Opinion
DOCKET NO. A-5959-13T3
01-22-2016
WELLS FARGO BANK, N.A., Plaintiff-Respondent, v. CZESLAW KRZYWORZEKA, his heirs, devisees, and personal representatives and his/her, their, or any of their successors in right, title and interest, Defendant-Appellant, and MRS. KRZYWORZEKA, wife of Czeslaw Krzyworzeka, her heirs, devisees, and personal representatives and his/her, their, or any of their successors in right, title and interest, and TD BANKNORTH, NA, Defendants.
Czeslaw Krzyworzeka, appellant pro se. Reed Smith LLP, attorneys for respondent (Henry F. Reichner, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Accurso and Suter. On appeal from Superior Court of New Jersey, Chancery Division, Bergen County, Docket No. F-64467-09. Czeslaw Krzyworzeka, appellant pro se. Reed Smith LLP, attorneys for respondent (Henry F. Reichner, on the brief). PER CURIAM
The issue in this residential mortgage foreclosure appeal is whether the trial court erred in denying the homeowner's motion to vacate default where lack of service and standing are claimed. For reasons set forth by Judge Robert Contillo in his February 28, 2014 oral opinion, we affirm.
On May 20, 2004, Czeslaw Krzyworzeka ("homeowner") borrowed $312,750 from World Savings Bank, FSB and executed a note and a purchase money mortgage whereby he encumbered the property in Washington Township, Bergen County, New Jersey as security for the note. In the recorded mortgage, he represented this address as his primary residence where he agreed to receive notices. Defendant acknowledges he defaulted on the mortgage as of May 15, 2009. On June 22, 2009, as required by the Fair Foreclosure Act, N.J.S.A. 2A:50-56(a), Wells Fargo sent the Notice of Intention ("NOI") to foreclose to the Washington Township address by regular and certified mail. The certified mail was signed for by the homeowner.
The residential mortgage foreclosure complaint was filed on December 10, 2009 and served by process server on January 2, 2010. The January 4, 2010 affidavit of service notes that service was successfully completed on January 2, 2010 at 3:30 p.m. by delivering a copy of the complaint personally to the homeowner described as a white male in his forties with brown hair who is six feet-one inches tall weighing one hundred-ninety pounds. When no answer to the complaint was filed, a default was entered on February 24, 2010. It was not until nearly four years later on January 13, 2014 that the homeowner moved to vacate the default under Rule 4:43-3, claiming he was not served with the complaint, did not receive the NOI and that Wells Fargo did not have standing to bring the action.
Judge Contillo denied the homeowner's motion to vacate on February 28, 2014 in an oral opinion and again on reconsideration on April 25, 2014. Judge Contillo found the homeowner had not overcome the presumption that he was personally served with the complaint on January 2, 2010 at his home. He found the NOI was not defective and was served by certified mail. Judge Contillo noted with regard to whether Wells Fargo had standing to bring this action that the complaint alleged World Savings Bank was acquired by and merged into Wells Fargo. Since the entry of Judge Contillo's orders, a final judgment of foreclosure was entered on July 23, 2014. This appeal followed.
The homeowner raises several arguments, which are set forth as he stated them:
1. THE APPELLATE DIVISION MUST DECIDE [WHETHER] THE TRIAL COURT'S FINDINGS OF FACT AND CONCLUSION[S] OF THE LAW [FALL] SHORT OF THOSE REQUIRED TO ALLOW DEFENDANT
TO REVIEW THE REASONS FOR THE COURT'S [DECISION] DENYING DEFENDANT'S MOTION THAT ARE [APPEALABLE] AS OF RIGHT
2. THE APPELLATE DIVISION MUST DECIDE [WHETHER] THE TRIAL COURT'S FINDINGS OF FACT AND CONCLUSION[S] OF THE LAW [FALL] SHORT AS TO PLAINTIFF'S AFFIDAVIT OF SERVICE RELECT A PERSON THAT DID NOT FIT THE DESCRIPTION OF DEFENDANT AND WHERE DEFENDANT'S REBUTTED BY CLEAR AND CONVINCING EVIDENCE THAT REFLECT HE DOES NOT FIT THE DESCRIPTION OR THE ADDRESS OF THE PERSON IN PLAINTIFF'S AFFIDAVIT OF SERVICE
3. THE APPELLATE DIVISION MUST DECIDE [WHETHER] PLAINTIFF'S PROOF TO SUPPORT ITS APPLICATION FOR ENTRY FOR FINAL JUDGMENT ESTABLISHED THAT WELLS FARGO BANK, N.A. HAD LEGAL RIGHT SHOWING OWNERSHIP OR CONTROL OF THE NOTE UNDER THE UCC ARTICLE 3 REGARDING THE TRANSFER AND ENFORCEMENT OF NOTE ON OR BEFORE FINAL JUDGMENT WAS ENTERED AS A MATTER OF LAW.
