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Us Bank N.A., As Trustee For Sg Mortgage Securities Asset Backed v. James J. Peirano

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


June 5, 2012

US BANK N.A., AS TRUSTEE FOR SG MORTGAGE SECURITIES ASSET BACKED CERTIFICATES, SERIES 2006-FRE2, PLAINTIFF-RESPONDENT,
v.
JAMES J. PEIRANO, JR., DEFENDANT-APPELLANT.

On appeal from Superior Court of New Jersey, Chancery Division, Ocean County, Docket No. F-34105-08.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted May 21, 2012

Before Judges Grall and Skillman.

This is a mortgage foreclosure appeal. Defendant James J. Peirano appeals from an October 5, 2009 order granting summary judgment to plaintiff US Bank, N.A., striking defendant's answer and entering default against him, a final judgment of foreclosure entered on August 11, 2010, and an order entered on March 4, 2011, denying defendant's motion to vacate the final judgment of foreclosure. Defendant's notice of appeal was filed on April 25, 2011. The first point of plaintiff's answering brief argued that the appeal should be dismissed because it was not filed within the time allowed under the rules of court. Defendant's reply brief failed to respond to this argument.

We conclude that plaintiff's argument is correct and that this appeal must be dismissed as untimely. Because the final judgment of foreclosure was entered on August 11, 2010, defendant was required to file a notice of appeal from that judgment and any interlocutory orders leading to its entry, including the October 5, 2009 order granting plaintiff summary judgment, within forty-five days of August 11, 2010, R. 2:4-1(a), which would have been September 27, 2010. The maximum extension of time that this court could have granted under Rule 2:4-4(a) for filing a notice of appeal from the final judgment was thirty days, or until October 27, 2010. However, defendant's notice of appeal was not filed until April 25, 2011, which was six months beyond even that maximum allowable extended date. Therefore, defendant's appeal, insofar as it seeks to challenge the final judgment of foreclosure, is patently out-of-time and must be dismissed.

Because the order denying defendant's motion to vacate the final judgment was entered on March 4, 2011, defendant had forty-five days from that date to appeal that order, which period expired on April 18, 2011. However, defendant's notice of appeal was not filed until April 25, 2011. Thus, defendant's appeal was also filed out-of-time insofar as it sought to challenge the March 4, 2011 order. Although we would have authority under Rule 2:4-4(a) to extend the period for appealing from the March 4, 2011 order, such an extension may be granted only "on a showing of good cause and the absence of prejudice." Defendant did not undertake to make these showings. Defendant also failed to make the showings required under Rule 4:50 to vacate a final judgment. Therefore, defendant has failed to establish the basis for granting an extension of time to appeal from the March 4, 2011 order.

Accordingly, the appeal is dismissed as untimely.

20120605

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