Opinion
DOCKET NO. A-5287-12T3
07-28-2014
HSBC MORTGAGE CORPORATION USA, Plaintiff-Respondent, v. YOOMI KIM AND MR./MRS. KIM, HUSBAND/WIFE OF YOOMI KIM, Defendants-Appellants, and JP MORGAN CHASE BANK, N.A., Defendant.
Tomas Espinosa, attorney for appellants. Pluese, Becker, & Saltzman, LLC, attorneys for respondent (Stuart H. West, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Parrillo and Alvarez. On appeal from the Superior Court of New Jersey, Chancery Division, Bergen County, Docket No. F-44202-08. Tomas Espinosa, attorney for appellants. Pluese, Becker, & Saltzman, LLC, attorneys for respondent (Stuart H. West, on the brief). PER CURIAM
Defendant Yoomi Kim appeals the May 28, 2013 order denying her motion to vacate the final judgment of foreclosure entered December 2, 2009, in favor of plaintiff HSBC Mortgage Corporation, USA (HSBC). We affirm.
We summarize the facts pertinent to our decision. On December 20, 2007, defendant executed a note in the amount of $624,000 in favor of HSBC. Payment of the note was secured by a purchase money mortgage on property located in the Borough of Closter to Mortgage Electronic Registration Systems, Inc. (MERS). The mortgage was recorded January 7, 2008, and was assigned to plaintiff on November 3, 2008. The assignment was recorded November 10, 2008.
Defendant defaulted on the obligation on or around August 1, 2008. Plaintiff filed a complaint in foreclosure on November 6, 2008. Default was entered February 5, 2009, followed by entry of the final judgment of foreclosure ten months later. Defendant twice adjourned subsequently scheduled sheriff's sales. She filed a petition in the United States Bankruptcy Court for the Southern District of New York, further delaying the disposition of the property. Due to a separate, unresolved title issue, a subsequent sheriff's sale was vacated.
Judge Harry Carroll denied defendant's first motion to vacate default judgment on September 14, 2012, concluding that defendant had failed to establish excusable neglect pursuant to Rule 4:50-1(a). He also noted that the lapse in time between entry of the judgment, December 2, 2009, and the application, August 27, 2012, exceeded the one-year limit found in Rule 4:50-2. In support of his conclusion that no excusable neglect had been established, Judge Carroll observed that "defendant ha[d] not submitted her own Certification in support of th[e] motion" and, additionally, that "[s]tatements by counsel in a supporting brief d[id] not constitute cognizable facts." He concluded that defendant failed to establish a meritorious defense, including her argument that plaintiff lacked standing, emphasizing that the original lender was HSBC.
Judge Carroll also addressed defendant's application for relief pursuant to Rule 4:50-1(f), finding that no exceptional circumstances were established by defendant. He added:
[d]efendant does not occupy the subject property . . . . She does not deny that she has been in default for some four years or state that she has the ability to cure the default. The property was already sold at Sheriff's sale some two years ago and hence she would have already lost the property to foreclosure at that time absent the existence of the unresolved title issue.
In December 2012, defendant filed her second application to vacate the judgment of foreclosure. In rendering his decision on January 11, 2013, Judge Carroll said: "Defendant has again failed to establish a meritorious defense. Defendant argues that plaintiff lacked standing to foreclose on the property because 'Plaintiff is not the real party in interest . . . plaintiff was not the holder of the note to properly endorse [the] note from HSBC Holdings, PLC.'" (omission in original). Additionally, defendant unsuccessfully argued that the assignment from MERS to HSBC was invalid. The judge determined that MERS was authorized to act on behalf of HSBC, including assigning the mortgage. Judge Carroll added that in this "latest [m]otion," defendant relied upon a certification by Nkosi Gray, "'a certified mortgage securitization auditor' whose research has apparently led her to conclude that the Note [wa]s being held by HSBC Holdings PLC in the United Kingdom." The judge went on to state:
Even if true, this report does not appear to reference any recent event. Defendant has failed to demonstrate why such analysis could not have been performed at a much earlier stage in these proceedings, or at the very least at the time Defendant first moved to vacate the default judgment. Simply put, [d]efendant's advancement of a standing argument predicated on the Gray analysis was simply not made within a reasonable time. R. 4:50-2. In any event, a foreclosure judgment obtained by a party that lacked standing is not "void" within the meaning of [Rule] 4:50-1(d). Deutsche Bank Nat['l] Trust Co. v. Russo, [429] N.J. Super. [91], [101] (App. Div. 2012)[].Defendant again reiterated her entitlement to relief pursuant to Rule 4:50-1(f), which the court found lacked factual support.
