Opinion
DOCKET NO. A-4497-11T4 A-4498-11T4
03-04-2014
CITIBANK, N.A. AS TRUSTEE FOR AMERICAN HOME MORTGAGE INVESTMENT TRUST 2004-3 MORTGAGE BACKED NOTES, SERIES 2004-3, Plaintiff-Respondent, v. ANDREW T. KIEGEL, Defendant, and PATRICIA M. KEESHAN, Defendant-Appellant. CITIBANK, N.A. AS TRUSTEE FOR AMERICAN HOME MORTGAGE INVESTMENT TRUST 2004-3 MORTGAGE BACKED NOTES, SERIES 2004-3, Plaintiff-Respondent, v. ANDREW T. KIEGEL, Defendant, and PATRICIA M. KEESHAN, Defendant-Appellant, and GMAC MORTGAGE, LLC, Defendant.
Patricia M. Keeshan, appellant pro se. Fein, Such, Kahn & Shepard, P.C., attorneys for respondent (Joshua B. Sears, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Parrillo, Harris, and Guadagno.
On appeal from the Superior Court of New Jersey, Chancery Division, Union County, Docket Nos. F-46089-08 and F-49684-08.
Patricia M. Keeshan, appellant pro se.
Fein, Such, Kahn & Shepard, P.C., attorneys for respondent (Joshua B. Sears, on the brief). PER CURIAM
These back-to-back appeals involve mortgage foreclosures of two Westfield properties. Defendant Patricia M. Keeshan appeals from the September 19, 2011 and November 30, 2011 orders denying her applications to vacate the final judgments entered on May 4, 2010, and December 6, 2010, respectively. We affirm.
We consolidate the appeals for purposes of this opinion.
I.
On November 17, 2008, Citibank, N.A. (Citi), "as Trustee for American Home Mortgage Investment Trust 2004-3 Mortgage Backed Notes, Series 2004-3," filed a foreclosure complaint alleging that defendants Andrew T. Kiegel and Patricia M. Keeshan had defaulted on a $650,000 note they had given to American Home Mortgage Acceptance, Inc. (AHM Acceptance). The complaint asserted that the note — secured by a purchase money mortgage on property located on Kimball Avenue in Westfield (the Kimball Avenue property) — was in default since August 1, 2008.
Kiegel died on June 8, 2011. There has never been a substitution made for the decedent under Rule 4:34.
On December 15, 2008, a second foreclosure complaint was filed against defendants, which asserted that a $365,400 note — secured by a non-purchase money mortgage on property located on Mountain Avenue in Westfield (the Mountain Avenue property) — was in default since September 1, 2008. Both complaints averred that Citi had been assigned the mortgages.
Defendants filed answers with affirmative defenses, counterclaims, and third-party complaints in response to Citi's complaints. Defendants' theories of liability alleged breach of duty, breach of contract, and tortious interference. Defendants further contended that Citi's loan servicer, American Home Mortgage Servicing, Inc. (AHMSI), failed to "engage in good faith dealings" when it refused to offer an acceptable loan modification. The affirmative defenses claimed that Citi lacked standing, failed to join indispensable parties, and neglected to properly notify defendants of the intent to foreclose pursuant to N.J.S.A. 2A:50-56.
In June 2009, the Chancery Division conducted "[a]n informal case management conference" and ordered the parties to hew to a schedule that contemplated the completion of discovery in approximately ninety days.
On August 28, 2009, on motion, third-party claims in both matters were dismissed. The motion judge explained that defendants failed to indicate in their third-party complaints
where in any of the documents or under any legal theory that there is a breach of fiduciary duty, breach of contract, or [tortious] interference with contract that occurs when a party whose loan documents specifically state that they're entitled to foreclose on the property in the event of default, have not engaged in a — or made a settlement offer that is acceptable to the defendant.
