WELLS FARGO BANK, NA v. ANDREA Z. GUNTER-KING

NOT FOR PUBLICATION WITHOUT THE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-4954-17T2

WELLS FARGO BANK, NA,

          Plaintiff-Respondent,

v.

ANDREA Z. GUNTER-KING
and JOHNNIE KING,

     Defendants-Appellants.
_____________________________

                    Submitted January 21, 2020 – Decided March 3, 2020

                    Before Judges Messano and Ostrer.

                    On appeal from the Superior Court of New Jersey,
                    Chancery Division, Burlington County, Docket No. F-
                    016723-15.

                    Joshua Louis Thomas (Joshua L.                                  Thomas          &
                    Associates), attorney for appellants.

                    Reed Smith, LLP, attorneys for respondent (Henry F.
                    Reichner, of counsel; Ethan R. Buttner, on the brief).

PER CURIAM
      In 2008, defendant Andrea Z. Gunter-King executed a mortgage and

mortgage note in the amount of $408,000 in favor of Wachovia Bank, FSB,

predecessor of plaintiff Wells Fargo Bank, NA. See Suser v. Wachovia Mortg.,

FSB,  433 N.J. Super. 317, 321 (App. Div. 2013) ("Wachovia was acquired by

and merged into Wells Fargo effective November 1, 2009."). The loan went into

default in July 2012, and plaintiff filed a complaint in foreclosure against

defendant and her husband, defendant Johnnie King.

      Gunter-King filed a pro se answer, but, because default was entered

against King, defense counsel's efforts to file an amended contesting answer on

behalf of both defendants failed. The amended answer, drafted by Keveney

Legal Group, LLC, (KLG), over the signature of appellants' current counsel who

was then a member of that firm, was accepted for filing only as to Gunter-King.

Among other things, the amended answer challenged plaintiff's standing to file

the foreclosure complaint.

      While King's motion to vacate default was pending, plaintiff moved for

summary judgment.      On February 4, 2016, while represented by KLG,

defendants entered into a consent order whereby: 1) Gunter-King's answer was

deemed non-contesting; 2) defendants withdrew their motion to vacate and

plaintiff withdrew its motion for summary judgment; 3) the matter w as referred


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to the Office of Foreclosure for further proceedings and entry of final judgment

as an uncontested matter; 4) plaintiff agreed not to apply to the court for final

judgment before June 1, 2016; and 5) plaintiff waived any deficiency amount.

      Plaintiff applied for final judgment, defendants filed no objections and the

Office of Foreclosure entered final judgment on July 19, 2016. In February

2017, defendants attempted to file a self-titled "Motion for Injunctive Relief for

False Claim/Nunc Pro Tunc." Being unable to identify the exact nature of the

document, the clerk rejected it and advised defendants to file a conforming

motion, providing them with instructions. A sheriff's sale was scheduled for

March 2, 2017, and defendants' emergent motion to stay the sale was denied, as

was their motion for reconsideration.

      Defendants filed multiple bankruptcy petitions, which resulted in stays of

the sale, until January 2018. Then, represented by current counsel, defendants

filed motions to vacate final judgment and stay the sheriff's sale. The motion to

stay was denied, but Gunter-King again filed for bankruptcy protection, which

again stayed the sale. Although intervening circumstances are not clear from

the appellate record, the sheriff's sale was again scheduled for April 12, 2018.

Defendants' emergent motion to stay the sale was denied.




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      Defendants' certification in support of the motion to vacate final judgment

was premised upon "lack of jurisdiction, lack of standing, and fraud upon the

court."   Citing "recently discovered" deficiencies contained in documents

submitted in support of plaintiff's motion for summary judgment , as well as

litigation in the federal courts resulting in injunctive relief against plaintiff and

other lenders, defendants claimed that plaintiff "fraud[ulently]" induced them

to enter into the "predatory" loan and consent order.

      On June 8, 2018, Judge Kathi F. Fiamingo heard oral argument on

defendants' motion to vacate final judgment. The notice of motion is not part of

the appellate record, and it is unclear exactly which subsections of Rule 4:50-1

defendants asserted provided relief.         During argument, counsel claimed

defendants were entitled to relief under Rule 4:50-1(a) ("mistake, inadvertence,

surprise, or excusable neglect") and (f) ("any other reason justifying relief"). He

argued that KLG, defendants' former counsel and his former firm, did not

adequately advise defendants before they entered into the consent order, and that

"[he] did not personally review" defendants' contesting answer "although it was

submitted under [his] name." Recognizing the one-year time limit for seeking

relief from judgment under subsection (a), see Rule 4:50-2, counsel argued that

defendants' pro se motion seeking relief was filed within one year of the July


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2016 final judgment, but was "never heard . . . because of the bankruptcies[.]"