The third application, which resulted in the order now under appeal, was made under Rule 4:50-1(d). Judge Menelaos Toskos found that defendant merely repeated all the grounds raised in prior motions, including the standing argument based on the Gray certification. Judge Toskos observed that such a defense was not meritorious "when accompanied by an unexcused year long delay," citing to Russo. He went on to reiterate that standing is not a jurisdictional issue in our court system.
Judge Toskos also denied the application under the "Law of the Case Doctrine," in that the precise issues had been previously raised and decided. This included the lack of standing argument, which was clearly not a meritorious defense to a judgment of foreclosure pursuant to Rule 4:50-1, Russo, and Deutsch Bank Trust Co. Americas v. Angeles, 428 N.J. Super. 315 (App. Div. 2012).
On this appeal of the denial of her third motion to vacate the judgment of foreclosure, defendant raises for our consideration the following points:
POINT I
COLLATERAL ESTOPPEL IS NONAPPLICABLE
POINT II
RESJUDICATA IS INAPPLICABLE
POINT III
APPEL[L]EE HAD NO STANDING
POINT IV
THE ASSIGNMENT FROM MERS TO TRUSTEE WAS INVALID
POINT V
PURSUANT TO R[.] 4:50-1(f), THE BOUNDARIES OF THE COURT'S AUTHORITY TO VACATE THE DEFAULT JUDGMENT ARE AS EXPANSIVE AS NECESSARY TO ACHIEVE EQUITY AND JUSTICE
POINT VI
DEFENDANT SHOULD BE GRANTED THE MOTION TO VACATE UNDER RULE 4:50-1(d) AND UNDER 4:50-3
We find these points so lacking in merit as to warrant little discussion in a written opinion. R. 2:11-3(e)(1)(E).
The standard employed in reviewing the denial of a Rule 4:50 motion is abuse of discretion. U.S. Bank Nat'l Assoc. v. Guillaume, 209 N.J. 449, 467 (2012). Our review of such decisions is deferential; an "abuse of discretion must be clear to warrant reversal." Russo, supra, 42 9 N.J. Super. at 98.
The two trial judges in this case exercised their discretion entirely within the bounds of well-established precedent. If defendant's application is considered under Rule 4:50-1(d), a claim that "the judgment or order is void," the motion was properly denied. In New Jersey, contrary to the authority cited by defendant from other jurisdictions, the alleged lack of standing does not make a judgment in foreclosure void. Russo, supra, 429 N.J. Super. at 101. Furthermore, the application to vacate the judgment was made years after entry of the final judgment of foreclosure. No new development excused the delay, which was not "made within a reasonable time." See R. 4:50-2.
Finally, on appeal defendant raises a new argument not previously made, namely, that she is entitled to relief pursuant to Rule 4:50-3. See Kaneh v. Sunshine Biscuits, 321 N.J. Super. 507, 512 (App. Div. 1999) ("Issues not raised in the trial court are [generally] deemed waived for appellate purposes . . . ."). In any event, the rule states that a court has the authority "to set aside a judgment, order or proceeding for fraud upon the court or to entertain an independent action to relieve a party from a judgment, order or proceeding." There is nothing in the record that would support any claim of fraud.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPEALATE DIVISION