The complaint is based on what appears to be [defendants'] misunderstanding of the obligation of the contract . . . but do not give rise to a cause of action against the third-party defendants.
A few months later, in November 2009, Citi and AHMSI moved for summary judgment to dispose of defendants' counterclaims and remaining third-party claims. The court granted defendants a short adjournment to enable them to file opposition to the summary judgment motion and to file a motion for reconsideration of the August 28, 2009 order dismissing other third-party claims. No opposition to the summary judgment motion was filed.
On December 23, 2009, defendants' reconsideration motion was denied. On January 8, 2010, the court granted summary judgment in both actions, thereby dismissing all affirmative claims and defenses against Citi and AHMSI. The matters were thereafter transferred to the Office of Foreclosure as uncontested in conformity with Rule 4:64-1(c)(3).
In response to defendants' informal inquiry, the Chancery Division wrote defendants a letter on April 9, 2010, advising, "All issues respecting the case[s] were addressed in the [summary judgment and reconsideration] motions. The files were returned to the foreclosure unit in Trenton pending the plaintiff's filing of a motion for entry of judgments."
On May 4, 2010, a final judgment was entered against defendants with respect to the Mountain Avenue property. Seven months later, on December 6, 2010, a final judgment was entered against defendants with respect to the Kimball Avenue property.
Both judgments were entered before the December 20, 2010 and January 31, 2011 orders of the Supreme Court, which implemented revised procedures for residential mortgage foreclosures "[i]n light of irregularities in the residential foreclosure practice as reported in sworn deposition testimony in New Jersey and other states." Notice to the Bar: Emergent Amendments to Rules 1:5-6, 4:64-1 and 4:64-2 (December 20, 2010), http://www.judiciary.state.nj.us/notices/2010/n101220a.pdf.
In July and August 2011, Citi filed certifications of diligent inquiry pursuant to Rule 4:64-2(d). The Mountain Avenue property was sold at a sheriff's sale on August 3, 2011.
Keeshan responded on August 17, 2011, with a motion to set aside the sheriff's sale and judgment of foreclosure. On September 19, 2011, the Chancery Division denied the motion, explaining:
The [c]ourt is satisfied as it has been on three prior occasions that [Citi] is the holder of the note and mortgage and entitled to bring this action, that defendant has been provided with notice of the proceedings and that there is no basis, therefore, to vacate the judgment. The defendant has not set forth a reason pursuant to Rule []4:50-1 . . . to justify vacating the judgment in this matter.
On October 26, 2011, Keeshan filed a motion to vacate the foreclosure judgment with respect to the Kimball Avenue property. On November 30, 2011, the court denied the motion, noting, among other things, that Keeshan's assertion of alleged violations of the Fair Foreclosure Act (FFA), N.J.S.A. 2A:50-53 to -73, was not timely, because the FFA's "requirements must occur prior to the entry of judgment." Moreover, the court noted that the record indicated that defendants were properly served with proof of the entry of judgment on February 1, 2011, "had been provided notice of the application for judgment on March the 17th, 2009," as well as notice of entry of the judgment itself, and thus had an opportunity to object to the entry of judgment prior to its grant. Furthermore, concerning the argument that Citi lacked standing because the documents in the case were the product of "robo-signing," the court stated:
The plaintiff points out that the plaintiff has possession of the original note, that it was endorsed in blank and thus may, by its transfer to the delivery alone, to the plaintiff, constitutes an assignment or transfer of the note under N.J.S.A. 12A:3-201.These appeals followed.
The . . . the defendant has not . . . provided any basis to vacate . . . the judgment . . . in this case.
In late January 2012, a bankruptcy petition was filed, which caused the sheriff's sale of the Kimball Avenue property to be repeatedly adjourned. In light of the bankruptcy proceeding, we dismissed the appeal. After the automatic stay was vacated in March 2012, Keeshan filed two notices of appeal in May 2012, which challenged the order of September 19, 2011, with respect to the Mountain Avenue property, and the November 30, 2011 order with respect to the Kimball Avenue property.
