M & T BANK v. LEAH TRESS

NOT FOR PUBLICATION WITHOUT THE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-2704-16T2

M&T BANK,

        Plaintiff-Respondent,

v.

LEAH TRESS, MR. TRESS,
husband of LEAH TRESS,

        Defendant-Appellant,

and

MORTGAGE ELECTRONIC REGISTRATION
SYSTEMS, INC. AS NOMINEE FOR
OLYMPIA MORTGAGE CORP.; GOLFVIEW
TOWNHOUSE CONDOMINIUM ASSOCIATION,

     Defendants.
___________________________________

              Submitted February 12, 2018 – Decided March 14, 2018

              Before Judges Accurso and Vernoia.

              On appeal from Superior Court of New Jersey,
              Chancery Division, Ocean County, Docket No.
              F-064054-09.

              Leah Tress, appellant pro se.

              Stern, Lavinthal & Frankenberg, LLC,
              attorneys for respondent (Mark S. Winter, of
              counsel and on the brief).
PER CURIAM

    Defendant Leah Tress appeals from the entry of final

judgment, contending the trial court erred in granting plaintiff

M&T Bank's motion to reinstate its complaint and denying her

application to vacate default and permit her the opportunity to

argue plaintiff's predecessor in this action, PB Investment

Holdings, LLC successor by merger to PB Reit Inc., did not

possess the note and mortgage when it filed its foreclosure

complaint.   We affirm.

    Defendant borrowed $78,000 from Olympia Mortgage Corp. in

October 2003, secured by a thirty-year mortgage on her

condominium.    The mortgage was made to Mortgage Electronic

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

Defendant has been in default of her obligations under the note

and mortgage since October 2008.

    MERS executed an assignment of mortgage to PB Investment

Holdings on December 7, 2009.   PB Investment filed its

foreclosure complaint the same day.   Defendant failed to answer

after being personally served, not at the premises.    Plaintiff

entered default against defendant but did not proceed to final

judgment.    Instead, the case was administratively dismissed

without prejudice in September 2013 under R. 4:64-8 for failure

to prosecute.

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    In September 2015, PB Investment moved to reinstate its

complaint, establish the mortgage was not a residential mortgage

entitling defendant to the protections of the Fair Foreclosure

Act and to substitute M&T Bank as plaintiff.   In support of the

application, counsel for plaintiff submitted a certification

attesting to the recording of the assignment to M&T Bank and to

there being a rent-paying tenant unrelated to defendant living

in the premises.   The court granted the motion permitting

reinstatement "provided the motion [for final judgment] is filed

not later than January 19, 2016," permitting substitution of M&T

Bank upon reinstatement and declaring the mortgage was not a

residential mortgage within the meaning of the Fair Foreclosure

Act, R. 4:64-1 and R. 4:64-2.

    Plaintiff did not file its motion to reinstate the

complaint until May 6, 2016, well after the deadline the court

had imposed for doing so.   Counsel for plaintiff submitted a

certification attributing the delay to plaintiff's discovery

that the servicer could not locate the original note, preventing

plaintiff from moving for final judgment without an order

permitting it to do so with only a copy.   It included a request

for such an order in its notice of motion, supported by a

certification of an officer of M&T Bank explaining that when M&T

took an assignment of the mortgage, servicing of the loan was

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transferred from Bank of America, N.A. to M&T.   Bank of America,

however, was unable to locate the original note and has since

provided M&T with a lost note affidavit, a true copy of which

was attached.   The bank officer also certified defendant had

contacted M&T "to discuss loss mitigation options, including a

short sale," but those discussions were not successful.

    Defendant opposed the motion to reinstate.    The court

granted the motion reinstating the action in the name of M&T

Bank and permitting it to proceed to final judgment with a copy

of the note, stating "for the reasons set forth in the moving

papers, this [c]ourt is satisfied that [p]laintiff has

established sufficient good cause to reinstate this matter and

further, [d]efendant will not suffer any prejudice."

