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BankUnited v. Decastro

Superior Court of New Jersey, Appellate Division

September 17, 2013

BANKUNITED, Plaintiff-Respondent,
v.
ALTON DECASTRO and ABIGAYLE DECASTRO, his wife, Defendants-Appellants.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted September 3, 2013

On appeal from the Superior Court of New Jersey, Chancery Division, Hudson County, Docket No. F-24707-10.

Alton Decastro, appellant pro se.

Pluese, Becker, & Saltzman, LLC, attorneys for respondent (Stuart H. West, on the brief).

Before Judges Alvarez and Maven.

PER CURIAM

Defendant Alton Decastro, pursuant to Rule 4:50-1, sought to vacate plaintiff BankUnited's July 26, 2011 final judgment in foreclosure on the basis that BankUnited lacked standing. Decastro now appeals from the May 25, 2012 order denying his application. We affirm.

Decastro's points on appeal are as follows:

1. THE APPELLATE DIVISION MUST DECIDE WHETHER PLAINTIFF TOOK POSSESSION OF THE NOTE AND HAD THE RIGHT TO ENFORCE THAT NOTE AT THE TIME IT FILED ITS FORECLOSURE COMPLAINT, WHETHER THE TRIAL COURT RULED CORRECTLY ON THE LAW.
2. THE APPELLATE DIVISION MUST DECIDE WHETHER PLAINTIFF'S PROOF WAS SUFFICIENT TO SUPPORT STANDING AT THE TIME THE COMPLAINT WAS FILED.

Decastro's legal arguments do not warrant extended discussion in a written opinion. R. 2:11-3(e)(1)(E). We affirm essentially for the judge's reasons, as appended to the May 12, 2012 order. We comment briefly on two issues.

Decastro did not establish any basis for the court to vacate the final judgment. In order to do so, under Rule 4:50-1, a movant must demonstrate some grounds, such as excusable neglect or fraud, in addition to a meritorious defense. Decastro does not offer any facts which would lead a court to find excusable neglect; indeed, he appears to have initiated collateral proceedings in an attempt to address the foreclosure, such as the filing of a bankruptcy petition, which was ultimately dismissed.

In the absence of any proffer on the issue of excusable neglect, Decastro now contends that BankUnited's lack of standing perpetrated a fraud upon the court. He further alleges the fraud warrants vacating the judgment some ten months ...


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