JP MORGAN CHASE BANK NATIONAL ASSOCIATION v. YOUSSEF GENID

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

JP MORGAN CHASE BANK, NATIONAL

ASSOCIATION, SUCCESSOR BY MERGER

TO CHASE HOME FINANCE, LLC,

Plaintiff-Respondent,

v.

YOUSSEF GENID,

Defendant-Appellant.

December 22, 2015

Submitted December 7, 2015 Decided

Before Judges Messano and Carroll.

On appeal from the Superior Court of New Jersey, Chancery Division, Ocean County, Docket No. F-61275-09.

Joseph A. Chang, attorney for appellant.

Respondent has not filed a brief.

PER CURIAM

Defendant Youssef Genid appeals from the Chancery Division's August 22, 2014 order denying his motion to vacate a previously entered default judgment of foreclosure, and an October 10, 2014 order denying reconsideration. In support of his motions, defendant argued that he was never properly served with the foreclosure complaint. He claimed that he first became aware of the foreclosure action after a sheriff's sale of the mortgaged premises was scheduled. However, the motion judge determined that the proofs submitted by plaintiff established proper service of the complaint and subsequent applications.

On appeal, defendant argues that the judge erred in finding that: (1) his alleged knowledge of the foreclosure action through other means excused the lack of personal service; (2) too much time had elapsed since he defaulted on the loan; and (3) he was required to demonstrate that he had a meritorious defense to the action. We have considered these arguments in light of the record and applicable legal standards. We affirm.

We discern the facts from the motion record. In March 2007, defendant took out a $367,900 loan, secured by a mortgage on a residential property he owned in Barnegat. The foreclosure complaint was filed on November 19, 2009, and alleged that defendant defaulted on his loan payments on August 1, 2009.

Plaintiff's attorney certified that: (1) plaintiff unsuccessfully attempted to serve defendant with the foreclosure summons and complaint at the Barnegat address on December 12, 15, and 19; (2) plaintiff's good faith investigation revealed an alternative address for defendant in Montville; and (3) defendant was personally served on December 19, 2009 at his Montville address by a private process server.

The Affidavit of Service returned by the private server reflects that defendant was successfully served personally at the specified Montville address on December 19, 2009, at 10:00 a.m., following two unsuccessful attempts to serve him there on December 13 and 17. The Affidavit describes defendant as a fifty-five-year-old white male with black hair, five feet, ten inches tall, and weighing 195 pounds.

In contrast to the Affidavit of Service, defendant certified in support of his motion to vacate judgment that he was six feet, two inches tall, weighed 235 pounds when he was allegedly served, that his hair "has been graying for a number of years," and that his "skin color is not white."

Default was entered against defendant on June 16, 2010, followed by entry of the foreclosure judgment on February 4, 2014. According to his July 9, 2014 certification, defendant was unaware of the lawsuit until he "received a letter not long ago from plaintiff's counsel advising that there is a Sheriff's Sale scheduled for August 5, 2014." Until then, he "did not receive any notifications of any kind concerning the foreclosure." He attested that "[f]or the past several years, [he] was involved in submitting documents in [an] attempt to refinance, for which [he] was declined, and then modification, for which [he] was also declined." He further claimed that, "[t]hroughout this process, we were never informed that there was a Complaint in Foreclosure filed against us." Additionally, defendant certified that "[t]he subject [Barnegat] property is my second home," although he failed to identify his primary residence.

In opposing defendant's motion to vacate the foreclosure judgment, plaintiff's attorney certified to a long litany of notices that defendant had received during the pendency of the action, as follows

12. An order was entered on June 21, 2011[,] amending the name of the [p]laintiff . . . .

13. On January 5, 2012, the Order Substituting Plaintiff was mailed to [d]efendant at the alternative [Montville address] via regular and certified mail, return receipt requested. The certified mail was returned unclaimed but the regular mail was not returned and is therefore presumed delivered. A copy of the certification of mailing with certified mail receipt and unclaimed mail is attached . . . .

14. Thereafter, the foreclosure was placed on hold pending resolution of any uncertainty created by the decisions in Bank of [New York] v. Laks, 422 N.J. Super. 201 (App. Div. 2011) and US Bank [Nat'l Ass'n] v. Guillaume, 209 N.J. 449 (2012).

