GMAC MORTGAGE, LLC v. JESSICA L. PERYEA

NOT FOR PUBLICATION WITHOUT THE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-1860-15T4

GMAC MORTGAGE, LLC,

        Plaintiff-Respondent,

v.

JESSICA L. PERYEA and MR.
PERYEA, husband of JESSICA
L. PERYEA,

        Defendants,

and

NICK and JOSEPHINE NISEVIC,

        Defendants/Interveners-
        Appellants.

_______________________________________


              Submitted September 6, 2017 – Decided November 17, 2017

              Before Judges Alvarez and Gooden Brown.

              On appeal from the Superior Court of New
              Jersey, Chancery Division, Bergen County,
              Docket No. F-036302-08.

              Ameri & Associates, LLC, attorneys                   for
              appellants (Nina Ameri, on the brief).
              Clark   L.   Cornwell,  III,   attorney                for
              respondent GMAC Mortgage, LLC.

PER CURIAM

       In this mortgage foreclosure action, third-party interveners,

Nick    and        Josephine    Nisevic,        appeal      from     the    November

25, 2015 Chancery Division order denying their motion to vacate a

2009 final judgment of foreclosure in favor of plaintiff GMAC

Mortgage, LLC.       The judgment was entered against defendant Jessica

Peryea on property formerly owned by the Nisevics.                     The Nisevics

claim they were the real owners of the foreclosed-upon property,

which was sold at a Sheriff's sale in 2009.                  We affirm.

       The record discloses that on January 11, 2007, the Nisevics

conveyed      ownership    of   the   property         to   Denton   Friedman      for

consideration in the amount of $480,000.                    On January 15, 2008,

Friedman, in turn, conveyed ownership of the property to Peryea

for consideration in the amount of $473,000.                   On the same date,

Peryea executed a note in the amount of $378,400, secured by a

mortgage      on    the   property    in       favor   of   Mortgage       Electronic

Registration Systems, Inc. (MERS), as nominee for Mercury, Inc.

The mortgage was recorded on June 10, 2008.                     On September 15,

2008, MERS assigned the mortgage to plaintiff, which possessed the

note.




                                           2                                  A-1860-15T4
      Peryea defaulted on the mortgage on June 1, 2008.            Plaintiff

filed a foreclosure complaint against Peryea on September 19,

2008, and obtained a default judgment after Peryea failed to file

an answer.      Final judgment was entered on June 23, 2009, and a

Sheriff's sale was conducted on October 2, 2009.             GMAC was the

successful bidder and assigned its bid to Federal Home Mortgage

Corporation (Federal).      Federal then filed an application against

the Nisevics for possession of the property, and on December 12,

2013, the trial court entered an order for ejectment.              The order

directed the Nisevics, who had continuously occupied the property,

to   vacate    the   property   by   January   20,   2014.   The    Nisevics

subsequent application to vacate the December 12, 2013 ejectment

order was denied.

      Thereafter, pursuant to Rule 4:50-1, the Nisevics moved to

vacate the final judgment of foreclosure entered against Peryea

and set aside the Sheriff's sale.          Following oral argument, Judge

Menelaos Toskos denied the motion in a November 25, 2015 written

opinion.   The judge encapsulated the Nisevics' allegations thusly:

                   The crux of the [Nisevics'] allegations
              is that they were defrauded by a scheme called
              "Rivertown", featured on the television show
              American Greed. According to the [Nisevics],
              several of the perpetrators are presently
              serving prison sentences.      The [Nisevics]
              claim that Rivertown would provide financing
              to homeowners in distress by having the
              homeowners sign a deed over to Rivertown and

                                       3                             A-1860-15T4
then   allegedly   lease   the   homes   back.
Rivertown would place a mortgage on the
premises. Again according to the [Nisevics],
at this point the homeowners "felt they simply
had a mortgage[,"] rather than having deeded
the house away.    The [Nisevics] allege that
after payments were made to Rivertown, the
home was to be transferred back to them. [The
Nisevics] claim Rivertown would use straw
buyers to apply for mortgages on the property.
The straw buyers would sign documents to
become members of Rivertown holding companies
that received titles to the properties "but
never spent any money required under the
deals."

     Here, the [Nisevics] allege that they
executed   a     deed   to   Denton    Friedman
("Friedman"), a Rivertown representative.
Friedman    then    fraudulently    transferred
ownership to Peryea, a straw buyer. The deed
that vested title to Friedman was recorded on
March 4, 2008. The deed that vested interest
to Peryea was recorded on June 10, 2008.
Peryea took out four mortgages on the property
and allegedly paid nothing towards them.

