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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,
v.
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.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

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.

PER CURIAM.

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. ...


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