15. On January 31, 2013, an Order to Show Cause was filed on behalf of [] [p]laintiff . . . seeking to allow remedial Notices of Intention to Foreclose (NOI), in accordance with the New Jersey Supreme Court's Order dated April 4, 2012, following their decision in [Guillaume, supra]. Defendant's mortgage loan was included in the application. On May 14, 2013, the Court entered a final [o]rder . . . confirming that new NOIs sent by [p]laintiff were compliant with the New Jersey Fair Foreclosure Act, allowing [p]laintiff to resume foreclosure where [d]efendant did not cure the arrears, and authorizing the Office of Foreclosure to process motions for entry of Final Judgment on all cases that were included in the Order to Show Cause. A copy of the remedial [NOI] with certified mail tracking confirming delivery . . . [is] attached . . . .

16. Thereafter, on November 22, 2013, [p]laintiff forwarded to [] [d]efendant via regular and certified mail, a Notice of the Entry of Default along with a formal Notice Pursuant to Section [Six] of the New Jersey Fair Foreclosure Act. A copy of the certification of mailing, notice, and certified mail receipts is attached hereto . . . . Notably, the certified mail sent to [the Montville address] was signed for by Linda Genid.

17. After [d]efendant failed to cure the default, [p]laintiff mailed [d]efendant by certified mail, return receipt requested, a Notice of Motion for the Entry of Final Judgment, certification of amount due, and certification of Due Diligence on December 9, 2013. A copy of the certification of mailing, notices, and certified mail receipt, and certified mail tracking results evidencing delivery are attached hereto . . . .

. . . .

19. On May 29, 2014, [p]laintiff mailed a copy of the filed Final Judgment to [] [d]efendant. A copy of the certification of mailing is attached hereto . . . .

. . . .

21. On June 27, 2014, [] [p]laintiff mailed [d]efendant via regular and certified mail formal notice that the property was listed for sheriff's sale on August 5, 2014. A copy of [] [p]laintiff's notice is attached.

On July 9, 2014, defendant moved to vacate the final judgment of foreclosure. Alternatively, defendant sought a plenary hearing on his claim that he had never been served with the foreclosure complaint. The court heard oral argument on August 22, 2014, and denied defendant's requests for relief. The court found that defendant had been properly served personally with the complaint. The court also expressed skepticism at defendant's claim that he had never received any notification concerning the foreclosure action until the sheriff's sale was scheduled. Finally, the court questioned whether defendant had any meritorious defense, since he failed to include a copy of his proposed answer with the motion as required by Rule 4:43-3. After the court denied defendant's motion for reconsideration on October 10, 2014, this appeal followed.

Our decision is guided by the standards applicable to Rule 4:50-1. The determination whether to grant a motion to vacate a default judgment is "left to the sound discretion of the trial court, and will not be disturbed absent an abuse of discretion." Mancini v. EDS ex rel. N.J. Auto. Full Ins. Underwriting Ass'n, 132 N.J. 330, 334 (1993); see also Guillaume, supra, 209 N.J. at 467 (stating a decision on a motion to vacate default judgment "should not be reversed unless it results in a clear abuse of discretion"). The Supreme Court has described the abuse-of-discretion standard as asking whether a lower court's decision was "made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis." Flagg v. Essex County Prosecutor, 171 N.J. 561, 571 (2002) (quoting Achacoso-Sanchez v. Immigration and Naturalization Service, 779 F.2d 1260, 1265 (7th Cir. 1985)). Additionally, the movant bears the burden of demonstrating his or her entitlement to relief. Jameson v. Great Atl. & Pac. Tea Co., 363 N.J. Super. 419, 425-26 (App. Div. 2003), certif. denied, 179 N.J. 309 (2004).

A motion to vacate a default judgment for lack of service is governed by Rule 4:50-1(d), which authorizes a court to relieve a party from a final judgment if "the judgment or order is void." "A default judgment will be considered void when a substantial deviation from service of process rules has occurred, casting reasonable doubt on proper notice." Jameson, supra, 363 N.J. Super. at 425. Even where a defendant has actual notice of an action, the default judgment must be set aside if there is a substantial deviation from the service of process rules. Sobel v. Long Island Entm't Prods., Inc., 329 N.J. Super. 285, 292-94 (App. Div. 2000).

