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Trucap Grantor Trust 2010-1 v. David Serido


December 27, 2012


On appeal from Superior Court of New Jersey, Chancery Division, Ocean County, Docket No. F-36916-08.

Per curiam.


Argued October 17, 2012

Before Judges Grall and Koblitz.

Defendant David Serido appeals from the September 16, 2011 decision*fn1 denying his motion to vacate the final foreclosure judgment of June 3, 2010. He also appeals from the November 16, 2011 order denying his motion for reconsideration and the December 16, 2011 order appointing a rent receiver. He based his application to vacate the judgment on the fact that the assignment to Wachovia Bank, NA*fn2 occurred after it had already filed the original foreclosure complaint. After considering the issues raised by Serido in light of the facts and applicable law, we affirm.

On November 30, 2007, Serido executed a note in the amount of $315,000 to Wachovia Mortgage Corporation (Wachovia Corp.) to purchase rental property in Ocean Gate. The record indicates that Wachovia Bank, NA took immediate possession of the note. To secure payment of the note, he executed a mortgage that same day to Mortgage Electronic Registration Systems, Inc. (MERS), as nominee for Wachovia Corp.

Serido did not make the mortgage payment due on July 1, 2008 or any time thereafter. On September 22, 2008, Wachovia Bank, NA filed a foreclosure complaint. On October 20, 2008, MERS assigned the mortgage and note to Wachovia Bank, NA. Two weeks later, Wachovia Bank, NA filed an amended complaint noting the assignment of the mortgage and note from MERS to Wachovia Bank, NA.

At no time after the initial or amended complaint did Serido file an answer. At no time has he denied his responsibility for the debt or argued that TruCap is not legitimately owed the debt.

In August 2010, Wachovia Bank, NA sent Serido a notice of a scheduled sheriff's sale. Serido received two statutory stays after filing two separate Chapter 13 bankruptcy petitions, which caused additional delays.

On April 27, 2011, the mortgage and note were assigned from Wells Fargo Bank, NA, the successor by merger to Wachovia Bank, NA, to TruCap.*fn3 Three months later, an order acknowledging the assignment was entered.*fn4

It was not until July 22, 2011, that Serido prepared a motion to vacate the June 3, 2010 final judgment and dismiss the complaint.*fn5 He argued that Wachovia Bank, NA lacked standing and that he was not served with the complaint or the amended complaint.*fn6 The motion judge provided Wachovia Bank, NA the opportunity to brief our just-published case, Deutsche Bank National Trust Company v. Mitchell, 422 N.J. Super. 214 (App. Div. 2011), and adjourned the sheriff's sale. By the next court date, a certification from Edward G. Olson, Vice President of Loan Documentation at Wells Fargo Bank, NA was presented to the motion judge and to Serido. The certification in part states, "Wachovia Bank, N.A. and its successor in interest Wells Fargo Bank, N.A. were in possession of the original [n]ote and [m]ortgage from origination on November 30, 2007 until the loan was sold to Trucap, LLC." The motion judge determined that, although the mortgage and note were assigned after the complaint was filed, Wachovia Bank, NA had possession of the note at the time of the filing of the complaint and therefore had standing to bring the foreclosure action.

In determining that the final judgment should not be vacated after plaintiff waited three years to contest the foreclosure, the court explained, "[f]rom a pure point of equity, the defense was never raised. Had it been raised with an answer filed in the beginning, the Court may have permitted an amended pleading and may have said start all over again."

Nearly eighteen months after final judgment was entered, a rent receiver was appointed, as Serido had been collecting rent from tenants at the property even though final judgment had been entered and he was no longer making mortgage payments.

The sheriff's sale was held on March 12, 2012. Serido raises the following issues on appeal:

POINT I: The trial court overlooked the service of the complaints.

POINT II: Wachovia Bank, NA and plaintiff held no rights to enforce the note against defendant.

POINT III: The trial court erred when granting plaintiff's motion to appoint a rent receiver.

In our recent decision of Deutsche Bank Trust Company Americas v. Angeles, 428 N.J. Super. 315 (App. Div. 2012), the defendant challenged the plaintiff's standing to bring the foreclosure action nearly three years after defaulting on the mortgage, after final judgment was entered and after the sheriff's sale was conducted. Id. at 316-17. We affirmed the Chancery judge's refusal to consider the issue because the defendant waited too long to raise the issue of standing. Id. at 316; see also Deutsche Bank Nat'l Trust Co. v. Russo, ___ N.J. Super. ___, ___ (2012) (slip op. at 11-12) (rejecting the defendants' late objection to standing and noting that standing is not a jurisdictional issue in New Jersey).

Similarly here, it was not until at earliest July 22, 2011, that Serido filed a motion to vacate the June 3, 2010 final judgment and dismiss the complaint. This is nearly three years after Serido's default on the mortgage, a year after the final judgment was entered, and nearly a year after his two Chapter 13 bankruptcy petitions were dismissed.

Not only did Serido raise the standing issue too late in the foreclosure process, but Wachovia Bank, NA, the original plaintiff, did in fact have standing as it possessed the note at the time it filed the complaint.

Serido claims that the judge erred in appointing a rent receiver because he had already filed an appeal, thus removing jurisdiction to us. R. 2:9-1(a). The Chancery Division, however, retains the right to enforce its orders. Id. It would not have been reasonable to permit Serido to continue to collect rent after a prolonged period of non-payment of the mortgage and well after final judgment.

The remaining issues raised by Serido are not of sufficient merit for a written opinion. R. 2:11-3(e)(1)(E).


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