II.
On appeal, Keeshan presents the following points with respect to both foreclosures:
We have not reproduced the verbatim argument points for both appeals because they are nearly identical. Any differences are not material to our consideration of the merits of Keeshan's appeals.
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POINT I: CITIBANK FAILED TO STATE A CLAIM ON WHICH RELIEF COULD BE GRANTED BECAUSE IT FAILED TO ALLEGE FACTS REGARDING CONVEYANCE OF THE NOTE FROM THE BANKRUPT ORIGINATOR.Following a review of the record and consideration of the controlling legal principles, we conclude that Keeshan's arguments are without sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(1)(E). We add only the following brief comments.
POINT II: CITIBANK FAIILED TO PROVIDE COMPETENT EVIDENCE TO ESTABLISH STANDING AS A MATTER OF LAW.
1. ATTORNEY CERTIFICATIONS NOT MADE OF PERSONAL KNOWLEDGE; EVEN IF TAKEN AS TRUE, THE CERTIFICATIONS ARE FACTUALLY INSUFFICIENT.POINT III: FAIR FORECLOSURE ACT APPLIES; PLAINTIFF'S FAILURE TO SERVE COMPLIANT NOTICE OF INTENTION DEMANDS REMEDY.
2. DEFECTIVE CERTIFICATION ON THE COPY OF THE NOTE SUBMITTED BY PLAINTIFF DOES NOT SATISFY THE REQUIREMENTS OF R. 4:64-2(a).
3. THE ASSIGNMENT OF MORTGAGE BY MERS AS "NOMINEE" FOR BANKRUPT ORIGINATOR IS INHERENTLY SUSPECT.
4. EVEN IF THE PROPOSITION THAT THE ASSIGNMENT WAS LAWFULLY EXECUTED IS TAKEN AS TRUE, PLAINTIFF'S ALLEGED OWNERSHIP INTEREST IN THE NOTE, SUPPORTED ONLY BY THE ASSIGNMENT OF MORTGAGE, DOES NOT GIVE RISE TO A CLAIM OF RELIEF AGAINST THE MAKER OF THE NOTE.
1. THE FAIR FORECLOSURE ACT APPLIES TO BOTH PROPERTIES.POINT IV: THE FACTUAL AND LEGAL BASES OF THE CLAIMS AGAINST AHMSI AND CITIBANK WERE SUFFICIENT TO WITHSTAND SUMMARY JUDGMNT (NOT RAISED IN THE MOTION TO VACATE AND DISMISS).
2. PLAINTIFF'S FAILURE TO SERVE NOTICE OF INTENTION THAT COMPLIED WITH FFA WAS RAISED REPEATEDLY.
3. REMEDY REQUIRED.
1. MOVANTS FAILED TO MEET THEIR BURDEN; OPPOSITION WAS NOT NECESSARY TO DEFEAT THE MOTION FOR SUMMARY JUDGMENT.POINT V: PROCEDURAL ERRORS AND LACK OF NOTICE JUSTIFIED VACATING UNDER R. 4:50-1(a).
2. COUNTERCLAIM DEFENDANTS' ARGUMENTS FOR DISMISSAL PURSUANT TO "ECONOMIC LOSS" DOCTRINE DOES NOT APPLY; IF APPLICABLE, FACTUAL CIRCUMSTANCES SUPPORT EXCEPTION.
3. WHETHER AHMSI, AS A PROVIDER OF PROFESSIONAL LOSS MITIGATION SERVICES (AND/OR AS AGENT OF AN UNDISCLOSED PRINCIPLE) ACTED UNLAWFULLY CONCERNS UNSETTLED LAW THAT MERITS DEVELOPMENT.
4. SUMMARY JUDGMENT WITHOUT DISCOVERY IS PREMATURE; SUMMARY JUDGMENT WHERE "STATE OF MIND" IS AT ISSUE IS INAPPROPRIATE.
5. AT A MINIMUM, AHMSI'S REFUSAL TO DISCLOSE THE IDENTITY OF OUR NOTE HOLDER IS GROUNDS FOR A MERITORIOUS CLAIM.
POINT VI: UNLAWFULLY EXECUTED ASSIGNMENT OF MORTGAGE NOT WITHDRAWN AS REQUIRED BY R. 1:4-8(a)(3); POSSIBLE FRAUD ON THE COURT.
1. ASSIGNMENT OF MORTGAGE BY "LINDA GREEN" NOT LAWFULLY EXECUTED.
2. R. 1:4-8(a)(3) DEMANDS WITHDRAWAL OF ALLEGATIONS SUPPORTED BY THE UNLAWFULLY EXECUTED DOCUMENT; FAILURE TO ADDRESS CONSTITUTES HARMFUL ERROR.
3. WHERE THERE IS A POSSIBLE FRAUD ON THE COURT, ADDITIONAL PROCEEDINGS ARE REQUIRED.POINT VII: OUR FAILURE TO TAKE CERTAIN ACTIONS WHICH WE COULD HAVE MORE EFFECTIVELY PROSECUTED OUR CLAIMS AND PROTECTED OUR DUE PROCESS RIGHTS IS EXCUSABLE.
POINT VIII: ADDITIONAL DEFENSES AND MERITORIOUS CLAIMS FOR SETOFF OR RECOUPMENT EXIST THAT WE WERE DENIED THE OPPORTUNITY TO RAISE BELOW.
We review the Chancery Division's denial of a motion to vacate a final judgment of foreclosure for abuse of discretion. US Bank Nat'l Assoc. v. Guillaume, 209 N.J. 449, 467 (2012). The motion court's determination deserves substantial deference, and the abuse of discretion must be clear to warrant reversal. Ibid.
Defendants seeking to a vacate final foreclosure judgment must satisfy the standard of Rule 4:50-1. The grounds for such relief are:
(a) mistake, inadvertence, surprise, or excusable neglect; (b) newly discovered evidence which would probably alter the judgment or order and which by due diligence"The rule is 'designed to reconcile the strong interests in finality of judgments and judicial efficiency with the equitable notion that courts should have authority to avoid an unjust result in any given case.'" Guillaume, supra, 209 N.J. at 467 (quoting Mancini v. EDS, 132 N.J. 330, 334 (1993)).
could not have been discovered in time to move for a new trial under [R.] 4:49; (c) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (d) the judgment or order is void; (e) the judgment or order has been satisfied, released or discharged, or a prior judgment or order upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment or order should have prospective application; or (f) any other reason justifying relief from the operation of the judgment or order.
[R. 4:50-1.]
Keeshan has presented nothing in this record to convince us that the Chancery Division erred in the application of controlling legal principles, mistakenly abused its discretion, or otherwise participated in a grave injustice. Keeshan's lack-of-standing argument is a non-starter because all of the evidence plainly indicates that Citi was the proper holder of the notes and mortgages at all appropriate times.
Furthermore, "[i]n foreclosure matters, equity must be applied to plaintiffs as well as defendants." Deutsche Bank Trust Co. Americas v. Angeles, 428 N.J. Super. 315, 320 (App. Div. 2012). Defendants had initially contested the foreclosure. However, they never denied responsibility for the debts incurred nor that they remained unpaid for years. Then, in the face of motions for summary judgment, defendants presented nothing to demonstrate the putative contested nature of the disputes. Rather, after persistent delays — when avenues for further deferral of action appeared either unlikely or were exhausted — Keeshan sought to start anew by reopening the foreclosure judgments to litigate issues that were long ago laid to rest. The Chancery Division did not abuse its discretion in determining that there were neither equitable nor legal grounds to vacate the judgments and allow a do-over.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION