JP MORGAN CHASE BANK NATIONAL ASSOCIATION v. MAGDY F. ANISE

NOT FOR PUBLICATION WITHOUT THE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-0456-16T3

JP MORGAN CHASE BANK,
NATIONAL ASSOCIATION,

        Plaintiff-Respondent,
v.

MAGDY F. ANISE,

        Defendant-Appellant,

and

LAURA L. ANISE and STATE OF
NEW JERSEY,

     Defendants.
____________________________________

              Submitted October 4, 2017 – Decided December 21, 2017

              Before Judges Koblitz and Suter.

              On appeal from Superior Court of New Jersey,
              Chancery Division, Monmouth County, Docket No.
              F-021743-14.

              Magdy F. Anise, appellant pro se.

              Buckley Madole, PC, attorneys for respondent
              (Richard P. Haber and Evan Sampson, on the
              brief).

PER CURIAM
       Defendant Magdy F. Anise appeals the August 19, 2016 order,

denying his motion to vacate an order that reinstated a foreclosure

complaint regarding certain residential real estate.           We affirm.

       In June 2007, defendant executed a $2.6 million dollar note

with Washington Mutual Bank, F.A. (WAMU) on a residential property

in Sea Bright.     He and his wife1 signed a mortgage with WAMU that

then was recorded.       Defendant defaulted on the note in January

2012.    In 2013, the note and mortgage were assigned to plaintiff

J.P. Morgan Chase Bank, N.A. (plaintiff).

       Plaintiff filed a foreclosure complaint on May 30, 2014.            The

complaint alleged that a notice of intention (NOI) to foreclose

was sent to defendant at the Sea Bright address thirty days before

filing the complaint.        The complaint was served by publication

following an unsuccessful search for defendant's current address.

Defendant did not answer it, and a default was entered.              Shortly

after    in   December   2015,   the   complaint   was   dismissed   without

prejudice under Rule 4:64-8 for lack of prosecution.

       Plaintiff sought to reinstate the complaint, serving the

reinstatement motion by regular and certified mail to defendant's

address in Sea Bright.       The motion was unopposed.        On March 18,

2016 (March 18 order), the complaint was reinstated "for the


1
    She is no longer a party.

                                       2                             A-0456-16T3
reasons set forth in the moving papers."            Thereafter, on July 19,

2016, plaintiff obtained a final foreclosure judgment and a writ

of execution.

     Shortly after, defendant filed a motion to vacate the March

18 order, claiming he learned about the foreclosure                      when he

retained    an   attorney    to   handle   the     sale   of   the   property.

Defendant acknowledged being "delinquent" in payments.               He claimed

the property was "uninhabitable due to Super Storm Sandy" and that

since November 2012, plaintiff was aware he could not live at the

residence and mailed his statements to his post office box address.

Defendant    denied      receiving   notice   of    plaintiff's      intent      to

foreclose or the foreclosure complaint. In response, plaintiff's

certification included a skip trace showing its efforts to locate

defendant's address.

      Following oral argument, the court's August 19, 2016 order

(August 19 order) denied defendant's motion to vacate.               The court

found that defendant did not notify plaintiff of the change in

address to Aberdeen and reviewed plaintiff's efforts to locate

defendant.       These    included   making   two    separate     post     office

inquiries.   A skip trace located an address in Jersey City but the

first address was a vacant business and the second was a bank.

There were multiple unsuccessful attempts to serve defendant at


                                      3                                  A-0456-16T3
an address in Aberdeen.         The Tax Collector in Sea Bright did not

have a current address for the tax bills.              The court found that

personal     service   could    not    be    accomplished,    concluding   that

service by publication was proper and that it was "proper" to

vacate the order that dismissed the case for lack of prosecution.

The court denied defendant's motion to vacate the March 18 order.

        Defendant appeals only the August 19 order.            He contends the

court erred in entering the August 19 order because Rule 1:5-1(a)

required plaintiff to have personally served him with the motion

to reinstate, the court did not provide reasons for the order

contrary to Rule 1:7-4(a), and it did not rule on his claim that

he did not receive a NOI.

