Opinion
DOCKET NO. A-4092-14T1
05-10-2016
DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE OF THE INDYMAC IMSC MORTGAGE LOAN TRUST 2007-F1, MORTGAGES PASS-THROUGH CERTIFICATES, SERIES 2007-F1 UNDER THE POOLING AND SERVICING AGREEMENT DATED MAY 1, 2007, Plaintiff-Respondent, v. MARGIE KUTYLA, Defendant-Appellant.
Margie Kutyla, appellant pro se. Blank Rome LLP, attorneys for respondent (Kevin C. Rakowski, of counsel and on the brief; Kyle E. Vellutato, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Ostrer and Haas. On appeal from Superior Court of New Jersey, Chancery Division, Morris County, Docket No. F-016079-13. Margie Kutyla, appellant pro se. Blank Rome LLP, attorneys for respondent (Kevin C. Rakowski, of counsel and on the brief; Kyle E. Vellutato, on the brief). PER CURIAM
In this mortgage foreclosure matter, defendant Margie Kutyla appeals from the April 15, 2015 Chancery Division order denying her motion to vacate a final judgment of foreclosure. We affirm.
We derive the following facts and procedural history from the record. Defendant formerly held title to a residence in Towaco. On March 9, 2007, she executed a note to Quicken Loans, Inc. (Quicken) in the amount of $578,700. To secure payment, defendant executed a mortgage encumbering her residence in favor of Mortgage Electronic Registration Systems (MERS), as nominee for Quicken. The mortgage was recorded with the Morris County Clerk's Office on April 2, 2007.
On June 30, 2009, Quicken assigned its interest in the note and mortgage to OneWest Bank, FSB (OneWest). This assignment was recorded with the Morris County Clerk's Office on July 28, 2009.
In September 2012, defendant defaulted on loan. On March 5, 2013, OneWest assigned the note and mortgage to plaintiff Deutsche Bank National Trust Company, as trustee of the IndyMac IMSC Mortgage Loan Trust 2007-F1. This assignment was recorded with the Morris County Clerk's Office on March 20, 2013.
On May 13, 2013, plaintiff filed its foreclosure complaint. Defendant did not file a responsive pleading. On July 12, 2013, the trial court entered default against defendant.
On October 25, 2013, plaintiff moved for the entry of a final judgment of foreclosure. In response, defendant filed a motion to vacate the default. She alleged that a Florida law firm she retained to assist her "advised her improperly."
On January 7, 2014, Judge Stephan Hansbury denied defendant's motion. In a detailed written statement of reasons, the judge concluded that defendant failed to demonstrate "good cause" for setting aside the default as required by Rule 4:43-3. Judge Hansbury found that defendant "was in receipt of the complaint and aware of the proceedings." The judge noted that defendant provided no evidence that she "received and relied upon [any] advice from an attorney[,]" and she did not provide a copy of a signed retainer agreement with the Florida law firm.
Judge Hansbury also found that defendant failed to "demonstrate the existence of a meritorious defense to the underlying foreclosure action." Although defendant alleged that she did not receive a notice of intent to foreclose, the record indicated that the notice was sent to her by certified mail. Contrary to defendant's contention that plaintiff lacked standing to file its foreclosure complaint, the judge determined that plaintiff had standing because it was in possession of the note and mortgage.
On January 10, 2014, the court entered a final judgment granting foreclosure and a writ of execution. Plaintiff purchased the property at a sheriff's sale on October 9, 2014.
On March 6, 2015, over a year after the entry of the final judgment of foreclosure, plaintiff filed a motion to vacate the final default judgment. On April 15, 2015, Judge Hansbury denied the motion and again issued a cogent written statement of reasons that fully explained his decision.
The judge noted that he had previously denied defendant's motion to vacate default under the "less stringent . . . good cause" standard established by Rule 4:43-3. Because a final judgment of foreclosure had been entered on January 10, 2014, the judge stated that defendant's current motion was governed by Rule 4:50-1(a).
As Judge Hansbury noted, a motion to vacate on the basis of "mistake, inadvertence, surprise, or excusable neglect" under Rule 4:50-1(a) must be brought "within a reasonable time" but not later than one year after the judgment was entered. See R. 4:50-2. Here, the court entered the final judgment of foreclosure on January 10, 2014, and defendant did not file her motion to vacate the judgment until March 6, 2015, well over a year later. Thus, Judge Hansbury concluded that defendant's motion was untimely.
In addition, the judge found that defendant "offer[ed] no explanation in her brief for [her] motion as to why she failed to timely file an [a]nswer." He therefore concluded that defendant failed to demonstrate excusable neglect under Rule 4:50-1(a). The judge explained:
This [c]ourt has already considered [d]efendant's motion to vacate default where she asserted that she failed to file an answer due to excusable neglect. Defendant sought to vacate default on the grounds that she did not realize she had to file any response with the [c]ourt and thought a company she hired advised her improperly. . . . However, the record did not reflect that [d]efendant ever hired these attorneys. Defendant received the [c]omplaint and summons and yet still failed to file an [a]nswer.
Citing U.S. Bank National Association v. Guillaume, 209 N.J. 449, 468 (2012), Judge Hansbury next observed that, in addition to demonstrating excusable neglect, the moving party must also demonstrate that he or she had a meritorious defense. The judge found that defendant was unable to meet this requirement. Although defendant again argued that plaintiff did not have standing, the judge noted that plaintiff "possessed both the [m]ortgage and the [n]ote at the time it filed the [c]omplaint in this action." Defendant also argued that plaintiff failed to submit a certificate of diligent inquiry. However, the judge found that this certificate was included in plaintiff's application for a final judgment of foreclosure.
Thus, Judge Hansbury ruled that "[d]efendant's motion to vacate final judgment [was] procedurally and substantively deficient as [d]efendant . . . failed to set forth excusable neglect for failing to file a responsive document to [p]laintiff's [c]omplaint in foreclosure and [did] not set forth a meritorious defense." This appeal followed.
On appeal, defendant raises the following contentions:
I. THE PLAINTIFF MUST MEET SPECIFIC CRITERIA TO RECOVER ON A PROMISSORY NOTE.
II. THE COURT HAS HELD THAT THE LENDER MUST BE THE OWNER OF THE NOTE.
III. FEDERAL DISTRICT COURTS HAVE DISMISSED FORECLOSURE CASES FOR LACK OF STANDING.
IV. THE MOVING PARTY MUST PROVE THAT IT IS, IN FACT, A DAMAGED PARTY.
V. THE COURT HAS SET SPECIFIC RULES THAT WERE PUT IN PLACE ESPECIALLY IN LIGHT OF THE IRREGULAR PRACTICES OF THE BANKING INDUSTRY.
We review the trial court's decision on a motion to vacate a default judgment for abuse of discretion. Guillaume, supra, 209 N.J. at 467-68. "The trial court's determination under [Rule 4:50-1] warrants substantial deference," and the abuse of discretion must be clear to warrant reversal. Id. at 467.
We have considered defendant's contentions in light of the record and applicable legal principles and conclude that they are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We are satisfied that Judge Hansbury properly denied defendant's motion to vacate the final judgment of foreclosure, and affirm substantially for the reasons expressed in his thoughtful April 15, 2015 written opinion.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION