HSBC BANK USA, NA v. CHRISTOPHER KELLY

NOT FOR PUBLICATION WITHOUT THE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-3846-17T2

HSBC BANK USA, NA, AS
TRUSTEE FOR NOMURA
ASSET ACCEPTANCE
CORPORATION MORTGAGE
PASS THROUGH CERTIFICATES,
SERIES 2005-AR4,

          Plaintiff-Respondent,

v.

CHRISTOPHER KELLY,

          Defendant-Appellant,

and

MRS. CHRISTOPHER KELLY, HIS
WIFE, JULETTE MILLIEN-KELLY,
PNC BANK, BANK OF AMERICA,
NATIONAL ASSOCIATION,
BROOKVIEW REHAB FUNDING,
LLC, and OFER ATTIA,

     Defendants.
__________________________________

                    Submitted January 15, 2019 – Decided January 28, 2019
            Before Judges Fisher and Geiger.

            On appeal from Superior Court of New Jersey,
            Chancery Division, Middlesex County, Docket No. F-
            034420-13.

            Christopher Kelly, appellant pro se.

            Reed Smith LLP, attorneys for respondent (Henry F.
            Reichner, of counsel and on the brief).

PER CURIAM

      In this residential foreclosure matter, defendant Christopher Kelly appeals

the denial of his motion to reconsider the denial of his motion to set aside a

sheriff's sale. Finding no merit in his arguments, we affirm.

      We briefly recount the relevant procedural events.        After defendant

defaulted on his mortgage loan, plaintiff filed a complaint seeking foreclosure

in September 2013. Defendant did not appear, and final judgment was entered

in January 2016.

      A July 2016 sheriff's sale was adjourned when defendant finally appeared

to object. The sheriff's sale eventually occurred in September 2017, more than

a year after it was originally scheduled. Less than ten days later, defendant

moved to set the sale aside; the judge denied that request after conducting an

evidentiary hearing on November 3, 2017.



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      Defendant timely moved for reconsideration of the November 3, 2017

order denying his motion to set aside the sheriff's sale. That motion was denied

by order entered on March 16, 2018; the judge's order stated that the reasons for

denial were those set forth on November 3, 2017.

      Defendant appeals only the March 16, 2018 order denying his

reconsideration motion, arguing that plaintiff: (1) "failed to comply with" the

Supreme Court's June 9, 2011 order that amended Rules 4:64-1 and -2; (2)

"failed to file the required certification of diligent inquiry form with its

application for final judgment pursuant to" Rule 4:64-2(d); and "failed to file

the required affidavit of amounts due and owing schedule pursuant to" Rule

4:64-2(d). We find insufficient merit in these arguments to warrant discussion

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

      We add only that the procedural errors urged by defendant relate to those

events that preceded and led to entry of final judgment. Defendant, however,

never opposed entry of final judgment nor did he timely seek relief from the

final judgment pursuant to Rule 4:50. Instead, defendant appeals only an order

that denied reconsideration of an order that denied his motion to set aside a

sheriff's sale. Even at that, defendant has not shown that the arguments he posed

in support of his reconsideration motion were sufficient to require the judge's


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revisiting of his earlier decision. Defendant has not shown that the judge's

November 3, 2017 decision was either based on "a palpably incorrect or

irrational basis" or that the judge did not properly appreciate the significance of

competent evidence offered at that time. Cummings v. Bahr,  295 N.J. Super.
 374, 384 (App. Div. 1996); D'Atria v. D'Atria,  242 N.J. Super. 392, 401 (Ch.

Div. 1990).

      In short, the judge possessed considerable discretion in denying

defendant's reconsideration motion, Cummings,  295 N.J. Super. at 384, and

defendant has offered no principled reason for second-guessing the judge's

discretionary ruling. Instead, the record reveals that the judge closely and

painstakingly examined the arguments defendant raised at the November 3, 2017

evidentiary hearing and rendered sound rulings at that time.

      Affirmed.




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