Opinion
DOCKET NO. A-5022-13T4
08-28-2015
WELLS FARGO BANK, N.A., Plaintiff-Respondent, v. CHARLOTTE WILEY, Defendant-Appellant.
Charlotte Wiley, appellant pro se. Reed Smith LLP, attorneys for respondent (Henry F. Reichner, of counsel and on the brief; Alex G. Gross, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Lihotz and St. John. On appeal from Superior Court of New Jersey, Chancery Division, Union County, Docket No. F-30572-09. Charlotte Wiley, appellant pro se. Reed Smith LLP, attorneys for respondent (Henry F. Reichner, of counsel and on the brief; Alex G. Gross, on the brief). PER CURIAM
Defendant Charlotte Wiley appeals from a June 11, 2014 order denying her application to vacate a sheriff's sale, and denying as untimely her motion to vacate a final judgment of foreclosure, entered on February 10, 2013, in favor of plaintiff Wells Fargo Bank, N.A. We affirm.
The record discloses the following facts and procedural history. In 2002, defendant executed a note and mortgage in the amount of $204,250 in favor of plaintiff. In 2009, defendant stopped making payments. Plaintiff filed a complaint in mortgage foreclosure in the Chancery Division on June 11, 2009. Defendant failed to file an answer and default was entered on May 27, 2010. Final judgment was entered on November 6, 2013, and again defendant did not appear or contest the entry of the order. However, defendant then exercised her two statutory rights to adjourn the sheriff's sale of her foreclosed property. On the eve of the sheriff's sale on April 28, 2014, defendant filed an emergent motion for a stay of the sale, which was denied. Finally, on April 30, 2014, defendant filed her first pleading in the foreclosure action, an order to show cause seeking to stay the sheriff's sale and vacate the 2013 final judgment of foreclosure pursuant to Rule 4:50-1(a),(c) and (f), Rule 4:64 and Rule 4:43-3.
In pertinent part, Rule 4:50-1 permits a court to vacate a final judgment on these grounds: "(a) mistake, inadvertence, surprise, or excusable neglect; . . . (c) fraud . . . ; . . . or (f) any other reason justifying relief from the operation of the judgment or order." A motion pursuant to (a) or (c) must be filed within a year after entry of the judgment, while a motion pursuant to (f) must be filed "within a reasonable time." R. 4:50-2. On appeal, defendant has not briefed the issue of fraud under Rule 4:50-1(c). We therefore deem this argument to be waived. Soc'y Hill Condo. Ass'n, Inc. v. Soc'y Hill Assocs., 347 N.J. Super. 163, 175-76 (App. Div. 2002). --------
In her motion, defendant argued that plaintiff violated the Rules, by not "fil[ing] accurate verifiable court documents . . . and mailing court documents to [d]efendant, Charlotte Wiley, with no signatures contained on the document." Defendant also contended that plaintiff "failed to properly authenticate documents" and incorrectly undertook a title search.
In a comprehensive written opinion filed on June 11, 2014, Judge Katherine R. Dupuis found that defendant
admit[ted] to receiving the Summons and Complaint, Notice of Lis Pendens, Notice of Entry of Default, Order of Entry of Default, Motion for Final Entry of Default and Final Judgment through the course of the litigation. However, despite receiving and analyzing the complaint, defendant failed to file an answer, attempt to vacate default, oppose any of the motions or object to the entry of final judgment despite admittedly receiving notifications that the litigation was proceeding to sale.
In rendering her opinion, the judge concisely distilled defendant's argument as "because there were discrepancies as to whether she was married or unmarried, whether certain parties were defendants, and that documents lacked signatures and, as such, default should be vacated." The judge further noted that defendant had "ample time to respond to the complaint, notice of default, notice of entry of default, application for final judgment and entry of final judgment." The judge stated that there was no information provided to her as to why "defendant failed to respond and no meritorious defense [was] raised." The judge recognized that defendant did not deny "being in default since 2009." Further, with regard to defendant's claim that plaintiff failed to respond to her request for billing information, the judge determined that "she provide[d] no information that would give the court a basis to conclude final judgment should not have [been] entered where defendant failed to file opposition at any stage of the litigation." Finally, the judge concluded that she "cannot now, almost five years into the case, raise such an excuse as a defense." It is from this decision that defendant appeals.
On appeal, defendant argues that the trial court should have vacated the foreclosure judgment pursuant to Rule 4:50-1(a) ("mistake, inadvertence, surprise, or excusable neglect"), Rule 4:50-1(d)("judgment is void"), and Rule 4:50-1(f) ("any other reason justifying relief from the operation of the judgment or order").