Counsel also said that "if this [motion was filed] within the year, I would be

arguing very strongly under (a)."      Counsel did not argue that relief was

warranted under subsection (d) ("the judgment . . . is void"), although that

contention apparently was raised in the papers.

      Judge Fiamingo denied defendants' motion. In a comprehensive written

opinion, the judge initially rejected defendants' claim that the judgment was void

because the summary judgment record failed to demonstrate the subject note and

mortgage were transferred to plaintiff upon the merger with Wachovia, and,

therefore, plaintiff lacked standing. Judge Fiamingo quoted our decision in

Deutsche Bank Nat'l Tr. Co. v. Russo, where we said: "[S]tanding is not a

jurisdictional issue in our State court system and, therefore, a foreclosure

judgment obtained by a party that lacked standing is not 'void' within the

meaning of Rule 4:50-1(d)."  429 N.J. Super. 91, 101 (App. Div. 2012).

      Judge Fiamingo then reviewed controlling precedent under subsection (f)

of Rule 4:50-1. She noted that "[r]elief under [subsection (f)] is reserved for

situations where 'truly exceptional circumstances are present[,]'" and "is limited

to 'situations in which, were it not applied, a grave injustice would occur.'"

(quoting Hous. Auth. of Morristown v. Little,  135 N.J. 274, 286, 289 (1994)).


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The judge observed that defendants entered into the consent order while

represented by counsel, and there was no evidence that defendants' consent "was

. . . obtained through any fraud or misrepresentation of plaintiff."

      Judge Fiamingo also rejected defendants' claims that they "only 'recently

discovered' claimed deficiencies in the certification submitted by plaintiff in

support of the withdrawn motion for summary judgment which . . . would have

materially changed their decision to enter into the consent order." The judge

noted that defendants' predatory lending claims were not based on "recently

discovered" facts because "all of the documents to which they refer[red] and

upon which they base[d] their claim were in existence long before they entered

into the consent order."

      Lastly, Judge Fiamingo observed that the contesting answer defendants

filed "alleged most of the issues [they] now wish to litigate and which they

maintain they have yet to have a hearing on."            However, "[d]efendants

voluntarily dismissed those claims when they entered into the consent order."

Judge Fiamingo entered an order denying defendants' motion to vacate final

judgment.

      Before us, defendants essentially argue the merits of defenses asserted in

their contesting answer and conclude by urging us not only to vacate final


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judgment but to "dismiss the foreclosure action with prejudice due to . . .

[plaintiff's] lack of standing, fraud upon the court, unclean hands , and

continuous engagement in the unlawful practices" enjoined by "state and federal

authorities prior to [the] commencement of this instant matter."

      We review a trial court's decision on a motion to vacate final judgment for

an abuse of discretion. U.S. Bank Nat'l Ass'n v. Guillaume,  209 N.J. 449, 467

(2012). We reject defendant's arguments and affirm the order under review

substantially for the reasons expressed by Judge Fiamingo. 1 We add only the

following.

      The relief defendants seek ultimately turns on whether the consent order

should be set aside, thereby permitting defendants to assert their substantive

claims. However, it is axiomatic that "settlements will usually be honored

'absent compelling circumstances.'" Brundage v. Estate 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,


1
  Although Judge Fiamingo did not address subsection (a) of Rule 4:50-1 in her
opinion, defendants do not cite, or make any argument regarding, that subsection
in their brief. An issue not briefed is waived. Drinker Biddle & Reath, LLP v.
N.J. Dep't of Law & Pub. Safety, Div. of Law,  421 N.J. Super. 489, 496 n.5
(App. Div. 2011).
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Inc.,  380 N.J. Super. 273, 291–92 (App. Div. 2005) (quoting AT&T Corp. v.

Twp. of 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 (1953)). As Judge Fiamingo noted, defendants failed to

assert any compelling circumstances that justified relief.

      Affirmed.




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