WELLS FARGO BANK, N.A. v. CHRISTINE BUCKLEY

NOT FOR PUBLICATION WITHOUT THE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-1346-16T1

WELLS FARGO BANK, N.A., as
Trustee for WaMu Mortgage
Pass-Through Certificates
Series 2006-PR1 Trust,

        Plaintiff-Respondent,

v.

CHRISTINE BUCKLEY and WILLIAM
A. BUCKLEY, III, her husband
and each of their heirs, devisees,
and personal representatives, and
his, her, their or any of their
successors in right, title and
interest,

        Defendants-Appellants,

and

JP MORGAN CHASE BANK, NATIONAL
ASSOCIATION and GDS FOODS,

     Defendants.
_____________________________________

              Argued February 28, 2018 – Decided April 18, 2018

              Before Judges Fuentes, Manahan, and Suter.

              On appeal from Superior Court of New Jersey,
              Chancery Division, Bergen County, Docket No.
              F-001913-14.
          Christine Buckley and William A. Buckley, III,
          appellants, argued the cause pro se.

          Sonya Gidumal Chazin argued the cause for
          respondent (Phelan, Hallinan, Diamond & Jones,
          PC, attorneys; Sonya Gidumal Chazin, on the
          brief).

PER CURIAM

     Defendants Christine Buckley and William A. Buckley, III

appeal from the September 9, 2016 order that denied their motion

to dismiss the foreclosure complaint under Rule 4:6-2 for lack of

service, and from the November 4, 2016 order that denied their

motion for reconsideration.   We affirm both orders.

     On December 30, 2015, Christine Buckley (Christine)1 signed

a note in the principal amount of $376,000 to Washington Mutual

Bank, F.A. (WaMu) for the purchase of a residential property in

Waldwick, New Jersey.      Her husband, William A. Buckley, III

(William) was not a signatory on the note.       On the same day,

Christine and William also executed a purchase money mortgage in

favor of WaMu.   The mortgage was assigned to plaintiff Wells Fargo




1
   We refer to the parties by their first names only to avoid
confusion because they share the same surname. When we refer to
them jointly, it is as "defendants".



                                 2                         A-1346-16T1
Bank, N.A., as Trustee for WaMu Mortgage Pass-Through Certificates

Series 2006-PR1 Trust (Wells Fargo) and recorded in February 2010.2

     Christine resides at the property.         William and Christine

separated in 2011.   William moved to his mother's home in Ramsey

and in 2013, rented an apartment in the same town.         William did

not notify Wells Fargo that he was living at a different address.

      Defendants defaulted on the mortgage in October 2010.            No

mortgage payments have been made since then.        On March 14, 2013,

a notice of intention to foreclose was sent to Christine by regular

and certified mail to the address of the mortgaged property.

      Wells Fargo filed a foreclosure complaint against Christine

and William on January 16, 2014.       A process server attempted three

times in January 2014, to serve the complaint at the address in

Waldwick but was not successful.        The certification of attempted

service and diligent inquiry provided that a note was left for

defendants at the property and a notice to tenants was posted.

Contact with the Waldwick postmaster and the tax office confirmed

defendants' address as that of the mortgaged property. An internet

search yielded the same result.



2
   JP Morgan Chase Bank, N.A. was the purchaser of the loans and
other assets of WaMu from the Federal Deposit Insurance
Corporation, acting as receiver. On January 25, 2010, it assigned
this mortgage to Wells Fargo, together with the note.

                                   3                            A-1346-16T1
     Wells Fargo then served the complaint by mail pursuant to

Rule 4:4-3(a), sending it regular and certified to the Waldwick

property.   The certified mail was returned unclaimed.   The regular

mail was not returned.   A default was entered on June 4, 2014, and

mailed to defendants.    An unopposed final judgment of foreclosure

was entered on December 16, 2014, in the amount of $458,852.85.

Copies of the motion and final judgment were mailed to defendants

by regular and certified mail.   The regular mail was not returned

and the certified mail was unclaimed.

     Counsel for Wells Fargo sent a letter dated June 21, 2016,

to defendants at the property, advising them that it would be sold

at a sheriff's sale on August 5, 2016.      The certified mail was

unclaimed and the regular mail was not returned.          Christine

acknowledged that she received the letter on June 23, 2016. She

advised William.

