U.S. BANK, as successor by merger to STATE STREET BANK AND TRUST COMPANY, Trustee for the Registered Holders of J.P. Morgan Commercial Finance Corp., Mortgage Pass-Through Certificates, Series 1998-C6, Plaintiff-Respondent,
ALMONESSON ASSOCIATES, LP, and KENNETH GOLDENBERG, Defendants-Appellants.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued telephonically February 15, 2013
On appeal from Superior Court of New Jersey, Chancery Division, Gloucester County, Docket No. F-48887-09.
Randi A. Wolf argued the cause for appellants (Spector Gadon & Rosen, P.C., attorneys; Ms. Wolf, on the brief).
Sheila E. Calello argued the cause for respondent (McCarter & English, LLP, attorneys; Ms. Calello, of counsel and on the brief; Danielle Weslock, on the brief).
Before Judges Fisher and St. John.
Defendants Almonesson Associates, LP and Kenneth Goldenberg, appeal from a May 11, 2012 Chancery Division order denying their request to vacate a February 3, 2012 consent judgment. On appeal, defendants argue the judge erred in denying their motion, as the circumstances required the consent judgment be vacated. Following our review of these arguments in light of the record and the applicable law, we affirm.
We briefly summarize the relevant procedural history and the facts based on the record before us.
Almonesson was the owner of a shopping center located in Deptford. In September 1997 it borrowed $30, 300, 000, executed a fixed rate note secured by a mortgage and other collateral documents. The loan was further secured by a guaranty given to the lender by Goldenberg. On October 16, 2009, plaintiff U.S. Bank filed a verified complaint for foreclosure, possession, entitlement to rents, appointment of a rent receiver, and foreclosure of security interest against defendants. Defendants did not file an answer, but entered into negotiations with the lender. As a result, a forbearance agreement was entered into among the parties on December 1, 2009. Pursuant to this agreement, defendants agreed to: (1) the appointment of a rent receiver; (2) the execution of a consent judgment; and (3) the execution of a deed in lieu of foreclosures and related documents. Plaintiff agreed to forebear from pursing its remedies for eighteen months, specifically until June 30, 2012.
The consent order appointing a rent receiver, pursuant to the agreement, was entered on April 15, 2010. Metro Commercial Management Services Inc. (Metro) was named as the court-appointed rent receiver. Metro remained in control of the shopping center during the forbearance agreement. As rent receiver, Metro was to issue monthly reports to the plaintiff and defendants showing income and expenses. According to the president of Metro, defendants did not present it with any prospective tenants or purchasers for the shopping center. Defendants contend that Metro did not comply with its reporting requirements.
In a June 29, 2011 letter to plaintiff, defendants requested a nine month extension of the forbearance agreement. Plaintiff did not agree to the extension. Defendants failed to pay all sums due under the loan documents, and on December 15, 2011, over five months from the date that it was authorized to file, plaintiff submitted the consent judgment for entry. On December 27, 2011, defendants objected to its entry, claiming plaintiff failed to comply with the terms of the forbearance agreement. However defendants could not evidence that, during the period of forbearance, they had given any notice to plaintiff that it was in violation of the forbearance agreement.
On February 3, 2012, the court entered the consent judgment. On April 11, 2012, defendants filed a motion to vacate the consent judgment asserting an entitlement to such relief pursuant to Rule 4:50-1. After considering oral arguments, the motion judge denied defendants' motion finding that they were not entitled to relief since, among ...