DITECH FINANCIAL v. GREGORY M. BORNSTEIN

NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
     internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.




                                                        SUPERIOR COURT OF NEW JERSEY
                                                        APPELLATE DIVISION
                                                        DOCKET NO. A-3809-17T1

DITECH FINANCIAL,
f/k/a GREEN TREE
SERVICING,

          Plaintiff-Respondent,

v.

GREGORY M. BORNSTEIN,

     Defendant-Appellant.
__________________________

                   Argued October 13, 2020 - Decided November 18, 2020

                   Before Judges Currier and Gooden Brown.

                   On appeal from the Superior Court of New Jersey,
                   Chancery Division, Burlington County, Docket No. F-
                   031906-14.

                   Gregory M. Bornstein, appellant, argued the cause pro
                   se.

                   Christopher G. Ford argued the cause for respondent
                   (RAS Citron, LLC, attorneys; Micah C. Pakay, on the
                   brief).

PER CURIAM
      In this residential foreclosure action, defendant Gregory M. Bornstein

appeals from the March 16, 2018 order denying his motion for reconsideration

of a prior order denying his application to vacate judgment. After a review of

defendant's contentions in light of the record and applicable legal principles, we

affirm.

      On September 29, 2006, defendant executed an interest-only adjustable

rate note to TBI Mortgage Company. The note was secured by a mortgage held

by Mortgage Electronic Registration Systems, Inc. (MERS) as nominee for TBI

against a residential property in Chesterfield, New Jersey. At the time of this

transaction, defendant owned a property in Plainsboro, New Jersey. He had

procured a line of credit from E*Trade Bank in June 2005 which was secured

by a mortgage on the Plainsboro property.

      In March 2011, MERS assigned the mortgage to BAC Home Loans

Servicing, LP formerly known as Countrywide Home Loans Servicing, LP

(Countrywide). In June 2013, Bank of America, as successor by merger to

Countrywide, assigned the mortgage to Green Tree.

      Defendant defaulted on his obligations under the note and mortgage in

2010. In 2014, Green Tree filed a complaint for foreclosure for the Chesterfield

property. Defendant filed a contesting answer, asserting various counterclaims.

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Extensive motion practice ensued. Pertinent to this appeal, Green Tree moved

to dismiss defendant's counterclaims and for summary judgment.

      Judge Karen L. Suter granted summary judgment to Green Tree, striking

defendant's answer and defenses in a June 24, 2015 order. The order indicated

the motion was "unopposed."

      In a twelve-page comprehensive written statement of reasons, Judge Suter

analyzed Green Tree's arguments and considered defendant's counterclaims .

The judge advised that defendant had faxed a letter to the court on the return

date of Green Tree's summary judgment motion. The letter was entitled "motion

for continuance to review and respond to the May 27, 2015 order." 1 The judge

stated that if defendant was attempting to file a motion, it was deficient as

defendant had not paid the required filing fee nor attached a notice of motion

cover page.    Nevertheless, although Judge Suter determined the summary

judgment motion unopposed, she considered the substance of defendant's letter,

noting it did not "appear to oppose plaintiff's motion for summary judgment but

rather takes issues with this court's May 27, 2015 order."




 1 On May 27, 2015, Judge Suter granted Green Tree's motion to strike
defendant's counterclaims and denied defendant's motion to compel discovery
and add new parties.
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      Judge Suter held that Green Tree had established a prima facie right to

foreclosure. She found defendant had not factually supported his arguments that

Green Tree did not have standing and that the assignments of the mortgage were

defective. In addition, defendant did not deny that he executed the note or

defaulted on the loan. Judge Suter further found that defendant's counterclaim

asserting a violation of the Consumer Fraud Act,  N.J.S.A. 56:8-1 to -226, lacked

merit because it was unsupported by any facts and time-barred to the extent it

related to the Bank of America loan. Judge Suter also rejected defendant's

counterclaim asserted under the Truth in Lending Act, (TILA), U.S.C. § 1601-

1693, because defendant had not presented any evidence that Green Tree had

violated the TILA. Moreover, because defendant did not contend he was able

to tender the balance due on his loan, the TILA did not provide a meritorious

defense to foreclosure.

      Judge Suter considered numerous other defenses and counterclaims

asserted by defendant not pertinent to this appeal, and found the claims were

unsupported by any facts in the record. Moreover, defendant's claims did not

raise any factual issues to preclude the granting of the summary judgment

motion.