    Defendant moved for reconsideration or, in the alternative,

to permit her to file an answer out of time, denying all of the

allegations of the complaint and raising the affirmative

defenses of lack of standing, unjust enrichment, equitable

estoppel and lack of privity.   Plaintiff opposed the motion,

contending it had submitted proof its predecessor had been

assigned the note and mortgage when its predecessor filed the

complaint, that defendant was personally served with the

pleadings, failed to answer and "has failed to offer any

evidence to explain failing to [a]nswer the [c]omplaint or for

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not attempting to file an [a]nswer for almost six (6) years."

Plaintiff further noted its motion for final judgment was

pending unopposed in the Foreclosure Unit.   Defendant claims to

have filed a reply, but it is not in the appendix.   The court,

"having read the papers submitted" and "having found that

defendant has provided no basis for this court to reconsider its

prior order reinstating this foreclosure matter; AND for the

reasons set forth in plaintiff's opposition," entered an order

denying defendant's motion.

    Defendant did not oppose final judgment, which was entered

on November 18, 2016.   Defendant appeals, contending the court

abused its discretion in permitting reinstatement of the

complaint and not permitting her to file an answer out of time.

We disagree.

    Although R. 4:43-3 requires only a showing of good cause

for setting aside the entry of default, N.J. Mfrs. Ins. Co. v.

Prestige Health Grp., LLC, 
406 N.J. Super. 354, 360 (App. Div.

2009), and the Supreme Court has reiterated, in the context of a

foreclosure case, that the standard for setting aside the entry

of a default is decidedly less stringent than that of setting

aside a default judgment, US Bank Nat'l Ass'n v. Guillaume, 
209 N.J. 449, 467 (2012) (citing Pressler & Verniero, Current N.J.

Court Rules, cmt. on R. 4:43-3 (2012)), we do not find the judge

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erred in denying defendant's motion under the circumstances of

this case.

    Defendant does not dispute that neither she nor her family

lives in the property or that she has not made a mortgage

payment since 2008.    She has never explained why she failed to

answer the complaint when personally served in 2010.   Her

contention that plaintiff's predecessor had not been assigned

the note and mortgage when it filed its complaint on December 7,

2009, is belied by the recorded assignment.    We have refused to

reopen a foreclosure judgment even when it was clear the

mortgagee had not been assigned the mortgage at the time it

filed its foreclosure complaint where the homeowner only raised

the issue after "he had the advantage of many years of delay,"

observing "[i]n foreclosure matters, equity must be applied to

plaintiffs as well as defendants."     Deutsche Bank Tr. Co. Ams.

v. Angeles, 
428 N.J. Super. 315, 320 (App. Div. 2012).

    Although this matter had not proceeded to judgment, Angeles

is instructive here.   We see no reason to have permitted

defendant, who had already obtained the benefit of many years

delay, to continue to receive rent from the mortgaged premises

and not pay her mortgage while she litigated a frivolous

defense.   Equity counselled permitting plaintiff to proceed to



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final judgment under the circumstances confronting the trial

court.

    In her reply brief, defendant argues the judge improperly

failed to state reasons for the orders granting reinstatement

and denying reconsideration, relying instead on "the reasons set

forth in the moving papers," and "the reasons set forth in

plaintiff's opposition."   Although the orders are not appealable

as of right, and thus not among those requiring a written

statement of reasons under R. 1:7-4, we disapprove of the

practice employed by the judge here.      That the only order

appealable as of right in a foreclosure is entered by a judge in

Trenton on recommendation by the Foreclosure Unit does not

diminish the obligation of the judge hearing the case to explain

his orders without reliance on unspecified reasons advanced by

one of the parties.   See Pressler & Verniero, Current N.J. Court

Rules, cmt. on R. 1:7-4 (2018).       Because the reasons for the

orders defendant complains of here are clear, however, the

failure of the judge to make those reasons explicit is of no

moment.

    Affirmed.




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