ONE WEST BANK, FSB v. ERROL JEFFERSON

NOT FOR PUBLICATION WITHOUT THE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-5197-16T1


ONEWEST BANK, FSB,

        Plaintiff-Respondent,

v.

ERROL JEFFERSON, his heirs, devisees,
and personal representatives, and
his, her, their successors in right,
title and interest, and MRS. JEFFERSON,
wife of ERROL JEFFERSON, HAMILTON PARK
HEALTHCARE CENTER, THE STATE OF NEW
JERSEY and UNITED STATES OF AMERICA,

        Defendants,

and

JOANN JEFFERSON,

     Defendant-Appellant.
______________________________

              Submitted June 5, 2018 – Decided June 22, 2018

              Before Judges Moynihan and Natali.

              On appeal from Superior Court of New Jersey,
              Chancery Division, General Equity Part, Hudson
              County, Docket No. F-014293-12.

              Joann Jefferson, appellant pro se.
            Fein, Such, Kahn & Shepard, PC, attorneys for
            respondent (Douglas J. McDonough, on the
            brief).

PER CURIAM

     This is a residential foreclosure action.          Defendant Joann

Jefferson appeals from the final judgment and order denying her

motion to vacate that judgment.       We affirm.

     According to the foreclosure complaint, in 2007, Ena and

Errol Jefferson1 executed a $175,000 promissory note to East Coast

Mortgage Corp. (East Coast).   The note was transferred three times

by formal allonge2 and ultimately held by plaintiff OneWest Bank,

FSB (OneWest).   As security for repayment, Ena and Errol executed

a mortgage in the same amount to Mortgage Electronic Registration

Systems, Inc., as nominee for East Coast.          The mortgage was duly

recorded.    The East Coast mortgage was assigned to OneWest on May

24, 2012.

     Errol defaulted on the note in January 2011 and plaintiff

filed a foreclosure complaint on July 24, 2012, naming only Errol

as it was correctly believed Ena died in August 2010.          Errol did



1
  We refer to Ena, Errol and Joann Jefferson by their first names
in the interest of clarity.    We intend no disrespect by this
informality.
2
    An allonge is "[a] slip of paper sometimes attached to a
negotiable instrument for the purpose of receiving . . .
indorsements." Black's Law Dictionary 92 (10th ed. 2014).

                                  2                              A-5197-16T1
not answer the complaint and default was entered. Plaintiff agreed

to vacate the default and Errol's counsel filed an answer without

a single affirmative defense.         After the close of discovery and

less than three months before the scheduled trial date, Errol and

plaintiff entered into a consent order by which Errol agreed to

withdraw   his     contesting     answer   conditioned   upon    plaintiff

refraining from moving for final judgment until December 2013.

      In January 2014, Errol died.         Final judgment was entered on

August 6, 2014, and vacated on plaintiff's motion on September 1,

2015 to permit plaintiff to file an amended complaint.          In January

2016, plaintiff filed its first amended complaint to join new

judgment creditors and unknown heirs and to plead Errol's death.

In May 2016, plaintiff filed a second amended complaint to add

Joann as Errol’s heir and described her as the "only known heir

[at] law and next of kin of the decedent, E[rrol] J[efferson]."

      On July 27, 2016, default was entered against all defendants.

That same day, and on two separate occasions thereafter, Joann

attempted to file contesting answers. Each time the Clerk rejected

the   answers    for   various   procedural   irregularities    and    issued

deficiency notices.       On August 30, 2016, Joann also attempted to

file a motion to vacate default.           That filing was also rejected

because, at the time, Errol still had an attorney of record.



                                      3                               A-5197-16T1
     On September 16, 2016, Joann moved to vacate default claiming

she inadvertently failed to include the required filing fee and

case information statement.         Joann did not include a proposed

contesting answer with her motion as required by Rule 4:43-3.            On

October 28, 2016, Judge Marybeth Rogers concluded that Joann had

not satisfied the requirements of Rule 4:43-3 and denied the

motion.   She reasoned:

           Here, the [c]ourt is compelled to deny
           [d]efendant's sought relief.    Defendant has
           not demonstrated good cause.    Defendant has
           certified about her mistake at filing her
           [a]nswer without the proper [case information
           statement] and filing fee. Defendant received
           deficiency   notices   from  the   Office   of
           Foreclosure after the filings were made with
           notice to correct the mistake within ten days.
           Defendant did not attempt to correct her
           mistake and instead sent her filings to the
           Office of Foreclosure again. Defendant does
           not provide a reason as to why she did not
           rectify the errors. Moreover, [d]efendant has
           not attached her proposed [a]nswer in her
           [m]otion papers for the [c]ourt to determine
           whether there is a meritorious defense.