     On July 27, 2016, Christine and William asked to file a motion

to dismiss the complaint under Rule 4:6-2, claiming that they were

not properly served with it and requesting an order to stay the

sheriff's sale scheduled for August 5, 2016.   They exercised their

two statutory adjournments under 
N.J.S.A. 2A:17-36, and the sale

was rescheduled to September 2, 2016.




                                  4                          A-1346-16T1
      On August 15, 2016, defendants filed an "emergency" motion

to dismiss the complaint under Rule 4:6-2.            In the supporting

certifications, Christine alleged she did not receive a copy of

the foreclosure complaint nor any of the other foreclosure related

documents except for the letter in June 2016, advising that the

property would be sold at a sheriff's sale.               William certified

that he had been residing in Ramsey since 2011.             He also claimed

not to have received a copy of any of the foreclosure documents.

Wells Fargo filed opposition, contending that it properly served

the complaint by mail under Rule 4:4-3(a) after conducting a

diligent inquiry.

      Defendants' motion to dismiss was denied on September 9,

2016.   The court found that "a reasonable and good faith attempt

was made to effectuate personal service"            based on the three

attempts by the process server.          The court also found plaintiff

made diligent inquiry to determine defendants' "place of abode"

by contacting the postmaster and conducting tax and internet

searches, all of which confirmed defendants' last known address

was the mortgaged property.        Because the pleadings and notices

sent by regular mail were not returned, the court held that service

was effective under Rule 4:4-3(a) and that defendants' allegations

did   not   "nullify   the   effective   service   made    by   simultaneous


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mailing."     The court also noted that defendants did not inform

plaintiff that William had moved, as required by the mortgage.

     Defendants' motion for reconsideration was denied on November

4, 2016.     At oral argument, Christine advised the court that she

received a letter telling her           ownership of the mortgage was

assigned to MTGLQ Investors LP as of August 29, 2016.          Defendants

argued they had no obligation to notify Wells Fargo about a change

in address because their "lender" under the mortgage was WaMu,

which had gone out of business years earlier.

     The court found that defendants' claims were self-serving and

were made "without any corroborating evidence."         It observed that

defendants    could   have   informed    their   lender's   successors   or

assigns of any change of address because the mortgage was a

transferable document, citing to [Uniform Commercial Code Comment,

cmt. 9 on N.J.S.A. 12A:9-203].          It rejected defendants' argument

based on an unpublished opinion from this court. Defendants raised

the same arguments about service that were made in the underlying

motion.    The property was sold at a sheriff's sale on December 2,

2016.

     On appeal, defendants contend that the court erred in denying

their motion to dismiss the complaint and for reconsideration

because service of the complaint was "insufficient," the final


                                    6                             A-1346-16T1
judgment should have been vacated, and they were denied equal

access to the courts.       They contend there were disputed issues of

fact and credibility issues, the court violated the rule against

hearsay, the court lacked subject matter jurisdiction, and the

court abused its discretion based on certain unreported cases.

Defendants also contend that Wells Fargo had no authority to

foreclose the loan that was transferred to a different servicer.

We find no merit in these issues.

     We defer to the trial court's factual findings, which are

binding     on   appeal   when   supported   by   adequate,   substantial,

credible evidence.        Rova Farms Resort, Inc. v. Inv'rs Ins. Co.,


65 N.J.    474,   484    (1974).        However,   "[a]   trial   court's

interpretation of the law and the legal consequences that flow

from established facts are not entitled to any special deference."

Manalapan Realty, LP v. Twp. Comm. of Manalapan, 
140 N.J. 366, 378

(1995).

     "The requirements of the Rules with respect to service of

process go to the jurisdiction of the court and must be strictly

complied with."      Berger v. Paterson Veterans Taxi Serv., 
244 N.J.

Super. 200, 204 (App. Div. 1990) (quoting Driscoll v. Burlington-

Bristol Bridge Co., 
8 N.J. 433, 493 (1952)).                "'[S]ubstantial

deviation from service of process rules' typically makes a judgment


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void."    M & D Assocs. v. Mandara, 
366 N.J. Super. 341, 353 (App.

Div. 2004) (quoting Jameson v. Great Atl. and Pac. Tea Co., 
363 N.J. Super. 419, 425 (App. Div. 2003)).

     In a foreclosure case, service can be obtained by satisfying

the requirements of Rule 4:4-3 or Rule 4:4-5.        Rule 4:4-3 applies

where "personal service cannot be effected after a reasonable and

good faith attempt, which shall be described with specificity in

the proof of service required by R. 4:4-7".       R. 4:4-3(a).    In that

case, "service may be made by mailing a copy of the summons and

complaint    by   registered    or   certified   mail,   return   receipt

requested, to the usual place of abode of the defendant or a person

authorized by rule of law to accept service for the defendant."

