Opinion
DOCKET NO. A-2404-14T4
05-31-2016
BANK OF AMERICA N.A., Plaintiff-Respondent, v. KEVIN J. GALLAGHER AND CHRISTINE D. GALLAGHER, Defendants-Appellants.
Weisberg Law, P.C, attorneys for appellants (Matthew B. Weisberg, on the brief). Powers Kirn, L.L.C. attorneys for respondent (Michael B. McNeil, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Nugent and Higbee. On appeal from Superior Court of New Jersey, Chancery Division, General Equity Part, Gloucester County, Docket No. F-064077-09. Weisberg Law, P.C, attorneys for appellants (Matthew B. Weisberg, on the brief). Powers Kirn, L.L.C. attorneys for respondent (Michael B. McNeil, on the brief). PER CURIAM
Plaintiff, Bank of America, N.A., held the note and mortgage on property purchased in Gloucester County by defendants, Kevin and Christine Gallagher. Defendants failed to make their loan payments, and plaintiff filed a complaint to foreclose on the mortgage. Default was entered against defendants for failing to answer or respond to the complaint. Approximately three years later, the complaint was dismissed without prejudice for plaintiff's failure to prosecute.
Approximately one year after the complaint was dismissed, plaintiff filed a motion to reinstate its complaint and correct its notice of intent to foreclose. Defendants filed opposition to the motion and a cross-motion to vacate default. The trial judge granted plaintiff's motion, summarily stating plaintiff showed good cause to reinstate. The decision was made on the papers, and the order did not contain factual findings or legal conclusions. Additionally, the trial judge failed to address defendants' cross-motion. Subsequently, a second trial judge entered a final judgment order against defendants. Defendants appeal from both the July 11, 2014 order reinstating the complaint and the December 10, 2014 order entering default judgment.
On appeal, defendants argue plaintiff's motion to reinstate did not set forth legally sufficient grounds for the requested relief, it was out of time, and it lacked appropriate attachments. Defendants also contend plaintiff was out of time to file a corrected notice of intent to foreclose. Additionally, defendants argue the cross-motion to vacate default should have been granted.
We review motions to reinstate a complaint and to vacate a default judgment under an abuse of discretion standard. Weber v. Mayan Palace Hotel & Resorts, 397 N.J. Super. 257, 262 (App. Div. 2007); see DEG, LLC v. Twp. of Fairfield, 198 N.J. 242, 261 (2009). A court abuses its discretion "when a decision is 'made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis.'" Flagg v. Essex Cty. Prosecutor, 171 N.J. 561, 571 (2002) (quoting Achacoso-Sanchez v. Immigration and Naturalization Serv., 779 F.2d 1260, 1265 (7th Cir. 1985)).
A motion to reinstate in a foreclosure matter is governed by Rule 4:64-8, which states:
when a foreclosure matter has been pending for twelve months without any required action having been taken therein . . . the court shall enter an order of dismissal without prejudice as to any named party defendant who has not been served or has not answered and shall furnish the plaintiff with a copy thereof. Reinstatement of the matter after dismissal may be permitted only on motion for good cause shown.
[(Emphasis added).]
A motion to vacate default or a default judgment is governed by Rule 4:43-3, which states:
[f]or good cause shown, the court may set aside an entry of default and, if a judgment by default has been entered, may likewise set it aside in accordance with R. 4:50.
[(Emphasis added).]
Of most significance to this matter, Rule 1:7-4(a) states:
The court shall, by an opinion or memorandum decision, either written or oral, find the facts and state its conclusions of law . . . on every motion decided by a written order that is appealable as of right . . . . The court shall thereupon enter or direct the entry of the appropriate judgment."Failure to perform this duty 'constitutes a disservice to the litigants, the attorneys and the appellate court.'" Schwarz v. Schwarz, 328 N.J. Super. 275, 282 (App. Div. 2000) (quoting Curtis v. Finneran, 83 N.J. 563, 569-70 (1980)); see also Filippone v. Lee, 304 N.J. Super. 301, 306 (App. Div. 1997) (stating deciding motions on the papers without any indication of the trial court's reasoning makes it difficult for the appellate court to perform its review function).
The judge's order to reinstate plaintiff's complaint was devoid of any factual findings or legal conclusions and failed to address defendants' cross-motion. We remand and direct the judges to give a statement of reasons and conclusions of law as to the July 11, 2014 order reinstating the complaint and December 10, 2014 order entering default judgment, including the court's disposition, statement of reasons, and conclusions of law as to defendants' motion to vacate default. The judges' statements shall be forwarded to the judges on this appellate panel as well as the parties and the clerk of the Appellate Division within thirty days.
Remanded. We retain jurisdiction. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION