PENNYMAC CORP v. CHARLESWORTH LEWIS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

PENNYMAC CORP.,

Plaintiff-Respondent,

v.

CHARLESWORTH LEWIS and JOAN LEWIS,

Defendants-Appellants.

_____________________________________________

July 26, 2016

Submitted July 18, 2016 Decided

Before Judges Guadagno and Vernoia.

On appeal from the Superior Court of New Jersey, Chancery Division, Essex County, Docket No. F-1476-14.

Charlesworth Lewis, appellant pro se.

Blank Rome, LLP, attorneys for respondent (Kevin C. Rakowski and Lauren E. O'Donnell, on the brief).

PER CURIAM

Defendants Charlesworth Lewis and his wife Joan Lewis appeal from the April 10, 2015 Chancery Division order denying their motion to vacate a final judgment of default entered on October 31, 2014.

Defendants purchased a home in Irvington. On November 16, 1989, defendants executed a mortgage note and a purchase money mortgage to secure payment of $121,500, borrowed from Citicorp Mortgage, Inc. (Citicorp). The mortgage was recorded with the Essex County Register of Deeds and Mortgages (ECRDM) on November 17, 1989.

The mortgage note called for monthly payments of $1,168.56 for thirty years with interest charged on unpaid principal at the yearly rate of 11.125%. On February 22, 1996, defendants executed a Modification Agreement with Citicorp, which reduced the monthly payments to $882.83 and the interest rate to 7.750%. The Modification Agreement was also recorded with the ECRDM.

On July 1, 2009, defendants defaulted on the mortgage by failing to make the required monthly payments. On January 18, 2013, Citicorp, now known as CitiMortgage, assigned defendants' mortgage to plaintiff. On January 29, 2013, plaintiff recorded the assignment with ECRDM.

On January 14, 2014, plaintiff filed a foreclosure action, and served defendants with the foreclosure complaint on January 17, 2014. When defendants failed to file an answer to the complaint, plaintiff filed a request and certification for the entry of a judgment of default on May 14, 2014. On September 30, 2014, plaintiff filed a motion for a default judgment, and served defendants with a copy of the motion. On October 31, 2014, the Chancery Division entered judgment in favor of plaintiff, and ordered the mortgaged premises sold to satisfy the judgment.

Defendants filed an initial motion to vacate the default judgment on November 6, 2014, but that motion was dismissed for being improperly noticed to the Office of Foreclosure. On February 12, 2015, defendants filed a motion to vacate the default judgment in Essex County. On April 10, 2015, Judge Thomas M. Moore heard oral argument on defendant's motion. Relying on US Bank National Association v. Guillaume, 209 N.J. 449, 469 (2012), Judge Moore observed that to prevail under Rule 4:50-1, defendants were required to prove the existence of a meritorious defense, and had failed to do so. He also noted that defendants failed to demonstrate excusable neglect for their failure to defend the foreclosure action.

Judge Moore rejected defendants' claim of improper service, finding that plaintiff had provided a return of service affidavit and that defendants had failed to present clear and convincing proof sufficient to rebut the presumption of effective service.

Judge Moore also rejected defendants' claim that plaintiff lacked standing. He first found that plaintiff submitted true copies of the note and mortgage in its application for final judgment, and demonstrated that it had possession of a valid assignment prior to the filing of the complaint. Then, citing our decision in Deutsche Bank National Trust Company v. Russo, 429 N.J. Super. 91, 101 (App. Div. 2012), the judge noted that in this post-judgment context, lack of standing would not constitute a meritorious defense to the foreclosure complaint.

Finally, Judge Moore found that defendants presented no evidence to support their challenges to the mortgage pooling and service agreement or the certification of diligent inquiry.

On appeal, defendants repeat many of the arguments rejected by Judge Moore, including: (1) plaintiff did not file timely opposition to defendants' motion to vacate the default; (2) plaintiff's proofs were insufficient to support entry of the final judgment; (3) plaintiff is not the holder of the note and lacks standing to foreclose; (4) the assignment of the note to plaintiff fails to meet the requirements of the Uniform Commercial Code (UCC); and (5) plaintiff has failed to establish an ownership interest in the note.

We find insufficient merit in these arguments to warrant discussion in a written opinion, and affirm substantially for the reasons expressed by Judge Moore in his cogent and thorough oral opinion. R. 2:11-3(e)(1)(E).

Affirmed.