U.S. BANK N.A. v. MEYER ECKSTEIN

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4028-11T3

U.S. BANK N.A.

Plaintiff-Respondent,

v.

MEYER ECKSTEIN, his heirs,

devisees and personal

representatives and their,

or any of their successors

in right, title and interest,

Mrs. Eckstein, wife of Meyer

Eckstein, his heirs, devisees,

and personal representatives,

or any of their successors in

right, title and interest,

Defendant-Appellant.

______________________________

April 23, 2013

Submitted April 16, 2013 Decided

Before Judges Reisner and Hayden.

On appeal from the Superior Court of New Jersey, Chancery Division, Monmouth County, Docket No. F-46266-09.

Yeruchem N. Neiman, attorney for appellant.

Powers Kirn, L.L.C., attorneys for respondent (Megan E. Shafranksi, on the brief).

PER CURIAM

Defendant Meyer Eckstein appeals from a March 30, 2012 order denying his motion to vacate a foreclosure judgment. We affirm.

Defendant, who lives in Brooklyn, New York, bought a house in Freehold, New Jersey in 2006, giving a mortgage to Fairmont Funding, LTD, as security for a note in the amount of $239,000. That mortgage was recorded on May 15, 2006. Defendant's brief admits that he defaulted on the mortgage on December 1, 2008. Fairmont assigned the note and mortgage to U.S. Bank, which filed a foreclosure complaint on August 28, 2009. Defendant failed to file an answer to the complaint, and default was entered on January 7, 2010.

After the entry of default, defendant and U.S. Bank exchanged correspondence, concerning the possibility of defendant applying for a modification of the loan or entering into a short sale of the property. However, the bank's correspondence explicitly advised defendant that the foreclosure proceedings would continue while the parties explored these options. The parties failed to reach agreement, and plaintiff applied for final judgment, on notice to defendant. The final foreclosure judgment was entered on November 10, 2011.1 Plaintiff served the judgment on defendant on November 23, 2011.

Defendant did not file a motion to vacate the judgment until February 2012, after the property was scheduled for a sheriff's sale. At the oral argument of the motion, on March 2, 2012, defendant's counsel conceded that the defense had not submitted any legally competent evidence to support a claim of excusable neglect. See R. 4:50-1(a). Counsel asserted that defendant "just believed that he would be able to work this out." Judge Thomas W. Cavanagh, Jr., initially adjourned the sale and required plaintiff to provide legally competent evidence that it purchased the note before it filed the foreclosure complaint. On March 14, 2012, plaintiff filed a certification from an officer of the Bank. On March 30, 2012, the trial judge denied defendant's motion, and the property was sold at a sheriff's sale. This appeal followed.

We review Judge Cavanagh's decision for abuse of discretion. Nowosleska v. Steele, 400 N.J. Super. 297, 302 (App. Div. 2008). Having considered the entire record, we find no mistaken exercise of the judge's discretion. Defendant's appellate arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We add the following comments.

Defendant contends that the trial court erred in denying his motion because, even if his proof of excusable neglect was "weak," he had a meritorious defense to the foreclosure action. See R. 4:50-1(a). However, defendant presented absolutely no evidence of excusable neglect. See US Bank Nat'l Ass'n v. Guillaume, 209 N.J. 449, 468-69 (2012); Deutsche Bank Nat'l Trust Co. v. Russo, 429 N.J. Super. 91, 98-99 (App. Div. 2012).

Further, defendant failed to present a meritorious defense. On this appeal, defendant has provided no record support for his claim that plaintiff violated the Fair Foreclosure Act, N.J.S.A. 2A:50-56, and even if he had, our courts have rejected efforts by foreclosure debtors to raise these types of technical objections after the mortgagee has obtained a final judgment. See Guillaume, supra, 209 N.J. at 480; Deutsche Bank, supra, 429 N.J. Super. at 101. Defendant's standing arguments are equally insubstantial. See id. at 101-02. As we held in Deutsche Bank, standing is not a jurisdictional issue in State court actions, and a foreclosing bank's alleged lack of standing is, therefore, not a basis to vacate a foreclosure judgment under Rule 4:50-1(d). Further, plaintiff submitted legally competent evidence that it had standing at the time the complaint was filed, as well as when judgment was entered. Lastly, defendant freely admits that he has not paid the mortgage since December 2008.

Affirmed.

1 Not long thereafter, on December 6, 2011, defendant wrote a letter "to whom it may concern" advising that the property had been vacant for a year due to vandalism. Defendant included a copy of that letter in his appendix.