PNC BANK, N.A v. KAREN NICHELSON

NOT FOR PUBLICATION WITHOUT THE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-1896-16T2

PNC BANK, N.A.,

        Plaintiff-Respondent,

v.

KAREN NICHELSON,

        Defendant-Appellant,

and

STATE OF NEW JERSEY,

     Defendant.
____________________________

              Submitted April 9, 2018 – Decided April 26, 2018

              Before Judges O'Connor and Vernoia.

              On appeal from Superior Court of New Jersey,
              Chancery Division, Gloucester County, Docket
              No. F-025571-13.

              Karen Nichelson, appellant pro se.

              Frank J. Martone, PC, attorneys for respondent
              (Dennis P. Uhlmann, Jr., on the brief).

PER CURIAM
     Defendant Karen Nichelson appeals from a Chancery Division

order denying her motion to vacate a final judgment of foreclosure

and dismiss the complaint.       We affirm.

                                       I.

     In August 2005, defendant borrowed $147,831 from National

City Mortgage and executed a note secured by a mortgage on property

in Paulsboro. Plaintiff PNC Bank, National Association (PNC Bank),

is the successor by merger to National City Mortgage.              Since March

1, 2011, defendant has defaulted on the note and mortgage by

failing to make the required payments.

     In   July   2013,   PNC   Bank    filed   a     foreclosure    complaint.

Defendant subsequently filed a contesting answer.

     PNC Bank assigned the mortgage and note to the Secretary of

the United States Department of Housing and Urban Development

(HUD) in January 2014.     Three months later, on April 8, 2014, HUD

assigned the mortgage and note to GCAT Depositor I, LLC (GCAT).

That same day, GCAT assigned the mortgage and note to Wilmington

Savings Fund Society as Trustee for Bronze Creek Title Trust

(Wilmington Savings Fund).

     On   June   10,   2014,   PNC    Bank   filed   a   motion    for   summary

judgment. Defendant filed opposition and a cross-motion to dismiss

the complaint.    The court denied defendant's cross-motion, granted



                                       2                                 A-1896-16T2
PNC Bank's summary judgment motion and changed the plaintiff to

Wilmington Savings Fund.

     On May 22, 2015, Wilmington Savings Fund assigned the mortgage

and note to PNC Bank, and on July 30, 2015, the court granted an

unopposed motion to substitute PNC Bank as plaintiff.             PNC Bank

filed a motion for final judgment in September 2015.              Defendant

did not oppose the motion.      On October 28, 2015, the court entered

a final judgment of foreclosure.

     Eleven months later, defendant filed a notice of motion to

vacate the final judgment.           Following oral argument, the court

issued a written statement of reasons finding defendant offered

no excuse for her failure to respond to the notice of motion, and

that defendant claimed only that PNC Bank lacked standing to bring

the foreclosure action.       The court concluded that, as a matter of

law, PNC Bank's alleged lack of standing did not constitute a

meritorious    defense   to    the    entry   of   a   final   judgment    of

foreclosure.    The court determined defendant did not establish

entitlement to relief under Rule 4:50-1(a) because she did not

demonstrate either excusable neglect for failing to respond to PNC

Bank's request for entry of final judgment, or a meritorious

defense.   The court entered an order denying defendant's motion.

This appeal followed.



                                       3                            A-1896-16T2
    Defendant      presents   the    following   arguments   for   our

consideration:

         POINT 1

         Defendant Is Entitled to Relief Pursuant to
         R. 4:50-1(c) and (f).

         POINT 2

         The Assignment to plaintiff is invalid.

                                    II.

    Defendant sought to vacate the final judgment under Rule

4:50-1, which in pertinent part provides:

         On motion, with briefs, and upon such terms
         as are just, the court may relieve a party or
         the party's legal representative from a final
         judgment or order for the following reasons:
         (a) mistake, inadvertence, surprise, or
         excusable neglect; . . . (c) fraud (whether
         heretofore    denominated     intrinsic    or
         extrinsic),   misrepresentation,   or   other
         misconduct of an adverse party; . . . or (f)
         any other reason justifying relief from the
         operation of the judgment or order.

         [R. 4:50-1.]

Rule 4:50-1 "reconcile[s] the strong interests in finality of

judgments and judicial efficiency with the equitable notion that

courts should have authority to avoid an unjust result in any

given case."     Mancini v. EDS, 
132 N.J. 330, 334 (1993) (quoting

Baumann v. Marinaro, 
95 N.J. 380, 392 (1984)).




                                     4                        A-1896-16T2
     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."                U.S. Bank Nat'l Ass'n v.

Guillaume, 
209 N.J. 449, 467 (2012). A court abuses its discretion

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

inexplicably depart[s] from established policies, or rest[s] on

an impermissible basis.'"        Iliadis v. Wal-Mart Stores, Inc., 
191 N.J. 88, 123 (2007) (quoting Flagg v. Essex Cty. Prosecutor, 
171 N.J. 561, 571 (2002)).

     On appeal, defendant does not argue the court erred in

determining she failed to sustain her burden of demonstrating

excusable neglect and a meritorious defense under Rule 4:50-1(a).

See Guillaume, 
209 N.J. at 468 (noting that relief under Rule

4:50-1(a) requires a showing of excusable neglect and a meritorious

defense).       An issue not briefed on appeal is deemed waived.

Jefferson Loan Co. v. Session, 
397 N.J. Super. 520, 525 n.4 (App.

Div. 2008); Zavodnick v. Leven, 
340 N.J. Super. 94, 103 (App. Div.

2001).       Therefore, we discern no basis to reverse the court's

denial of defendant's motion to vacate the final judgment under

Rule 4:50-1(a).1


1
     Although defendant's failure to challenge the court's
determination under Rule 4:50-1(a) renders our consideration of
the merits of that decision unnecessary, based on our independent


                                       5                             A-1896-16T2
     Defendant asserts the court erred because she was entitled

to an order vacating the final judgment under subsections (c) and

(f) of Rule 4:50-1.2   Defendant argues she was entitled to an order

vacating the final judgment under subsection (c) because PNC Bank

committed a fraud by "misrepresent[ing] itself as the assignee of

the mortgage to gain the final judgment," and defendant was not

provided notice of Wilmington Savings Fund's assignment of the

mortgage to PNC Bank as required under the Truth In Lending Act,

15 U.S.C. §§ 1601 to 1667f, and Regulation Z, 12 C.F.R. § 1026.39

(2015).




review of the record we are convinced the court correctly found,
and did not abuse its discretion by concluding, defendant failed
to establish both excusable neglect and a meritorious defense.
Defendant's claim PNC Bank lacked standing to bring the foreclosure
complaint is not a meritorious defense under Rule 4:50-1.       See
Deutsche Bank Nat'l Trust Co. v. Russo, 
429 N.J. Super. 91, 101
(App. Div. 2012) (finding "lack of standing [does] not constitute
a meritorious defense" supporting a motion to vacate a final
judgment under Rule 4:50-1(a)).
2
   It is unclear from the record whether defendant moved before
the court to vacate the final judgment under subsections (c) and
(f) of Rule 4:50-1. The court's decision suggests defendant did
not seek relief under those subsections. Although we generally
decline to consider arguments that were not "properly presented
to the trial court" and do not "go to the jurisdiction of the
trial court or concern matters of great public interest," State
v. Robinson, 
200 N.J. 1, 20 (2009) (quoting Nieder v. Royal Indem.
Ins. Co., 
62 N.J. 229, 234 (1973)), we choose to address
defendant's claims under subsections (c) and (f) and, for the
reasons noted, are convinced they lack merit.


                                  6                          A-1896-16T2
     We reject defendant's argument because we find no competent

evidence in the record showing PNC Bank misrepresented itself as

the assignee of the mortgage. To the contrary, the record supports

the court's determination the mortgage was properly assigned to

PNC Bank.   Moreover, defendant is not a party to the assignments

and has no standing to challenge any purported fraud in the manner

in which they were effectuated.             See, e.g., Bank of N.Y. v.

Raftogianis, 
418 N.J. Super. 323, 350 (Ch. Div. 2010) ("[L]itigants

generally   have   no   standing   to     assert   the   rights   of     third

parties."); Correia v. Deutsche Bank Nat'l Trust Co., 
452 B.R. 319, 324 (B.A.P. 1st Cir. 2011) (rejecting mortgagor's claim that

noncompliance   with    a   pooling   and    servicing    agreement      [PSA]

rendered the foreclosure invalid because the mortgagors were "not

parties [to the PSA], nor [did] they demonstrate[] that they were

third-party beneficiaries of the PSA's terms").           In addition, any

purported fraud in the assignment of the mortgage pertains solely

to PNC Bank's alleged lack of standing, and PNC Bank otherwise had

standing to foreclose because it possessed the note, which had

been endorsed to it by Wilmington Savings Fund.          See Deutsche Bank

Nat'l Trust Co. v. Mitchell, 
422 N.J. Super. 214, 223-25 (App.

Div. 2011) (explaining that possession of the note endorsed by the

holder confers standing to foreclose).



                                      7                                A-1896-16T2
     Defendant contends that PNC Banks's purported failure to

provide notice of the transfer of the mortgage assignment under

the TILA, Regulation Z and other federal statutes or regulations

constitutes an exceptional circumstance requiring vacation of the

final judgment under Rule 4:50-1(f).                   The argument is without

merit sufficient to warrant discussion in a written opinion.                        R.

2:11-3(e)(1)(E));         see,    e.g.,   Guillaume,      
209 N.J.   at    480-83

(finding an alleged failure to comply with the TILA does not

constitute      a    meritorious     defense      to    foreclosure,     and      the

defendants made no showing of                 the right to rescission under

Regulation Z [12 C.F.R. § 226.23] where they did not tender payment

of the outstanding indebtedness).

     Defendant also argues the court erred by failing to vacate

the final judgment under subsection (f) of Rule 4:50-1.                      A final

judgment   is       set   aside   under   subsection       (f)   "sparingly,        in

exceptional situations" to prevent "a grave injustice," Realty

Mgmt., Inc. v. Harris, 
155 N.J. 212, 237 (1998) (citation omitted),

and only upon a showing of exceptional circumstances, EDS, 
132 N.J. at 336.        Defendant makes no such showing here.

     "[T]he only issues in a foreclosure action are the validity

of the mortgage, the amount of the indebtedness, and the right of

the mortgagee to resort to the mortgaged premises."                     U.S. Bank

Nat'l Ass'n v. Curcio, 
444 N.J. Super. 94, 112-13 (App. Div. 2016)

                                          8                                  A-1896-16T2
(quoting Sun NLF Ltd. P'ship v. Sasso, 
313 N.J. Super. 546, 550

(App. Div. 1998)).    Defendant does not dispute she granted the

mortgage on her property, challenge the amount of indebtedness,

or contest that her default grants the mortgagor the contractual

right to foreclose.   She fails to establish, and our review of the

record does not reveal, either exceptional circumstances or that

a grave injustice will result if the final judgment is not vacated.

     Affirmed.




                                 9                          A-1896-16T2