Opinion
DOCKET NO. A-3002-11T2
02-04-2013
LYNX ASSET SERVICES LLC, Plaintiff-Respondent, v. MARVETTE E. HOSANG, Defendant-Appellant.
David J. Khawam, attorney for appellant. Michael A. Alfieri, attorney for respondent.
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Alvarez and Waugh.
On appeal from the Superior Court of New Jersey, Chancery Division, Burlington County, Docket No. F-015682-09.
David J. Khawam, attorney for appellant.
Michael A. Alfieri, attorney for respondent. PER CURIAM
Defendant Marvette E. Hosang appeals the Chancery Division's January 20, 2012 order denying her motion to vacate the final judgment of foreclosure entered on July 20, 2011. We affirm.
I.
We discern the following facts and procedural history from the record on appeal.
Hosang executed a promissory note in favor of DHI Mortgage Company, Ltd. (DHI), in June 2006. The note was secured by a mortgage to Mortgage Electronic Registration Systems, Inc. (MERS), as nominee for DHI. The mortgage, which covered a residential property in Southampton, was recorded in Burlington County in September 2006. The note and mortgage were acquired by plaintiff Lynx Asset Services LLC (Lynx) from a subsequent holder in December 2008. The assignment of the mortgage, however, was not recorded until January 25, 2012.
Hosang stopped paying on the note in May 2007. Lynx sent her a notice of intention to foreclose on April 3, 2009, after it had acquired the note and mortgage, and filed its foreclosure complaint on May 18. Hosang was served in July. On August 24, Hosang entered into a reduced payment arrangement, but subsequently stopped making the reduced payments.
Lynx filed an amended complaint in September 2009, naming the homeowners association for the planned unit development at which the property was located. Hosang was served with the amended complaint in October 2009. Default was entered against her in February 2010.
The final judgment of foreclosure was entered on July 20, 2011. Lynx purchased the property at the sheriff's sale on October 13, 2011. However, it agreed to give Hosang an additional sixty days to relocate. When she did not vacate the property, Lynx sought an order of removal, which was temporarily stayed on several occasions. Hosang moved out in May 2012.
Hosang filed a motion to vacate the judgment of foreclosure in November 2011. Lynx opposed the motion, which was argued on January 20, 2012. The motion judge delivered an oral decision denying the motion.
The judge rejected Hosang's argument that Lynx lacked standing to file the foreclosure action. The judge noted that Lynx had acquired the note and mortgage prior to commencement of the foreclosure action, and determined that the fact that the transfer of the mortgage had not yet been recorded did not affect Lynx's standing. Noting that Hosang had been represented by counsel several times during the pendency of the foreclosure action, the judge also determined that Hosang had failed to demonstrate excusable neglect with respect to her delay in seeking to set aside the default and the judgment. Finally, the judge determined that Hosang had not presented a sufficient factual basis for any of her proposed meritorious defenses.
An implementing order was entered on January 20. This appeal followed.
II.
On appeal, Hosang argues that the motion judge erred in denying her motion to vacate because she did not receive proper notice of the intention to foreclose and because Lynx did not have standing to seek foreclosure.
Rule 4:50-1 provides, in pertinent part, as follows:
On motion, with briefs, and upon such terms as are just, the court may relieve a party or the party's legal representative from a final judgment or order for the following reasons: (a) mistake, inadvertence, surprise, or excusable neglect; . . . or (f) any other reason justifying relief from the operation of the judgment or order.
A trial judge's decision to grant or deny an application to vacate a default judgment is accorded substantial deference and will not be disturbed absent a "clear abuse of discretion." US Bank Nat'l Ass'n v. Guillaume, 209 N.J. 449, 467 (2012); Hous. Auth. of Morristown v. Little, 135 N.J. 274, 283 (1994). A party seeking relief from a default judgment pursuant to Rule 4:50-1(a) must demonstrate both excusable neglect and a meritorious defense. Dynasty Bldg. Corp. v. Ackerman, 376 N.J. Super. 280, 285 (App. Div. 2005) (citing Marder v. Realty Constr. Co., 84 N.J. Super. 313, 318 (App. Div.), aff'd, 43 N.J. 508 (1964)). Although a claim that a judgment is void does not require a showing of excusable neglect, it must still be filed within a reasonable time after the judgment is entered. R. 4:50-2; M & D Assocs. v. Mandara, 366 N.J. Super. 341, 351-52 (App. Div.), certif. denied, 180 N.J. 151 (2004).
In our recent decision of Deutsche Bank Trust Company Americas v. Angeles, 428 N.J. Super. 315 (App. Div. 2012), the defendant challenged the plaintiff's standing to bring the foreclosure action nearly three years after defaulting on the mortgage, two years after final judgment was entered, and more than a year after the sheriff's sale was conducted. Id. at 316-17. We affirmed the Chancery judge's refusal to consider the issue because the defendant waited too long to raise the issue of standing. Id. at 316; see also Deutsche Bank Nat'l Trust Co. v. Russo, 429 N.J. Super. 91, 101 (App. Div. 2012) (rejecting the defendants' late objection to standing and noting that standing is not a jurisdictional issue in New Jersey).
We also note that Hosang's reliance on Bank of New York v. Laks, 422 N.J. Super. 201 (App. Div. 2011) for the proposition that the foreclosure complaint had to be dismissed is misplaced because that case was overruled by Guillaume, supra, 209 N.J. at 479, which allows for the cure of a deficiency in the notice of intention to foreclose, depending upon the equities.
The record before us reflects that Lynx had already obtained the note and mortgage when it gave the required notice under N.J.S.A. 2A:50-56(c), although the assignment of the mortgage had not yet been recorded. The notice of intention to foreclose identified Lynx, rather than a servicing agent, which was the defect at issue in Guillaume, supra, 209 N.J. at 471-75. And, albeit belatedly, the assignment has now been recorded.
For all of these reasons, we affirm the Chancery Division's January 20, 2012 order.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION