WELLS FARGO BANK, N.A v. MICHAEL J. CARRANO

NOT FOR PUBLICATION WITHOUT THE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-2019-19T4

WELLS FARGO BANK, N.A.,

          Plaintiff-Respondent,

v.

MICHAEL J. CARRANO
AND DEBRA CARRANO,

          Defendants-Appellants,

and

HOUSEHOLD FINANCE
CORPORATION, III; NEW
CENTURY FINANCIAL SERVICES,

     Defendants.
_______________________________

                   Submitted November 18, 2020 – Decided December 30, 2020

                   Before Judges Accurso and Enright.

                   On appeal from the Superior Court of New Jersey,
                   Chancery Division, Bergen County, Docket No.
                   F-025411-13.
            Michael J. Carrano and Debra Carrano, appellants pro
            se.

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

PER CURIAM

      In this residential mortgage foreclosure matter, defendants Michael J.

Carrano and Debra Carrano appeal from a December 20, 2019 reconsideration

order. We affirm, substantially for the reasons set forth in the well-reasoned

opinion of Judge Joan Bedrin Murray.

      Defendants purchased their home in Lyndhurst (the property) in 2005. In

2007, they refinanced the property and executed a note to AHM Mortgage in the

sum of $289,493. To secure repayment, defendants executed a mortgage to

Mortgage Electronic Registration Systems, Inc. (MERS), as nominee for AHM

Mortgage. The mortgage was assigned to plaintiff Wells Fargo Bank, N.A. in

March 2009.    Defendants entered into loan modification agreements twice

before they defaulted on the loan in November 2010.

      Plaintiff commenced its foreclosure action against defendants in July

2013. The following month, defendants filed an answer. While represented by

counsel, they agreed to withdraw their answer and enter into a consent order

with plaintiff in March 2014. The consent order allowed plaintiff to proceed on


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an uncontested basis in the foreclosure action, in exchange for its agreement to

delay seeking entry of final judgment.      An uncontested final judgment for

foreclosure was entered against defendants in July 2016.

      Plaintiff arranged for the property to be sold at a sheriff's sale in May

2017. Defendants twice exercised their statutory right to an adjournment of the

sale date. On the day finally set for the sale, defendants filed a Chapter 13

bankruptcy petition. Their bankruptcy action automatically stayed the sheriff's

sale until the bankruptcy petition was dismissed. The sheriff's sale occurred on

January 5, 2018, at which time, plaintiff submitted the winning bid.

      Plaintiff sold the property to a third-party buyer (buyer), who recorded his

deed in September 2019. The buyer filed a Special Civil Part action to eject

defendants from the property. In response, defendants filed a motion with the

Chancery Division under the foreclosure docket, entitled "Motion to Remove

Action from the Civil Court Due to Incorrect Dollar Amount, Failure of Plaintiff

to Prove Standing and Colorable Title."

      Judge Murray treated defendants' motion as a motion to vacate the sale of

the property to plaintiff. On November 12, 2019, the judge denied defendants'

motion, finding it was untimely under Rule 4:65-5 because defendants did not

object "within [ten] days after the sale [to plaintiff] or at any time thereafter


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before the delivery of the conveyance." R. 4:65-5. Additionally, Judge Murray

considered defendants' various claims and concluded:

                   The Chancery Division has the authority to set
             aside a sheriff’s sale and order a resale of property on a
             discretionary basis. Crane V. Bielski,  15 N.J. 342, 346
             (1954) . . . . However, a sheriff’s sale should be set
             aside only in rare instances where it is necessary for
             compelling reasons to remedy a plain injustice. E.
             Jersey Sav. & Loan [Ass'n] v. Shatto, 226 N.J. Super.
             473, 476 (Ch. Div. 1987) . . . . In an application to
             vacate a sale, the movant bears the burden of proof.
             Shatto, . . .  226 N.J. Super. at 479.

                   ....

                   In the instant matter, defendants have not set
             forth a reason to vacate the sheriff’s sale. While
             defendants claim there were "multiple frauds"
             committed throughout the mortgage execution and
             foreclosure process, there is no proof advanced in this
             regard. Further, there are no showings of irregularities
             with the foreclosure sale process. Defendants used
             their statutory adjournments, demonstrating their
             understanding of the process and the scheduled sale.
             Moreover, there is no evidence of accident, surprise or
             mistake.

      Additionally, Judge Murray found she had "no authority over the private

sale between plaintiff and [its buyer, which] occurred over a year after the

sheriff's sale. Defendants' right to object to the sheriff's sale expired over a year

before they filed the instant motion."



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      Defendants moved for reconsideration of this decision. On December 20,

2019, Judge Murray denied the reconsideration motion, reasoning:

            defendants repeat allegations of fraud in the chain of
            assignments of the mortgage. They aver they were
            fraudulently deprived [of] information about other
            options when they executed the mortgage. They
            challenge the validity of the deed into the current owner
            . . . due to the manner in which plaintiff is named. As
            to all of these claims, they ask for permission to conduct
            discovery.

                   In sum, defendants' arguments fall short in light
            of the facts. They withdrew their contesting answer
            more than five years ago, permitting the litigation to
            proceed uncontested. They had the opportunity to
            litigate the issues they now raise but chose not to. Also,
            defendants made no objections to plaintiff's motion for
            final judgment. Moreover, they received the mortgage
            proceeds in 2007 and defaulted just three years later.
            Yet, they have remained in the property for the past
            nine years without paying principal and interest,
            property taxes or hazard insurance.

                   Now defendants seek to halt a separate action
            filed by [the buyer] to eject them from the premises by
            having the matter returned to the Chancery Division.
            The foreclosure matter, however, is concluded. The
            property has been sold to a third party. This court has
            no authority to remove the [buyer's] action.

      On appeal, defendants argue the denial of their reconsideration motion

was error because Judge Murray failed to consider "the illegal actions of the

mortgagees and the entities that later allegedly transferred the two mortgages."


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Additionally, defendants contend the judge overlooked the "illegal actions of

Wells Fargo when they failed to honor the Federal requirement of a 'face-to-

face' meeting." We are not persuaded.

      A motion for reconsideration is not a chance to get "a second bite of the

apple." Fusco v. Bd. of Educ. of City of Newark,  349 N.J. Super. 455, 463 (App.

Div. 2002). Further, "[r]econsideration is a matter within the sound discretion

of the court, to be exercised in the interest of justice." D'Atria v. D'Atria,  242 N.J. Super. 393, 401 (Ch. Div. 1990).

      Reconsideration is appropriate in two circumstances: (1) when the court's

decision is "based upon a palpably incorrect or irrational basis," or (2) when "it

is obvious that the [c]ourt either did not consider, or failed to appreciate the

significance of probative, competent evidence." Cummings v. Bahr,  295 N.J.

Super. 374, 384 (App. Div. 1996) (quoting D'Atria,  242 N.J. Super. at 401).

When a litigant is dissatisfied with a court's decision, reconsideration is not

appropriate; rather, the litigant should pursue an appeal.      D'Atria,  242 N.J.

Super. at 401. Nonetheless, a court, in the interest of justice, can consider new

information a litigant brings to the court's attention, provided the litigant could

not have produced the information in the first motion. Ibid. A motion for

reconsideration is not "a vehicle to introduce new evidence in order to cure an


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inadequacy in the motion record." Capital Fin. Co. of Del. Valley v. Asterbadi,

 398 N.J. Super. 299, 310 (App. Div. 2008) (citing Cummings,  295 N.J. Super.

at 384).

      Guided by these standards, we are satisfied Judge Murray properly denied

defendants' motion for reconsideration under Rule 4:49-2.           Contrary to

defendants' arguments, the record does not reflect Judge Murray based her

November 12, 2019 decision "upon a palpably incorrect or irrational basis" nor

did she fail to "consider or fail[] to appreciate the significance of probative,

competent evidence." Palombi v. Palombi,  414 N.J. Super. 274, 288 (App. Div.

2010).

      We add that the relief defendants sought before Judge Murray turned on

whether the consent order they entered into in March 2014 should have been set

aside, thereby permitting them to assert their substantive claims. However, it is

axiomatic that "settlements will usually be honored 'absent compelling

circumstances.'"    Brundage v. Est. of Carambio,  195 N.J. 575, 601

(2008) (quoting Nolan v. Lee Ho,  120 N.J. 465, 472 (1990)). "Compelling

circumstances include 'mutual mistake, undue haste, pressure or unseemly

conduct in settlement negotiations.'" Smith v. Fireworks by Girone, Inc.,  380 N.J. Super. 273, 291-92 (App. Div. 2005) (quoting AT&T Corp. v. Twp. of


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Morris,  19 N.J. Tax 319, 322 (2000)). The party seeking to set aside the

settlement must adduce "clear and convincing proof" why he or she should be

relieved of the terms in the settlement. Nolan,  120 N.J. at 472 (citing DeCaro

v. DeCaro,  13 N.J. 36, 42 (1953)). As Judge Murray noted in her November 12,

2019 order, defendants failed to assert any compelling circumstances that

justified relief. Moreover, in denying defendants' motion for reconsideration,

the judge concluded defendants "failed to show a palpably incorrect basis for

the court's denial of the underlying motion, nor do they demonstrate that the

court acted in an arbitrary, capricious or unreasonable manner."

      As defendants were represented by counsel when they executed the March

2014 consent order, and Judge Murray correctly applied the legal principles

governing their reconsideration motion, we perceive no basis to second-guess

the December 20, 2019 order.      We have considered defendants' remaining

arguments in light of the record and applicable legal principles and conclude

they are without sufficient merit to warrant discussion in a written

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

      Affirmed.




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