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Bank of New York for Benefit of Certificate Holders Asset-Backed Certificates v. Conde

Superior Court of New Jersey, Appellate Division

October 3, 2013

BANK OF NEW YORK FOR THE BENEFIT OF THE CERTIFICATE HOLDERS ASSET-BACKED CERTIFICATES, SERIES 2007-3, Plaintiff-Respondent,
v.
VALERIE CONDE, Defendant-Appellant,

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted July 16, 2013

On appeal from Superior Court of New Jersey, Law Division, Union County, Docket No. LT-3553-12.

C.N. Njoku, L.L.C., attorneys for appellant (Chinemerem N. Njoku, of counsel and on the brief).

Kristina G. Murtha (Kivitz McKeever Lee, P.C), attorney for respondents.

Before Judges Ostrer and Hayden.

PER CURIAM

Defendant, Valeria[1] Conde, appeals from the June 22, 2012 Landlord Tenant Part order denying her motion to reopen the consent judgment she entered with plaintiff, Bank of New York for the benefit of the certificate holders asset-backed certificates, series 2007-3 (the Bank). For the reasons that follow, we affirm.

From the record, we glean the following facts. The Bank became the owner of property known as 449 Catherine Avenue, Elizabeth, New Jersey (the property), following an action in mortgage foreclosure against the former owner, Dilson Teixeira. Conde, who had a child with Teixeira, signed a lease as his tenant in February 2010. The sheriff's deed vesting title in the Bank is dated May 4, 2010 and was recorded on June 24, 2010.

On September 29, 2011, the Bank sent a notice to Conde's residence informing her that the prior owner of her residence no longer owned the property due to a foreclosure, and that the Bank was now the owner. The notice provided her with the appropriate address to remit the rent. Conde acknowledged that she had not paid any rent to the Bank, or anyone else, since the Bank's September 2011 notice.

After receiving no rent or communication from Conde, the Bank filed a landlord-tenant action against her for non-payment of rent on February 20, 2012. The parties, represented by counsel, entered into a "consent to enter judgment" in court on May 10, 2012. Conde agreed to vacate the premises within forty-five days and to waive the return of her security deposit. In exchange, the Bank waived the right to the unpaid back rent and future rent until Conde left the premises within the requisite time frame. A Portuguese translator assisted Conde during the hearing and while she reviewed the written agreement prior to signing it. Conde told the judge that she understood and accepted the terms of the agreement.

Conde moved to vacate the consent judgment on May 23, 2012. In her supporting certification, Conde claimed that, a few days after the consent judgment was executed, she decided to pay the entire unpaid back rent, so that she could remain in the property.[2] Apparently, she had gone to a local bank called "The Bank of New York, "[3] where they had no record of owning the subject property. She then searched for records regarding the owner of the property.

Conde further claimed that she uncovered evidence that the deed to the property was transferred to Leonel F. Lopes in 2012.[4]Conde provided copies of documents that listed Lopes as the owner of the property. Based on this "newly discovered evidence, " Conde claimed that Lopes, who she referred to as her "trustee, " had defrauded her by telling her he would help her buy the property. She claimed that the attorney for the Bank and Lopes were involved in the fraud. She certified that she stopped paying her rent because of Lopes' "fraudulent act of deceiving me."

Conde argued that the consent judgment was based on fraud and that the Bank lacked standing in the tenancy court because it did not own the property in question. Conde contended that the consent judgment should be vacated because there is "just too much going on here that we don't know about." She requested that the case be transferred to ...


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