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TD Bank, N.A. v. Buccolo

Superior Court of New Jersey, Appellate Division

September 9, 2013

TD BANK, N.A., Plaintiff-Respondent,
BRUCE BUCCOLO, Individually and as Executor of the Estate of Joseph Buccolo and DAVID BUCCOLO, Individually and as Executor of the Estate of Joseph Buccolo, Defendants-Appellants, and UNITED STATES OF AMERICA, Defendant.


Submitted August 13, 2013

On appeal from the Superior Court of New Jersey, Chancery Division, Essex County, Docket No. F-7881-06.

William J. Jeffery, attorney for appellants.

McCabe, Weisberg & Conway, P.C., attorneys for respondent (Carol Rogers Cobb, on the brief).

Before Judges Lihotz and Guadagno.


Appellant, Bruce Buccolo, [1] individually and as executor of the estate of his father, Joseph Buccolo, appeals from the October 28, 2011 order of the Chancery Division denying his motion to vacate a judgment of default. We affirm.

On February 3, 2003, appellant's parents, Joseph and Ruth Buccolo, executed a note and mortgage to Commerce Bank, N.A. (Commerce), for a $65, 000 line of credit, secured by real property in West Orange (the West Orange property). On December 15, 2005, Joseph and Ruth defaulted on the note. After filing an initial foreclosure complaint, Commerce filed a complaint on May 10, 2007, seeking to foreclose on the West Orange property. Joseph and Ruth were named as defendants. After Ruth's death in June 2007, Joseph became the sole mortgagor.

Joseph was served by regular and certified mail on July 10, 2007, but died in August 2007. In November 2007, the action against Ruth was dismissed and default was entered against Joseph. Final judgment was entered against Joseph, but since Joseph died prior to the entry, an order was entered on June 10, 2008, vacating the judgment.

Joseph left a will appointing his two sons, Bruce and David Buccolo, executors. After Commerce merged with plaintiff T.D. Bank, N.A. (T.D. Bank), T.D. Bank, as successor by merger, filed a second amended complaint for foreclosure, naming Bruce and David as defendants. T.D. Bank filed an affidavit of service indicating that Bruce[2] was served by leaving a copy of the summons and complaint with a household member at the West Orange property on October 11, 2008. David, who resides in California, was served by regular and certified mail.

On December 10, 2008, Bruce contacted T.D. Bank's counsel and requested a forbearance agreement, as he was attempting to sell the property. Counsel advised Bruce to submit a written request.

No responsive pleadings were filed and default was entered against Bruce and David. On February 24, 2009, counsel for Bruce, Vincent Commisa, contacted T.D. Bank's counsel and requested a forbearance agreement. He was also told to submit a written request. Three days later, Commisa informed T.D. Bank that he no longer represented Bruce.

Bruce continued to seek a forbearance and loan modification from T.D. Bank. When his request was denied, he requested an extension to file an answer to the complaint. Bruce was advised to put the request in writing.

On March 4, 2009, T.D. Bank provided Bruce with the terms of a proposed loan modification. Although Bruce agreed to discuss the terms with David, he did not respond to the offer and default was entered.

Bruce moved to vacate the default, claiming he was not properly served with process. On April 23, 2010, Judge Harriet Klein found that Bruce was properly served and denied the motion. Judge Klein placed her reasons for denying the motion on the record.

Bruce then filed another motion to vacate the default. He abandoned his argument that service was improper and argued that he was not aware that a responsive pleading was required. On July 16, 2010, Judge Klein placed her reasons for denying the motion on the record and entered an order allowing T.D. Bank to "proceed as an uncontested matter in the Foreclosure Unit, provided that all notices be given to defendants."

On September 27, 2010, Judge Mary Jacobson entered final judgment in favor of T.D. Bank in the amount of $93, 333.07, plus interest and counsel fees. The West Orange property was ordered sold "to satisfy the said mortgage, interest and costs."

Bruce then moved to vacate the final judgment and dismiss T.D. Bank's complaint. Judge Klein heard argument on this motion on October 28, 2011, and determined the motion was controlled by Rule 4:50-1, even though Bruce had not sought relief under that Rule. Judge Klein denied the motion, finding that none of the subsections of Rule 4:50 afforded relief.

On appeal, Bruce presents nine points for our consideration. The first five points challenge the service of process upon Bruce. This issue is not properly before us. Appellant's Amended Notice of Appeal indicates that he is appealing the order entered on October 28, 2011. Judge Klein's order denying Bruce's motion to vacate default based on improper service was entered on April 23, 2010, and her reasons were placed on the record that day. Not only has appellant failed to notice that he appeals from that order, but he has failed to provide a copy of the transcript of the April 23, 2010 proceeding, as required by Rule 2:5-3.

Rule 2:5-1(f)(3)(A) provides in pertinent part that in all civil actions the notice of appeal "shall designate the judgment, decision, action or rule, or part thereof appealed from." The comments to this rule note, "[w]hile the rule does not in terms so provide, it is clear that it is only the judgments or orders or parts thereof designated in the notice of appeal which are subject to the appeal process and review." Pressler & Verniero, Current N.J. Court Rules, comment 6.1 on R. 2:5-1 (2014).

Appellant's remaining arguments challenge T.D. Bank's standing to bring this action. We find these arguments lack sufficient merit to warrant extended discussion in our written opinion. R. 2:11-3(e)(1)(E). We add only the following brief comments.

Appellant relies on our decision in Deutsche Bank Nat'l Trust Co. v. Mitchell, 422 N.J.Super. 214 (App. Div. 2011), to assert that T.D. Bank lacked standing to bring this action because it "failed to show it was a holder of the instrument or that it was a non-holder of the instrument with the rights of a holder as required by N.J.S.A. 12A:3-301." This claim lacks merit.

In Mitchell, Deutsche Bank had not been assigned the mortgage prior to filing the foreclosure complaint. Relying on Article III of the Uniform Commercial Code (UCC), N.J.S.A. 12A:3-101 to -605, which addresses who may enforce negotiable instruments, we held that either possession of the note or an assignment of the mortgage that predated the original complaint conferred standing. Id . at 216, 225. We remanded for the trial court to determine whether, before filing the original complaint, Deutsche Bank was in possession of the note or had another basis to achieve standing to foreclose, pursuant to N.J.S.A. 12A:3-301. Id . at 225.

Although T.D. Bank was not the original mortgagee, the facts in this natter are distinguishable from those in Mitchell. T.D. Bank acquired Commerce in a merger. Under the Banking Act of 1948, N.J.S.A. 17:9A-1 to -467, when two or more banks merge, "the corporate existence of each merging bank shall be merged into that of the receiving bank, and the property and rights of each merging bank shall thereupon vest in the receiving bank without further act or deed[.]" N.J.S.A. 17:9A-139. Accordingly, T.D. Bank is vested with the right to sue on instruments previously held by the acquired bank without presenting a separate assignment of the instruments. 12 U.S.C.A. § 215a(e); see also N.J.S.A. 17:9A-132(2); N.J.S.A. 17:9A-148(C).

Moreover, appellant did not raise the standing issue until after judgment was entered. In Mitchell, the defendant actively engaged in the litigation, filing an answer and counterclaims in response to the plaintiff's foreclosure complaint. Id . at 220. The defendant also contested the plaintiff's standing to file the foreclosure complaint long before the end of the litigation. Id . at 220-21. Here, as Judge Klein noted, "each and every one of the facts that [c]ounsel investigated and brought forth to this [c]ourt existed then and could have been raised [during the litigation], but were not."

We find no abuse of discretion in Judge Klein's decision to deny appellant's motion to vacate the final judgment.


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