BAYVIEW LOAN SERVICING LLC v. DOMITHILLA EPUECHI

Annotate this Case

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

BAYVIEW LOAN SERVICING, LLC,

Plaintiff-Respondent,

v.

DOMITHILLA EPUECHI,

Defendant-Appellant.

__________________________________

October 17, 2014

 
Submitted October 7, 2014 Decided

Before Judges Yannotti and Fasciale.

On appeal from Superior Court of New Jersey, Chancery Division, Essex County, Docket No. F-28703-10.

Domithilla Epuechi, appellant pro se.

Fein, Such, Kahn & Shepard, P.C., attorneys for respondent (Brian W. Kincaid, on the brief).

PER CURIAM

Defendant Domithilla Epuechi appeals from an order entered by the Chancery Division on March 15, 2013, which denied her motion to cancel or vacate a sheriff's sale which took place on November 27, 2012. We affirm.

The record before us reveals the following. Defendant executed a note and mortgage to certain commercial property in Irvington. She entered into loan modification agreements in 2008 and 2009, but failed to make the payments required. In May 2010, plaintiff filed a complaint in foreclosure, and defendant did not file an answer or other responsive pleadings. The court entered a final judgment of foreclosure in June 2011, and in September 2011, a rent receiver was appointed for the property.

On November 15, 2011, defendant filed an application to stay the sheriff's sale, which was scheduled for November 29, 2011. On the day of the scheduled sale, defendant attempted to file an answer and counterclaim in this action, and filed a petition in bankruptcy. The sale was postponed. The bankruptcy petition was dismissed in January 2012, after which plaintiff sought another adjournment of the sheriff's sale, which was scheduled for January 18, 2012. The adjournment request was denied, and defendant filed another bankruptcy petition which was dismissed on February 9, 2012.

Defendant then filed a motion in the trial court to vacate the final judgment and to permit discovery. The court denied the motion by order dated April 9, 2012. On the order, the court noted that defendant had not satisfied the requirements of Rule 4:50-1, since she had not shown excusable neglect and a meritorious defense. The court also entered an order dated April 17, 2012, adjourning the sale to June 29, 2012, to afford defendant an opportunity to pursue the appeal that defendant had filed from the April 9, 2012 order.

On May 23, 2012, we entered an order denying defendant's motion for a stay of the sale pending appeal. Thereafter, defendant sought leave to file an emergent motion with this court. The application was denied on June 15, 2012. Defendant then filed a motion for emergent relief pursuant to Rule 2:9-8 with a Justice of the Supreme Court, who entered an order dated June 18, 2012, denying the motion.

It appears that defendant filed an action against plaintiff in the United States District Court for the Southern District of Florida, in which she alleged that the assignment of the note and mortgage to plaintiff was fraudulent. On July 5, 2012, the Federal District Court dismissed the complaint, finding that defendant had not stated a federal claim upon which relief could be granted.

The sheriff's sale was scheduled for September 11, 2012, but defendant filed another bankruptcy petition, which was later dismissed. On October 18, 2012, we dismissed defendant's appeal from the trial court's order of April 9, 2012, because she had not filed a timely brief. The sale took place on November 27, 2012.

At some time thereafter, defendant filed a motion in the trial court to cancel or set aside the sale. The court considered the motion on March 15, 2013, and determined that the application appeared to be "some kind of misguided motion for a stay." The court determined that, at that time, there was "absolutely no reason in law or equity to grant [defendant] any relief." The court entered an order dated March 15, 2013, denying defendant's motion.

Defendant filed her notice of appeal on May 3, 2013. Defendant's removal from the premises was scheduled for October 17, 2013. On October 16, 2013, the trial court denied defendant's motion to stay the lockout. On that date, defendant filed an emergent application for a stay with this court.

We stayed the lockout until October 21, 2013, and thereafter entered an order denying the application. We stated on the order that defendant had not established a likelihood of success on the merits. We allowed the previously-granted stay to remain in effect until October 23, 2013, "to allow for an orderly removal."

On appeal, defendant argues that the sheriff's sale should not have gone forward. She appears to be arguing that, at the time of the sale, there was a moratorium on sheriff's sales, imposed by federal law, which purportedly superseded state law. Defendant states, among other things, that the United States Constitution and federal laws are the supreme law of the land and the New Jersey courts "must follow federal law."

We are convinced from our review of the record that defendant's arguments are without sufficient merit to warrant discussion. R. 2:11-3(e)(1)(E).

Affirmed.