WORLD SAVINGS BANK v. RUSS BADDOUCH

NOT FOR PUBLICATION WITHOUT THE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-5514-16T3

WORLD SAVINGS BANK

          Plaintiff-Respondent,

v.

RUSS BADDOUCH, his heirs,
devisees, and personal
representatives and his/her,
successors in right, title and
interest, MRS. BADDOUCH, wife
of RUSS BADDOUCH, her heirs,
devisees, and personal
representatives and his/her,
their, or any of their successors
in right, title and interest,

     Defendants.
_______________________________

                    Submitted November 5, 2018 – Decided November 16, 2018

                    Before Judges Haas and Mitterhoff.

                    On appeal from Superior Court of New Jersey,
                    Chancery Division, Ocean County, Docket No. F-
                    023928-07.

                    Blumie P. Baddouch, appellant pro se.
            Reed Smith, LLP, attorneys for the respondent (Henry
            F. Reichner, of counsel and on the brief).

PER CURIAM

      In this residential foreclosure action, non-party appellant Blumie P.

Baddouch1 appeals from the trial court's order denying her motion to vacate the

sheriff's sale, expunge the sheriff's deed, vacate the final judgment, and dismiss

the complaint. We affirm.

      On March 7, 2003, appellant and her husband Daniel Baddouch executed

a note to plaintiff World Savings Bank in the sum of $224,188.00 payable over

a period of 360 months. To secure the payment on the note, they executed a

mortgage against a residential property in Lakewood, New Jersey, which was

recorded on April 2, 2003. On March 25, 2003, appellant and her husband

conveyed their interest in the property to B and A Nutritionals, Inc. The deed

reflecting this conveyance was recorded on May 5, 2003. Also on March 25,

2003, B and A Nutritionals, Inc. conveyed its interest in property, subject to the

mortgage, to defendant Russ Baddouch. The deed reflecting this conveyance

was recorded on December 23, 2004.


1
  Appellant's husband, Daniel Baddouch, filed motions to stay the sheriff's sale
and eviction in the trial court, but did not join appellant in her motion to vacate
the final judgment of foreclosure and sheriff's sale. Therefore, only appellant is
participating in this appeal.
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      The loan went into default with the May 15, 2007 monthly payment, and

the default was never cured. On September 12, 2007, plaintiff filed a foreclosure

complaint, naming as defendants Russ Baddouch, the then-owner of the

mortgaged property, and Mrs. Russ Baddouch. On December 3, 2007, plaintiff

mailed notice to cure, pursuant to the New Jersey Fair Foreclosure Act, to Russ

Baddouch and Mrs. Russ Baddouch.

      On January 28, 2008, plaintiff applied for an uncontested final judgment

of foreclosure. On April 4, 2008, the clerk's office rejected this application and

sent a return notice to plaintiff stating:      "Debtors are Daniel and Blumie

Baddouch. Notice to cure must be sent to them unless plaintiff can certify [they

are] no longer debtors in their records." On April 14, 2008, plaintiff's attorney

certified: "Daniel Baddouch and Blumie P Baddouch have not been included in

this action as party defendants as they conveyed all right, title and interest in the

property prior to the institution of this action and plaintiff does not intend to

pursue a deficiency action against said persons." The trial court then entered a

final judgment and writ of execution on April 24, 2008.

      A sheriff's sale was scheduled for August 26, 2008, but Daniel Baddouch

secured an order dated August 22, 2008, staying the sale until September 22,

2008. Daniel Baddouch and Blumie Baddoch then filed nine federal bankruptcy


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petitions from August 29, 2008 to November 30, 2015, all of which were

dismissed. The mortgaged property was sold at a sheriff's sale on August 16,

2015.

        On May 2, 2017, the trial court denied a motion to stay eviction filed by

Daniel Baddouch. On June 5, 2017, appellant filed a pro se motion to vacate

the sheriff's sale, expunge the sheriff's deed, vacate the final judgment, and

dismiss the complaint pursuant to Rule 4:50-1(d) and (f). The trial court denied

the motion on July 7, 2017. In its order denying the motion, the trial court found

that appellant and her husband were not required to be made parties to the

foreclosure action, because they had conveyed their interest in the mortgaged

property, and because plaintiff was not seeking a deficiency judgment against

them.

        On appeal, appellant raises the following point for our review:

              Point 1 – The [t]rial [c]ourt erred and abused its
              discretion in refusing to vacate the [s]heriff's [s]ale and
              default judgment under Rule 4:50(a), (b), (c), (d) and
              (f).

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

for substantially the same reasons expressed in the trial court's order. We add

only the following comments.



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      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.").

      Appellant argues that the final judgment of foreclosure and sheriff's sale

should be vacated because plaintiff did not name appellant or her husband in the

foreclosure complaint and did not provide them with adequate notice of the

foreclosure. As a non-party to the foreclosure action, however, appellant lacked

standing to seek to vacate the judgment under Rule 4:50-1, which is limited to

"a party or the party's legal representative." The trial court correctly found that

appellant and her husband were not necessary parties to the foreclosure action,

because they had conveyed their interest in the mortgaged property and could


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no longer redeem the property. See Mut. Sav. Fund Harmonia v. Gunne,  110 N.J.L. 41, 54 (1933) (E & A 1933) ("The rule has long been settled that the

maker of a bond secured by mortgage on property owned by him, and who has

conveyed away the property absolutely, is not a necessary party to a foreclosure

of the mortgage, though the complainant may join him as a part y.").

Additionally, appellant and her husband were not necessary parties to the

foreclosure action, because plaintiff waived the right to assert a deficiency

judgment against them. See  N.J.S.A. 2A:50-2 ("No action shall be instituted

against any person answerable on the bond or note unless he has been made a

party in the action to foreclose the mortgage.").

      Moreover, even if appellant had standing, she asserts no meritorious

grounds for relief under Rule 4:50-1. Appellant did not raise any claims under

subsections (a), (b), and (c) to the trial court and far exceeded the one-year time

frame from the entry of judgment required for a motion under these subsections.

R. 4:50-2. Appellant does not present any basis that the foreclosure judgment

was void necessitating relief under Rule 4:50-1(d) or any exceptional

circumstances necessitating relief under Rule 4:50-1(f). Additionally, motions

under Rule 4:50-1(d) and Rule 4:50-1(f) must be made "within a reasonable

time." R. 4:50-2; see also Bascom Corp. v. Chase Manhattan Bank, 363 N.J.


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                                         6 Super. 334, 340 (App. Div. 2003) ("R. 4:50-2 . . . requires all motions under R.

4:50-1 to be brought within a reasonable time."). In this case, appellant was

aware of the foreclosure action since at least August 2008, when her husband

successfully filed for a stay of the sheriff's sale, but did not file a motion t o

vacate the final judgement of foreclosure until nearly nine years later.

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

vacate the final judgment of foreclosure and sheriff's sale. The remaining

arguments raised by appellant are without sufficient merit to warrant discussion

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

      Affirmed.




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