EMIGRANT MORTGAGE COMPANY INC v. MYCUTA AIS

NOT FOR PUBLICATION WITHOUT THE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-1689-16T1

EMIGRANT MORTGAGE COMPANY,
INC.,

        Plaintiff-Respondent,

v.

MYCUTA AIS,

        Defendant-Appellant,

and

MR. MYCUTA AIS, her husband,

     Defendant.
_________________________________

              Submitted February 27, 2018 – Decided March 16, 2018

              Before Judges Reisner and Gilson.

              On appeal from Superior Court of New Jersey,
              Chancery Division, Essex County, Docket No.
              F-001417-10.

              Joseph A. Chang, attorney for appellant.

              Knuckles Komosinski & Manfro LLP, attorneys
              for respondent (John E. Brigandi, on the
              brief).

PER CURIAM
     Defendant Mycuta Ais appeals from a November 18, 2016 order,

denying her motion to vacate a final foreclosure judgment in favor

of plaintiff Emigrant Mortgage Company, Inc.                  We affirm.

     In 2008, defendant borrowed approximately $156,000, secured

by a mortgage on her residential property.                She defaulted on the

loan in 2009.      Plaintiff filed a foreclosure action, to which

defendant did not file an answer.              Plaintiff applied for entry of

judgment by default, on notice to defendant.                  A final foreclosure

judgment was entered on December 2, 2013.

     In   2015,   defendant    filed       a    motion   to    vacate   the     final

judgment, claiming that she was not served with the foreclosure

complaint.     Judge Harriet F. Klein denied the motion, by order

dated July 23, 2015. That order was appealable as of right, within

forty-five days. R. 2:4-1(a). However, instead of filing a timely

notice of appeal from Judge Klein's order, defendant waited a year

and then filed essentially the same motion.                   In an oral opinion

issued on November 18, 2016, Judge Thomas M. Moore denied the

motion    as    untimely,     barred       by    collateral       estoppel,        and

substantively without merit.

     On this appeal, defendant once again claims that service was

defective.     However, we conclude that her appeal is untimely.                     If

defendant disagreed with Judge Klein's decision in 2015, she had

the right to appeal the July 23, 2015 order to the Appellate

                                       2                                      A-1689-16T1
Division within forty-five days.   R. 2:4-1(a).   Defendant cannot

revive her long-expired right to appeal from the July 23, 2015

order, by refiling the same motion in the trial court and then

appealing from the denial of that motion.    See In re Hill, 
241 N.J. Super. 367, 371 (App. Div. 1990).      However, even if we

consider the service issue, it is without merit, for the reasons

stated in Judge Moore's opinion.

    Affirmed.




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