WASHINGTON MUTUAL BANK FA v. HELIDA NOVACK et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4247-04T24247-04T2

WASHINGTON MUTUAL BANK FA,

Plaintiff-Respondent,

v.

HELIDA NOVACK and STUART

NOVACK, Husband of HELIDA

NOVACK,

Defendant-Appellant.

_______________________________

 

Argued January 31, 2006 - Decided June 21, 2006

Before Judges Collester and S.L. Reisner.

On appeal from Superior Court of New Jersey,

Chancery Division, Burlington County, F-1860-00.

Anthony J. Brady, Jr. argued the cause for

appellant.

Michael S. Hanusek argued the cause for

respondent (Fein, Such, Kahn & Shepard, attorneys; Michael S. Reuter, of counsel and on the brief).

PER CURIAM

Defendants Helida Novack and Stuart Novack, her husband, appeal from the denial of an order to show cause for the following relief: (1) restraining plaintiff, Washington Mutual Bank FA, from seeking a writ of possession or eviction against defendants; (2) directing plaintiff to cease efforts to sell the property to which defendants claim ownership; (3) declaring the sheriff's sale of the property and resultant deed to plaintiff null and void; (4) to vacate the September 9, 2002, default judgment against defendants after striking their answer and counterclaim; and (5) vacating the plaintiff's complaint in foreclosure. We affirm.

The tangled history of this case began on August 17, 1998, when Helida Novack signed a note for $298,400 payable on September 1, 2028 at the initial interest rate of 6.45 percent per annum and secured the property in her sole name at 438 Main Street, Juliustown, New Jersey. She defaulted, and the bank initiated foreclosure proceedings on January 27, 2000. A default judgment was entered, and subsequently vacated on October 18, 2001, based on defendants' claim that they had not been served with the complaint. The court then gave defendants thirty-five days after new service to file an answer. On October 20, 2002, the Chancery judge dismissed defendants' answer for failure to comply with discovery. Default was entered, and on December 3, 2002, there was a final judgment entered against defendants which stated the plaintiff was entitled to $416,350.03 for mortgage principal and interest together with a counsel fee of $4,313.50, as well as foreclosing any equity of redemption to the premises and directing the sale of the property to satisfy the debt. Plaintiff purchased the property on October 23, 2003, at sheriff's sale, and the deed transferring title to plaintiff was conveyed on August 30, 2004. On September 14, 2004, judgment for possession was entered against the defendants on grounds that "by reason of gross negligence [they] caused or allowed destruction, damage or injury" to the property. Following the complaint against them for foreclosure, defendants filed for bankruptcy and sought an automatic stay of litigation on five separate occasions. The bankruptcy judges declined to stay the civil proceedings.

After defendants filed their order to show cause on December 10, 2004, Judge Ronald E. Bookbinder conducted a plenary hearing and, subsequently, submitted a written opinion denying all relief sought by defendants and entered an order on March 18, 2005. Defendants moved for reconsideration and a stay of eviction. Judge Bookbinder again rendered a written opinion in which he denied reconsideration.

In his initial decision, Judge Bookbinder held that plaintiff had not complied with the requirements of the Fair Foreclosure Act, N.J.S.A. 2A:50-56, by giving proper notice of its intention to foreclose. He found that the plaintiff's inability to produce the "green card" postal receipt was the result of defendants' laches since they had not claimed a lack of notice and effective service for five years after the foreclosure complaint was filed and two years after the entry of final judgment. Finally, he stated that defendants had never set forth a meritorious defense to the foreclosure.

After carefully considering the record and briefs, we are satisfied that all of defendants' arguments are without sufficient merit to warrant discussion in a written opinion, R. 2:11-3(e)(1)(E). We affirm substantially for the reasons expressed by Judge Bookbinder in his written decisions on February 25, 2005 and April 15, 2005.

Affirmed.

 

(continued)

(continued)

4

A-4247-04T2

June 21, 2006