     The mortgage owned by [p]laintiff was
originally owned by Mercury, Inc. ("Mercury").
On January 15, 2008, Peryea executed a note
in favor of Mercury for $378,400.       Peryea
executed a mortgage for the same amount in
favor of Mortgage Electronic Registration
Systems, Inc. as nominee for Mercury ("MERS").
On September 15, 2008, Mercury assigned the
mortgage to GMAC. The [Nisevics] claim that
upon learning of the fraudulent scheme, the
companies that owned the other three mortgages
withdrew any claim to the property.        The
[Nisevics] contend that Mercury failed to
notice the fraudulent scheme in its title
search.

     The [Nisevics] also contend that their
former attorney, Louis A. Capazzi, Jr., Esq.,

                      4                           A-1860-15T4
              committed malpractice and contributed to them
              losing their home. Allegedly, Mr. Capazzi is
              currently suspended and is the subject of an
              investigation    by   the    Oradell    Police
              Department.   The [Nisevics] claim that Mr.
              Capazzi took over $100,000 from them, received
              compensation from [p]laintiff and Rivertown
              for the fraudulent scheme, and failed to show
              up to court on numerous occasions. The court
              ultimate[ly] issued an order for ejectment in
              favor of [p]laintiff. Mr. Capazzi advised the
              [Nisevics] to ignore all notices that they
              received, including the Notice of Ejectment,
              and that they should not come to court. The
              [Nisevics] are currently filing a malpractice
              claim against Mr. Capazzi.

      Initially, Judge Toskos found that the Nisevics did not move

to   vacate    the   final   judgment   "within   a   reasonable   time"    as

prescribed by Rule 4:50-2, because the "judgment [was] six years

old." According to the judge, the Nisevics provided no explanation

for the lengthy delay but offered only "general assertions[.]"

Specifically, the Nisevics made "general assertions that they were

conned by their attorney at the time, but they provide[d] no

exhibits and no timeline as to when they hired Mr. Capazzi, how

long he represented them, and the sequence of the events that led

them to wait this long to move to vacate judgment."           According to

the judge, "[s]uch general assertions . . . must be reinforced by

evidence; without support, the prejudicial impact of unavailable

evidence, lost witnesses, and other such issues resulting from the




                                        5                            A-1860-15T4
six[-]year lapse outweighs any benefit that might be derived from

granting the [Nisevics'] motion."

     Next, Judge Toskos evaluated the Nisevics arguments on the

merits to determine whether relief was justified under Rule 4:50-

1, but determined that the Nisevics "failed to show any meritorious

defense."   Rather, "[a]ll they do is point to their alleged

victimization by con men and lawyers."     The judge rejected the

Nisevics' contention that service "only by publication . . . was

inadequate notice[,]" rendering the final judgment defective.    The

judge noted that the argument was predicated on the premise "that

they, and not Peryea, were the rightful owners of the property"

and therefore should have been "named or served in the foreclosure

complaint[.]"   However, the judge rejected the Nisevics' assertion

"that they were the true owners of the mortgaged premises[,]" in

light of their admission "that they deeded the property over to

Riverton[,]" and their failure to submit "copies of their mortgage

and lease-back agreement" or any other document "to support their

assertion[.]"

     Judge Toskos also rejected the Nisevics' claim that the

mortgage was fraudulent, noting that "[a] fraudulent deed does not

affect the rights of a bona fide third[-]party purchaser."       The

judge explained further:



                                 6                          A-1860-15T4
         [The Nisevics'] pleadings of a fraudulent
         mortgage appear to be mistaken.           [The
         Nisevics] may have been improperly induced
         into deeding away the property at issue, but
         no mortgage was executed by [the Nisevics] in
         return for said deed.    [The Nisevics] state
         that they "felt they simply had a mortgage"
         after they deeded their home over to
         Rivertown.    This feeling, however, is not
         legally binding, and no such mortgage existed.
         Indeed, just the opposite is true, as the
         [Nisevics'] original mortgage was in fact paid
         off.     Since that time, moreover, [the
         Nisevics] have lived without having to make
         mortgage payments or, it appears, tax payments
         on the property.        Thus, although [the
         Nisevics] may have been duped out of the deed
         to the property, it bears mentioning that the
         [Nisevics]    also    derived    a    benefit.
         Additionally, their argument that "Friedman
         never had possession to vest title to Peryea
         making the transfer fraudulent" is incorrect.
         The [Nisevics] likely confused the dates, as
         their own papers state that Friedman recorded
         on March 4, 2008 and Peryea recorded on June
         10, 2008.

