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PHH Mortgage Corporation v. Garner

Superior Court of New Jersey, Appellate Division

June 10, 2013

PHH MORTGAGE CORPORATION, Plaintiff-Respondent,
v.
JAYNE A. GARNER, Defendant-Appellant.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted April 22, 2013

On appeal from Superior Court of New Jersey, Chancery Division, Burlington County, Docket No. F-22974-08.

David J. Khawam, attorney for appellant.

Phelan Hallinan & Schmieg, P.C., attorneys for respondent (Vladimir Palma, on the brief).

Before Judges Ashrafi and Espinosa.

PER CURIAM

Defendant Jayne Garner appeals from a January 6, 2012 order of the Chancery Division denying her motion to vacate a foreclosure judgment entered on November 10, 2010. She claims that the judgment was improperly entered "due to lack of notice of intent to foreclose upon appellant by appellee and a lack of standing by appellee to bring their complaint." We reject those contentions and affirm the Chancery Division's order.

On December 21, 2005, defendant obtained a loan of $234, 650 to purchase residential property located in Browns Mills. There is a dispute in our record regarding whether defendant intended to reside at the premises or was purchasing it as an investment rental property. At the time of the foreclosure, defendant did not reside at the property.

The note evidencing the loan named the lender as plaintiff "PHH Mortgage Corp (f/k/a Cendant Mortgage Corp) d/b/a Century 21 Mortgage" (PHH). To secure the loan, defendant gave a mortgage to Mortgage Electronic Registration Systems, Inc. (MERS), "as a nominee for" PHH.

Defendant made installment payments on the loan to PHH for more than two years. She did not make the March 1, 2008 payment or any other payment after that date. On April 15, 2008, PHH sent defendant a "Notice of Intention to Foreclose, " indicating that defendant could cure the default by paying $4, 321.23 immediately. The notice further warned that continued nonpayment would result in the acceleration of the balance due on the loan and the commencement of foreclosure proceedings. There is no record of any attempt by defendant to cure the default.

On June 13, 2008, MERS assigned "all beneficial interest" in the mortgage to PHH. Three days later, PHH filed a foreclosure complaint in the Chancery Division. Defendant was served with the complaint on June 27, 2008, at an address different from the mortgaged property. She did not answer or otherwise respond to the complaint, and default was entered on August 4, 2008. On October 1, 2008, however, defendant filed a late, pro se answer. Her answer contained nineteen affirmative defenses, and several other allegations, but it did not allege improper notice or challenge PHH's standing to sue for foreclosure. The Chancery Division treated the late answer as a motion to vacate the default and allowed the answer to be filed on March 20, 2009.

On September 22, 2009, PHH moved to strike defendant's answer as non-contesting. Defendant did not file opposition. The Chancery Division granted PHH's motion on October 23, 2009 and entered default. It then sent the case to the Office of Foreclosure for further processing. Defendant sought leave to appeal, which we denied on February 24, 2010. The Supreme Court also denied leave to appeal on May 4, 2010.

On March 3, 2010, PHH moved for entry of final judgment. Defendant, still pro-se, opposed the motion on June 30, 2010. The Chancery Division granted PHH's motion and final judgment ...


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