We understand from these point headings that the homeowner is raising whether his motion to vacate default should have been denied, whether the summons and complaint were properly served, and whether Wells Fargo had standing to file the foreclosure complaint. He has not appealed the court's finding as to the adequacy of the NOI.
We review the denial of a motion to vacate default based upon an abuse of discretion standard. Cf. U.S. Bank Nat'l Ass'n v. Guillaume, 209 N.J. 449, 467 (2012). Pursuant to Rule 4:43-3, a court may vacate entry of default upon "good cause shown." "[T]he requirements for setting aside a default under Rule 4:43-3 are less stringent than . . . those for setting aside an entry of default judgment under Rule 4:50-1." N.J. Mfrs. Ins. Co. v. Prestige Health Grp., LLC, 406 N.J. Super. 354, 360 (App. Div.), certif. denied, 199 N.J. 543 (2009). "[G]ood cause . . . requires the exercise of sound discretion by the court in light of the facts and circumstances of the particular case." O'Connor v. Altus, 67 N.J. 106, 129 (1975) (citing Elias v. Pitucci, 13 F.R.D. 13 (E.D. Pa. 1952)).
Here the homeowner claims the trial court erred by finding he was personally served with the foreclosure complaint based on errors in the affidavit of service regarding his age and height and based on the address in his 2013 driver's license. We affirm because the homeowner has not rebutted the presumption that service was effected.
To obtain personal jurisdiction, service of process must conform with the methods of service permitted by the Rules. See generally Rule 4:4-4. Primarily, service is obtained
by causing the summons and complaint to be personally served within this State pursuant to Rule 4:4-3, as follows: (1) Upon a competent individual of the age of 14 or over, by delivering a copy of the summons and complaint to the individual personally, or by leaving a copy thereof at the individual's dwelling place or usual place of abode with a competent member of the
household of the age of 14 or over then residing therein . . . .
[Rule 4:4-4(a)(1).]
Where there has been a "substantial deviation from service of process rules . . . casting reasonable doubt on proper notice[,]" this generally will render a default judgment void. Jameson v. Great Atl. & Pac. Tea Co., 363 N.J. Super. 419, 425 (App. Div. 2003), certif. denied, 179 N.J. 309 (2004). However, a return of service consistent with Rule 4:4-7 "raises a presumption that the facts recited therein are true." Resolution Trust Corp. v. Associated Golf Contractors, Inc., 263 N.J. Super. 332, 343 (App. Div.) (quoting Garley v. Waddington, 177 N.J. Super. 173, 180 (App. Div. 1981)), certif. denied, 134 N.J. 480 (1993). The presumption can be "rebutted only by clear and convincing evidence that the return is false." Id. at 344 (quoting Garley, supra, 177 N.J. Super. at 180-81). "[M]inor flaws in the service of process" are not enough to vacate a default judgment. Sobel v. Long Island Entm't Prods., Inc., 329 N.J. Super. 285, 292 (App. Div. 2000). Where there is "evidence 'tending to disprove' the presumed fact, the presumption disappears." Jameson, supra, 363 N.J. Super. at 427 (quoting Ahn v. Kim, 145 N.J. 423, 439 (1996) (quoting N.J.R.E. 301)).
Here, although the return has errors about the defendant's height and age because he is shorter and older than represented in the affidavit, there still is ample support for the judge's finding. The address of the premises where service occurred is the same as set forth in the note and mortgage. The homeowner never gave notice he moved to another address, despite this requirement in the mortgage. A records search by Wells Fargo showed the homeowner moved after October 2011, making the Washington Township address his then-current address in 2010. The 2013 driver's license, upon which defendant relies, was issued more than three years after service was made in 2010. The homeowner presented nothing more than this driver's license and his uncorroborated testimony to support his claim. "[U]ncorroborated testimony of the defendant alone is not sufficient to impeach the return." Goldfarb v. Roeger, 54 N.J. Super. 85, 90 (App. Div. 1959). On this record, we have no reason to disturb the trial court's finding that the homeowner failed to muster clear, convincing proof sufficient to overcome the presumption that he was personally served with the foreclosure summons and complaint.
With respect to the standing issue, as of November 1, 2009 World Savings Bank was acquired by and merged into Wells Fargo Bank, N.A. This precise acquisition and merger was addressed by this court in Suser v. Wachovia Mortgage FSB, 433 N.J. Super. 317, 321 (App. Div. 2013). "Wells Fargo's right to enforce the mortgage arises by operation of its ownership of the asset through mergers or acquisitions, not assignment." Ibid. In our case, the homeowner has not factually challenged these transactions. Therefore, Wells Fargo stands in the shoes of World Savings Bank to enforce this note without the need for an indorsement. Ibid.
We have considered the homeowner's remaining arguments in light of the record and applicable legal principles. We observe no abuse of discretion on the part of the trial judge and affirm substantially for the reasons that Judge Contillo expressed in his oral opinion of February 28, 2014. We conclude the other points raised on appeal are without sufficient merit to warrant a discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION