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Deutsche Bank National Trust Co. v. Guerriero

Superior Court of New Jersey, Appellate Division

November 7, 2013

DEUTSCHE BANK NATIONAL TRUST COMPANY AS TRUSTEE FOR HOME LOAN MORTGAGE LOAN TRUST 2006, Plaintiff-Respondent,
v.
MICHAEL GUERRIERO, Defendant-Appellant.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted October 29, 2013

On appeal from the Superior Court of New Jersey, Chancery Division, Ocean County, Docket No. F-1328-08.

Michael Guerriero, appellant pro se.

Frank J. Martone, P.C., attorney for respondent (Janet Silver Rosen, on the brief).

Before Judges Fisher and Koblitz.

PER CURIAM

In this foreclosure action, defendant Michael Guerriero appeals the denial of an order denying his motion to vacate a default judgment, which was entered more than four years before he filed his motion. We affirm.

The record reveals that, in September 2006, defendant borrowed $270, 000 from Ocean Bank, FSB; repayment was secured by a mortgage, which was recorded the following month. Defendant was in default on the terms of the loan by the time the note and mortgage were assigned to Home Loan Investment Bank, FSB (HLIB) in late 2007.

On January 10, 2008, plaintiff Deutsche Bank National Trust Company, as trustee for HLIB, filed its foreclosure complaint. Defendant did not file a responsive pleading, and on March 6, 2008, plaintiff served defendant with a notice of intention to apply for final judgment, which was entered on July 22, 2008.

In the four years that followed, defendant filed three bankruptcy petitions, [1] which, by operation of law, stayed the enforcement proceedings in this matter. The first bankruptcy petition was filed the day after the final foreclosure judgment was entered. Plaintiff obtained relief from the automatic stay in April 2009, following which defendant requested foreclosure mediation and exercised his right to two statutory adjournments of the sheriff's sale, N.J.S.A. 2A:17-36. The second bankruptcy petition, which was filed on the eve of the adjourned date for the sheriff's sale, was dismissed in June 2010. After further adjournments postponed the sheriff's sale until July 12, 2011, plaintiff immediately filed his third bankruptcy petition. That bankruptcy petition was dismissed on May 24, 2012, and the bankruptcy judge granted plaintiff prospective relief from the bankruptcy code's automatic stay provisions on August 27, 2012.

On September 5, 2012, defendant filed a pro se motion to vacate the final judgment and dismiss the complaint, alleging the judgment was void because plaintiff lacked standing to seek foreclosure. Judge Frank A. Buczynski, Jr., denied defendant's motion, finding it was not only time-barred but also without merit because there was no legitimate dispute that plaintiff was "in possession of the note" and had "the absolute right to foreclose."

In similar circumstances, we have affirmed the denial of motions for relief from foreclosure judgments when the motion is based on an alleged lack of standing and not filed until more than one year after entry of the default judgment. See Deutsche Bank Nat'l Trust Co. v. Russo, 429 N.J.Super. 91, 98 (App. Div. 2012); Deutsch Bank Trust Co. Ams. v. Angeles, 428 N.J.Super. 315, 319-20 (App. Div. 2012). We affirm in light of our holdings in these recent cases and substantially for the reasons set forth by Judge Buczynski in his thorough and well-reasoned opinion.

Affirmed.


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