BANK OF NEW YORK v. UZI MAROM

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5882-09T1

BANK OF NEW YORK AS TRUSTEE

FOR THE CERTIFICATION CWABS,

INC., ASSET-BACKED CERTIFICATES,

SERIES 2005-4,

Plaintiff-Respondent,

v.

UZI MAROM and IRENE MAROM,

Defendants-Appellants.

_____________________________________

May 4, 2012

Submitted April 23, 2012 - Decided

Before Judges A. A. Rodr guez and Fasciale.

On appeal from the Superior Court of New Jersey, Chancery Division, Bergen County, Docket No. F-1480-07.

Abraham Frank & Associates PC, attorneys for appellants (Barry N. Frank, on the brief).

Zucker, Goldberg & Ackerman, LLC, attorneys for respondent (Christopher G. Ford, of counsel and on the brief).

PER CURIAM

In this foreclosure case, defendants appeal from a May 14, 2010 order1 denying their motion to vacate a sheriff's sale, stay a deed transfer, and obtain leave to issue a subpoena and conduct discovery; and a July 9, 2010 order that denied both reconsideration and their new motion to vacate default judgment. We affirm.

In 2005, defendants obtained a mortgage, made payments for approximately one year and four months, and then defaulted. On January 17, 2007, plaintiff filed its foreclosure complaint, and on January 22, 2007, plaintiff served defendants. Defendants failed to answer the complaint. Plaintiff obtained default on March 6, 2007, and default judgment on May 31, 2007. After at least two adjournments, the property was sold at the sheriff's sale on October 30, 2009.

Defendants then filed their motion to vacate the sale, stay a deed transfer, and obtain leave to issue a subpoena and conduct discovery. Defendants argued that plaintiff unfairly denied them the opportunity to conduct a short sale. On May 14, 2010, Judge Ellen Koblitz conducted oral argument, issued an oral opinion, and denied the motion. Judge Koblitz stated:

The defendants complain now that the bank unfairly denied them . . . a short sale; that had the bank cooperated with the short sale when [defendants] first suggested it, [plaintiff] actually would be receiving more money[.]

. . . .

The defendants had the right to respond to the foreclosure complaint and answer it. They chose not to do so. By their own statements[, defendants] were hoping that there would be a short sale and therefore they felt or decided that it was unnecessary to respond to the complaint.

. . . .

[Defendants] had the ability to investigate th[e] complaint [three years ago] and [obtain] all the documents that they're now seeking[,] and they chose not to do so.

Defendants filed a timely motion for reconsideration, and sought at the same time to vacate default judgment that had been entered on May 31, 2007, more than three years earlier. The judge issued an oral opinion and stated:

Defendants come seeking reconsideration bringing up a generalized complaint of fraud, as well as a specific complaint with regard to the recording of the assignment. These are issues which could have been brought up previously[.]

. . . .

There is nothing [on this motion] that is new that could not have been brought forward previously.

In any event, the issue with regard to the recording of the assignment . . . does not defeat [default judgment].

As a result, Judge Koblitz denied the motion.2

On appeal, defendants argue for the first time that (1) plaintiff lacked standing because it did not hold the Note when it filed the complaint; (2) the lender engaged in predatory and fraudulent acts; and (3) additional "defenses and statutory claims" are available.3

We have carefully considered the record and find insufficient merit in defendants' arguments to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We add only the following brief comments.

Defendants provided no credible basis to vacate the foreclosure judgment pursuant to Rule 4:50-1. They are time-barred from vacating the judgment pursuant to sections (a), (b), and (c) of Rule 4:50-1 because they filed their motion more than one year after the court entered the judgment. R. 4:50-2. Likewise, there is no basis for relief pursuant to sections (d), (e), or (f) of Rule 4:50-1. The final judgment was entered in October 2007 and the sale occurred in May 2009. The Supreme Court adopted emergency amendments to Rules 4:64-1 and 4:64-2, and in 2011, the Court adopted substantial amendments to the rules governing foreclosure actions. The judgment and sale, however, were entered and accomplished in 2007 and 2009 respectively, well before the rules changed.

1 Defendants' appeal from the May 14, 2010 order is untimely. They filed their appeal on July 30, 2010, without having moved for an extension pursuant to Rule 2:4-4. Had they been granted an extension, they could have been allowed up to thirty additional days, or until July 28, 2010. Here, they filed two days beyond the additional thirty days that they never sought. Nevertheless, we have considered the merits of defendants' appeal.

2 On August 30, 2010, the court denied defendants' motion to stay pending appeal. On September 16, 2010, we denied defendants' motion for a stay.

3 Ordinarily, we will decline to consider questions or issues not properly presented to the trial court when an opportunity for such a presentation is available "'unless the questions so raised on appeal go to the jurisdiction of the trial court or concern matters of great public interest.'" Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973) (quoting Reynolds Offset Co., Inc. v. Summer, 58 N.J. Super. 542, 548 (App. Div. 1959), certif. denied, 31 N.J. 554 (1960)). Neither exception applies here, but because we may dispose of the arguments summarily and in the interest of justice, we address defendants' contentions.