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Green Tree Servicing, LLC v. Stewart-Smith

Superior Court of New Jersey, Appellate Division

July 11, 2013

GREEN TREE SERVICING, LLC, Plaintiff-Respondent,
v.
CECILE J. STEWART-SMITH, Defendant-Appellant.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued May 21, 2013

On appeal from the Superior Court of New Jersey, Chancery Division, Gloucester County, Docket No. F-13794-06.

Appellant Cecile J. Stewart-Smith argued the cause pro se.

Stuart H. West argued the cause for respondent (Pluese, Becker, & Saltzman, LLC, attorneys; Mr. West, on the brief).

Before Judges Fisher, Alvarez and St. John.

PER CURIAM

Defendant Cecile J. Stewart-Smith appeals from a May 10, 2012 Chancery order denying her order to show cause to stay eviction, her motion to vacate a sheriff's sale, and her motion to vacate a final judgment entered in a mortgage foreclosure proceeding. We affirm.

A brief discussion of the procedural history in this matter is warranted. On July 20, 2010, a final judgment in foreclosure and writ of execution issued. No answer was filed by Stewart-Smith. Accordingly, a sheriff's sale was scheduled on September 22, 2010. The date was postponed when Stewart-Smith obtained an adjournment delaying the sale to October 27, 2010, to attempt mediation. Mediation was unsuccessfully conducted on October 25, 2010.

The sheriff's sale scheduled for October 27 was postponed when Stewart-Smith filed a bankruptcy petition and obtained an automatic stay which resulted in a monthly payment plan. Because Stewart-Smith did not make the required payments, the stay was vacated in March 2011, reinstated in June, and then vacated, and the bankruptcy petition presumably dismissed, in November.

The sheriff's sale was rescheduled for January 11, 2012. Stewart-Smith obtained another stay until February 8, this time from the Chancery judge, because she alleged the property was under contract. On this occasion, Stewart-Smith retained counsel for the sole purpose of consummating a short sale, and she requested an open-ended adjournment of the sheriff's sale. Plaintiff Green Tree Servicing, LLC refused. Hence the sheriff's sale took place. Stewart-Smith sought and was denied leave to file an emergent motion in the Appellate Division staying the sale.

The sheriff's deed after sale was recorded March 20, 2012, and an eviction scheduled for May 10, 2012. Stewart-Smith next filed a motion to stay eviction, vacate sheriff's sale, strike the certification of diligent inquiry, vacate the final judgment, and dismiss the complaint alleging that Green Tree Servicing has no standing to foreclose. That application resulted in the order now under appeal.

In denying Stewart-Smith's request to stay her removal from the premises, the judge stated:

Default on [mortgage] occurred May 2006. Foreclosure [complaint] filed on 8/4/06. [Stewart-Smith] defaulted. Final judgment entered 7/10/10. Sheriff's sale occurred Feb. 8, 2012. [Stewart-Smith's] [application for leave to file an emergent motion] was denied 2/17/12. Ample notice of the eviction date was provided to [Stewart-Smith]. [Stewart-Smith's] motion returnable 5/25/12 seeks to assert defenses never before raised. Equities lie with pla[intiff] after 6 years of nonpayment.

Stewart-Smith appeals from the judge's refusal to grant relief pursuant to Rule 4:50-1(d) and (f), raising the following points:

POINT 1 – RESPONDENT/PLAINTIFF LACKED STANDING UPON FILING COMPLAINT.
POINT 2 – THE CERTIFICATION MUST BE STRICKEN BECAUSE IT VIOLATES THE PRINCIPLES OF EQUITY.
POINT 3 – THE NOTE DOES NOT DEMONSTRATE GREEN TREE HAD STANDING.
POINT 4 – THE CERTIFICATION MUST BE STRI[C]KEN BECAUSE IT VIOLATES THE SUPREME COURT'S PURPOSE OF ITS AMENDMENTS AND PRINCIPLES OF EQUITY.

We note that Stewart-Smith includes in her appendix an unfiled certification setting forth what she alleges are the salient facts and procedural history in the matter. That certification was signed January 5, 2013, while this appeal was pending. Suffice it to say that Stewart-Smith does not bring to our attention actual errors committed by the trial court which are cognizable on appeal. See U.S. Bank Nat'l Ass'n v. Guillaume, 209 N.J. 449, 483 (2012) (citing Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973)). Rather, the thrust of her argument is that we should, acting as factfinders, grant her applications, despite the long ago entry of default against her, and consider for the first time allegations of fraud and lack of standing. This in addition to the procedural bar that she presents no legal justification under subsections (d) and (f) of Rule 4:50-1 for vacating the judgment entered against her three years ago. Id . at 484 (requiring "truly exceptional circumstances" to vacate a judgment under Rule 4:50-1(f)); Deutsche Bank Nat'l Trust Co. v. Russo, 429 N.J.Super. 91, 101 (App. Div. 2012) ("[S]tanding is not a jurisdictional issue in our State court system and, therefore, a foreclosure judgment obtained by a party that lacked standing is not 'void' within the meaning of Rule 4:50-1(d)."). In any event, we do not consider her arguments to warrant further discussion in a written opinion. R. 2:11-3(e)(1)(E).

Affirmed.


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