     On May 9, 2017, plaintiff obtained final judgment for the

second time.   Less than a month later, Joann moved to vacate the

final   judgment   pursuant   to    Rule   4:50-1.   She   supported   her

application with a non-compliant Rule 1:6-6 certification that

improperly contained hearsay and speculated regarding the veracity

of Ena's signature on the loan documents and her competence to

execute those instruments.         She also alleged numerous legal and

                                      4                           A-5197-16T1
factual deficiencies including plaintiff's compliance with the

Fair Foreclosure Act, 
N.J.S.A. 2A:50-53 to -73.

     Judge Rogers denied Joann's motion and correctly observed

that Joann's certification was not based on personal knowledge and

ignored    other   critical   facts   from   the   extensive   procedural

history.   The trial judge considered Joann's application pursuant

to Rule 4:50-1(a) and determined she had established neither

excusable neglect nor a meritorious defense:

            Here,   the    [c]ourt  declines    to   grant
            [d]efendant's relief sought. . . .         The
            [c]ourt does not find excusable neglect. As
            addressed in the [c]ourt's [o]rder dated
            October 28, 2016, [d]efendant was notified to
            correct her deficiency within ten days, but
            instead of doing that [d]efendant sent her
            deficient filings again to the Office of
            Foreclosure on multiple occasions. Defendant
            provided no reasoning as to why she did not
            rectify the errors. Now [d]efendant seeks to
            vacate [f]inal [j]udgment on the same basis,
            which   the   [c]ourt  has   already   denied.
            Moreover, [d]efendant lists numerous alleged
            meritorious defenses, however, there is no
            proof to substantiate these defenses and based
            on [d]efendant's submission as presented,
            these allegations are nothing more than
            hearsay statements.

Joann raises the following points on appeal:

            POINT I

            ONE WEST BANK FSB VIOLATED ALL APPLICABLE
            CONDITION PRECEDENTS. ONE WEST BANK FSB DID
            NOT FULFILL CERTAIN PRE-CONDITIONS PRIOR TO
            THE ONSET OF THIS FRAUDULENT FORECLOSURE


                                      5                           A-5197-16T1
            ACTION.    ONE WEST BANK FSB ENGAGED              IN
            DISREPUTALE AND ILLICIT PRACTICES.

            POINT II

            ORIGINAL LENDER ENGAGED IN PREDACIOUS ABUSE
            IN THE ORIGINATION OF THE ALLEGED MORTGAGE
            TRANSACTION.   ONE WEST BANK FSB SUBMITTED
            DEFECTIVE DOCUMENTS AS PROOF OF STANDING TO
            FORECLOSE AND THE TRIAL COURT ERRED IN THE
            PRESUMPTION OF ITS VALIDITY.

            POINT III

            RELIANCE ON FORGED AND FRAUDULENT EVIDENTIARY
            DOCUMENTS IS BRUTAL AND UNCONSCIONABLE. THE
            APPLICATION OF LAW TO SUCH DOCUMENTS MUST BE
            REVIEWED AND REVERSED.

     After carefully reviewing the record in light of the written

arguments advanced by the parties, we conclude that the issues

presented   by   Joann   are   without   sufficient   merit    to   warrant

extensive discussion in this opinion, R. 2:11-3(e)(1)(A), (E), and

we affirm substantially for the reasons expressed by the trial

judge in her written statements of reasons.      We add the following.

     Our review is governed by Rule 4:50-1, which permits a court,

in its discretion, to relieve a party from a final judgment 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 [Rule] 4:49; (c) fraud
            (whether heretofore denominated intrinsic or
            extrinsic),   misrepresentation,    or   other

                                    6                               A-5197-16T1
          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.

     We review a trial court's grant or denial of a Rule 4:50-1

motion with substantial deference and will not reverse "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]n abuse of discretion

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

inexplicably departed from established policies, or rested on an

impermissible basis.'"   Deutsche Bank Trust Co. Ams. v. Angeles,


428 N.J. Super. 315, 319 (App. Div. 2012) (alteration in original)

(quoting Guillaume, 
209 N.J. at 467-68).      Here, we discern no

abuse of discretion.

     Rule 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."    Guillaume, 
209 N.J. at 467 (quoting Mancini

v. EDS ex rel. N.J. Auto. Full Underwriting Ass'n, 
132 N.J. 330,

334 (1993)).   Relief from a judgment pursuant to Rule 4:50-1 "is

not to be granted lightly."   Cho Hung Bank v. Kim, 361 N.J. Super.


