WELLS FARGO BANK, N.A v. DEBRA SMITH

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0228-10T2

WELLS FARGO BANK, N.A.,

Plaintiff-Respondent,

v.

DEBRA SMITH and MATTHEW DEPP,

Defendants-Appellants.

_________________________________

January 11, 2012

 

Argued October 17, 2011 - Decided

 

Before Judges Grall and Skillman.

 

On appeal from Superior Court of New

Jersey, Chancery Division, Union County,

Docket No. F-28990-08.

 

David M. Schlachter argued the cause

for appellants (Law Offices of David

M. Schlachter, attorneys; Mr. Schlachter,

on the brief).

 

Vladimir Palma argued the cause for

respondent (Phelan Hallinan & Schmieg,

attorneys; Mr. Palma, on the brief).

PER CURIAM

Wells Fargo Bank, N.A. obtained a default judgment in an action to foreclose on a $504,000 mortgage on the home of defendants Debra Smith and Matthew Depp, and purchased the property for $100 at a sheriff's sale. More than a year after the judgment and about two months after the deed was transferred, defendants moved to vacate the default judgment or extend their right of redemption. Finding no abuse of discretion, we affirm.

On February 23, 2007, defendants executed a $504,000 note and mortgage in favor of New Century Mortgage Corporation to purchase a residence in Westfield. The instruments stated that the Mortgage Electronic Registration System, Inc. (MERS) was the lender's nominee. The note and mortgage provided for an initial interest rate of 7.1% that was adjustable after two years, or as of March 1, 2009. The monthly payments due under the mortgage included principal, interest and property taxes. The note gave notice that failure to deliver the full amount of any monthly payment when due would be considered a default. In addition, an acceleration clause permitted the lender to demand payment of the balance due on the principal if the lender did not receive payment within thirty days of the mailing of a notice of default.

After assuming the obligation, defendants made three timely monthly payments but failed to make the fourth payment due in July 2007. By certified mail, Countrywide, the loan servicer for MERS, sent Smith and Depp notice of intention to foreclose on August 2, 2007 as required by N.J.S.A. 2A:50-56. The notice of intent states that if the borrowers do not cure the default within thirty days, the lender will accelerate the mortgage and initiate foreclosure proceedings. It further advises that the borrowers will have the right to cure default after the thirty-day period, but only until the entry of a foreclosure judgment. In addition, the notice advises of options available to prevent foreclosure and invites the borrowers to discuss them with Countrywide. The notice warns that Countrywide's efforts to assist the buyer will be in addition to, not in lieu of, its efforts to foreclose. The notice states: "In the meantime, Countrywide will pursue all of its rights and remedies under the loan documents and as permitted by law, unless it agrees otherwise in writing."

Defendants discussed options with Countrywide. On September 17, Countrywide and defendants agreed to an "informal repayment plan," but that agreement was cancelled for non-compliance on October 7, 2007. Later that month, defendants and Countrywide discussed loan modification and conversion, but by October 29 Countrywide advised defendants to arrange for payment because the plan had still not been approved. By late November, Countrywide advised defendants it would agree to a three-month repayment-to-modification plan. Subsequently, on February 23, 2008, Countrywide advised that if defendants paid $3168.69 by March 5, and on the first day of April, May and June 2008, Countrywide would consider modification. Countrywide's collection notes a log of contacts the servicer's agents had with defendants that was submitted in opposition to defendants' motion to vacate reflect confusion on its part about the adequacy of the initial and three-month payments. Those payments were in the amount of the initial monthly payment and include nothing in the way of repayment. For that reason, Countrywide returned one payment defendants tendered in March and subsequently cancelled the repayment-to-modification plan on April 10.

In any event, Countrywide sent defendants another notice of intent to foreclose by certified mail on April 9, 2008 in accordance with N.J.S.A. 2A:50-56. Depp signed for the mail on April 12. On April 14, Depp called and was advised that he would have to restart the process for a repayment-to-modification plan. Although the agent who spoke to Depp asked to have the former plan reopened, that was not done. Defendants made no further payments.

The lender pursued foreclosure in July 2008. On July 28, MERS assigned the mortgage and note to Wells Fargo, and Wells Fargo filed its foreclosure complaint on July 29. The complaint, alleging a default on August 1, 2007, was served on both defendants at their residence by delivery to Depp on August 6, 2008.

Defendants did not answer or otherwise participate in the foreclosure proceeding. According to defendants, their attorney advised them to file for bankruptcy. On October 6, 2008, default was entered. On October 23, Wells Fargo sent a fourteen-day notice of its intention to seek judgment on the default of foreclosure pursuant to N.J.S.A. 2A:50-58a(1).1 That notice reiterates that default cannot be cured subsequent to entry of judgment and that a sheriff's sale will follow.

Wells Fargo moved for entry of judgment on November 24, 2008, and judgment was entered on May 13, 2009. Thereafter, Wells Fargo pursued its remedies along two routes, one ending in sheriff's sale and the other in a short sale. Thus, sheriff's sales scheduled for July 29, September 2, October 7, November 18, December 2, 2009, and January 6, 2010 were postponed while Countrywide made efforts to determine whether defendants would qualify for the Home Affordable Modification Program and considered short sales. The January sheriff's sale was rescheduled for March 10, 2010. On March 8, 2010, Depp inquired about another short sale and was told the offer was rejected and that the sheriff's sale would proceed on March 10, 2010. At that sale, Wells Fargo paid $100 for the property.

On April 1, 2010, Countrywide erroneously advised Depp that the redemption period was ongoing and that a short sale could be considered for twenty days. Defendants assert that Countrywide advised them they had six months to redeem. On April 5, however, Countrywide notified defendants that the offer had been rejected and changed the status of the mortgage from workout to closed. On April 27, a writ of possession was issued. Eviction was scheduled for July 21, 2010.

