MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC. v. BROOKE MURPHY

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0066-07T20066-07T2

MORTGAGE ELECTRONIC REGISTRATION

SYSTEMS, INC., as nominee of

CHEVY CHASE BANK, FSB,

Plaintiff-Respondent,

v.

BROOKE MURPHY,

Defendant-Appellant,

and

MARY CLARE MONAHAN,

Defendant-Respondent,

and

BG BUILDING SERVICES, INC., RAYMOND

ZWERVER t/a RC MECHANICAL CONTRACTORS,

Defendants.

__________________________________________________

 

Argued November 19, 2008 - Decided

Before Judges Cuff and Fisher.

On appeal from the Superior Court of New Jersey, Chancery Division, Sussex County, Docket No. F-17892-06.

Geraldine P. Galvani argued the cause for appellant.

Salvatore Carollo argued the cause for respondent Mortgage Electronic Registration Systems, Inc. (Udren Law Offices, P.C., attorneys; Mr. Carollo, on the brief).

John Edwards Tiffany argued the cause for respondent Mary Clare Monahan (Law Offices of John E. Tiffany, P.C., attorneys; Mr. Tiffany, on the brief).

PER CURIAM

Defendant Brooke Murphy appeals from a default judgment of foreclosure entered in favor of plaintiff, arguing, among other things, that he was not served by plaintiff with a notice of intention to foreclose, as required by N.J.S.A. 2A:50-56(a), and that he was not served with the summons and complaint. Because defendant never pursued these arguments in the trial court, the appeal will be dismissed.

The record reveals the following salient facts. On October 10, 2006, plaintiff filed a complaint seeking to foreclose its mortgage on property owned by defendant Murphy. The complaint named as defendants not only Murphy and other lien holders, but also Mary Clare Monahan, who was alleged to hold a second mortgage on the property.

A default judgment was entered in favor of plaintiff on July 30, 2007. On October 3, 2007, Murphy filed a notice of appeal seeking our review of the default judgment.

It appears that Murphy also filed a motion in the trial court seeking discovery at some point after the entry of judgment. Because a copy of that motion was not included in his appendix, we cannot ascertain when it was filed, but we do know, in light of an order entered on December 17, 2007 which denied that discovery motion that the trial judge's ruling occurred after the filing of the notice of appeal; accordingly, the trial judge correctly recognized, as the handwritten note on the December 17, 2007 order indicates, that Rule 2:9-1(a) deprived the trial court of jurisdiction to rule on the merits of Murphy's discovery motion. As a result, all that is before us is Murphy's appeal of a default judgment.

We recognized in Haber v. Haber, 253 N.J. Super. 413, 416 (App. Div. 1992), that "a direct appeal will not lie from a judgment by default." See also McDermott v. Paterson, 122 N.J.L. 81, 84 (E. & A. 1939); Walter v. Keuthe, 98 N.J.L. 823, 827 (E. & A. 1923); Div. of Youth & Family Servs. v. T.R., 331 N.J. Super. 360, 363-64 (App. Div. 2000); In re Estate of Siegel, 214 N.J. Super. 586, 591 (App. Div. 1987). The rule has ancient origins. See Townsend v. Smith, 12 N.J. Eq. 350, 353 (E. & A. 1858).

As explained in McDermott, the reason underlying this rule "is that the very theory and constitution of a court of appellate jurisdiction is only the correction of errors which a court below may have committed, and a court below cannot be said to have committed an error when its judgment was never called into exercise, and the point of law was never taken into consideration. . . ." 122 N.J.L. at 84. As a result, if Murphy has a remedy, it lies with Rule 4:50-1. Haber, supra, 253 N.J. Super. at 416. The record on appeal demonstrates that Murphy has not yet pursued that avenue of relief.

In accordance with the approach we outlined in Haber, defendant's appeal will be dismissed without prejudice and with leave to file an application for relief pursuant to Rule 4:50-1. 253 N.J. Super. at 417. And, as we also said in Haber, "[w]e take no position as to whether such a motion is timely or whether, if timely, any relief from the judgment should be granted."

Appeal dismissed without prejudice. We do not retain jurisdiction.

We note that Monahan was permitted to file a brief in this appeal. In her brief, Monahan argues, among other things, that she was not properly served with the summons and complaint. The record reveals that Monahan moved for relief from the default judgment. She did not include a copy of her motion in her appendix, but included a copy of an order entered by the trial judge on October 19, 2007 that denied her motion to vacate the default judgment. The order contains the judge's notation that the reasons for the denial were "placed on record"; neither Monahan nor any other party has provided us with a copy of the transcript containing the judge's decision on that motion. Interestingly, the judge did not indicate, as she had in ruling on Murphy's motion, that she was without jurisdiction. We suspect that the judge was then unaware that Murphy had filed a notice of appeal two weeks earlier. Monahan has not filed an appeal from the default judgment, which would have received the same fate as Murphy's current appeal, nor did Monahan appeal the order denying her motion to vacate the default judgment.

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5

A-0066-07T2

December 5, 2008