CITICORP MORTGAGE, INC. v. VINCENT GERARD TECCHIO, et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1091-04T51091-04T5

A-5995-04T3

CITICORP MORTGAGE, INC.,

Plaintiff-Respondent,

v.

VINCENT GERARD TECCHIO and

DIANE MARIE TECCHIO, his wife,

Defendants-Appellants.

_____________________________________________

VINCENT GERARD TECCHIO and

DIANE MARIE TECCHIO, his wife,

Plaintiffs-Appellants,

v.

CITICORP MORTGAGE, INC.,

Defendant-Respondent.

_____________________________________________

 

Argued May 24, 2006 - Decided June 19, 2006

Before Judges Weissbard and Sapp-Peterson.

On appeal from the Superior Court of New Jersey, Chancery Division, Monmouth County, F-12473-97 (A-1091-04T5) and C-149-00 (A-5995-04T3).

Vincent Gerard Tecchio, appellant, argued the cause pro se.

Gregory R. McCloskey argued the cause for respondent.

PER CURIAM

These are appeals of two orders entered July 23, 2004 and June 10, 2005 by the trial court arising out of summary judgment motions granted in favor of plaintiff/defendant Citicorp Mortgage, Inc., and against defendant/plaintiff Vincent Gerard Tecchio and his spouse, Diane Marie Tecchio. The appeals were argued back-to-back and we dispose of them together in this opinion. We affirm.

The underlying facts surrounding this litigation date back to July 28, 1997, when Citicorp commenced a foreclosure action against the Tecchios for residential property owned by the Tecchios located in Monmouth County, New Jersey. They were duly served with a copy of the summons and complaint, as well as a copy of the amended complaint. On September 30, 1997, Tecchio sent a letter to Citicorp's attorney, which Tecchio claims was his answer and request for documents.

Dear Sirs,

Enclosed please find my answer and request for documents.

I do not admit or deny any claim made against me.

I request that you send me a copy of the documentation of your claim. Please include in this documentation the following information:

1. All sworn and unsworn affidavits by any and all persons and individuals involved,

2. Documents used as Prima Facie evidence,

3. All proofs of claims,

4. All Certifications by any and all persons and individuals involved,

5. All statements of any and all parties involved.

The summons did not reflect when and where to appear. Please forward that information with the above referenced material.

Thereafter, Tecchio filed two bankruptcy petitions from which Citicorp was granted relief from the automatic stay. Default judgment was entered against Tecchio on May 21, 1998. On March 22, 1999, Tecchio moved to vacate the default judgment, arguing that his September 30, 1997, letter was an answer to the complaint and he was therefore denied due process. The motion was denied on April 16, 1999.

Tecchio filed a notice of appeal. While that appeal was pending, he filed yet another bankruptcy petition. Once again, Citicorp was granted relief from the automatic stay. In an unpublished opinion, we affirmed the trial court decision. Citicorp Mortgage, Inc. v. Tecchio, No. A-5893-98T3 (App. Div. March 17, 2000). Tecchio then commenced an action to enjoin the sheriff's sale and vacate the final judgment of foreclosure. The matter was dismissed on May 8, 2000. The sheriff's sale was held and the Tecchios were evicted from the premises on September 28, 2000, a little more than three years after he was first served with the foreclosure summons and complaint.

On September 24, 2001, Tecchio commenced an action in federal court against Citicorp's foreclosure attorney, claiming that counsel violated the Fair Debt Collection Practices Act (FDCPA), 15 U.S.C.A. 1692-1692o. That action was dismissed on April 8, 2002.

On April 30, 2004, Tecchio filed a motion to vacate the May 21, 1998, final judgment of foreclosure, which is the subject of this appeal. In that motion, Tecchio alleged Citicorp violated the FDCPA. The motion was denied on July 23, 2004. The trial judge found that the motion, brought six years after the entry of the foreclosure judgment, "can be considered an unreasonable period of time, but it doesn't really make a difference, because I've already ruled that the Fair Debt Collection Act has not been violated." In addition, the judge found that Citicorp complied with the notice requirements mandated under 15 U.S.C.A. 1692g. This statute imposes specific requirements upon debt collection once a debtor disputes the debt:

(b) Disputed debts. If the consumer notifies the debt collector in writing within the thirty-day period described in subsection (a) of this section that the debt, or any portion thereof, is disputed, or that the consumer requests the name and address of the original creditor, the debt collector shall cease collection of the debt, or any disputed portion thereof, until the debt collector obtains verification of the debt or a copy of a judgment, or the name and address of the original creditor, and a copy of such verification or judgment, or name and address of the original creditor, is mailed to the consumer by the debt collector.

