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U.S. Bank National Association v. Lopez

Superior Court of New Jersey, Appellate Division

June 17, 2013

U.S. BANK NATIONAL ASSOCIATION, AS TRUSTEE FOR ASSET-BACKED PASS-THROUGH CERTIFICATES SERIES 2007-AHL1, Plaintiff-Respondent,
v.
SERGIO D. LOPEZ, MRS. SERGIO D. LOPEZ, HIS WIFE, ROSA A. LOPEZ, MR. LOPEZ, HUSBAND OF ROSA A. LOPEZ, AND WACHOVIA BANK, Defendants-Appellants.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted June 4, 2013

On appeal from Superior Court of New Jersey, Chancery Division, Bergen County, Docket No. F-36708-08.

Joseph A. Chang & Associates, L.L.C., attorneys for appellants (Mr. Chang, on the brief).

Reed Smith, L.L.P., attorneys for respondent (Henry F. Reichner, of counsel; Alex G. Gross, on the brief).

Before Judges Reisner and Hayden.

PER CURIAM

Defendants Sergio and Rosa A. Lopez appeal from a March 2, 2012 Chancery Division order denying as untimely their motion to vacate a final judgment of foreclosure entered on December 1, 2009 in favor of plaintiff U.S. Bank National Association. They also appeal from the April 13, 2012 order denying their motion for reconsideration. We affirm.

We discern the following from the record. On September 8, 2006, defendants entered into a mortgage for $310, 000 with Aames Funding Corporation d/b/a Aames Home Loan. Defendants stopped making payments on the loan on April 1, 2008. The mortgage was assigned to plaintiff U.S. Bank as trustee on September 9, 2008, and the assignment was recorded on October 21, 2008.

On September 19, 2008, plaintiff filed a foreclosure complaint against defendants. After three attempts to serve defendants at the mortgaged property, plaintiff served the complaint by certified mail on October 17, 2008, which defendants acknowledged receiving.

Defendants failed to answer the complaint. The court entered default against defendants on December 16, 2008. On December 24, 2008, plaintiff sent a notice to defendants that it intended to proceed with the entry of judgment, pursuant to the Fair Foreclosure Act, N.J.S.A. 2A:50-53 to -58. Defendants then twice attempted to file an answer pro se, but both times the court rejected the answers as deficient. The Chancery Division entered a final judgment of foreclosure on December 1, 2009.

Subsequently, plaintiff sent defendants a notice of a sheriff's sale of the foreclosed property on January 12, 2010. Defendants retained counsel for the first time after receiving this notice, and obtained two statutory adjournments of the sheriff's sale. Thereafter, defendants obtained numerous stays of the sale in order to participate in court-sponsored mediation. After four mediation sessions over the course of a year, mediation concluded without resolution.

Defendants retained new counsel on January 11, 2011. A year later, on January 18, 2012, defendants moved to vacate the default judgment under Rule 4:50-1. Defendants alleged, among other claims, that the judgment was void because plaintiff lacked standing to foreclose on the mortgage and because the bank failed to comply with all statutory notice requirements. R. 4:50-1(d). Defendants further argued for relief from the judgment under Rule 4:50-1(f) due to exceptional circumstances.

In denying the motion, Judge Harry G. Carroll found that defendants had not filed it within a reasonable time after entry of the final judgment for foreclosure. The judge further found that defendants produced no proof of exceptional circumstances for their failure to file a timely answer to the complaint or for the years of delay in filing their motion. Finally, he found that defendants' argument that plaintiff did not have standing, even if timely, was without merit. Judge Carroll concluded that defendants had proven neither excusable neglect nor a ...


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