August 12, 2013
WELLS FARGO BANK, N.A. AS TRUSTEE FOR THE MLMI TRUST SERIES 2005-FFHI, Plaintiff-Respondent,
EVON VANDERHALL, HIS/HER HEIRS, DEVISEES, PERSONAL REPRESENTATIVES AND HIS/ HER/THEIR OR ANY OF THEIR SUCCESSORS IN RIGHT TITLE AND INTEREST, Defendant-Appellant.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 12, 2013
On appeal from Superior Court of New Jersey, Chancery Division, Burlington County, Docket No. F-25991-07.
Evon Vanderhall, appellant pro se.
Zucker, Goldberg & Ackerman, LLC, attorneys for respondent (Robert D. Bailey, of counsel and on the brief).
Before Judges Lihotz and Kennedy.
Defendant appeals from the Chancery Division's January 10, 2012 order denying her motion to vacate a December 10, 2009 final judgment of foreclosure entered against her with respect to her property in Willingboro Township. Defendant argues that the judge erred in denying the motion because "plaintiff had no standing to file the complaint." We disagree and affirm.
On October 1, 2007, Wells Fargo Bank, N.A., as "Trustee for the MLMI Trust Series 2005-FFHI" (plaintiff), filed a complaint for foreclosure against defendant, alleging that defendant had defaulted on a $174, 900 note she had given to First Franklin, a division of National City Bank of IN. The complaint further alleged that the note was secured by a mortgage on defendant's property and that plaintiff had been assigned the note and mortgage.
No answer to the complaint was filed and default was entered on December 21, 2007. The assignment of the note and mortgage to plaintiff, dated April 1, 2005, was recorded on October 3, 2008, and final judgment of foreclosure was entered on December 10, 2009.
A Sheriff's sale of the property was scheduled for December 1, 2011, and on November 29, 2011, defendant filed a motion to vacate the judgment of foreclosure. In her supporting certification, defendant claimed she did not file an answer to the complaint because she "inadvertently threw it away." She also claimed that the assignment to plaintiff was "forged" and that while she had filed for bankruptcy protection, the bankruptcy stay was vacated on January 27, 2009.
Defendant argued that plaintiff had no standing because the assignment by First Franklin to First Franklin Financial Corporation occurred after the assignment by First Franklin Financial Corporation to plaintiff. Plaintiff responded that its assignment was recorded on October 3, 2008, prior to final judgment, and that it, therefore, held a valid assignment of the note and mortgage.
The judge denied defendant's motion and held that plaintiff had shown neither excusable neglect nor a meritorious defense. This appeal followed. We shall first consider the issue of standing, and thereafter the issue of defendant's motion to vacate judgment.
"Standing refers to the plaintiff's ability or entitlement to maintain an action before the court." N.J. Citizen Action v. Riviera Motel Corp., 296 N.J.Super. 402, 409 (App. Div.), certif. granted, 152 N.J. 13 (1997), appeal dismissed as moot, 152 N.J. 361 (1998). Entitlement to sue requires a "sufficient stake in and real adverseness with respect to the subject matter, " and a substantial likelihood of harm to the plaintiff by an unfavorable decision. Stubaus v. Whitman, 339 N.J.Super. 38, 47 (App. Div. 2001) (internal quotation marks and citation omitted), certif. denied, 171 N.J. 442 (2002). "A lack of standing by a plaintiff precludes a court from entertaining any of the substantive issues presented for determination." In re Adoption of Baby T., 160 N.J. 332, 340 (1999). See also Watkins v. Resorts Int'l Hotel & Casino, Inc., 124 N.J. 398, 424 (1991).
"Mortgages provide security for the debtor's obligation to pay an underlying obligation, ultimately permitting the mortgagee to force the sale of the property to satisfy that obligation." Bank of N.Y. v. Raftogianis, 418 N.J.Super. 323, 327 (Ch. Div. 2010). To have standing to foreclose a mortgage, a party generally must "own or control the underlying debt." Wells Fargo Bank, N.A. v. Ford, 418 N.J.Super. 592, 597 (App. Div. 2011) (quoting Raftogianis, supra, 418 N.J. Super, at 327-28).