The judge concluded:

         This paucity of evidence is insufficient to
         convince the [c]ourt that equitable concerns
         justify vacating the judgment as requested.
         There is no indication given that, even if the
         judgment were vacated, [the Nisevics] would
         be able to pay the loan at this time.      The
         lack of evidence presented to the court
         precludes granting the relief sought by [the
         Nisevics]. [The Nisevics] have lived in the
         property rent-free for nine years. They have
         clearly benefited by having the original loan
         paid off, and to vacate this judgment in their
         favor would clearly be prejudicial and
         inequitable to the [p]laintiff.

A memorializing order was entered and this appeal followed.

                               7                          A-1860-15T4
      On appeal, the Nisevics renew their argument that "the default

judgment should be set aside" because they "were not personally

served, but were served only by publication."           They also reiterate

that "the bank . . . gave a mortgage on a property that the seller

did not own at the time according to the recording dates."                  We

reject these arguments and affirm substantially for the reasons

set   forth    in   Judge   Toskos'   cogent   and   well-reasoned   written

opinion.      We add the following comments.

      Under Rule 4:50—1, the trial court may relieve a party from

a final judgment 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 R. 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.]




                                       8                             A-1860-15T4
Generally, a party seeking to reopen a default judgment must show

"that   a     meritorious    defense    is    available."      Hous.    Auth.    of

Morristown v. Little, 
135 N.J. 274, 284 (1994).

       Motions    made   under   Rule   4:50-1     must   be   filed    within    a

reasonable time.      R. 4:50-2; see also Deutsche Bank Trust Co. Ams.

v. Angeles, 
428 N.J. Super. 315, 319 (App. Div. 2012).                    Motions

based on Rule 4:50-1(a), (b), and (c) must be filed within a year

of the judgment. Angeles, supra, 
428 N.J. Super. at 319. However,

the one-year limitation for subsections (a), (b), and (c) does not

mean that filing within one year automatically qualifies as "within

a reasonable time."         Orner v. Liu, 
419 N.J. Super. 431, 437 (App.

Div.), certif. denied, 
208 N.J. 369 (2011); R. 4:50-2.                     "[T]he

one-year period represents only the outermost time limit for the

filing of a motion based on Rule 4:50-1(a), (b)[,] or (c).                  [All]

Rule 4:50 motions must be filed within a reasonable time, which,

in some circumstances, may be less than one year from entry of the

order in question."         Orner, supra, 
419 N.J. Super. at 437.

       A motion for relief under Rule 4:50-1 should be granted

sparingly and is addressed to the sound discretion of the trial

court, whose determination will not be disturbed absent a clear

abuse of discretion.        U.S. Bank Nat'l Ass'n v. Guillaume, 
209 N.J.
 449,    467    (2012).       "[A]buse    of    discretion      only    arises    on

demonstration of 'manifest error or injustice[,]'" Hisenaj v.

                                        9                                 A-1860-15T4
Kuehner, 
194 N.J. 6, 20 (2008) (quoting State v. Torres, 
183 N.J.
 554, 572 (2005)), and occurs when the trial court's decision is

"made without a rational explanation, inexplicably departed from

established    policies,   or   rested   on   an   impermissible   basis."

Guillaume, supra, 
209 N.J. at 467.        Here, we discern no abuse of

discretion.

     The Nisevics raise additional arguments in their reply brief.

However, "raising an issue for the first time in a reply brief is

improper."    Goldsmith v. Camden Cnty. Surrogate's Office, 
408 N.J.

Super. 376, 387 (App. Div.) (quoting Borough of Berlin v. Remington

& Vernick Eng'rs, 
337 N.J. Super. 590, 596 (App. Div.), certif.

denied, 
168 N.J. 294 (2001)), certif. denied, 
200 N.J. 502 (2009);

see also L.J. Zucca, Inc. v. Allen Bros. Wholesale Distribs. Inc.,


434 N.J. Super. 60, 87 (App. Div.), certif. denied, 
218 N.J. 273

(2014).   Similarly, it is improper for a party to use a reply

brief to enlarge an argument asserted in the merits brief.           State

v. Smith, 
55 N.J. 476, 488, cert. denied, 
400 U.S. 949, 
91 S. Ct. 232, 
27 L. Ed. 2d 256 (1970).      Thus, we decline to consider those

arguments.

     Affirmed.




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