The judge specifically found:

If the debt collector obtains and sends a copy of a judgment to the consumer for such debt, the verification requirement has been satisfied and the debt collector can resume his collection efforts. See [Scott T. Tross, New Jersey Foreclosure Law & Practice at 59 (quoting 15 U.S.C.A. 1692b, g)].

It is in this case Citicorp, in this Court's opinion, provided Mr. Tecchio with the necessary information several times. The information was provided to him in an affidavit validating and proving the debt in response to the defendant's Chapter 7 filing; in a notice under the Fair Foreclosure Act; in a proof of claim filed in response to Mr. Tecchio's Chapter 13 bankruptcy filing; and also on a court order dated April 16th 1999.

The purpose of the validation notice is to insure that consumers are advised of their right to dispute the debt. To effectuate that purpose the validation notice must clearly and effectively advise the consumer that he has a right to dispute the debt, which extends for 30 days following receipt of the notice.

A validation notice is deemed to effectively convey the information if the least sophisticated consumer measured objectively understands it. [See Tross, supra, at 59].

While Mr. Tecchio may not have been represented at the start of the proceeding, that cannot be used as an excused [sic] to avoid proper legal procedure. As stated here, the purpose of the validation notice is to clearly convey to the least sophisticated consumer the right to dispute the debt. Mr. Tecchio was sophisticated enough to request certain information necessary, legal documentation within his letter and the information provided to him from the bank provided him reasonable information to allow him to understand the nature of his debt, and his ability to contest it.

Therefore, because Mr. Tecchio was provided with several documents satisfying the validation notice, his motion to deny, motion denying insufficient response to the -- his motion should be denied as the Court believes that there was sufficient response by Citicorp.

Thereafter, Tecchio filed two motions for reconsideration of the court's July 24, 2004, decision. The trial court denied both motions. The present appeal followed.

While the present appeal was pending, on May 3, 2005, Tecchio filed another motion with the trial court as a collateral attack on the default judgment of foreclosure entered May 21, 1998, based upon the ground that Citicorp lacked standing to commence the foreclosure action because it had assigned the note and mortgage to Security Pacific Trust, which in turn reassigned the mortgage to Citicorp without delivering the note.

On June 10, 2005, following oral argument, the motion was denied. The judge found that "[a]lthough a copy of the note was submitted in the foreclosure action as opposed to the original it is clear that Citicorp acted appropriately and in accordance with the rules of court to the final judgment." The judge concluded that even if the judgment was vacated, "it does not appear that Mr. Tecchio has a legitimate defense to the foreclosure." Tecchio filed an appeal of this decision.

In these two appeals, Tecchio argues: (1) the judgment was obtained by extrinsic fraud and is void; (2) the judgment was obtained in violation of due process and is void; (3) when judgment is obtained by extrinsic fraud and without due process, no meritorious defenses are necessary; (4) when an application to vacate a void judgment is made, the court has no discretion but to set it aside; (5) a void judgment is not entitled to the respect accorded to and is attended by none of the consequences afforded to a valid judgment and cannot affect, impair or create rights, nor can any rights be based thereon; (6) the answer requested specific information concerning the validity of the debt pursuant to the Federal Fair Debt Collection Practices Act; (7) the mortgage follows the note; (8) without standing, the court has no power to proceed; (9) assignment and negotiation; (10) due process violations.

After carefully reviewing the record in the light of the written and oral arguments advanced by the parties, we conclude the issues presented by plaintiff are without sufficient merit to warrant extensive discussion in this opinion, R. 2:11-3(e)(1)(A) and (E), and we affirm substantially for the reasons expressed by the trial judge in his oral opinions delivered on July 23 and October 22, 2004, and June 10, 2005.

 
Affirmed.

Diane Marie Tecchio is not a party to these appeals.

(continued)

(continued)

8

A-1091-04T5

June 19, 2006