymac Bank, F.S.B. They claim improper service and irregularities in the assignment of the mortgage. We affirm.
On September 12, 2002, defendants borrowed $297,000 from IndyMac by executing a note secured by a mortgage on their principal residence in Lakewood. Defendants concede that they defaulted on the mortgage on November 1, 2007, and do not dispute plaintiff's claim that they have paid nothing on the loan since then while continuing to reside in the home.
On February 15, 2008, plaintiff filed a complaint seeking to foreclose defendants' interest in the mortgaged premises. Defendants failed to file a responsive pleading and default was entered on March 13, 2009. The first sheriff's sale was scheduled on June 16, 2009, but that sale and several others have been postponed.
On February 28, 2011, defendants moved to vacate the default and stay the sheriff's sale, claiming lack of service and irregularities with the assignment of the mortgage. At a hearing on April 29, 2011, Chancery Judge Frank A. Buczynski, Jr., heard oral argument on the motion. When questioned by Judge Buczynski, defendant Shalom Kesselman admitted that he earned between $4,500 and $4,600 per month and had participated in the mediation program at the courthouse but that it was unsuccessful.
Judge Buczynski found that the defendants were properly served and there was no evidence of a meritorious defense or excusable neglect. The judge denied the motion to vacate the default but delayed the sheriff's sale twice to allow the defendants to re-open negotiations with the bank. Defendants filed notice of appeal on June 9, 2011.
The issues raised by defendants lack sufficient merit to warrant extended discussion. R. 2:11-3(e)(1)(E). Although we affirm substantially for the reasons placed on the record on April 29, 2011, by Judge Buczynski, we add the following brief comments.
While defendants claim improper service, plaintiff's affidavits of service indicate that on February 21, 2008, Sharra
W. Kesselman was served personally with a copy of the summons and complaint. On the same date, service upon Shalom H. Kesselman was made by leaving a copy of the summons and complaint with Sharra W. Kesselman at their home. The signed and notarized affidavit identifies Sharra as Shalom Kesselman's wife and provides a physical description of her. We find that this service fully comports with Rule 4:4-4(a)(1).
Moreover, Shalom Kesselman admitted to Judge Buczynski that he
participated in the Foreclosure Mediation Program (FMP)*fn1
at the courthouse approximately one month before he filed his
motion to vacate. The FMP, like all complementary dispute resolution
programs, "constitute[s] an integral part of the judicial process." R.
1:40-1. Defendant's admission that he participated in FMP discredits
his claim that he "was never apprised of this suit" and was denied due
process by lack of service. In Rogan Equities, Inc. v. Santini, 289
95, 112-113 (App. Div. 1996), we held that a party who
had actual knowledge of an action and participated in the proceedings
was barred by equitable estoppel from attacking a judgment of
foreclosure on the ground that she was not properly served.
Defendants also claim the assignment of the mortgage is "questionable" because it was signed by a "robo signer,"*fn2 but they failed to provide a copy of the challenged assignment to the motion judge and have not included it in their appendix on appeal. Rule 2:6-1(a)(1) requires that the appendix shall contain "the judgment, order or determination appealed from or sought to be reviewed or enforced . . . ." We have addressed the failure to submit a fully conforming appendix on a number of occasions. In Society Hill Condominium Ass'n v. Society Hill Associates, 347 N.J. Super. 163, 177-78 (App. Div. 2002), we found that the failure to include the notice of motion and supporting papers rendered review "impossible." Here, plaintiff claims that there is no recorded assignment of the mortgage and we find that assertion to be uncontroverted.
We have carefully considered the record in light of defendants' arguments and the applicable law. We are satisfied that Judge Buczynski did not abuse his discretion in denying defendants' motion to vacate default and stay the foreclosure proceedings. The decision was based on findings of fact which are adequately supported by the record.