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Marathon Structured Asset Solutions Trust v. Kirby Combs

December 12, 2012

MARATHON STRUCTURED ASSET SOLUTIONS TRUST, PLAINTIFF-RESPONDENT,
v.
KIRBY COMBS, DEFENDANT-APPELLANT.



On appeal from Superior Court of New Jersey, Chancery Division, Gloucester County, Docket No. F-1369-08.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued September 20, 2012

Before Judges Koblitz and Lisa.

Kirby Combs appeals from an October 31, 2011 order denying his motion to restrain the Gloucester County Sheriff from releasing the deed to his former property to Kondaur Capital Corporation (Kondaur). This foreclosure case has a somewhat complicated and lengthy history. Combs maintains that because Kondaur was never the named plaintiff, it may not legally receive the deed after a final judgment of foreclosure and sheriff's sale. After reviewing the record in light of the contentions advanced on appeal, we affirm.

Combs and his wife*fn1 executed a mortgage, dated July 20, 2007, securing the sum of $849,250, to Option One Mortgage Corporation (Option One), pledged against property located in Mullica Hill, Gloucester County. Option One sent Combs a notice of intent to foreclose dated November 5, 2007, identifying itself as the holder of the mortgage and indicating that Combs had defaulted on the mortgage. Option One then filed a foreclosure complaint against Combs on January 10, 2008.

Combs failed to file an answer and a default was entered on March 3, 2008. Nearly two months after the default, Combs filed a late, non-contesting answer.*fn2 Combs then filed an unsuccessful motion to vacate the default, which was denied on August 13, 2008.

The mortgage was subsequently assigned on two occasions. First, Option One assigned the mortgage to plaintiff Marathon Structured Asset Solutions Trust (Marathon) on May 27, 2009.*fn3

Next, the mortgage was assigned to Kondaur on June 2, 2010.*fn4

On August 11, 2010, after Marathon assigned the mortgage to Kondaur, an order substituting Marathon for Option One was filed, amending the complaint and all subsequent pleadings to reflect Marathon as plaintiff. That same day, final judgment was entered in favor of Marathon in the amount of $1,057,010.30 plus interest and counsel fees of $7,500. No order substituting Kondaur for Marathon was ever sought by plaintiff's counsel, which remained the counsel of record throughout the proceedings.*fn5

Kondaur wrote letters to Combs in August 2010 and March 2011, indicating that it was "the holder of the loan connected to the property" and offering Combs up to $20,000 "for a fresh start" if he vacated the property. Combs did not take Kondaur up on its offers. After numerous adjournments, the sheriff's foreclosure sale took place on July 27, 2011.*fn6 Marathon successfully bid on the property for $100. Marathon then assigned its bid to Kondaur. At oral argument, the parties informed us that Combs was finally evicted from the property in August 2012, almost five years after he defaulted on the mortgage.

On appeal Combs raises the following issues:*fn7

POINT I: THE STATE COURT DID MAKE ERR IN DENYING AN EMERGENT MOTION TO STAY DEED AND VACATE A FRAUDULENT SHERIFF SALE CONDUCTED BY A LENDER WHO HAD NO LEGAL RIGHTS TO THE PROPERTY KNOWN AS 205 SHERWIN ROAD, MULLICA HILL, NJ WHICH VIOLATES THE CONSUMER FRAUD ACT, N.J.S.A. 56:8-1 AND THE NEW JERSEY FRAUDULENT TRANSFER ACT, N.J.S.A 25:2-25, N.J.S.A 25:2-27 AND N.J.S.A. 25:2-20.

POINT II: THE STATE COURT DID ERR IN DENYING FRAUDULENT SHERIFF ORDER TO BE VACATED AND DISMISSED PURSUANT TO THE NEW JERSEY PROVISION OF THE FAIR ...


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