       We review the trial court's order, denying defendant's motion

to vacate the order that reinstated the foreclosure complaint,

under an abuse of discretion standard.            Hous. Auth. of Morristown

v. Little, 
135 N.J. 274, 283 (1994).                An abuse of discretion

"arises when a decision is 'made without a rational explanation,

inexplicably departed from established policies, or rested on an

impermissible basis.'"         Flagg v. Essex Cty. Prosecutor, 
171 N.J.
 561,   571    (2002)   (quoting       Achacoso-Sanchez   v.    Immigration     &

Naturalization Serv., 
779 F.2d 1260, 1265 (7th Cir. 1985)).                There

was no abuse of discretion here.


                                         4                            A-0456-16T3
     Citing to Rule 1:5-1(a), defendant contends that plaintiff's

motion to reinstate the complaint should have been served on him

personally because he was in default.       This motion, filed in

February 2016, was served by regular and certified mail at the

address of the property under foreclosure.      Defendant did not

respond.   The March 18 order reinstated the complaint.

     Defendant waived any ability to challenge service of this

motion because he did not appeal the March 18 order.   Defendant's

notice of appeal only referenced the August 19 order.        See W.H.

Industries, Inc. v. Fundicao Balancins, Ltda, 
397 N.J. Super. 455,

458 (App. Div. 2008) ("It is clear that it is only the orders

designated in the notice of appeal that are subject to the appeal

process and review.").

     In any event, defendant misreads Rule 1:5-1(a).        That Rule

provides in part,

           [i]n all civil actions, . . . written motions
           (not made ex parte) . . . shall be served upon
           all attorneys of record and upon parties
           appearing pro se; but no service need be made
           on parties who have failed to appear except
           that pleadings asserting new or additional
           claims for relief against such parties in
           default shall be served upon them in the
           manner provided for service of original
           process.

     Reinstatement of the same complaint after dismissal for lack

of prosecution is not a new claim.   "A dismissal without prejudice

                                 5                           A-0456-16T3
is not an adjudication on the merits and does not bar reinstitution

of the same claim in a later action."        Consultants v. Chemical &

Pollution SCIS, Inc., 
105 N.J. 464, 472 (1987) (citing Malhame v.

Borough of Demarest, 
174 N.J. Super. 28, 30-31 (App. Div. 1980)).

Therefore, as a party in default, there was no requirement under

the cited Rule to serve defendant in the same manner as original

process.

     Defendant is incorrect that the court failed to comply with

Rule 1:7-4.      In entering the August 19 order, the court's findings

that plaintiff made diligent inquiry to locate defendant before

serving    the    complaint   by   publication,   that   the    foreclosure

judgment had been entered and that there was no basis to vacate

it, satisfied Rule 1:7-4.

     Although we have no necessity to address the same argument

regarding the March 18 order because defendant did not appeal it,

the findings there also conformed with the Rule.               The March 18

order was granted "for the reasons set forth in the moving papers."

Even though the motion was unopposed and was interlocutory, "the

clearly better practice [under Rule 1:7-4] is for the court to

make its own statement[.]"          Pressler & Verniero, Current N.J.

Court Rules, cmt. 1 on R. 1:7-4 (2018).             "The court should,

however, make the fact of such reliance explicit, and its failure


                                      6                            A-0456-16T3
to do so is tantamount to making no findings at all."    Pressler &

Verniero, cmt. 1 on R. 1:7-4 (citing Allstate Ins. Co. v. Fisher,


408 N.J. Super. 289, 301 (App. Div. 2009)).      Here, the March 18

order explicitly relied on the reasons in the unopposed motion.

None of the facts was disputed.

     Lastly, there is no merit to defendant's contention that the

court should have considered his argument that he was not served

with the NOI.    The final foreclosure judgment has been entered and

is not appealed.     By not contesting the foreclosure, he waived

this claim.

     Affirmed.




                                  7                         A-0456-16T3