We are satisfied plaintiff had standing to foreclose the mortgage on defendant's property. It is undisputed defendant defaulted on the underlying loan. Plaintiff obtained a valid assignment of the loan and the security and had the authority to proceed at the time of the filing of the foreclosure complaint. See Raftogianis, supra, 418 N.J.Super. at 351-52. The contents of plaintiff's mortgage foreclosure complaint complied with the requirements of Rule 4:64-1(b) in effect at the time, which required a recitation of the specifics of the mortgage and debt instrument but not attachment of the documents. Defendant did not file an answer to the complaint. Instead, she chose to file a motion, more than four years after service of the complaint, and almost two years after final judgment, challenging standing. This is insufficient to warrant relief.
We also note that as distinguished from the posture of, for example, Ford, supra, 418 N.J.Super. 592, or Raftogianis, supra, 418 N.J.Super. 323, defendant did not timely raise the standing issue in the foreclosure litigation. Rather, as noted, defendant belatedly asserted the issue, virtually without any explanation for the delay.
In U.S. Bank National Ass'n v. Guillaume, 209 N.J. 449 (2012), a foreclosure case, the Supreme Court recently reiterated that the standard for a party seeking to vacate a default judgment is set forth in Rule 4:50-1. The grounds are:
(a) mistake, inadvertence, surprise, or excusable neglect; (b) newly discovered evidence which would probably alter the judgment or order and for which by due diligence could not have been discovered in time to move for a new trial under R. 4:49; (c) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (d) the judgment or order is void; (e) the judgment or order has been satisfied, released or discharged, or a prior judgment or order upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment or order should have prospective application; or (f) any other reason justifying relief from the operation of the judgment or order.
The Court in Guillaume further explained the purpose and application of Rule 4:50-1:
The rule is "'designed to reconcile the strong interests in finality of judgments and judicial efficiency with the equitable notion that courts should have authority to avoid an unjust result in any given case.'" Mancini v. EDS, 132 N.J. 330, 334 (1993) (quoting Baumann v. Marinaro, 95 N.J. 380, 392 (1984)).
The trial court's determination under the rule warrants substantial deference, and should not be reversed unless it results in a clear abuse of discretion. See DEG, LLC v. Twp. of Fairfield, 198 N.J. 242, 261 (2009); Hous. Auth. of Morristown v. Little, 135 N.J. 274, 283 (1994). The Court finds an abuse of discretion when a decision is "'made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis.'" Iliadis v. Wal-Mart Stores, Inc., 191 N.J. 88, 123 (2007) (quoting Flagg v. Essex Cnty. Prosecutor, 171 N.J. 561, 571 (2002)).
[Guillaume, supra, 209 N.J. at 467-68.]
See also Orner v. Liu, 419 N.J.Super. 431, 437 (App. Div.) (holding that motions made within all subsections of Rule 4:50-1 must be filed within a reasonable time under the circumstances), certif. denied, 208 N.J. 369 (2011); R. 4:50-2.
Defendant did not cite Rule 4:50-1 in her initial brief and did not reference the subsection upon which she relies for setting aside the foreclosure judgment To the extent defendant is relying on subsection (a) - excusable neglect - defendant provided no explanation for her failure to file an answer to or otherwise defend the foreclosure action The record amply supports the finding by the motion judge that defendant failed to demonstrate excusable neglect and in fact seemed well aware of the process to delay the proceedings post-judgment rather than defend the foreclosure complaint In fact defendant makes no argument to the contrary
Although we need not even reach the second prong we are satisfied defendant has not established a meritorious defense by her standing challenge which we addressed earlier Nor has defendant demonstrated that this purported defense rendered the judgment void under Rule 4:50-1(d) defendant's most likely position though not articulated in her initial brief
The remainder of defendant's arguments are insufficient to warrant discussion in a written opinion R 2-11-3(e)(1)(E)