Generally, a motion to vacate judgment must be filed within one year of the entry of judgment. R. 4:50-2. However, a motion under Rule 4:50-1(d) "must [only] be filed within a reasonable time after entry of the judgment," and need not demonstrate a meritorious defense. Deutsche Bank Nat'l Trust Co. v. Russo, 429 N.J. Super. 91, 98 (App. Div. 2012) (citing R. 4:50-2); M & D Assocs. v. Mandara, 366 N.J. Super. 341, 351-52 (App. Div.), certif. denied, 180 N.J. 151 (2004)). What constitutes a "reasonable time," however, depends on the totality of the circumstances in a given case. Pressler & Verniero, Current N.J. Court Rules, comment 3 on R. 4:50-2 (2016).

Whether a party has been served is a question of proof. A sheriff's return of service is presumed correct, and may be rebutted only by clear and convincing evidence. Jameson, supra, 363 N.J. Super. at 426. "[U]ncorroborated testimony of the defendant alone is not sufficient to impeach the return." Goldfarb v. Roeger, 54 N.J. Super. 85, 90 (App. Div. 1959). Thus, a defendant's bald assertion that the sheriff's return is false does not overcome the presumption. Resolution Trust Corp. v. Associated Gulf Contractors, Inc., 263 N.J. Super. 332, 344 (App. Div.), certif. denied, 134 N.J. 480 (1993). Rule 4:4-3 was amended in 2000 to permit service by private process servers who do not have an interest in the litigation. See Pressler & Verniero, supra, cmt. on R. 4:4-3. Consistent with this policy decision to entrust disinterested persons with the responsibility to serve process, we find the presumption of correctness extends to their affidavits of service as well.

In the present case, defendant's assertion that he was never served does not rebut the presumption arising from the affidavits and certifications of service filed in this matter regarding the serving of process and additional notices on defendant, as the motion judge correctly determined. Buttressing this conclusion is the fact that in his signed Uniform Residential Loan Application, defendant identified his primary residence as the Montville address at which the process server represented that he served defendant personally with the foreclosure complaint. Importantly, defendant did not deny that he resided at that address. Rather, the record establishes that multiple mailings sent to defendant's Montville address were either received or went unclaimed.

Defendant's loan application indicates that he was born in December 1954. Therefore, he was fifty-five years old when the complaint was served, which comports with the age listed in the process server's affidavit. Also, in a section of the loan application completed by the lender's representative during a "face to face interview," the interviewer listed defendant's race as "white," which again squares with the process server's description.

As to any discrepancy between the process server's description of defendant and defendant's own description of himself, we find that the discrepancy is not substantial. Sobel, supra, 329 N.J. Super. at 292. Defendant claims that the process server's description was deficient with regard to his height, weight, and hair color. First, we find no material inconsistency between the description of defendant's hair color as "black" and his own description as "graying." Regarding defendant's height and weight, it is clear to us that both of these characteristics are not precisely discernable from a brief meeting. Moreover, defendant could have easily attached a current photograph depicting his description to his certification. He did not do so, and his uncorroborated certification alone fails to overcome the presumption of correctness that attaches to the process server's affidavit of service. See Garley v. Waddington, 177 N.J. Super. 173, 180-81 (App. Div. 1981).

Defendant in his loan application indicated that he was self-employed as the president of a real estate agency for ten years. He was clearly an experienced real estate professional, rather than a wayward novice. Thus, his contention that he was unaware that a foreclosure action was proceeding while he attempted to refinance or modify his loan in the face of numerous notices sent to him by plaintiff, was rightfully met with skepticism by the motion judge.

Finally, defendant's contention that the judge erred by requiring him to demonstrate that he had a meritorious defense to the foreclosure action lacks merit. At the hearing on defendant's motion to vacate, the judge noted the procedural deficiency that no proposed answer was submitted that would provide notice of any claimed defense. However, the motion judge clarified his reasoning in his decision denying defendant's reconsideration motion, stating: "[s]o, therefore, whether or not defendant presented any meritorious defenses at that argument really shouldn't have been made an issue because under [Rule 4:50-1(d)] [a] meritorious defense is not required."

Affirmed.