NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued May 21, 2013
On appeal from the Superior Court of New Jersey, Chancery Division, Monmouth County, Docket No. F-06738-10.
Michael Confusione argued the cause for appellants (Hegge & Confusione, L.L.C., attorneys; Mr. Confusione, of counsel and on the brief).
Janet Silver Rosen argued the cause for respondent (Frank J. Martone, PC, attorneys; Ms. Rosen, on the brief).
Before Judges Reisner and Hayden.
Defendants Ruchi Kapoor Trust and Angela Jaitly appeal from an August 1, 2012 order denying their motion to vacate a final judgment of foreclosure, vacate a consent order, and set aside a sheriff's sale and for other relief. They also appeal from an October 1, 2012 order denying their motion for reconsideration. In their notice of appeal, defendants also listed the following additional orders: an October 3, 2011 final judgment of foreclosure, an October 25, 2011 order directing the sheriff to pay additional sums to plaintiff, and a January 9, 2013 order declaring Jaitly's lease of the mortgaged premises to be a sham and amending the writ of possession to include Daniel R. Ponn. We affirm.
We summarize the history of this case as follows. On January 27, 2010, plaintiff Provident Bank (Provident or the bank) filed a foreclosure complaint, asserting that defendants gave a mortgage to secure a $618, 700 loan on a property at 32 Eric Court in Marlboro, New Jersey, and defaulted on that loan on August 1, 2009. The complaint asserted that the original note had been lost, but the mortgage was recorded on March 16, 1999. Defendants filed a contesting answer on May 19, 2010. On June 4, 2010, plaintiff filed a motion for summary judgment, alleging that defendants had not filed a genuinely contesting answer. Defendants, represented by Andrew Koppel, Esq., filed opposition, claiming that plaintiff had not established possession of the note and raising other technical defenses to the foreclosure. On August 31, 2010, Judge Thomas W. Cavanagh, Jr. denied the summary judgment motion.
On September 20, 2010, the court entered a case management order, scheduling a November 29, 2010 settlement conference and setting a January 5, 2011 trial date. However, on October 18, 2010, the parties, through their attorneys, entered into a consent order withdrawing defendants' answer, "establishing" the lost note, and staying application for final judgment for three months. The body of the order recited that the parties had agreed to a settlement at a September 20, 2010 case management conference, and that the court had reviewed a copy of a Lost Note Certification that plaintiff would have filed had the case not been settled. By order dated September 23, 2010, the complaint was amended to name Jaitly and Ponn as defendants based on their being occupants of the premises.
On March 8, 2011, plaintiff served Jaitly and Ponn with plaintiff's request to enter default against them. That notice was served by mail at the 32 Eric Court address. On April 6, 2011, plaintiff filed a notice of motion for the entry of final judgment. The motion was accompanied by proof of service on defendant's attorney Koppel, as well as service by regular and certified mail on Jaitly and Ponn at the 32 Eric Court address.
The final foreclosure judgment was entered on October 3, 2011, and a writ of execution was issued on the same date. On November 14, 2011, plaintiff's counsel served a notice of sheriff's sale on Jaitly and Ponn, by certified and regular mail sent to the 32 Eric Court address. The sale was rescheduled multiple times, at Jaitly's request, and each time a notice of the rescheduled sale was mailed to her at the Eric Court address.
Thereafter, Jaitly filed two emergent motions to stay sheriff's sales scheduled for January 23, 2012 and February 27, 2012. Both motion certifications asserted that defendants were trying to arrange for a short sale of the property. In her first certification, Jaitly also stated that she "did not learn of the foreclosure proceedings until [she] noticed a sheriff's sale notice on the door of the property . . . around Thanksgiving 2012 [sic]." In her second certification, Jaitly stated that "[t]o the best of my recollection, [p]rior counsel was NOT authorized to enter into a consent order to Dismiss Answer" (emphasis added). ...