Opinion
DOCKET NO. A-4889-10T4
05-29-2012
SOVEREIGN BANK, N.A., Plaintiff-Respondent, v. DEMETRIA GUIUAN, her heirs, devisees, and personal representatives and his/her, their, or any of their successors in right, title and interest, Defendant-Appellant, and MR. GUIUAN, husband of Demetria Guiuan, his heirs, devisees, and personal representatives and his/her, their, or any of their successors in right, title and interest, CITIFINANCIAL SERVICES, INC., STATE OF NEW JERSEY, Defendants.
Demetria Guiuan, appellant pro se. Respondent has not filed a brief.
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Alvarez and Skillman.
On appeal from the Superior Court of New Jersey, Chancery Division, Essex County, Docket No. F-14051-06.
Demetria Guiuan, appellant pro se.
Respondent has not filed a brief. PER CURIAM
Defendant Demetria Guiuan appeals the denial of her motion to vacate a March 13, 2007 entry of final judgment by default in a mortgage foreclosure case. The Chancery judge found defendant's Rule 4:50 application to be wanting because it was untimely; we agree and affirm.
Defendant is self-represented and plaintiff's brief was suppressed.
Mortgage Electronic Registration Systems, Inc. (MERS) filed the foreclosure complaint on August 9, 2006. MERS assigned the note and mortgage to Sovereign Bank on August 15, 2006.Sovereign Bank filed an amended complaint substituting as plaintiff on August 18, 2006. The assignment was not filed until August 29, 2006. Sovereign Bank's motion to strike Guiuan's answer and counterclaim was granted, as was summary judgment. For that reason, the judgment of foreclosure entered by way of default on March 13, 2007.
The assignment included in defendant's appendix is dated August 15, 2006. The jurat, however, is dated August 14, 2006.
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On June 3, 2011, the court heard oral argument on Guiuan's application to vacate the judgment on the grounds of "newly discovered evidence." The asserted new evidence was that because the assignment executed by MERS had two different dates and was not recorded until August 29, 2006, the document was improperly prepared in some fashion and/or the delay in the recordation of the document invalidated Sovereign Bank's substitution as plaintiff, thereby invalidating the subsequent judgment of foreclosure.
The trial court found as a fact that the information was available to Guiuan from the time of filing going forward, through and including entry of the default judgment. Guiuan argued nonetheless that her discovery of the differing dates and the late filing constituted newly discovered evidence within the meaning of Rule 4:50-1(b). The judge concluded, however, that the application was untimely: "I know of no case of any type, foreclosure or other, that allows someone to come back four or five years later because they just found out information that could have been available then with some better foresight or better counseling." The judge reasoned that Rule 4:50-2 was "dispositive" in that the permissible time frame in which such applications can be filed is a year. Because the motion was untimely, it was denied.
On appeal, Guiuan argues the court erred by not vacating the judgment on these grounds:
I. It was a mistake and a clear error of law, to grant the summary Judgment for Sovereign that is at best no standing to bring this foreclosure action
A. The Trial Court below erred by failing to dismiss the matter as Sovereign lacked standing to initiate this foreclosure actionII. Whether it was a clear error of law to grant summary judgment for Sovereign that Failed to establish its ownership and holder in due course of Guiuan's mortgage
III. Guiuan's Motion at the Trial Court below [] which was denied
IV. Whether it was a clear error of law for the Trial Court's June 6, 2011 Decision which the court lacked subject matter jurisdiction
As recently reiterated by the Supreme Court, a trial court's determination under Rule 4:50-1 is reviewed employing an abuse of discretion standard. Such a determination "warrants substantial deference, and should not be reversed unless it results in a clear abuse of discretion." U.S. Bank N.A. v. Guillaume, 209 N.J. 449, 467 (2012). Abuse of discretion is defined as occurring "when a decision is 'made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis.'" Ibid. (citing to Iliades v. Walmart Stores, Inc., 191 N.J. 88, 123 (2007). No such abuse of discretion occurred here.
The judge noted that the information contained on the face of the assignment and the filing date of the document were as available to Guiuan prior to the entry of the default judgment as of the time of her application. Therefore, the information cannot be fairly characterized as "newly discovered evidence." Newly discovered evidence must be material, discovered after the trial, but not discoverable through the exercise of due diligence prior to the time for an application for a new trial, and not cumulative. DEG, LLC v. Twp. of Fairfield, 198 N.J. 242, 264 (2009).
We agree with the judge's observation that had she exercised due diligence, Guiuan would have readily found the assignment because it was recorded in the Clerk's Office. As the judge said, newly discovered evidence "means something that wasn't around then, that no matter what you did, no matter how many nooks and crannies you look into and how many stones you turned over, you could not have found it . . . but that's not what we've got here." Even if the information were newly discovered evidence, as the judge also observed, the time limits contained in Rule 4:50-2 made Guiuan's application untimely. The motion was filed four years after entry of judgment by default, and the rule requires motions to vacate a judgment as a result of newly discovered evidence to be filed no more "than one year after the judgment, order or proceeding was entered or taken."
This one-year time limit presents an insurmountable hurdle to plaintiff's application as well as to her appeal on the same grounds. Having found that the trial judge did not abuse her discretion, we affirm.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION