CITIZENS BANK OF PENNSYLVANIA v. METODI A. DONCHEV

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APPROVAL OF THE APPELLATE DIVISION
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NOS. A-4909-16T1
A-2371-17T1

CITIZENS BANK OF
PENNSYLVANIA,

Plaintiff-Respondent,

METODI A. DONCHEV, his/her
heirs, devisees and personal
representatives, and his/her, their or
any of their successors in right, title
and interest, MIDLAND FUNDING
LLC, ANTON METODIEV DONCHEV,
known heir of METODI A. DONCHEV,
and ROCITSA METODIEVA, known
heir of METODI A. DONCHEV,

Defendants,

FAITH DONCHEVA a/k/a
FAITH DONCHEV, individually
and as personal representative of the
ESTATE OF METODI A. DONCHEV,

Defendants-Appellants.
_____________________________________

Argued October 22, 2018 – Decided December 6, 2018
Before Judges Sumners and Mitterhoff.

On appeal from Superior Court of New Jersey,
Chancery Division, Gloucester County, Docket No. F-
021911-12.

Louis J. Johnson, Jr. argued the cause for appellant.

J. Eric Kishbaugh argued the cause for respondent
(Udren Law Offices, PC, attorneys; Nicole B. LaBletta,
on the brief in A-4909-16 and J. Eric Kishbaugh, on the
brief in A-2371-17).

PER CURIAM

Defendant Faith Doncheva appeals the trial court's denial of her motions

to vacate a final judgment of foreclosure, set aside the sheriff's sale, and enforce

a post-sale offer to settle mortgage loans. We affirm.

On June 18, 2003, defendant and her husband Metodi Donchev (M.

Donchev) executed a promissory note to Citizens Bank in the amount of

$98,400. On the same day, to secure repayment of the note amount, defen dant

and M. Donchev executed a mortgage to Citizens Bank on their property located

in National Park, New Jersey (the property). On January 24, 2005, defendant

and M. Donchev refinanced the property by executing a second note in

consideration of an additional loan of $40,000. On the same day, to secure

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repayment of the second note, defendant and M. Donchev executed a second

mortgage on the property to Citizens Bank.

Defendant and M. Donchev defaulted on both notes in December 2009.

On October 22, 2013, Citizens Bank instituted the current foreclosure action in

the Superior Court of New Jersey, Chancery Division, Gloucester County. After

defendant failed to answer the complaint, Citizens Bank filed a request and

certification of default. On April 10, 2014, defendant sent a letter responding

to the complaint, however, the letter was not filed because defendant did not

enclose the filing fee. In defendant's letter, she denied having received the

complaint and denied "owing any sums to any party." 1 On November 24, 2014,

the Honorable Paul Innes, P.J.Ch., issued a final judgment against defendant.

On April 14, 2016, notices of a sheriff's sale of the property scheduled for

April 27, 2016 were issued and sent to defendant. After Citizens Bank

purchased the property at the sale, the sheriff's deed was delivered on May 9,

2016. On July 20, 2016, Judge Innes issued a writ of possession to Citizens

Bank.

1
By the time defendant submitted this letter to the court, M. Donchev had
passed away and defendant was acting on behalf of his estate.
A-4909-16T1
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On April 25, 2017, defendant received two letters from Citizens Bank

purporting to offer a settlement of her first and second mortgage loans for $2,064

and $19,807.74, respectively. In May 2017, defendant attempted to accept the

offer by sending checks for the requested amounts to Citizens Bank. On May

22, 2017, Citizens Bank sent a letter to defendant returning defendant's checks

and stating that "[a]ny offers contained in the letter of April 25, 2017 from

Citizens Bank are hereby revoked."

On July 3, 2017, David Braz, a Vice President/Senior Manager of the

Collections and Recovery Department at Citizens Bank, N.A., certified that

letters sent to defendant were "issued in error." Mr. Braz further certified that

the mortgages relevant to the present matter

were originally coded as foreclosed loans in Citizens'
computer system in April 2017, however, the REO
department of Citizens erroneously noted[,] when
questioned by the employee speaking with [defendant]
in April 2017[,] that the loans were not in the
Foreclosure/REO department. Thus, the employee that
was speaking with [defendant] during April 2017
changed the coding of the loans in error. Had it been
properly notated that the loans were in REO when
questioned, the April 25, 2017 settlement letter would
have never been issued.

On July 11, 2017, the Honorable Anne McDonnell, P.J.Ch., denied

defendant's motion to enforce the settlement agreement because it "was not

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made with full knowledge by Citizens Bank." She reasoned that the settlement

offer "was a little too late, given that the . . . property had already been

foreclosed, that the plaintiff was represented in the foreclosure action. That it

was a very active foreclosure, in that I had a number of stay requests[.]"

On December 1, 2017, Judge McDonnell denied defendant's motion to set

aside the sheriff's sale and to vacate the final judgment. This appeal ensued.

Motion to Enforce the Settlement Offer

Defendant argues that the trial court erred by refusing to enforce Citizens

Bank's post-foreclosure settlement agreement. Citizens Bank counters that

defendant's motion to enforce the purported settlement agreement is moot

because defendant's mortgage and loan ceased to exist once the trial court

entered final judgment. We agree with Citizens Bank and hold that any issues

concerning purported offers to settle defendant's mortgages and loans are moot.

Review of a trial court's factual determinations in a non-jury case is

limited. Seidman v. Clifton Sav. Bank, S.L.A., 205 N.J. 150, 169 (2011).

Appellate courts "do not disturb the factual findings and legal conclusions of the

trial judge unless we are convinced that they are so manifestly unsupported b y

or inconsistent with the competent, relevant and reasonably credible evidence

A-4909-16T1
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as to offend the interests of justice." Ibid. (quoting In re Trust Created By

Agreement Dated December 20, 1961, 194 N.J. 276, 284 (2008)).

New Jersey courts "consider an issue moot when 'our decision sought in a

matter, when rendered, can have no practical effect on the existing controversy.'"

Deutsche Bank Nat'l Trust Co. v. Mitchell, 422 N.J. Super. 214, 221-22 (App.

Div. 2011) (quoting Greenfield v. N.J. Dep't of Corr., 383 N.J. Super. 254, 257-

58 (App. Div. 2006)). "A case is technically moot when the original issue

presented has been resolved, at least concerning the parties who initiated the

litigation." De Vesa v. Dorsey, 134 N.J. 420, 428 (1993) (Pollock, J.,

concurring) (citing Oxfeld v. N.J. State Bd. of Educ., 68 N.J. 301, 303 (1975)).

In the landlord-tenant context, "where a tenant no longer resides in the property,

an appeal challenging the propriety of an eviction is moot." Sudersan v. Royal,

386 N.J. Super. 246, 251 (App. Div. 2005) (citing Center Ave. Realty, Inc. v.

Smith, 264 N.J. Super. 344, 347 (App. Div. 1993)).

Furthermore, absent evidence of contrary intent, "a loan no longer exists

after a default leads to the entry of a final judgment." Gonzalez, 207 N.J. at
580-81 (citing 30A New Jersey Practice, Law of Mortgages, § 31.36 (Myron C.

Weinstein) (2d ed. 2000)). It is a "well-settled principle that a mortgage merges

into the judgment of foreclosure[.]" Virginia Beach Fed. v. Bank of New

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York/National Cmty. Div., 299 N.J. Super. 181, 188 (App. Div. 1997). A

foreclosure judgment "represents the final determination of the debt and amount

due" on the mortgage. Colonial Building-Loan Ass'n v. Mongiello Bros., 120 N.J. Eq. 270, 276 (Ch. 1936).

Any dispute over Citizens Bank's offers to settle defendant's mortgages

and loans is moot because there are no issues regarding the mortgage or the

foreclosure action that require resolution. De Vesa, 134 N.J. at 428. The final

foreclosure judgment in the current matter was ordered on November 24, 2014.

The sheriff's sale took place on April 27, 2016. The sheriff's deed was delivered

to Citizens Bank on May 9, 2016. As will be discussed below, there are no

grounds for setting aside the sheriff's sale. Defendant's loans merged with the

mortgage when the final judgment in the foreclosure complaint was issued on

November 24, 2017. See Virginia Beach Fed., 299 N.J. Super. at 188. Thus, a

decision by this court enforcing the settlement agreement can have no practical

effect on defendant's mortgages and loans, as they no longer exist. Accordingly,

we affirm trial court's refusal to enforce the post-sale settlement agreement.

Motion to Set Aside Sheriff's Sale

Defendant argues that the trial court erred in upholding the April 2016

sheriff's sale. She argues that she had no notice of the sale because Citizens

A-4909-16T1
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Bank knew that her mailing address changed, but did not send notice to said

address. Thus, according to defendant, the trial court erred in finding that she

had notice. Citizens Bank argues that the trial court correctly granted its motion

to affirm the sheriff's sale because it provided all of the necessary notices to

defendant.

Appellate courts exercise their discretion to set aside a foreclosure sale

only to correct a plain injustice. See First Tr. Nat. Ass'n v. Merola, 319 N.J.

Super. 44, 49 (App. Div. 1999) ("[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.") (citation omitted); E. Jersey Sav. & Loan Ass'n v. Shatto, 226 N.J.

Super. 473, 476 (Ch. Div. 1987) (citation omitted) ("The power to set aside a

foreclosure sale is to be exercised with great care and only when necessary fo r

compelling reasons."); see also 30A N.J. Practice, Law of Mortgages § 35.17

(Myron C. Weinstein) (2d ed. Oct. 2017 update) (collecting cases).

