ONEWEST BANK FSB v. MARTHA PINEDA

NOT FOR PUBLICATION WITHOUT THE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

ONEWEST BANK FSB,

Plaintiff-Respondent,

v.

MARTHA PINEDA and JP MORGAN

CHASE BANK, N.A.,

Defendants,

and

ENRIQUE ZAPATA,

Defendant-Appellant.

____________________________

December 21, 2016

Submitted November 15, 2016 Decided

Before Judges Fasciale and Gilson.

On appeal from Superior Court of New Jersey, Chancery Division, Union County, Docket No. F-10564-09.

Enrique Zapata, appellant pro se.

Blank Rome, L.L.P., attorneys for respondent (Kyle E. Vellutato, on the brief).

PER CURIAM

Defendant Enrique Zapata appeals from an August 21, 2015 order denying his motion to vacate an amended final judgment in a foreclosure action and set aside a Sheriff's sale. We affirm.

In February 2006, defendant and his wife executed an adjustable rate note for a loan in the amount of $297,600. Defendant and his wife gave a mortgage to secure the loan on property they owned in Elizabeth, New Jersey. In 2008, defendant and his wife defaulted on the loan and stopped making payments.

In April 2009, the note and mortgage were owned by IndyMac Bank, FSB (IndyMac) and IndyMac filed a foreclosure complaint. The complaint was personally served on defendant and, through him, his wife, at the mortgaged property on April 11, 2009. Defendant and his wife failed to respond and, in September 2009, IndyMac filed a request for entry of default. At the same time, the court entered an order substituting OneWest Bank FSB (OneWest) as plaintiff because it had acquired IndyMac.

Defendant and his wife were provided with several different notices concerning the foreclosure action in 2009 and 2010, but they failed to appear. Thus, in July 2010, a final judgment was entered. In February 2015, OneWest moved to amend the final judgment and writ of execution, primarily to reflect the post-judgment interest that had accrued since July 2010. On April 7, 2015, an amended final judgment was entered. The property was then sold at a Sheriff's sale that took place on June 10, 2015.1

On July 1, 2015, defendant appeared for the first time and filed a motion to vacate the final judgment and set aside the Sheriff's sale. The parties waived oral argument, and the trial court denied defendant's motion, setting forth the reasons for its decision on the record on August 21, 2015.

On appeal, defendant argues that OneWest failed to establish that it owned or controlled the note on or before entry of the final judgment. The record does not support that argument.

A party seeking to vacate the default judgment in a foreclosure action must satisfy Rule 4:50-1. U.S. Bank Nat'l Ass'n v. Guillaume, 209 N.J. 449, 467 (2012). That rule provides that

the court may relieve a party or the party's legal representative from a final judgment or order for the following reasons: (a) mistake, inadvertence, surprise, or excusable neglect; (b) newly discovered evidence which would probably alter the judgment or order and which by due diligence could not have been discovered in time to move for a new trial under [Rule] 4:49; (c) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (d) the judgment or order is void; (e) the judgment or order has been satisfied, released or discharged, or a prior judgment or order upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment or order should have prospective application; or (f) any other reason justifying relief from the operation of the judgment or order.

[R. 4:50-1.]

"The trial court's determination under the rule warrants substantial deference, and should not be reversed unless it results in a clear abuse of discretion[,]" namely where the "decision is 'made without a rational explanation, inexplicably depart[s] from established policies, or rest[s] on an impermissible basis.'" Guillaume, supra, 209 N.J. at 467 (quoting Illiadis v. Wal-Mart Stores, Inc., 191 N.J. 88, 123 (2007)).

Defendant does not identify which provision of Rule 4:50-1 he relies on to vacate the judgment. The only argument he makes, however, is that the amended final judgment is void because OneWest did not prove the elements required by the Uniform Commercial Code Article 3 concerning the transfer and enforcement of a note. Thus, at best, defendant is contending that he is entitled to relief under Rule 4:50-1(d) or (f).

Rule 4:50-1(d) requires that "the judgement or order is void." Defendant has presented no evidence to support such a contention. Moreover, defendant is really trying to challenge the final judgment that was entered in 2010, but he has shown no basis for his delay in bringing such a challenge. Rule 4:50-1(f) is reserved for "exceptional situations," DEG, LLC v. Township of Fairfield, 198 N.J. 242, 270 (2009) (quoting Court Inv. Co. v. Perillo, 48 N.J. 334, 341 (1966)), where "truly exceptional circumstances are presented." Ibid. (quoting Manning Eng'g, Inc. v. Hudson Cty. Park Comm'n, 74 N.J. 113, 122-23 (1977)). Defendant has failed to satisfy that criteria.

In short, defendant has not provided any convincing argument to show that the final judgment was void, nor has he demonstrated exceptional circumstances. We, therefore, agree with the trial court that there was no valid basis to vacate the entry of the final judgment or the Sheriff's sale.

Affirmed.

1 OneWest assigned its interest in the judgment to Deutche Bank National Trust Company as trustee for IndyMac INDX Mortgage Loan Trust 2006-AR4, Mortgage Pass-Through Certificates Series 2006-AR4 (DBNTC). DBNTC then purchased the property at the Sheriff's sale.