NATIONSTAR MORTGAGE LLC v. TEDD W. GUENZEL

NOT FOR PUBLICATION WITHOUT THE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-0912-16T4

NATIONSTAR MORTGAGE,
LLC,

           Plaintiff-Respondent,

v.

TEDD W. GUENZEL,

           Defendant-Appellant,

and

MRS. TEDD W. GUENZEL,
his wife, and TD BANK, N.A.,

     Defendants.
_____________________________

                    Submitted September 6, 2018 – Decided October 1, 2018

                    Before Judges Rothstadt and DeAlmeida.

                    On appeal from Superior Court of New Jersey,
                    Chancery Division, Camden County, Docket No. F-
                    037325-14.

                    Tedd W. Guenzel, appellant pro se.
            Sandelands Eyet, LLP, attorneys for respondent
            (Suzanne Q. Chamberlin, of counsel and on the brief).

PER CURIAM

      Defendant Tedd W. Guenzel appeals from the Chancery Division's August

19, 20161 order denying his motion under Rule 4:50-1 to vacate the final

judgment of foreclosure, and to dismiss with prejudice the complaint filed

against him in this matter. Before denying his motion, the trial court had entered

an order striking defendant's contesting answer because he failed to appear for

trial on September 10, 2015, either personally or by telephone. The court also

remanded the matter back to the Office of Foreclosure for processing as an

uncontested action. Plaintiff filed a motion for entry of final judgment, which

defendant opposed by filing a motion to fix the amount due. On March 18, 2016,

the trial court denied his motion and on March 31, 2016, the court entered a final

judgment.

      Defendant filed his motion to vacate in July 2016, arguing that plaintiff

did not have standing to bring this action because Fannie Mae was "the owner



1
  Defendant's original notice of appeal identified the final judgment and earlier
orders as also being the subject of his appeal. However, after his appeal was
procedurally dismissed and he sought reinstatement, we entered an order on
December 21, 2016 granting him relief only as to the August 19, 2016 order,
finding his appeal of the earlier orders and final judgment were untimely.
                                                                          A-0912-16T4
                                        2
of the mortgage note," which defendant did not know "until May 2016." He also

submitted a "Statement of Undisputed Material Facts" challenging plaintiff's

proofs relating to the assignment and ownership of the note and mortgage, and

defendant's default under the note, because there was no evidence or testimony

presented at a trial. The trial court denied defendant's motion, placing its reasons

on the record and stating that there was no merit to defendant's challenges. As

to the assignment, the court concluded that defendant was not "a party to that

assignment and has no basis or standing to challenge that assignment."

Ultimately, the court denied the motion because defendant was given an

opportunity to challenge plaintiff's proofs at trial, but chose not to attend,

obviating any necessity for the court to take testimony or have exhibits admitted

at a trial. This appeal followed.

      On appeal, defendant argues he is entitled to relief under Rule 4:50-1

based on the same challenges to plaintiff's entitlement to sue that he raised

before the trial court—lack of standing to sue, lack of evidence of default, and

invalid assignment of the mortgage.

      We affirm substantially for the reasons expressed by the trial court. We

conclude that defendant's arguments are without sufficient merit to warrant




                                                                            A-0912-16T4
                                         3
discussion in a written opinion. R. 2:11-3(e)(1)(E). We add only the following

brief remarks.

      Where, as here, a "court has entered a default judgment . . . the party

seeking to vacate the judgment must meet the standard of Rule 4:50-1." US

Bank Nat'l Ass'n v. Guillaume,  209 N.J. 449, 467 (2012). We review the trial

court's decision of whether to vacate or set aside the judgment under an abuse

of discretion standard. Ibid. A "trial court's determination under [Rule 4:50-1]

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 departed from established policies, or rested

on an impermissible basis.'" Ibid. (quoting Iliadis v. Wal-Mart Stores, Inc.,  191 N.J. 88, 123 (2007)).

      Defendant specified that his motion was made under Rule 4:50-1(c) and

(f). A motion to vacate under Rule 4:50-1(c) must be based upon evidence that

the judgment was the result of a fraud. It requires the movant to "allege with

specificity the representation, its falsity, materiality, the speaker's knowledge or

ignorance, and reliance." Palko v. Palko,  73 N.J. 395, 401 (1977) (Schreiber, J.,

dissenting); see also State v. Hill,  267 N.J. Super. 223, 226 (App. Div. 1993),

rev'd on other grounds,  136 N.J. 292 (1994). Rule 4:50-1(f) is reserved for


                                                                            A-0912-16T4
                                         4
"exceptional situations" where "truly exceptional circumstances are present."

Morristown Hous. Auth. v. Little,  135 N.J. 274, 286 (1994) (quoting Baumann

v. Marinaro,  95 N.J. 380, 395 (1984)). Defendant has failed to satisfy either

criteria, or any other section of the rule.

      Even if defendant was correct that plaintiff lacked standing to bring the

complaint, in the "post-judgment context, lack of standing would not constitute

a meritorious defense to the foreclosure complaint." Deutsche Bank Nat'l Trust

Co. v. Russo,  429 N.J. Super. 91, 101 (App. Div. 2012). Standing is therefore

"not a jurisdictional issue in our state court system and . . . a foreclosure

judgment obtained by a party that lacked standing is not 'void' within the

meaning of Rule 4:50-1(d)." Ibid.

      In any event, "we [have] held that either possession of the note or an

assignment of the mortgage that predated the original complaint confer[s]

standing." Deutsche Bank Tr. Co. Ams. v. Angeles,  428 N.J. Super. 315, 318

(App. Div. 2012) (citing Deutsche Bank Tr. Co. Ams. v. Mitchell,  422 N.J.

Super. 214, 216 (App. Div. 2011)); see also Capital One, N.A. v. Peck,  455 N.J.

Super. 254, 259 (App. Div. 2018) (holding that "when the note is separated from

the mortgage, the plaintiff in a foreclosure action must demonstrate both

possession of the note and a valid mortgage assignment prior to filing the


                                                                       A-0912-16T4
                                          5
complaint"). Here, plaintiff submitted sufficient proof of its possession of the

note to establish standing.

      In support of his motion, defendant failed to present any evidence that

raised any material issue as to the entry of the final judgment. "The only

material issues in a foreclosure proceeding are the validity of the mortgage, the

amount of the indebtedness, and the right of the mortgagee to resort to the

mortgaged premises." Great Falls Bank v. Pardo,  263 N.J. Super. 388, 394 (Ch.

Div. 1993), aff'd o.b.,  273 N.J. Super. 542 (App. Div. 1994). No such issues

were raised by defendant's motion.

      Affirmed.




                                                                         A-0912-16T4
                                        6