Four months after the sheriff's sale, by order to show cause dated July 12, 2010, defendants asked the court to vacate the default judgment, order mediation and extend the redemption period. They recited serious misfortunes that had led to their default but did not assert ability to redeem the property. They also challenged service and asserted defenses based on the terms of the note and mortgage and Wells Fargo's non-compliance with statutorily required notices. In opposition, Wells Fargo submitted proof of service of the pertinent documents, its pleadings, notices provided to defendants including notices of the scheduling and postponement of the various sheriff's sales, orders entered in the action, Countrywide's collections log and the deed Wells Fargo obtained following the sheriff's sale.

At oral argument on the return date, defendants' attorney did not assert his clients were able to redeem. Instead, he urged the court to extend the redemption period to give his clients an opportunity to work out a modification of the mortgage.

Judge Malone found that defendants were properly served and had failed to establish excusable neglect warranting entry of an order vacating the default judgment. He further found no basis for extending the redemption period given defendants' admitted inability to redeem. The judge did, however, extend the stay of eviction until September 3, 2010 conditioned upon defendants paying $2000 per month for use and occupancy to be held in the trust account of Wells Fargo's attorney. The judge subsequently extended the stay pending resolution of defendants' appeal.

On appeal defendants raise two issues:

I. THE COURT ABUSED ITS DISCRETION AND

WRONGFULLY DENIED RELIEF TO APPELLANTS BY FAILING TO VACATE FINAL JUDGMENT AND/OR SHERIFF'S SALE DESPITE THE CLEAR SHOWING OF LACK OF NOTICE AND COLORABLE DEFENSES.

 

II. THE COURT WRONGFULLY FAILED TO UPHOLD

THE INTEGRITY OF THE FORECLOSURE MEDIATION PROGRAM BY FAILING TO ALLOW APPELLANTS TO PARTICIPATE IN MEDIATION.

"[A]n application to open, vacate or otherwise set aside a foreclosure judgment or proceedings subsequent thereto is subject to an abuse of discretion standard." United States ex rel. U.S. Dept. of Agric. v. Scurry, 193 N.J. 492, 502 (2008). After considering the record in light of the arguments presented, we find no abuse of the judge's discretion and affirm substantially for the reasons stated by Judge Malone in his oral opinion of August 9, 2010. We add only brief comments addressing the issues raised on appeal.

Trial courts are to "view 'the opening of default judgments . . . with great liberality,' and should tolerate 'every reasonable ground for indulgence . . . to the end that a just result is reached.'" Mancini v. EDS, 132 N.J. 330, 334 (1993) (quoting Marder v. Realty Constr. Co., 84 N.J. Super. 313, 319 (App. Div.), aff'd, 43 N.J. 508 (1964)); see Reg'l Constr. Corp. v. Ray, 364 N.J. Super. 534, 540-41 (App. Div. 2003). Nevertheless, relief from judgment is governed by Rules 4:50-1 and 4:50-2, and except in cases where relief is sought on the grounds that the judgment is void, no longer equitably enforced due to changed circumstances, or the existence of exceptional circumstances justifying relief, R. 4:50-1(d)-(f), the motion must be filed within one year of the judgment. R. 4:50-2. Where Rule 4:50-2's one-year limit applies, it may not be enlarged. R. 1:3-4(c).

Defendants' application to vacate the judgment was not timely filed because it does not fall within one of the three exceptions stated in Rule 4:50-2. True, defendants challenged service, but proper service was established. Thus, the judgment is not void. R. 4:50-1(d).

Defendants suggest that the ongoing negotiations with Wells Fargo's mortgage servicer combined with their misfortune constitute an exceptional circumstance or makes enforcement of the judgment unfair, R. 4:50-1(e)-(f). We cannot conclude the judge abused his discretion by rejecting those claims. Despite their unfortunate circumstances, defendants contacted an attorney and vigorously pursued alternatives to foreclosure. Moreover, plaintiff's willingness to cooperate with defendants in exploring alternatives to foreclosure could not induce a reasonable homeowner in defendants' circumstance to believe that there was no need to participate in the foreclosure action. Defendants point to nothing specific Wells Fargo did to induce that belief, and from our review of the collection log, Countrywide's actions were at all times unmistakably consistent with the lender's intent as stated in the notices of intent served prior to the filing of the foreclosure complaint assisting the borrower while pursuing its rights and remedies under the note and mortgage.

For the foregoing reasons and those stated by Judge Malone, we affirm the denial of the motion to vacate the foreclosure.

We also affirm the judge's denial of an extension of the redemption period. But for defendants' apparent inability to redeem, the judge would have erred by declining to consider an extension of the redemption period without determining whether Countrywide led defendants to believe that they had six months to redeem. Scurry, supra, 193 N.J. at 505. Defendants, however, did not seek an opportunity to redeem. As Judge Malone noted, defendants asked to pursue mediation that is available prior to the entry of judgment of foreclosure and did not assert that they were ready to redeem. Because "'the law does not compel one to do a useless act,'" id. at 506 (quoting Albert v. Ford Motor Co., 112 N.J.L. 597, 603 (E. & A. 1934), the judge properly denied an extension.

Defendants' remaining arguments lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

T

he orders are affirmed and the matter is remanded for the limited purpose of setting an eviction date.

1 Defendants present no arguments referencing the Fair Foreclosure Act, N.J.S.A. 2A:50-53 to -64, or the Save New Jersey Homes Act, N.J.S.A. 46:10B-36 to -52.