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Wells Fargo Bank, Na v. Christopher C. Maxwell


April 9, 2012


On appeal from the Superior Court of New Jersey, Chancery Division, Salem County, Docket No. F-26202-08.

Per curiam.


Submitted: December 21, 2011

Before Judges Axelrad and Ostrer.

In this mortgage foreclosure case, defendant Christopher Maxwell appeals from an order entered on May 14, 2010, denying his motion to vacate an alleged void judgment, which he filed after the sheriff's sale of the foreclosed property. Defendant apparently argued there was improper service, lack of standing, no jurisdiction and lack of proper due process of law. We affirm.

On August 30, 2004, defendant borrowed $320,000 from plaintiff Wells Fargo Bank, NA, to purchase a home located in Pilesgrove, secured by a note and purchase money mortgage. The mortgage was recorded with the Salem County Clerk on September 1, 2004. Defendant defaulted on the loan on April 1, 2008. Plaintiff filed a foreclosure complaint against defendant on July 14, 2008. Plaintiff filed an affidavit of service dated July 15, 2008, reflecting service that day on twenty-nine-year old Lisa Wells, a "member of household." Defendant did not file an answer or respond to the complaint. On September 9, 2008, plaintiff filed a request and certification of default against defendant.

It appears that in or around February 2009, defendant filed a motion to vacate "default judgment," though only default had been entered. He contended there never was a response to his request for validation so proof never was provided that the debt was valid, he never was served with a summons and complaint, and plaintiff did not provide him with the requested information as to the amount due to bring the loan current.*fn1

According to plaintiff's attorney, the motion was opposed and denied, which we confirmed by reference to the court's Automated Case Management System (ACMS) was by order of February 20, 2009. It is unknown whether there was oral argument and the basis for the denial.

The record does not reflect, however, that defendant ever filed an answer to the complaint. On September 21, 2009, the court entered final judgment of foreclosure by default and, according to the ACMS, a writ of execution. Defendant apparently served plaintiff's attorney with discovery demands in November 18, 2009, almost two months later. According to the transcript of oral argument on December 11, 2009,*fn2 by that date plaintiff had scheduled a sheriff's sale, and defendant had obtained one of the two statutorily-allowed adjournments, N.J.S.A. 2A:17-36. Defendant explained to the court that the matter he was pursuing was a "petition to dismiss summary judgment and also an affidavit by default between the parties" because plaintiff had failed to answer his discovery request. Defendant was apparently requesting a 90 to 120 day adjournment of the sheriff's sale scheduled for the following Monday. He primarily argued that plaintiff did not have standing to foreclose based on the letter he received from another mortgage company that it owned the mortgage and plaintiff was the servicer,*fn3 plaintiff failed to provide him with the original note, and plaintiff failed to comply with the Uniform Commercial Code in filing a "UCC[-]1." Judge James E. Rafferty found there was no legal basis in defendant's papers for his discovery request and postponement of the sheriff's sale. He suggested defendant apply to the sheriff for a second statutory adjournment of the imminent sale.

According to the February 19, 2010 transcript, defendant filed additional motions for a preliminary injunction, to compel discovery, to dismiss the summary judgment, and for recusal.*fn4

Plaintiff filed opposition by letter of February 12, 2010. Defendant renewed his arguments from the prior hearing and further articulated the claim that the foreclosure judgment was void because the complaint did not contain the original, or at least, a certified copy of the note. Following argument, Judge Rafferty denied the motions. The ACMS reflects that orders were entered on that date.

As reflected in the April l6, 2010 transcript, defendant then apparently filed a "motion for an emergency writ of coram nobis" seeking to vacate the judgment following the sheriff's sale.*fn5 Defendant submitted his and Wells' affidavits dated April l5, 2010, claiming the judgment was void because Wells was not a member of his household so he was not properly served with the summons and complaint, and renewed the prior arguments. This appears to have been an ex parte application by defendant because the transcript reflects a colloquy on the record solely between defendant and Judge Rafferty regarding defendant's motion. The judge noted, in part, that this was the seventh motion filed by defendant, the judgment was entered in 2009, the sheriff's sale took place in early April 2010, and he had addressed, rejected, and re-addressed many of defendant's arguments. He found no legal basis for the application and denied defendant's requests for relief, as well as a stay. The ACMS reflects that an order was entered on that date.

On June 28, 2010, defendant filed a notice of appeal of an order entered on May 14, 2010, which he described in the Case Information Statement as "Motion to Vacate a Void Judgment due to improper service, lack of standing, no jurisdiction and lack of proper due process of law." However, in violation of Rule 2:5-l(f)(2), a copy of the order under appeal was not attached. By order of July 26, 2010, we denied defendant's motion for a stay.

Defendant's brief is also woefully deficient. His factual statement and procedural history make no mention of the order under appeal, and, in fact, he does not even include a copy of the order. See Rule 2:6-2(a)(3) (requiring a "concise procedural history including a statement of the nature of the proceedings and a reference to the judgment, order, decision, action or rule appealed from or sought to be reviewed or enforced[]"); Rule 2:6-2(a)(4) (requiring a "concise statement of the facts material to the issues on appeal supported by references to the appendix and transcript[]"). Nor does defendant set forth his legal argument under appropriate point headings, in contravention of Rule 2:6-2(a)(5), making it difficult to sort through and analyze his arguments.

