DEUTSCHE BANK NATIONAL TRUST COMPANY v. SHAHID NAZIR

NOT FOR PUBLICATION WITHOUT THE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-3648-16T3

DEUTSCHE BANK NATIONAL
TRUST COMPANY, as Trustee
of the Residential Asset Securitization
Trust 2007-A5, Mortgage Pass-
Through Certificates, Series 2007-E
Under the Pooling and Servicing
Agreement Dated March 1, 2007,

           Plaintiff-Respondent,

v.

SHAHID NAZIR,

           Defendant-Appellant,

and

NUZHAT NAZIR, his wife, each of
their heirs, devisees, and personal
representatives, and his, her, their or
any of their successors in right, title
and interest; MID-LAND FUNDING
LLC and DISCOVER BANK,

     Defendants.
________________________________

                    Submitted October 15, 2018 – Decided November 20, 2018
            Before Judges Haas and Mitterhoff.

            On appeal from Superior Court of New Jersey,
            Chancery Division, Middlesex County, Docket No. F-
            023745-13.

            Shahid Nazir, appellant pro se.

            Phelan Hallinan Diamond & Jones, LLP, attorneys for
            respondent (Brian J. Yoder, on the brief).

PER CURIAM

      In this residential mortgage foreclosure action, defendant Shahid Nazir

appeals from the trial court's denial of his motion to vacate a final judgment of

foreclosure and sheriff's sale. We affirm.

      In February 2007 defendant's wife executed a promissory note securing

the sum of $553,000.00 to IndyMac Bank, F.S.B. On the same date, defendant

and his wife executed a non-purchase-money mortgage to Mortgage Electronic

Registration System, Inc., as nominee for IndyMac Bank. Mortgage Electronic

Registration System assigned the mortgage to plaintiff Deutsche Bank National

Trust Company in November 2010. Defendant defaulted on the loan starting in

August 2010 and never cured the default.

      On July 9, 2013, plaintiff filed a foreclosure complaint. On August 16,

2013, defendants filed a contesting answer. On September 24, 2013, Judge Ann

G. McCormick entered a case management order scheduling trial for January

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30, 2014. On January 28, 2014, plaintiff, through counsel, agreed to a consent

order in which defendants agreed to deem their answer non-contesting in

exchange for plaintiff agreeing to refrain from applying for final judgment for

sixty days. The trial court entered the consent order on January 30, 2014.

      On September 5, 2014, plaintiff moved for default. On February 24, 2015,

the trial court entered an order granting default. On March 16, 2015, plaintiff

sent formal notice pursuant to Section 6 of the New Jersey Fair Foreclosure Act

to defendants. On November 4, 2015, plaintiff filed a notice of motion for entry

of final judgment. On January 5, 2016, the trial court entered a final judgment

of foreclosure.

      After several postponements for loss mitigation discussions between the

parties and defendant exercising statutory adjournments, a sheriff's sale was

scheduled for September 14, 2016. On July 18, 2016 and August 16, 2016,

defendant attempted to file pro se motions to stay the sheriff's sale, but the

clerk's office marked the motions as "Received but not Filed" because defendant

had not paid the proper filing fees or submitted a substitution of attorney signed




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by the withdrawing attorney.  1 On September 14, 2016, plaintiff purchased the

property at the sheriff's sale.

       On September 22, 2016, defendant attempted to file a pro se motion to

object to and set aside the sheriff's sale, but the clerk's office again did not file

the motion because defendant had not submitted a substitution of attorney signed

by the withdrawing attorney and paid the appropriate filing fee. On November

14, 2017, defendant filed a substitution of attorney in order to proceed pro se.

On March 1, 2017, defendant filed a motion to set aside the writ of possession,

set aside the final judgment, and move forward with mediation.

      On March 31, 2017, Judge McCormick held a hearing on defendant's

motion and denied the motion in an oral decision. On appeal of this denial,

defendant raises the following points for our review:

             Point 1 – Defendant was entitled to relief under R. 4.50-
             1(f).

             Point 2 – The Trial Court erred and abused its discretion
             in allowing the settlement to withdraw [the] Contested
             Answer with nothing in exchange for Defendant.




1
  "[A]n attorney may withdraw upon the client's consent provided a substitution
of attorney is filed naming the substituted attorney or indicating that the client
will appear pro se. If the client will appear pro se, the withdrawing attorney
shall file a substitution." R. 1:11-2(a)(1).
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                                         4
             Point 3 – The Trial Court erred and abused its discretion
             by not setting aside the sale, and direct[ing] the matter
             to mediation.

Having reviewed the record in light of the applicable legal principles, we affirm

for substantially the same reasons expressed by Judge McCormick in her well-

reasoned oral decision. We add only the following comments.

      In general, "[t]he 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." US Bank Nat'l Ass'n v. Guillaume,  209 N.J. 449, 467 (2012)

(citations omitted). Further, relief under Rule 4:50-1(f) should be granted only

when "truly exceptional circumstances are present." Id. at 484 (quoting Hous.

Auth. of Town of Morristown v. Little,  135 N.J. 274, 286 (1994)). Likewise, a

court should exercise its discretion to set aside a foreclosure sale only to correct

a plain injustice. See First Tr. Nat'l Assoc. v. Merola,  319 N.J. Super. 44, 49

(App. Div. 1999) (citation omitted) ("[T]he exercise of this power [to set aside

a sheriff's sale] is discretionary and must be based on considerations of equity

and justice.").

      Additionally, "the showing of a meritorious defense is a traditional

element necessary for setting aside . . . a default judgment."           Pressler &

Verniero, Current N.J. Court Rules, cmt. on R. 4:43-3 (2019); see also


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Guillaume,  209 N.J. at 469 (requiring meritorious defense to foreclosure for

relief under Rule 4:50-1(a)). In this case, we find that defendant fails to present

a meritorious defense to the foreclosure or exceptional circumstances warranting

relief under Rule 4:50-1(f). Defendant does not contest his default on the

mortgage, and defendant's arguments are otherwise unavailing.

      Defendant argues that he was denied access to the court because the clerk's

office did not file some of his submissions, but the clerk's office properly marked

these submissions as "Received but not Filed" because defendant failed to pay

the appropriate filing fees or to submit a proper substitution of attorney signed

by the withdrawing attorney. See R. 1:5-6(c)(1)(A), (D). Defendant also argues

that he was promised a loan modification in exchange for withdrawing his

contested answer to the foreclosure complaint, but the terms of the consent order

do not provide for such a modification. "In general, settlement agreements will

be honored absent a demonstration of fraud or other compelling circumstances."

Nolan v. Lee Ho,  120 N.J. 465, 472 (1990) (internal quotations and citations

omitted). In this case, defendant has presented no evidence of fraud or other

compelling circumstances that warrant vacating the consent order.

      For these reasons, the trial court did not abuse its discretion in refusing to

vacate the final judgment and sheriff's sale. The remaining arguments raised by


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defendant are without sufficient merit to warrant discussion in a written opinion.

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

      Affirmed.




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