We review the trial court's decision for abuse of discretion. US Bank Nat.l Ass'n v. Guillaume, 209 N.J. 449, 467 (2012). "The trial court's determination under [Rule 4:50-1] warrants substantial deference," and the abuse of discretion must be clear to warrant reversal. Ibid. (citing DEG, LLC v. Twp. of Fairfield, 198 N.J. 242, 261 (2009); Hous. Auth. of Morristown v. Little, 135 N.J. 274, 283 (1994)). On this record, we find no abuse of discretion in Judge Dupuis' decision.
As a preliminary matter, we recognize a plaintiff suffers prejudice from delay. Deutsche Bank Trust Co. Ams. v. Angeles, 428 N.J. Super. 315, 320 (App. Div. 2012) (stating that "equity must be applied to plaintiffs as well as defendants"). Defendant defaulted on her note in 2009, and there is no evidence of any real effort by her to cure the default.
Under Rule 4:50-1(a), "[a] defendant seeking to set aside a default judgment must establish that his failure to answer was due to excusable neglect and that he has a meritorious defense." Goldhaber v. Kohlenberg, 395 N.J. Super. 380, 391 (App. Div. 2007). "'Excusable neglect' may be found when the default was 'attributable to an honest mistake that is compatible with due diligence or reasonable prudence.'" Guillaume, supra, 209 N.J. at 468 (quoting Mancini v. EDS ex rel. N.J. Auto. Full Ins. Underwriting Ass'n, 132 N.J. 330, 335 (1993)). Here, defendant has failed to demonstrate either excusable neglect or a meritorious defense.
Defendant claims that plaintiff filed "foreclosure documents" that did not comply with the Rules. She contends that the notice of motion for entry of default, certification in support of notice of motion for entry of default and proposed order form all contained the name of plaintiff's law firm, but did not have an original signature by an attorney at the firm.
Defendant does not argue that she did not receive the documents or that she was not on notice of the foreclosure proceedings. Her argument rests on a technicality with regard to these documents: the failure of an original signature should provide excusable neglect and a meritorious defense. Even if the documents did not contain an original signature of a firm attorney, that fact would not excuse the firm's obligation to produce an original signature if the defendant had requested it. R. 1:4-4(c). "Thus, if the judgment were irregularly entered, a remedy readily existed. In these circumstances, we do not find that any defect that may have existed had [the] capacity to affect the judgment's validity[.]" Del Vecchio v. Hemberger, 388 N.J. Super. 179, 187-88 (App. Div. 2006) (rejecting the contention that a judgment was void because it was based upon faxed copies of both the certification of non-redemption by the tax collector and a party's certification as to the genuineness of the tax collector's signature, submitted pursuant to Rule 1:4-4(c)).
Here, for five years, defendant, by her own admission, was fully informed of the existence of a "court process" requiring a legal response. Notwithstanding the repeated notices, defendant took no action to respond to the foreclosure complaint, and the record reflects no excuse for her inaction. See Guillaume, supra, 209 N.J. at 468-69. Defendant at no time denied her responsibility for the debt incurred. Rather, when all hope of further delay expired, she made a last-ditch effort to relitigate the case. The trial court did not abuse its discretion in determining that defendant was not equitably entitled to vacate the judgment.
Defendant next argues that the court erred in failing to vacate the November 6, 2013 order under Rule 4:50-1(f) because the order is unfair, inequitable and unconscionable. She contends that it was unfair for the court to allow plaintiff to foreclose even though she has admittedly been in default for many years.
Courts have the authority to grant relief under subsection (f) where it "is necessary to achieve a fair and just result." Manning Eng'g, Inc. v. Hudson Cnty. Park Comm'n, 74 N.J. 113, 122 (1977). However, "because of the importance in the finality of judgments, relief under subsection (f) is available only when 'truly exceptional circumstances are present.'" In re Guardianship of J.N.H., 172 N.J. 440, 473 (2002) (quoting Hous. Auth., supra, 135 N.J. at 286). To obtain relief under Rule 4:50-1(f), an applicant must show that enforcement of the order would be unjust, oppressive or inequitable. See Guillaume, supra, 209 N.J. at 484.
We conclude the November 6, 2013 order was not unjust, oppressive or inequitable. Further, defendant has not demonstrated any exceptional circumstances. We therefore find no abuse of discretion in the court's decision.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION