THE BANK OF NEW YORK v. SHIRLEY SMITH

NOT FOR PUBLICATION WITHOUT THE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-0

THE BANK OF NEW YORK MELLON

AS TRUSTEE FOR MORTGAGE

EQUITY CONVERSION ASSET TRUST

2010-1,

Plaintiff-Respondent,

v.

SHIRLEY SMITH,

Defendant-Appellant,

and

UNITED STATES OF AMERICA;

ELRAC INC d/b/a ENTERPRISE

RENT A CAR; LIBERTY MUTUAL

INSURANCE COMPANY; ATLANTIC

DENTAL f/k/a PLEASANT

DENTAL CENTER, P.A.; and DISCOVER

BANK,

Defendants.

November 9, 2016

Submitted October 19, 2016 Decided

Before Judges Simonelli and Carroll.

On appeal from the Superior Court of New Jersey, Chancery Division, Hudson County, Docket No. F-027004-13.

Shirley Smith, appellant pro se.

Respondent has not filed a brief.

PER CURIAM

Defendant Shirley Smith appeals from the Chancery Division's May 13, 2015 order denying her motion to vacate the default judgment of foreclosure entered on December 3, 2014. We affirm.

We discern the following facts and procedural history from the record on appeal. In August 2007, defendant executed a note to Vertical Lend Inc. (Vertical) on a $544,185 loan. Defendant also executed a mortgage to Vertical, secured by a property located on Kearney Avenue in Jersey City (the Property). Following intervening transfers of the note and mortgage, the loan was assigned to plaintiff, The Bank of New York Mellon as Trustee for Mortgage Equity Conversion Asset Trust 2010-1, via: (1) an assignment of mortgage dated May 1, 2013,1 and (2) an allonge to the note.

On July 31, 2013, plaintiff filed a complaint for foreclosure. The complaint alleged that defendant defaulted by failing to pay property taxes and homeowners insurance premiums, as required by the terms of the note and mortgage, since February 4, 2013. Defendant did not file an answer and, following the entry of default, a final judgment of foreclosure was subsequently entered on December 3, 2014.

Defendant thereafter moved to vacate the final judgment as void for lack of service.2 Defendant also challenged plaintiff's standing to foreclose. Plaintiff opposed the motion, responding that defendant was properly served by mail, and that defendant failed to demonstrate a meritorious defense justifying vacating the final judgment as required by Rule 4:50-1.

Judge Hector R. Velazquez denied defendant's motion by order dated May 13, 2015, accompanied by a written statement setting forth his findings and reasons for the denial. Pertinent to the service issue, based on his review of the documentation presented, the judge made the following factual findings

8. On August 8, 2013, [p]laintiff attempted to serve [d]efendant Smith at the Property, and the process server learned that the Property was tenant occupied. Plaintiff engaged in skip tracing which revealed [d]efendant's address of [] Juniper [St.], Jersey City, New Jersey 07305.

9. On August 11, 2013, [p]laintiff attempted to serve [d]efendant Smith at [] Juniper [St.], Jersey City, New Jersey 07305 several times, but no one answered the door. After three attempts at this address, the process server confirmed that he spoke with [d]efendant Smith by phone and confirmed that she resided at said address.

10. On September 10, 2013, [p]laintiff submitted a request for change of address to the Postmaster of Jersey City, New Jersey providing [d]efendant Smith's name [and] last known address of [] Juniper [St.], Jersey City, New Jersey 07305.

11. On September 10, 2013, [p]laintiff served a copy of the [s]ummons and [c]omplaint to [d]efendant at [] Juniper [St.], Jersey City, New Jersey 07305 by certified mail, return receipt requested, and regular mail. Plaintiff has submitted a tracking confirmation indicating that such mailing arrived on September 13, 2013.

Judge Velasquez then considered the standard for granting a party relief from a final judgment pursuant to Rule 4:50-1 and applicable case law, and concluded

After reviewing the submissions of both parties, I must conclude that [] [d]efendant has not demonstrated that the default judgment entered against her is void. The motion record reflects that [p]laintiff fully complied with Rule 4:4-3(a) and properly served [d]efendant with process. Plaintiff first attempted to personally serve [d]efendant Smith on August 8, 2013[,] at the mortgaged premises, but was informed that the premises were tenant occupied. Thereafter, skip tracing revealed [d]efendant's address as [] Juniper [St.], Jersey City, New Jersey 07305. Plaintiff [has] standing to prosecute this foreclosure case because it had possession of the note and mortgage prior to filing [its] foreclosure complaint.

On appeal, defendant renews her arguments that the default judgment is void due to lack of personal service and that plaintiff lacks standing to foreclose. Having considered these arguments in light of the record and controlling legal principles, we conclude they lack sufficient merit to warrant extended discussion. R. 2:11-3(e)(1)(E). We affirm, substantially for the reasons expressed by Judge Velazquez in his written statement of reasons. We add only the following limited comments.

Defendant argues the trial court erred in refusing to vacate the final judgment under Rule 4:50-1(d). Rule 4:50-1 provides that "[o]n motion, with briefs, and upon such terms as are just, the court may relieve a party or the party's legal representative from a final judgment or order for the following reasons: . . . (d) the judgment or order is void[.]" "A default judgment will be considered void when a substantial deviation from service of process rules has occurred, casting reasonable doubt on proper notice." Jameson v. Great Atl. & Pac. Tea Co., 363 N.J. Super. 419, 425 (App. Div. 2003), certif. denied, 179 N.J. 309 (2004).

"The decision whether to grant such a motion is left to the sound discretion of the trial court[.]" U.S. Bank Nat'l Ass'n v. Curcio, 444 N.J. Super. 94, 105 (App. Div. 2016) (quoting Mancini v. EDS ex rel. N.J. Auto. Full Ins. Underwriting Ass'n, 132 N.J. 330, 334 (1993)). "The trial court's determination . . . warrants substantial deference, and should not be reversed unless it results in a clear abuse of discretion." Ibid. (quoting US Bank Nat'l Ass'n v. Guillaume, 209 N.J. 449, 467 (2012)).

Here, defendant argues the final judgment of foreclosure is void under Rule 4:50-1(d) because service of process was insufficient. Whether a party has been served is a question of proof. However, defendant has failed to include in her appendix her motion to vacate and many of the documentary exhibits submitted by the parties supporting or opposing the motion. The judge referred to this record in reaching his decision. Such deficiencies hinder appellate review. Soc'y Hill Condo. Ass'n v. Soc'y Hill Assocs., 347 N.J. Super. 163, 177 (App. Div. 2002). Consequently, we have no basis to conclude that the judge erred in his factual findings that, after an unsuccessful attempt to personally serve defendant, plaintiff did a skip trace and also confirmed defendant's address with the Post Office. After several more unsuccessful service attempts, plaintiff served defendant by certified and regular mail, which defendant received. Notably, defendant does not deny having resided at the address where those mailings were sent.

Plaintiff's service by mail was authorized by New Jersey's Court Rules. "The primary method of obtaining in personam jurisdiction over a defendant in this State is by causing the summons and complaint to be personally served within this State pursuant to [Rule] 4:4-3[.]" Curcio, supra, 444 N.J. Super. at 105 (quoting R. 4:4-4(a)). "However, 'in personam jurisdiction may be obtained by mail under the circumstances and in the manner provided by [Rule] 4:4-3.'" Id. at 105-06. Rule 4:4-3(a) provides, in pertinent part

If personal service cannot be effected after a reasonable and good faith attempt, which shall be described with specificity in the proof of service required by [Rule] 4:4-7, service may be made by mailing a copy of the summons and complaint by registered or certified mail, return receipt requested, to the usual place of abode of the defendant . . . . Return of service shall be made as provided by [Rule] 4:4-7.

Moreover, "Rule 4:4-3(a) only requires 'a reasonable and good faith attempt' to effect personal service before resorting to service by mail." Curcio, supra, 444 N.J. Super. at 107 (quoting R. 4:4-3(a)). Because nothing in the record before us suggests that plaintiff did not make a reasonable and good faith effort to serve defendant personally before effecting mail service on September 10, 2013, service by certified and regular mail was proper under Rule 4:4-3(a).

We likewise discern no merit to defendant's standing argument. To have standing to bring a foreclosure action, the plaintiff "'must own or control the underlying debt.'" Deutsche Bank Nat'l Trust Co. v. Mitchell, 422 N.J. Super. 214, 222 (App. Div. 2011); accord Wells Fargo Bank, N.A. v. Ford, 418 N.J Super. 592, 597 (App. Div. 2011). Plaintiff presented evidence of the assignment of the mortgage before the foreclosure complaint was filed, satisfying the requirement that "either possession of the note or an assignment of the mortgage that predated the original complaint confer[s] standing." Deutsche Bank Trust Co. Ams. v. Angeles, 428 N.J. Super. 315, 318 (App. Div. 2012). Notably, defendant did not certify that any entity other than plaintiff sought repayment of the mortgage loan.

Affirmed.

1 The assignment was thereafter recorded in the Hudson County Clerk's Office on August 7, 2013.

2 We note that defendant has failed to include the motion in her appendix in contravention of Rule 2:6-1(a) (the appendix must contain parts of the record "essential to the proper consideration of the issues."). We cull the relevant facts and procedural history from the statement of reasons annexed to the trial court's order denying defendant's motion.