BANKUNITED v. ALTON DECASTRO

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

BANKUNITED,

Plaintiff-Respondent,

v.

ALTON DECASTRO and ABIGAYLE

DECASTRO, his wife,

Defendants-Appellants.

September 17, 2013

Submitted September 3, 2013 Decided

 
Before Judges Alvarez and Maven.

On appeal from the Superior Court of New Jersey, Chancery Division, Hudson County, Docket No. F-24707-10.

Alton Decastro, appellant pro se.

Pluese, Becker, & Saltzman, LLC, attorneys for respondent (Stuart H. West, on the brief).

PER CURIAM

Defendant Alton Decastro, pursuant to Rule 4:50-1, sought to vacate plaintiff BankUnited's July 26, 2011 final judgment in foreclosure on the basis that BankUnited lacked standing. Decastro now appeals from the May 25, 2012 order denying his application. We affirm.

Decastro's points on appeal are as follows:

1. THE APPELLATE DIVISION MUST DECIDE WHETHER PLAINTIFF TOOK POSSESSION OF THE NOTE AND HAD THE RIGHT TO ENFORCE THAT NOTE AT THE TIME IT FILED ITS FORECLOSURE COMPLAINT, WHETHER THE TRIAL COURT RULED CORRECTLY ON THE LAW.

2. THE APPELLATE DIVISION MUST DECIDE WHETHER PLAINTIFF'S PROOF WAS SUFFICIENT TO SUPPORT STANDING AT THE TIME THE COMPLAINT WAS FILED.

Decastro's legal arguments do not warrant extended discussion in a written opinion. R. 2:11-3(e)(1)(E). We affirm essentially for the judge's reasons, as appended to the May 12, 2012 order. We comment briefly on two issues.

Decastro did not establish any basis for the court to vacate the final judgment. In order to do so, under Rule 4:50-1, a movant must demonstrate some grounds, such as excusable neglect or fraud, in addition to a meritorious defense. Decastro does not offer any facts which would lead a court to find excusable neglect; indeed, he appears to have initiated collateral proceedings in an attempt to address the foreclosure, such as the filing of a bankruptcy petition, which was ultimately dismissed.

In the absence of any proffer on the issue of excusable neglect, Decastro now contends that BankUnited's lack of standing perpetrated a fraud upon the court. He further alleges the fraud warrants vacating the judgment some ten months after it was entered. We recount the facts as found by the judge.

On September 25, 2006, Decastro executed a mortgage and note in the amount of $553,000 in favor of BankUnited, FSB. Thereafter, BankUnited, FSB was acquired by a new federal savings bank, plaintiff BankUnited. All loans and mortgages were assumed by the new entity. As a result of Decastro's failure to pay the mortgage, BankUnited filed the foreclosure complaint, eventually obtaining a final judgment in the amount of $662,874.72. Contrary to Decastro's suggestion, simply because the action was not filed by the originally named mortgage holder does not deprive BankUnited of standing. No legal authority supports that position. See Deutsch Bank Nat'l Trust Co. v. Russo, 429 N.J. Super. 91, 101-02 (App. Div. 2012).

BankUnited established, to the court's satisfaction, that BankUnited, FSB was closed by the Office of Thrift Supervision on May 21, 2009, and that thereafter the current entity, BankUnited, lawfully acquired the assets and liabilities of its predecessor. Accordingly, the judge determined that no jurisdictional flaw existed which would make the final judgment void or unenforceable, much less a fraud. Given that Decastro has not established excusable neglect or a fraud attributable to lack of standing, there was no basis for the judge to vacate the foreclosure judgment.