CAPITAL ONE, N.A., a national banking association and successor by merger to North Fork Bank, Plaintiff-Respondent,
FINMAR ASSOCIATES, MARVIN BRAM and CLAIRE BRAM, Defendants-Appellants.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 8, 2013
On appeal from the Superior Court of New Jersey, Law Division, Camden County, Docket No. 3403-11.
Rabner, Allcorn, Baumgart & Ben-Asher, P.C., attorneys for appellants (Dennis H. Sabourin and Eugenie F. Temmler, on the briefs).
McElroy, Deutsch, Mulvaney & Carpenter, LLP, attorneys for respondent (Peter Saad, on the brief).
Before Judges Fasciale and Maven.
Defendants Finmar Associates, Marvin Bram and Claire Bram appeal an April 27, 2012 order denying their request to vacate default judgment in favor of plaintiff Capital One, N.A. (Capital One), successor-in-interest to North Fork Bank. Defendants primarily argue that Capital One lacked standing. We affirm.
On December 14, 2005, defendant Finmar Associates obtained a loan from North Fork Bank in the amount of $1, 085, 000, secured by a Commercial Mortgage on a property located in Audubon, New Jersey. Also on this date, defendants Marvin and Claire Bram executed and delivered personal guaranties of repayment on the commercial loan obligation.
The loan matured on January 1, 2011; however, defendants failed to make any payment. On or about July 5, 2011, Capital One, which had acquired North Fork Bank through a merger on August 1, 2007,  filed a complaint against defendants alleging, among other things, breach of contract for default of payment obligations under the note and personal guaranties. The complaint was served on July 20, 2011. When defendants failed to answer, Capital One filed a request to enter default on September 6, 2011. The bank attached a certification from its Vice President, Marcy McLoone, which attested to the amount due on the loan and that defendants had been properly served the complaint. Default was entered on September 7, 2011.
On October 19, 2011, Capital One filed a motion for Default Judgment to which defendants filed an opposition brief. Defendants argued that Capital One failed to establish that Capital One was the current holder of the note in due course or that it had the right to enforce the note and the guaranties in this action. In response, Capital One filed a supplemental certification from McLoone, as well as a copy of the New Jersey Bank Mergers listing from the New Jersey Department of Banking and Insurance website, attesting to the acquisition of North Fork Bank by Capital One. Defendants also sought permission to file an answer to the complaint without filing a notice of motion to file the answer out to of time.
After oral argument on November 18, 2011, Judge Richard F. Wells entered default judgment against defendants in the amount of $1, 087, 015.83. The judge determined that Capital One had standing to enforce the note and defendants failed to satisfy the requisites of Rule 4:43-3. He stated
if the [c]ourt had a concern that Capital One was not the successor in interest in North Fork Bank, I'd be hesitant to grant the relief requested. But based on what's presented, the [c]ourt finds that there's really -- there is not a genuine issue here.
The [c]ourt notes that defendant[s] ha[ve] failed pursuant to [Rule] 4:43-3 to either provide an answer to the complaint or a dispositive motion to vacate default. And although we talked about it[, ] there is really no demonstration of good cause under [Rule] ...