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      In July 2015, defendant filed a motion for reconsideration of Judge Suter's

orders. On August 14, 2015, Judge Suter issued an order denying defendant's

motion for reconsideration. In a written statement of reasons, the judge stated

that defendant:

            repeats the same arguments, as previously considered
            by the court when the court granted [Green Tree]'s
            motion to dismiss defendant's counterclaims, and when
            the court granted plaintiff's motion [] for summary
            judgment, which struck the answer. These arguments
            were also previously considered when this court denied
            defendant's motion for reconsideration on May 29,
            2015.

      In September 2015, defendant filed a motion to settle the record. He

argued Judge Suter improperly designated Green Tree's motion for summary

judgment as unopposed and applied the incorrect standard for summary

judgment. Defendant asserted that Green Tree's certifications were evidence of

mortgage fraud, and that Green Tree's motions to strike his defenses and

counterclaims and for summary judgment, as well as Judge Suter's orders

granting those motions were insufficient and lacking in specificity.

      On October 23, 2015, a different judge denied defendant's motions. The

judge found defendant did not present any issues regarding the accuracy of the

record, but rather reiterated arguments already considered and rejected in prior

orders.

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      In January 2016, the court granted Green Tree's application to substitute

Ditech Financial, its successor in interest, as the plaintiff in this case. The court

granted plaintiff final judgment in October 2017.

      On January 2, 2018, defendant filed a motion to "vacate default judgment

and stay sheriff's sale." The motion was considered and denied, after oral

argument, by Judge Kathi F. Fiamingo on February 7, 2018.

      In her thorough statement of reasons, Judge Fiamingo determined that

defendant's motion was time-barred under Rule 4:50-2 because he sought to

vacate the June 24, 2015 summary judgment order more than two years after its

entry. In addition, defendant had not presented any reasons to grant relief under

Rule 4:50-1 and vacate the judgment. Judge Fiamingo noted defendant was

reiterating the same arguments considered by Judge Suter when she dismissed

defendant's counterclaims and granted Green Tree's motion for summary

judgment and when she denied reconsideration of her orders.

      Judge Fiamingo further held defendant failed to demonstrate he was

entitled to injunctive relief and a stay of the sheriff's sale. She stated that, even

assuming the sale of the Chesterfield property would constitute irreparable

harm, defendant had not demonstrated he had a settled legal right to the

requested relief and a reasonable probability of success on the merits , given the


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rebuff of defendant's arguments by several prior judges on multiple occasions.

The judge also concluded that the balance of equities weighed in favor of

denying defendant's motion.

      After defendant moved for reconsideration of the order, Judge Fiamingo

heard oral argument and denied the motion. In her March 16, 2018 order and

accompanying written statement of reasons, Judge Fiamingo found defendant

had not presented anything new to warrant reconsideration. Rather, defendant

again attempted to relitigate the merits of the underlying foreclosure action,

rehashing the same arguments rejected in prior orders.

      Before this court, defendant renews his arguments, contending Judge

Fiamingo erred in denying reconsideration of the denial of his motion to vacate

final judgment.

      We review a trial court's decision to grant or deny a motion for

reconsideration under an abuse of discretion standard. Cummings v. Bahr,  295 N.J. Super. 374, 389 (App. Div. 1996).          Accordingly, "a trial court's

reconsideration decision will be left undisturbed unless it represents a clear

abuse of discretion." Pitney Bowes Bank, Inc. v. ABC Caging Fulfillment,  440 N.J. Super. 378, 382 (App. Div. 2015). A court abuses its discretion "when a

decision is 'made without a rational explanation, inexplicably departed from


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established policies, or rested on an impermissible basis.'" Ibid. (quoting Flagg

v. Essex Cnty. Prosecutor,  171 N.J. 561, 571 (2002)).

      We are satisfied that Judge Fiamingo did not abuse her discretion in

denying defendant's motions to vacate the judgment under Rule 4:50-1 and for

reconsideration. First, defendant's motion was untimely. Summary judgment

was granted on June 24, 2015; the court denied the motion for reconsideration

on August 14, 2015. Defendant did not challenge the orders for two and a half

years. Rule 4:50-2 requires a motion brought under Rule 4:50-1 to be made

within a "reasonable time" under the circumstances.          Defendant has not

presented any reasons for his failure to contest the summary judgment order for

more than two years.

      Moreover, defendant's arguments to vacate the judgment were thoroughly

considered and rejected in several prior orders. Defendant did not present any

reason to vacate judgment other than attempting to relitigate the summary

judgment motion. He did not present anything new in his papers requesting

reconsideration. A careful review of the record reflects that each of the judges

who considered defendant's arguments did so in a thoughtful and well-reasoned

fashion. Therefore, we can discern no abuse of discretion.




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      Any arguments not specifically addressed lack sufficient merit to warrant

discussion in a written opinion. R. 2:11-3(e)(1)(E).

      Affirmed.




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