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Defendant-Appellant. _______________________________________

September 7, 2016


Submitted April 13, 2016 Decided

Before Judges Fuentes and Kennedy.

On appeal from Superior Court of New Jersey, Chancery Division, General Equity Part, Ocean County, Docket No. F-011734-09.

George Hoernig, appellant, pro se.

Fein, Such, Kahn & Sheppard, and Blank Rome, LLP, attorneys for respondent PennyMac Loan Services, as assignee of Chase Home Finance, LLC (Joshua B. Sears, on the brief).


Defendant, George Hoernig, appeals from an order entered in 2015, denying his motion to vacate an amended judgment of foreclosure against him and barring his right of redemption on his property in Toms River. On appeal, he argues that plaintiff, assignee of the note and mortgage, has no standing to pursue the action. We disagree and affirm substantially for the reasons articulated by Judge Frank A. Buczynski, Jr. (Ret.), in his opinion from the bench.

In 2007, defendant received a loan in the amount of $251,000 from Gateway Funding Diversified Mortgage Services, L.P., secured by a note and mortgage on his Toms River property. He subsequently defaulted in 2008. Thereafter, the mortgage was assigned to plaintiff on February 23, 2009, and duly recorded on March 10 of that year. Meanwhile, plaintiff filed a complaint in foreclosure on March 5, 2009, and following service of process upon defendant in April, entered default against defendant in July. Final judgment of foreclosure was entered on July 12, 2010.

PennyMac Loan Services, L.L.C., which started servicing the loan in 2014, submitted a certification of amount due, and plaintiff moved to amend the final judgment to reflect the additional sums expended since the original judgment had been entered. Defendant cross-moved to vacate the judgment and sought dismissal of plaintiff's claims on the theory that it lacked standing.

Judge Buczynski denied defendant's cross motion and entered an amended final judgment of foreclosure on January 9, 2015. This appeal followed. We affirm, as we have noted, substantially for the reasons stated by Judge Buczynski, and we find defendant's arguments to be without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We add only the following.

We review a trial court's decision denying a motion to vacate a final judgment under Rule 4:50-1 for abuse of discretion. U.S. Bank Nat'l Ass'n v. Guillaume, 209 N.J. 449, 467 (2012). "The trial court's determination under [Rule 4:50-1] warrants substantial deference," and the abuse of discretion must be clear to warrant reversal. Ibid. (first citing DEG, LLC v. Twp. of Fairfield, 198 N.J. 242, 261 (2009); and then citing Hous. Auth. of Morristown v. Little, 135 N.J. 274, 283 (1994)).

In defendant's motion papers in the Chancery Division, he did not identify the section of Rule 4:50-1 upon which his request was based. His motion, however, was based solely upon the claim that the final judgment was void because plaintiff lacked standing to bring the foreclosure action. Defendant's motion therefore requested relief under Rule 4:50-1(d), asserting that "the judgment or order is void."

We are convinced that the court did not abuse its discretion in determining that plaintiff's alleged lack of standing did not render the final judgment of foreclosure void. As the court correctly noted, we addressed the issue of standing in foreclosure matters in Deutsche Bank Nat'l Trust Co. v. Russo, 429 N.J. Super. 91, 101 (App. Div. 2012), and held that "standing is not a jurisdictional issue in our State court system and, therefore, a foreclosure judgment obtained by a party that lacked standing is not void within the meaning of Rule 4:50-1(d)."1

We are also persuaded that the court's denial of defendant's motion because it was untimely was not an abuse of discretion. Defendant waited four years to raise the standing issue and offered no explanation for his delay. A motion to vacate a judgment made under Rule 4:50-1(d) must be filed within a reasonable time after entry of the judgment. See R. 4:50-2; see also M & D Assocs. v. Mandara, 366 N.J. Super. 341, 351 52 (App. Div.), certif. denied, 180 N.J. 151 (2004).

"In foreclosure matters, equity must be applied to plaintiffs as well as defendants." Deutsche Bank Trust Co. Ams. v. Angeles, 428 N.J. Super. 315, 320 (App. Div. 2012). Where, as here, defendant did not raise the standing issue until four years after entry of the final judgment, did not offer any reason for the delay, and the purported lack of standing upon which he relied did not render the final judgment void, the "trial court did not abuse its discretion in determining that defendant was not equitably entitled to vacate the judgment." Ibid.2


1 We reach the same conclusion if defendant's motion is considered as one filed under Rule 4:50-1(f). His singular argument before the Chancery Division was that the final judgment should be vacated because plaintiff lacked standing. Those grounds do not constitute an "other reason justifying relief from the operation of the judgment" because a lack of standing did not render the final judgment void. Deutsche Bank, supra, 429 N.J. Super. at 101; Guillaume, supra, 209 N.J. 484 85.

2 Plaintiff possesses the original note, endorsed in blank. The note was submitted in compliance with Rule 4:64-2, prior to its amendment on June 9, 2011.

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