DEUTSCHE BANK NATIONAL TRUST, as Trustee Under Pooling and Servicing Agreement Dated June 1, 2007 - Equifirst Loan Securitization Trust 2007-1 - Mortgage Pass-Through Certificates Series 2007-1, Plaintiff-Respondent,
JANET EDDINGS and EDWARD EDDINGS, Defendants-Appellants.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 24, 2013
On appeal from Superior Court of New Jersey, Chancery Division, Union County, Docket No. F-3950-07.
Tomas Espinosa, attorney for appellants.
Reed Smith, LLP, attorneys for respondent (Henry F. Reichner, of counsel; Alex G. Gross, on the brief).
Before Judges Koblitz and Accurso.
In this mortgage foreclosure action, defendants Janet and Edward Eddings (the Eddings) appeal from the denial of their motion to stay eviction and vacate a final judgment of foreclosure entered four and one-half years earlier. Judge Malone denied the motion deeming it time-barred. We affirm, substantially for the reasons expressed by Judge Malone in his written opinion of March 20, 2012.
Defendants borrowed $430, 000 from Franklin First Financial Ltd. (Franklin) in a refinance transaction on December 2, 2005, subject to a thirty-year note and mortgage on their home. The mortgage was made to Mortgage Electronic Registration Systems, Inc. (MERS), as nominee for Franklin. The Eddings made the first nine payments due on their note but failed to make the November 1, 2006 payment. They have made no subsequent payments.
On February 9, 2007, plaintiff, Deutsche Bank National Trust (Deutsche Bank), as trustee for Morgan Stanley Loan Trust 2006-HE2, filed a foreclosure complaint alleging that it had been assigned the Eddings' mortgage by MERS in a written assignment "about to be recorded." Defendants were personally served and filed an answer through counsel, asserting among other defenses, lack of privity between them and plaintiff.
Plaintiff's subsequent summary judgment motion went unopposed, and an order striking the Eddings' answer was entered on May 11, 2007. Plaintiff served them with a notice of intent to enter final judgment by regular and certified mail, and a final judgment of foreclosure was entered on July 31, 2007.
A sheriff's sale was scheduled for October 10, 2007, but adjourned numerous times to allow the Eddings to pursue other alternatives including a loan modification and a short sale. After proper notice to the Eddings, the sheriff's sale finally went forward on July 14, 2010, almost three years after it was first scheduled. There was no buyer, and plaintiff took back the property on its bid. No objection to the sale was filed, and the sheriff delivered the deed to Deutsche Bank which recorded it on August 27, 2010.
Defendants were scheduled to be evicted on March 31, 2011, when they filed for bankruptcy under Chapter 7. The bankruptcy proceeding was finally concluded on September 28, 2011. Deutsche Bank thereafter rescheduled the eviction for January 18, 2012. On January 17, 2012, defendants filed an emergent application to stay eviction which Judge Malone granted, rescheduling the eviction for February 15, 2012. The date was further extended to February 23, 2012.
On February 22, 2012, four and one-half years after final judgment was entered, the Eddings filed an order to show cause to stay eviction and vacate final judgment under Rule 4:50-1(c), (e), and (f) on the ground that Deutsche Bank lacked standing to bring the foreclosure. The Eddings claimed there was no valid assignment of the mortgage to Deutsche Bank and no clear evidence of how Deutsche Bank came to possess ...