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Deutsche Bank Trust Company Americas, F/K/A Banker's Trust Company, As Trustee v. Yony R. Angeles

October 11, 2012

DEUTSCHE BANK TRUST COMPANY AMERICAS, F/K/A BANKER'S TRUST COMPANY, AS TRUSTEE, PLAINTIFF-RESPONDENT,
v.
YONY R. ANGELES, DEFENDANT-APPELLANT.



On appeal from Superior Court of New Jersey, Chancery Division, Bergen County, Docket No. F-20553-08.

The opinion of the court was delivered by: Koblitz, J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Argued September 12, 2012

Before Judges Koblitz, Accurso and Lisa.

The opinion of the court was delivered by KOBLITZ, J.A.D.

In this residential foreclosure case, Yony R. Angeles appeals from a November 6, 2009 final judgment in favor of Deutsche Bank Trust Company Americas (Deutsche) and a subsequent December 16, 2011 oral order, dismissing his application to vacate the judgment or dismiss the complaint. Angeles argues that because the mortgage on his property was not assigned to Deutsche until two weeks after Deutsche filed the original foreclosure complaint, Deutsche lacked standing and the judgment should be dismissed. Because Angeles did not raise the standing issue, or contest the foreclosure in any way, until two years after default judgment was entered and three-and-one-half years after the complaint was filed, we affirm the decision of the Chancery judge.

On January 10, 2007, Angeles executed a note for the sum of $454,400 with First Equity Financial Corporation (First Equity). To secure payment of the note, Angeles executed a mortgage that same day to Mortgage Electronic Registration Systems, Inc. (MERS), as nominee for First Equity.*fn1

Angeles made the first ten contractual payments on the note, but failed to make the installment payment due on February 1, 2008 or any time thereafter. On May 29, 2008, Deutsche filed a foreclosure complaint, two weeks prior to the June 12, 2008, assignment of the mortgage by MERS to Deutsche. The complaint states that "[o]n or before the date the within complaint was drafted, the plaintiff herein became the owner of the note and mortgage being foreclosed herein."

On July 23, 2008, Deutsche filed an amended complaint. Angeles was served with the summons and amended complaint on July 26, 2008. He failed to file a responsive pleading and a default was entered on September 11, 2008. Final judgment of foreclosure was entered more than a year later on November 6, 2009.

On February 25, 2010, the court stayed the sheriff's sale scheduled for the following day until May 28, 2010, and ordered the parties to participate in the court-sponsored mediation program.*fn2 Mediation apparently failed, as Deutsche purchased the property at a sheriff's sale on August 20, 2010. Angeles did not object to the sale at that time. See R. 4:65-5 (requiring any objection to be made within ten days after the sheriff's sale or any time prior to the delivery of the deed). The deed was delivered by the sheriff to Deutsche and recorded on September 16, 2010.

The court granted Angeles' May 16, 2011 hardship application to stay the eviction so that his children could complete the school year. Deutsche subsequently stayed the eviction further in an attempt to negotiate a short sale of the property back to Angeles.

After negotiations failed, Angeles filed an order to show cause on November 16, 2011, seeking to: (1) vacate the sheriff's sale; (2) enjoin Deutsche from conveying title; and

(3) permit Angeles to either file an answer to Deutsche's foreclosure complaint or, alternatively, dismiss the complaint for lack of standing. After this application was denied, the eviction ...


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