Our review is further hindered, and for the most part rendered impossible, by defendant's failure to provide a copy of the transcript, if argument were conducted, or a statement of reasons provided by the court, or to include in his appendix the notice of motion filed in the trial court pertaining to the order under appeal or "such other parts of the record . . . as are essential to the proper considerations of the issues." R. 2:6-1(a)(l). See also Society Hill Condo. Ass'n, Inc. v. Society Hill Assocs., 347 N.J. Super. 163, 177-78 (App. Div. 2002) (reiterating that the Rules mandate an appellant to provide the court with parts of the record essential for proper consideration of the issues on appeal). We have obtained a copy of the order from the clerk's office, which other than noting it was opposed and denied, provides no further insight into the matter.

However, to the extent defendant's arguments raised in connection with the May 2010 order under appeal were reiterations of his prior arguments, we are not persuaded they have any merit.

"Standing refers to the plaintiff's ability or entitlement to maintain an action before the court." N.J. Citizen Action v. Riviera Motel Corp., 296 N.J. Super. 402, 409 (App. Div.), certif. granted, 152 N.J. 13 (1997), appeal dismissed as moot, 152 N.J. 361 (1998). Entitlement to sue requires a "sufficient stake in and real adverseness with respect to the subject matter," and a substantial likelihood of harm to the plaintiff by an unfavorable decision. Stubaus v. Whitman, 339 N.J. Super. 38, 47 (App. Div. 2001) (internal quotation marks and citation omitted), certif. denied, 171 N.J. 442 (2002). "A lack of standing by a plaintiff precludes a court from entertaining any of the substantive issues presented for determination." In re Adoption of Baby T., 160 N.J. 332, 340 (l999). See also Watkins v. Resorts Int'l Hotel & Casino, Inc., 124 N.J. 398, 424 (1991). "Mortgages provide security for the debtor's obligation to pay an underlying obligation, ultimately permitting the mortgagee to force the sale of the property to satisfy that obligation." Bank of N.Y. v. Raftogianis, 418 N.J. Super. 323, 327 (Ch. Div. 2010). To have standing to foreclose a mortgage, a party generally must "own or control the underlying debt." Wells Fargo Bank, N.A. v. Ford, 418 N.J. Super. 592, 597 (App. Div. 2011) (quoting Raftogianis, supra, 418 N.J. Super. at 327-28).

We are satisfied plaintiff had standing to foreclose the mortgage on defendant's property. It is undisputed defendant defaulted on the underlying loan. Plaintiff presented sufficient evidence that it had the right to enforce the mortgage and had the authority to proceed at the time of the filing of the foreclosure complaint. See Raftogianis, supra, 418 N.J. Super. at 351-52. The contents of plaintiff's mortgage foreclosure complaint complied with the requirements of Rule 4:64-1(b) in effect at the time, which required a recitation of the specifics of the mortgage and debt instrument but not attachment of the documents.*fn6 Defendant did not file an answer to the complaint. Instead, he chose to file a motion six months after service, challenging service, among other issues, which could be considered a motion to dismiss under Rule 4:6-2, though untimely, or a motion to set aside default under Rule 4:43-3.

However, when the motion was denied in February 2009, defendant did not file an answer or other responsive pleading, R. 4:6-1(b), and on September 21, 2009, default judgment was entered against him. At that juncture, defendant was no longer entitled to pretrial discovery. R. 4:10-1. As recited in the final judgment, plaintiff produced the supporting instruments required by Rule 4:64-1(d) and Rule 4:64-2, namely, the obligation, mortgage, and affidavit of amount due, which were satisfactory to the court for the entry of judgment. The September 30, 2009 letter from Freddie Mac*fn7 stating "ownership" of the mortgage, the primary evidence upon which defendant relies for his challenge to plaintiff's standing to foreclose, post-dated the entry of the foreclosure judgment.

We have no idea what defendant's argument was, or what evidence he presented, if any, to support his unsuccessful claim of improper service in February 2009. It is clear, though, that defendant then believed he had a basis upon which to challenge the July 2008 service of the foreclosure complaint. Yet defendant waited fourteen more months, until April l5, 2010, to prepare his own affidavit and obtain Wells' affidavit to rebut the statement in the process server's return of service that Wells was a "member of household." See, e.g., Jameson v. Great Atl. and Pac. Tea Co., 363 N.J. Super. 419, 426 (App. Div. 2003) (reiterating that a sheriff's return of service "facially indicates compliance with the pertinent service rule" and, accordingly, is prima facie evidence of proper service), certif. denied, 179 N.J. 309 (2004); Resolution Trust Corp. v. Associated Gulf Contractors, Inc., 263 N.J. Super. 332, 343-44 (App. Div.) (holding that a sheriff's return of service is presumed correct, and may be rebutted only by clear and convincing evidence),*fn8 certif. denied, 134 N.J. 480 (1993). Defendant provided no explanation whatsoever for this inordinate delay -- waiting until after default judgment had been entered and a sheriff's sale had taken place following at least one requested statutory adjournment.

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 (1993) (quoting Baumann v. Marinaro, 95 N.J. 380, 392 (1984)). [Id. at 19.]

Rule 4:50-2 requires a party who seeks relief on the ground that a judgment is void in whole or in part, R. 4:50-1(d), to make the motion within a reasonable time. The reasonableness of the time period is determined by the surrounding circumstances, including the length of time that has passed and the competing rights and interests of an innocent third party that have arisen in the meantime. See Friedman v. Monaco & Brown Corp., 258 N.J. Super. 539, 545 (App. Div. l992); City of Newark v. (497) Block 1854, 244 N.J. Super. 402, 407-08 (App. Div. 1990). Defendant's motion and April 15, 2010 submissions were clearly not presented within a reasonable time under the circumstances.


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