MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC., as nominee for M&T BANK, Plaintiff-Respondent,
KIL JA KIM, JONG KEUM KIM, Defendants-Appellants, and MANUEL GUERRERO, Defendant.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 23, 2013
On appeal from the Superior Court of New Jersey, Chancery Division, Bergen County, Docket No. F-50425-09.
Tomas Espinosa, attorney for appellants.
McCabe, Weisberg & Conway, P.C., attorneys for respondent (Carol Rogers Cobb, on the brief).
Before Judges Alvarez and St. John.
Defendants in a mortgage foreclosure action, Kil Ja Kim and Jong Keum Kim, appeal the May 8, 2011 Chancery Division order denying their motion to vacate a sheriff's sale. We affirm for the reasons stated by Judge Contillo in his oral decision.
A default was entered against defendants on March 8, 2010, and final judgment on April 29, 2011. Defendants then filed a bankruptcy petition, as a result of which the proceedings were stayed until an order entered on July 13, 2011. The bankruptcy terminated October 25, 2011.
Defendants were able to obtain adjournments of two sheriff's sales of the subject property until March 3, 2012, when the sale was completed. Defendants' motion to vacate followed. In rendering his decision, Judge Contillo said:
. . . the legal standard that has to be adhered to is under Rule 4:50-1 and the only particular subsections of that that I think could possibly be in play would be that . . . there was some sort of fraud by listing it as M&T, as opposed to MERS as nominee for M&T. But I think that's a far stretch to call that a fraud when it was clearly a --simply a shorthand designation of the plaintiff, incorrect, but nevertheless, not a fraud. And there's no evidence in the record before that there was any misleading of the defendants, that they were misled, or that the failure to identify the plaintiff as MERS as nominee for M&T Bank as opposed to simply M&T Bank make any difference whatsoever.
The other potential errors that the judgment might be vacated under would be 4:50-1(a) that would be excusable neglect. But in this case the defendants were served in either 2009 or early 2010. They were served and did nothing. They were served with the request to enter default in March of 2010, they did nothing. They were served with the final judgment of foreclosure in 2011. They did nothing. They filed for Chapter 7, I think in 2011 but did nothing to engage the litigation process, until literally the day before the sheriff's sale. And that's neglect, but it's not excusable neglect. There's no excuse and the theory that they weren't fully aware of what all their rights were, is just not a valid excuse. . . .
I am permitted to vacate a default judgment if it's in the interest of justice to do so. But that's an extremely rare basis upon which to vacate a judgment of default and foreclosure. There's nothing out of the ordinary in this particular application that I can see.
I think the main argument and the defendant's best argument is that the judgment is void on the theory that this plaintiff doesn't have the right to bring the action because they're not the proper plaintiff, because they haven't proven that they hold the note, and because of the misidentification of the ...