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Indymac Federal Bank, FSB v. Schulmann

Superior Court of New Jersey, Appellate Division

June 13, 2013

INDYMAC FEDERAL BANK, FSB, Plaintiff-Respondent,
v.
MICHAEL SCHULMANN and SHERYL SCHULMANN, Defendants-Appellants.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted June 3, 2013

On appeal from the Superior Court of New Jersey, Chancery Division, Monmouth County, Docket No. F-49740-08.

Michael Schulmann, appellant pro se.

Ballard Spahr, LLP, attorneys for respondent (Martin C. Bryce, Jr., and Mariah E. Murphy, on the brief).

Before Judges Sabatino and Fasciale.

PER CURIAM

Defendants appeal from an April 13, 2012 order denying their motion to vacate a March 31, 2010 foreclosure judgment.[1] We affirm.

In July 2008, defendants defaulted on their mortgage payments. In December 2008, plaintiff filed its complaint and served defendants. In January 2009, plaintiff filed and served defendants with an amended complaint. Defendants served an answer to the amended complaint, but never filed it. In January 2010, the court entered default. In March 2010, the court entered final judgment.

Defendants participated in three mediation sessions unsuccessfully. In August 2010, defendants filed for bankruptcy, but plaintiff then obtained relief from the automatic stay provision.

In March 2012, defendants moved to vacate the judgment. They argued that plaintiff failed to serve them with the pleadings, and the court lacked personal and subject matter jurisdiction. The judge conducted oral argument, and on May 30 and 31, 2012, he issued his findings of fact and conclusions of law. The judge found that plaintiff properly served defendants and defendants failed to demonstrate either excusable neglect or a meritorious defense.

On appeal, defendants argue primarily that the court lacked personal and subject matter jurisdiction, and plaintiff did not serve them with the amended complaint. As a result, they contend that the judge erred by failing to vacate the final judgment. We find insufficient merit in these arguments to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We affirm substantially for the reasons given by the judge and add the following brief comments.

Our standard of review is well settled. As Justice Patterson recently reiterated in US Bank Nat'l Ass'n v. Guillaume, 209 N.J. 449, 467 (2012), a "party seeking to vacate [a default] judgment" in a foreclosure action must satisfy Rule 4:50-1. The rule is "designed to reconcile the strong interests in finality of judgments and judicial efficiency with the equitable notion that courts should have authority to avoid an unjust result in any given case." Ibid. (internal quotation marks omitted).

We afford "substantial deference" to the trial judge and reverse only if the judge's determination amounts to a clear abuse of discretion. Ibid. An abuse of discretion is when a decision is "made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis" Ibid (internal quotation marks omitted) We see no abuse here

The judge made extensive findings of fact and conclusions of law He stated that defendants admitted to being served with the original complaint The judge found that plaintiff served defendants with the amended complaint in January 2 009 and defendants served an answer to the amended complaint Defendants then participated in several mediation sessions which were temporarily interrupted by defendants' filing of a bankruptcy petition The judge then noted that defendants provided no meritorious defense or basis to vacate the judgment

Affirmed


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