                                 7                          A-5197-16T1
331, 336 (App. Div. 2003).         Rather, Rule 4:50-1 "provides for

extraordinary relief and may be invoked only upon a showing of

exceptional circumstances."       Ross v. Rupert, 
384 N.J. Super. 1, 8

(App. Div. 2006) (quoting Baumann v. Marinaro, 
95 N.J. 380, 393

(1984)).     Indeed, the discretionary authority afforded to the

trial court under Rule 4:50-1 is to be "exercised with equitable

principles in mind, and will not be overturned in the absence of an

abuse of that discretion."       Marder v. Realty Constr. Co., 
84 N.J.

Super. 313, 318 (App. Div. 1964).

     In    addition,   "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 (2018); see also Marder, 
84 N.J. Super. at 318-19.                    That

is so because when a party has no meritorious defense, "[t]he time

of the courts, counsel and litigants should not be taken up by such

a futile proceeding."     Guillaume, 
209 N.J. at 469 (quoting Schulwitz

v. Shuster, 
27 N.J. Super. 554, 561 (App. Div. 1953)).

     Joann does not identify the specific section of Rule 4:50-1

in which she bases her request for relief.                         The trial judge

considered    the   application    pursuant            to   Rule    4:50-1(a)    and

correctly determined that Joann had not demonstrated excusable

neglect or a meritorious defense.                For purposes of completeness,




                                        8                                  A-5197-16T1
we have reviewed the record and do not find support under any

section of Rule 4:50-1, including subsection (f).

        Subsection (f) is a catch-all provision that authorizes a

court to relieve a party from a judgment or order for "any other

reason justifying relief from the operation of the judgment or

order."     R. 4:50-1(f).      "Because of the importance that we attach

to the finality of judgments, relief under Rule 4:50-1(f) is

available     only    when     'truly   exceptional     circumstances    are

present.'"     Hous. Auth. of Morristown v. Little, 
135 N.J. 274, 286

(1994) (quoting Baumann, 
95 N.J. at 395).              "The rule is limited

to 'situations in which, were it not applied, a grave injustice

would occur.'"       Guillaume, 
209 N.J. at 484 (quoting Little, 
135 N.J. at 289).

        On appeal, Joann renews the same arguments that were properly

rejected by the trial court.         Joann has made no showing to justify

vacating the final judgment under any provision of Rule 4:50-1 and

has not established a meritorious defense.              As the trial judge

correctly noted, Joann was not a party to the loan transaction and

failed to provide competent evidence to challenge the note or

mortgage.    Indeed, her "certification" submitted to the trial court

substantially violated Rule 1:6-6 and 1:4-4(b) as it was unsworn and

based     almost    entirely    on   speculation,   legal    arguments   and

inadmissible       hearsay.       Further,   Joann's     appendix   contains

                                        9                           A-5197-16T1
unauthenticated medical records that do not appear to have been

presented to the trial court and which contain inadmissible embedded

hearsay.    See N.J.R.E. 803(c)(6), 805, 808; Konop v. Rosen, 
425 N.J.

Super. 391, 402-03 (App. Div. 2012).

        Finally,   Joann     ignores       the    fact        that   according      to     the

foreclosure complaint, both Ena and Errol paid on the note for years

before Ena died, a fact not disputed in the trial court.                           Further,

after    her   death,     Errol,    a     co-signatory         to    the   disputed       loan

transaction, retained counsel and filed an answer without affirmative

defenses.      Facing a trial date, he further agreed to withdraw his

answer in exchange for plaintiff's forbearance until December 2013.

With Errol's counsel's consent, plaintiff filed an amended complaint

to   name   additional     parties,       but    again    Errol's      counsel      did    not

challenge      service,    standing,       default       or    any    other      element   of

plaintiff's     prima     facie    case    for    foreclosure.             See    Thorpe    v.

Floremoore Corp., 
20 N.J. Super. 34, 37 (App. Div. 1952); see also

Great Falls Bank v. Pardo, 
263 N.J. Super. 388, 394 (Ch. Div.), aff'd,


273 N.J. Super. 542 (App. Div. 1994).

        The record on appeal presents no facts from which we can

conclude the trial judge clearly abused her discretion or that a

grave injustice would occur if the orders under review are not

vacated.       Accordingly, we affirm the final foreclosure judgment

as well as the order denying Joann's motion to vacate the judgment.



                                           10                                       A-5197-16T1
Affirmed.




            11   A-5197-16T1