When a residential property is being sold at a sheriff's sale, the seller must

provide notice to the record owner of the property. See R. 4:65-2. The Rule

provides,

The party who obtained the order or writ shall, at least
10 days prior to the date set for sale, serve a notice of
sale by registered or certified mail, return receipt
requested, upon (1) every party who has appeared in the

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action giving rise to the order or writ and (2) the owner
of record of the property as of the date of
commencement of the action whether or not appearing
in the action . . . .
[Id.]

A party's motion to set aside a sheriff's sale is governed by Rule 4:65-5,

which states,

A sheriff who is authorized or ordered to sell real estate
shall deliver a good and sufficient conveyance in
pursuance of the sale unless a motion for the hearing of
an objection to the sale is served within 10 days after
the sale or at any time thereafter before the delivery of
the conveyance. Notice of the motion shall be given to
all persons in interest, and the motion shall be made
returnable not later than 20 days after the sale, unless
the court otherwise orders. On the motion, the court
may summarily dispose of the objection; and if it
approves the sale and is satisfied that the real estate was
sold at its highest and best price at the time of the sale,
it may confirm the sale as valid and effectual and direct
the sheriff to deliver a conveyance as aforesaid.

The party objecting to the sheriff's sale must have a valid ground for the

objection, such as "fraud, accident, surprise, irregularity, or impropriety in the

sheriff's sale." Brookshire Equities, LLC v. Montaquiza, 346 N.J. Super. 310,

317 (App. Div. 2002) (citation omitted); see also Burbach v. Sussex Cty. Mun.

Util. Auth., 318 N.J. Super. 228, 236 (App. Div. 1999) (setting aside execution

sale where non-debtor tenant in common failed to receive required notice of sale

and objected promptly upon learning of sale).

A-4909-16T1
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Here, the sheriff's sale took place on April 27, 2016. The sheriff's deed

was delivered to Citizens Bank on May 9, 2016. Thus, under Rule 4:65-5,

defendant's motion was filed out of time. Citizens Bank sent notices of the sale

to defendant via certified mail at both the property's address and at an alternate

address provided by defendant, as required by Rule 4:65-2. Accordingly, we

affirm the trial court's confirmation of the April 2016 sheriff's sale.

Motion to Vacate Final Judgment

"The decision whether to grant [a motion under Rule 4:50-1] is left to the

sound discretion of the trial court, and will not be disturbed absent an abuse of

discretion." Mancini v. EDS ex rel New Jersey Auto. Full Ins. Underwriting

Ass'n, 132 N.J. 330, 334 (1993) (citing Court Inv. Co. v. Perillo, 48 N.J. 334,

341 (1966)). Doubts regarding whether to grant the motion "should be resolved

in favor of the parties seeking relief." Ibid. (citing Arrow Mfg. Co. v. Levinson,

231 N.J. Super. 527, 534 (App. Div. 1989)). An abuse of discretion "arises when

a decision is 'made without a rational explanation, inexplicably departed from

established policies, or rested on an impermissible basis.'" Flagg v. Essex Cty.

Prosecutor, 171 N.J. 561, 571 (2002) (quoting Achacoso-Sanchez v. Immigr.

and Naturalization Serv., 779 F.2d 1260, 1265 (7th Cir. 1985)).

Parties may move to vacate

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a final judgment or order for the following reasons: (a)
mistake, inadvertence, surprise, or excusable neglect;
(b) newly discovered evidence which would probably
alter the judgment or order and which by due diligence
could not have been discovered in time to move for a
new trial under R. 4:49; (c) fraud (whether heretofore
denominated intrinsic or extrinsic), misrepresentation,
or other misconduct of an adverse party; (d) the
judgment or order is void; (e) the judgment or order has
been satisfied, released or discharged, or a prior
judgment or order upon which it is based has been
reversed or otherwise vacated, or it is no longer
equitable that the judgment or order should have
prospective application; or (f) any other reason
justifying relief from the operation of the judgment or
order."

[R. 4:50-1.]

Motions must "be made within a reasonable time, and for reasons (a), (b) and

4:50-1 "is designed to reconcile 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." Tenby Chase Apartments v. N.J. Water

Co., 169 N.J. Super. 55, 60 (App. Div. 1979) (quoting Hodgson v. Applegate,

31 N.J. 29, 43 (1959)). Here, two years and five months passed from the entry

of final judgment to defendant's motion to vacate the final judgment. Thus,

defendant did not make her motion to vacate the final judgment within a

reasonable time. See, e.g., Last v. Audubon Park Assoc., 227 N.J. Super. 602,

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607 (App. Div. 1988) (holding that a motion to vacate final judgment was not

made within a reasonable time where eighteen months passed between the entry

of final judgment and the motion to vacate).

For these reasons, we find that the trial court did not abuse its discretion

in refusing to enforce the settlement agreement, vacate the final judgment, or set

aside the sheriff's sale.

The remaining arguments raised by defendant are without sufficient merit

to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

Affirmed.

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