On appeal from the Superior Court of New Jersey, Chancery Division, Bergen County, Docket No. F-30625-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued: December 19, 2012 -
Before Judges Axelrad and Sapp-Peterson.
In this mortgage foreclosure case, defendants Amy Anna Gomez and Alex Owimrin, husband and wife, appeal from an order of April 18, 2012, denying their motion to vacate a default judgment against them, which they filed sixteen months after the judgment was entered and the day before the sheriff's sale. The judge was not persuaded defendants had demonstrated the judgment was void, R. 4:50-1(d), and found the motion to be untimely. We affirm.
The facts are straightforward and undisputed. On August 27, 2007, defendants borrowed $377,100 from Wells Fargo Bank, N.A. (Wells Fargo), and executed a note and purchase money mortgage securing their residence in Hillsdale. The mortgage was duly recorded on August 29, 2007, in the Office of the Clerk of Bergen County. Defendants failed to make the installment payment due in May 2008, and all payments thereafter, and the loan went into default.
On August 8, 2008, Wells Fargo assigned the mortgage and note to plaintiff HSBC Bank as Trustee for WFMBS. On October 31, 2008, the assignment was duly recorded.
On August 11, 2008, plaintiff filed a foreclosure complaint against defendants.*fn1 An amended complaint was filed on January 21, 2009. The pleadings recited the aforementioned history. It is undisputed that defendants were personally served with the complaint, did not file an answer or respond to the complaint, and default was entered against them. It is also undisputed that defendants participated in court-sponsored mediation and no resolution was reached. Between 2008 and March 15, 2012, that was the full extent of defendants' involvement in the court proceedings.
Plaintiff submitted its proofs to the Administrative Office of Foreclosure, including the mortgage, note, and assignment of mortgage and note, all stamped as "certif[ied] . . . to be a true copy of the original" and signed by a person identified as "an attorney at law of N.J." (presumably plaintiff's foreclosure counsel), and affidavit of amount due. On November 8, 2010, the court entered a final judgment of foreclosure and defendants were advised of same. Defendants did not complain about the proofs, either before or at the time of the final judgment, and did nothing at all after the final judgment was entered.
Sheriff sales were repeatedly adjourned throughout 2011. The sale was ultimately scheduled for March 16, 2012. The day before the sale, present counsel, on defendants' behalf, filed an order to show cause seeking to stay the sale, vacate the final judgment, and dismiss the action. Defense counsel cited Rule 4:50-l(c) "fraud, misrepresentation, or other misconduct of an adverse party"; (d) "the judgment or order is void"; and (f) "any other reason justifying relief from the operation of the judgment or order. Defendants further argued that plaintiff's failure to comply with Rule 4:64-1(b)(10) constituted grounds to vacate judgment, claiming plaintiff did not have standing to foreclose because the complaint "relies upon a fraudulent assignment of mortgage" and "fails to state all assignments in the chain of title." Defendants also challenged plaintiff's standing to sue in foreclosure, asserting it did not have physical possession of the note when the complaint was filed and, if it did, the Trust did not take ownership of the loan under its Trust's charter, the Pooling and Servicing Agreement (Prospectus).
Plaintiff voluntarily adjourned the sale, and Judge Robert
P. Contillo converted the order to show cause into a motion to vacate the final judgment of foreclosure. Following oral argument on April 13, 2012, Judge Contillo denied defendants' motion for the reasons stated orally on the record. He rejected defendants' argument that the judgment was void because the assignment of the mortgage to plaintiff was improperly executed. Regardless, the judge found defendants had failed to file the motion within a reasonable time. The judge concluded it was unreasonable for defendants not to participate in a litigation for years and then to come in literally the day before the property is going to be sold at Sheriff's sale to talk about whether or not there has been documentation that would authorize Mr. Ackerman to have implemented the assignment, and I'm satisfied there is no fraud involved, at the very least, in that transaction.
An amended order was entered on April 18, 2012, because the April 13, 2012 order failed to accurately reflect the court's rulings. This appeal ensued.
On appeal, defendants argue: (1) the Administrative Office of Foreclosure erred by entering final judgment without sufficient proofs; (2) the court erred by misapplying the law of the Uniform Commercial Code (UCC), N.J.S.A. 12A:3-301, and Deutsche Bank National Trust v. Mitchell, 422 N.J. Super. 214 (App. Div. 2011); (3) the court erred by failing to consider that the Prospectus governing plaintiff precluded the Trust from taking ownership and rights of enforceability as to the subject promissory note and mortgage because the Prospectus makes clear that plaintiff has not acquired the note and mortgage; and (4) plaintiff's failure to comply with Rule ...