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50 By 50 Reo, LLC, Plaintiff-Respondent v. Robert C. Wallerius

August 9, 2012

50 BY 50 REO, LLC, PLAINTIFF-RESPONDENT,
v.
ROBERT C. WALLERIUS, A/K/A ROBERT CHARLES WALLERIUS, DEFENDANT-APPELLANT, AND KATHLEEN WALLERIUS, DEFENDANT.



On appeal from Superior Court of New Jersey, Chancery Division, Bergen County, Docket No. F-6001-09.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued March 27, 2012

Before Judges Yannotti and Kennedy.

Defendant Robert Charles Wallerius appeals from an April 1, 2012 order of the Chancery Division denying his motion to vacate a final judgment of foreclosure and to set aside a subsequent Sheriff's sale of property in Washington Township. We affirm.

On March 17, 2005, defendant was seriously injured in a motor vehicle accident and for years afterward underwent a series of operations and medical procedures for his injuries. Defendant claims that his injuries and subsequent medical treatment caused him financial hardship and disabled him to a point where he was not "functioning fully." Defendant owned a home in Washington Township at the time and defaulted on the mortgage.

On July 14, 2006, defendant and his then wife closed on a refinance of the mortgage debt with a new mortgage lender, but by November 2006 defendant had defaulted on that obligation, as well. Defendant then relocated to Florida and on April 26, 2007, filed for Chapter 11 bankruptcy protection with the United States Bankruptcy Court for the Northern District of Florida. He was represented during the proceedings by counsel in New Jersey and Florida.

On September 5, 2008, the mortgage holder, or its servicing agent, obtained an order in the United States Bankruptcy Court lifting the automatic stay and allowing a foreclosure action to proceed against the property in Washington Township.*fn1 A "demand letter-notice of default" issued on September 17, 2008, revealed that defendant owed more than $82,000 on the mortgage note and had not made a payment since November 1, 2006.

A complaint in foreclosure was filed in January 2009 and defendant was served with process on March 6, 2009. Defendant did not answer and final judgment by default was entered on March 10, 2010. Defendant, acting without counsel, on April 27, 2010, re-filed for Chapter 11 bankruptcy protection in the United States Bankruptcy Court for the Northern District of Florida, but on August 4, 2010, the Bankruptcy Court entered an order lifting the stay to allow the foreclosure to proceed. The property was thereafter sold to plaintiff at a Sheriff's sale on August 27, 2010.

Defendant claims that in September 2010 he underwent a "miraculous surgery" which enabled him to stop using "morphine-based medication and [get] back to work." Although defendant claims he had no notice of the Sheriff's sale of the property, defendant wrote a letter on September 13, 2010, protesting the sale, in which he asked that the sale be "revoked." Further, in an October 15, 2010 filing in the United States Bankruptcy Court defendant listed the Sheriff's sale of the property.

Upon receiving an eviction notice from plaintiff in February 2011, defendant hired counsel and moved to stay eviction and vacate the foreclosure judgment and sale. Defendant claimed that his medical condition constituted "excusable neglect" under Rule 4:50-1(a) and that the foreclosure judgment was "void" under Rule 4:50-1(d) because, among other things, the fees and points charged by the mortgage lender in July 2006 exceeded by $195 the maximum allowed under the New Jersey Home Ownership Security Act of 2002, N.J.S.A. 46:10B-22 to -35.

The Chancery Division judge denied the motion on April 1, 2011, and, in an opinion from the bench, noted that defendant had known of the August 2010 Sheriff's sale at least as of September 13, 2010, and "took no further steps to do anything" until hiring counsel who filed the motion to vacate "three days before the eviction date." He added,

I decline to accept the proposition that he's been incapacitated since the accident to the present time given the very sophisticated invocation of remedies, very time sensitively invoked, over a period of many years and very effectively. So the court declines to accept the proposition of disability. Mental disability.

There has to be excusable neglect, and while there was a failure to alert the defendant ahead of time to the . . . adjourned sale date. . . . the indisputable fact is that he'[d] known acutely about it . . . within two weeks . . . of ...


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