BANK OF NEW YORK v. NORMAN K. BUCKNER

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1176-11T3

BANK OF NEW YORK AS TRUSTEE FOR

THE CERTIFICATEHOLDERS CWABS, INC.

ASSET-BACKED CERTIFICATES, SERIES

2006-18,

Plaintiff-Respondent,

v.

NORMAN K. BUCKNER and HARRIET

BUCKNER,

Defendants-Appellants.

__________________________________________________________

November 19, 2012

Argued October 16, 2012 - Decided

Before Judges Fisher and Waugh.

On appeal from the Superior Court of New Jersey, Chancery Division, Morris County, Docket No. F-9050-07.

Joshua W. Denbeaux argued the cause for appellants (Denbeaux & Denbeaux, attorneys; Mr. Denbeaux, of counsel; Jeanne Lahiff, on the brief).

Edward A. Vincent argued the cause for respondent (Frenkel Lambert Weiss Weisman & Gordon, attorneys; Dori L. Scovish, on the brief).

PER CURIAM

In this foreclosure action, defendants seek review of a November 1, 2011 order, which denied as untimely a motion to vacate a default judgment that had been entered more than three years earlier, and denied a stay of defendants' eviction from the property. Because we agree the 2011 motion to vacate was unreasonably tardy, we affirm.

The facts may be briefly stated. Defendants purchased a home in Long Valley in July 2006, executing documents that imposed a mortgage, in favor of Mortgage Electronic Registration Systems, Inc., as nominee for First Continental Mortgage and Investment Corp., and that required repayment of the $370,000 loan, over time, together with interest, at the rate of $3,124.67 per month. Defendants defaulted a few months later.

Plaintiff, alleging its status as the assignee of the mortgage and note, filed this foreclosure action on April 4, 2007. Defendants did not respond, and plaintiff sought and obtained the entry of default in August 2007. Final judgment was entered on February 6, 2008.

Soon thereafter, sheriff sales were scheduled and adjourned, with the pro se defendants exercising their right to the statutory adjournments permitted by N.J.S.A.2A:17-36. The adjourned sheriff sale was eventually cancelled to permit consideration of defendants' eligibility for a home ownership retention program. When defendants were found ineligible for the program, the sheriff sale was rescheduled and defendants again obtained two statutory adjournments before plaintiff ultimately purchased the property at the rescheduled sale that occurred on March 25, 2010.

A subsequent hearing on plaintiff's application for the removal of defendants from the property was opposed by the pro se defendants. The trial judge stayed the eviction until August 5, 2010, and again until November 10, 2010, even though defendants had made no payments toward their obligation for nearly four years. The stay continued until a hearing scheduled to occur on July 13, 2011; by that time, defendants had retained counsel, who, on their behalf, entered into a consent order staying eviction until January 2012 on the condition that defendants pay a monthly fee of $3,124.67. Defendants made only one, possibly two, of the stipulated payments, and their lockout from the property was rescheduled for November 2, 2011. The day before that event, however, defendants' new and current counsel applied for an order to show cause with temporary restraints.

Defendants urged numerous grounds in support of their application for relief from the default judgment and for a stay of the eviction, including their allegation that plaintiff did not have physical possession of the note when it filed this action. The trial judge found untimely defendants' request for relief from the judgment and no merit in the request for a stay of the eviction. Defendants' emergent motion for a stay of eviction pending appeal was denied by this court on November 9, 2011.

Defendants appeal, arguing that: the trial judge failed to exercise the liberality required by Rule 4:50; the sheriff sale should have been vacated because -- plaintiffs claim -- they did not receive proper notice; and the trial judge failed to consider or otherwise misapplied the law applicable to defendants' contention that plaintiff lacked standing to commence and pursue this foreclosure action. We find insufficient merit in defendants' arguments regarding notice of the sheriff sale to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We also affirm the trial judge's denial of defendants' application for relief from the default judgment because, like the trial judge, we agree the application was untimely; we therefore do not reach defendants' argument that plaintiff lacked standing or any of the other asserted grounds for relief.

The court's power to relieve a party from the consequences of a judgment or order is informed by equitable principles. Court Invest. Co. v. Perillo, 48 N.J. 334, 341 (1966). As our Supreme Court has recognized, Rule 4:50 is "designed to reconcile the strong interests in finality of judgments and judicial efficiency with the equitable notion that courts should have authority to avoid an unjust result in any given case." Manning Eng'g, Inc. v. Hudson Cnty. Park Comm'n, 74 N.J. 113, 120 (1977); see also US Bank Nat. Ass'n v. Guillaume, 209 N.J. 449, 467 (2012); Mancini v. EDS, 132 N.J. 330, 334 (1993); Baumann v. Marinaro, 95 N.J. 380, 392 (1984). Consistent with this theme, Rule 4:50-2 requires that all motions made pursuant to Rule 4:50-1 must be filed "within a reasonable time." See Orner v. Liu, 419 N.J. Super. 431, 437 (App. Div.), certif. denied, 208 N.J. 369 (2011).

The default judgment was entered on February 6, 2008. The application for relief from that judgment, however, was not filed until November 1, 2011. Defendants did not move within a reasonable time for relief from the nearly four-year-old default judgment. In considering the impact of that lengthy interval, we note that defendants remained in the home without paying anything toward their obligation to plaintiff except one or possibly two monthly payments in the Summer of 2011 to avoid eviction.

In a context strikingly similar, we recently reminded foreclosure litigants that "equity must be applied to plaintiffs as well as defendants" and concluded that a defendant's unreasonable delay in seeking relief pursuant to Rule 4:50-1, on the ground that the plaintiff lacked standing, warranted the denial of the motion. Deutsche Bank Trust Co. Americas v. Angeles, __ N.J. Super. __, __ (App. Div. 2012) (slip op. at 7-8); see also Deutsche Bank Nat'l Trust Co. v. Russo, __ N.J. Super. __, __ (App. Div. 2012) (slip op. at 11-13). For substantially the same reasons, we affirm the trial judge's denial of defendants' tardy Rule 4:50 application.

Affirmed.