Ibid.    However, service by mail is effective only "[i]f it appears

by affidavit satisfying the requirements of Rule 4:4-5(b) that

despite diligent effort and inquiry personal service cannot be

made."    R. 4:4-4(b)(1).      Service made by mail without satisfying

the affidavit requirement under Rule 4:4-4(b)(1) is ineffective

and will not support the entry of default, unless the defendant

"answers the complaint or otherwise appears in response thereto."

R. 4:4-4(c).      Thus, there must be "a reasonable and good faith

attempt" to serve defendant personally and a diligent inquiry to

determine their "place of abode" before serving defendant by mail


                                     8                            A-1346-16T1
under Rule 4:4-3.      See U.S. Bank Nat'l Ass'n v. Curcio, 
444 N.J.

Super. 94, 106 (App. Div. 2016).

        Here, we agree with the trial court that service was proper

under Rule 4:4-3(a) because the record supported the good faith

and reasonable efforts made by Wells Fargo in attempting personal

service upon defendants and then by mailing a copy of the complaint

to the property.      Christine did not dispute that she lived at the

property. William never advised the lender that he had a different

address.    Plaintiff made a diligent inquiry to find Christine and

William through the postmaster, tax office and internet after the

process    server   was   not   successful   in   personally   serving   the

complaint.    Then, the complaint was served in accord with Rule

4:4-3(a) at the property where Christine actually resided and

where William last resided by mailing a copy of the complaint to

that address.       The certified mail was unclaimed but the regular

mail was not returned.      That was effective service under Rule 4:4-

3(a).

     Christine's explanation that she was having an issue with one

of the mail carriers did not plausibly explain why she received

the June 2016 notice of sheriff's sale and not any of the other

prior notices.      Stated succinctly, Christine did not substantiate




                                      9                            A-1346-16T1
her claim of lack of notice by any evidence other than her own

bald assertion.

     Defendants' citation to the unreported opinion from this

court   is   unavailing.        See   R.       1:36-3   (providing    that   "[n]o

unpublished opinion shall constitute precedent or be binding upon

any court").       Defendants did not challenge that the mortgage was

assigned to Wells Fargo and recorded.              They offered no support for

their contention that they were only obligated to advise the

original lender if they moved.                Additionally, in the context of

the financial transaction involved here, we find it implausible

that the lender would self-impose such a restriction.

     The     law   firm   of    Phelan     Hallinan     Diamond   &   Jones     was

substituted as counsel for plaintiff in August 2015. Wells Fargo's

attorney represented that the records of the prior firm were

transferred to it.        As with their other claims, defendants cite

no support for their contention that those records no longer

constitute business records under N.J.R.E. 803(c)(6).

     We agree that defendants' motion for reconsideration did not

satisfy the applicable standard for relief.                 "[A] trial court's

reconsideration      decision    will      be    left   undisturbed    unless   it

represents a clear abuse of discretion."                Pitney Bowes Bank, Inc.

v. ABC Caging Fulfillment, 
440 N.J. Super. 378, 382 (App. Div.


                                         10                              A-1346-16T1
2015).    Reconsideration is appropriate only where "1) the [c]ourt

has expressed its decision based upon a palpably incorrect or

irrational basis, or 2) it is obvious that the [c]ourt either did

not   consider,    or   failed   to   appreciate      the   significance         of

probative,   competent    evidence."       D'Atria   v.   D'Atria,       
242 N.J.

Super. 392, 401 (Ch. Div. 1990).

      Here, the court did not fail to consider the evidence nor was

the court's decision based on something incorrect or irrational.

Defendants' original motion did not raise the issue that Wells

Fargo may have assigned the final judgment to another entity in

August 2016.      See Naik v. Naik, 
399 N.J. Super. 390, 395 (App.

Div. 2008) (stating R. 4:49-2 "is not the vehicle for raising a

new issue").      Defendants do not explain how this relates to the

issue about service of process nor is there a prohibition on the

assignment of a judgment.        See N.J.S.A. 2A: 25-1.

      After carefully reviewing the record and the applicable legal

principles, we conclude that defendants' further arguments are

without    sufficient   merit    to   warrant   discussion    in     a    written

opinion.    R. 2:11-3(e)(1)(E).

      Affirmed.




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