DITECH FINANCIAL, LLC v. ELENA EVGLEVSKAYA

NOT FOR PUBLICATION WITHOUT THE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-1518-19

DITECH FINANCIAL, LLC,

          Plaintiff-Respondent,

v.

ELENA EVGLEVSKAYA,
AMERICAN EXPRESS BANK,
FSB, JP MORGAN CHASE
BANK, N.A., UNION FEDERAL
MORTGAGE CORP., KEY
EQUIPMENT FINANCE,
JONATHAN NEIL & ASSOCIATES,
INC., ASSIGNEE OF BANK OF
THE WEST, and BMW FINANCIAL
SERVICES, NA, LLC,

          Defendants,

and

VIATCHESLAV STREKALOV,

     Defendant-Appellant.
______________________________

                   Submitted December 13, 2021 – Decided December 23, 2021

                   Before Judges Vernoia and Firko.
               On appeal from the Superior Court of New Jersey,
               Chancery Division, Passaic County, Docket No. F-
               2809-15.

               Viatcheslav Strekalov, appellant pro se.

               Robertson, Anschutz, Schneid, Crane & Partners,
               PLLC, attorneys for respondent (John D. Krohn, on the
               brief).

PER CURIAM

      In this residential foreclosure action, defendant Viatcheslav Strekalov

appeals from a November 19, 2019 Chancery Division order denying his motion

requesting denial of a writ of possession issued following the entry of an order

granting plaintiff-mortgagee Ditech Financial, LLC summary judgment and

denying defendant summary judgment. We affirm.

                                         I.

      This matter comes before us again. We previously affirmed defendant's

appeal from the final judgment of foreclosure.            Ditech Financial, LLC v.

Evglevskaya, No. A-2633-17 (App. Div. July 16, 2019). The chronology is set

forth in our unpublished opinion, and we incorporate, by reference, the facts

stated there. We briefly summarize the facts taken from the record pertinent to

this appeal.




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      On January 6, 1997, Vitaly Bushteyn (Bushteyn) acquired title to the

property located at 11 Shoshone Trail in Wayne (the property) and signed a

mortgage with World Savings Bank on January 8, 1997. Bushteyn recorded the

deed on January 9, 1997. Bushteyn conveyed title to the property by deed to

defendant on October 30, 2003. Defendant then recorded the deed on March 22,

2004, before executing "an open[-]end mortgage in favor or J.P. Morgan Chase

Bank." On November 12, 2004, defendant conveyed title to the property by

deed to himself and co-defendant Elena Evglevskaya (collectively defendants),

which they recorded on December 3, 2004.

      Defendants secured a thirty-year $330,000 loan from Coastal Capital Corp

d/b/a the Mortgage Shop (Coastal Capital) by executing a mortgage on the

property to Mortgage Electronic Registration Systems, Inc. (MERS), a nominee

for Coastal Capital. Evglevskaya executed the promissory note as the sole

borrower. Defendant used a portion of the funds to pay off the outstanding 1997

loan obtained by Bushteyn.

      On May 30, 2012, MERS assigned the mortgage to Bank of America

(BANA), which BANA recorded on June 4, 2012. A year later, on June 18,

2013, BANA assigned the mortgage to Green Tree Servicing (Green Tree), and

it recorded the assignment on July 12, 2013.        Evglevskaya subsequently


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defaulted on the loan, and Green Tree filed a foreclosure action on January 26,

2015. Green Tree merged with Ditech Mortgage Corporation and DT Holdings,

LLC approximately seven months later. Green Tree then changed its name to

Ditech Financial, LLC (plaintiff) following the merger. Following a period of

discovery, plaintiff filed motions for summary judgment and to substitute its elf

as plaintiff in place of Green Tree, which the trial court granted.

        During the foreclosure action, defendant filed a third-party action against

the Federal National Mortgage Association (Fannie Mae) and BANA. The trial

court dismissed the third-party action on June 8, 2016.          We affirmed the

dismissal in an unpublished opinion, Strekalov v. Bank of Am., N.A., No. A-

4360-16 (App. Div. Jan. 11, 2019).

        The trial court entered a final judgment order on January 30, 2018, after

plaintiff filed a notice of motion for entry of judgment of for eclosure on

November 22, 2017.        The order provided plaintiff was owed the sum of

$546,532.79 and required the property to be sold in order to satisfy the balance

owed.

        Following our decision affirming the entry of final judgment of

foreclosure, defendant filed a motion seeking to stay the sheriff's sale. On July

3, 2019, the judge denied defendant's motion. On July 9, 2019, the sheriff's sale


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went forward, and an individual named Maher Kour purchased the property.

Defendant subsequently moved to have the judge vacate the sheriff's sale on July

31, 2019, but the judge denied the motion following a hearing on October 16,

2019. 1 On August 21, 2019, Kour filed a writ of possession relative to the

property. On October 21, 2019, defendant filed a motion to "dismiss the results

of the hearing on October 16[], 2019[,] based on a claim that the [c]ourt did not

consider certain facts."      The judge construed this motion as one for

reconsideration. Subsequently, on November 6, 2019, defendant filed a motion

"to deny [the] writ of possession that was issued to . . . Kour concerning" the

property.

        On November 19, 2019, the judge heard oral argument on both of

defendant's motions. The judge summarized defendant's main contentions were

that "there was a gap . . . when Fannie Mae transferred its rights or [BANA]

purported to have acquired rights," and "someone else was to pay" the 1997

mortgage. The judge held that this was not "the forum to complain about a

failure of participants" in the prior litigation. In addition, the judge reasoned

that "the fundamental problem" was defendant previously presented the same

arguments to the predecessor Chancery judge, who decided these issues before


1
    Defendant did not provide the transcript from the October 16, 2019 hearing.
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defendant filed his appeal. The prior judge found defendant filed the previous

"action alleging fraud but could not provide proof of fraud against [BANA]".

The judge explained to defendant that his recourse from our affirmance was to

petition the New Jersey Supreme Court, not request "another hearing" and "show

. . . there was fraud." Ultimately, the judge concluded his "decision in October,

which really was a reconsideration to some degree of what happened prior . . . ,

was [not] palpably incorrect or irrational or that [he] failed to consider the

arguments being made."

      As to defendant's motion to deny writ of possession, the judge found "no

basis . . . to now undo the [s]heriff's sale." The judge explained defendant had

ten days to make an application to object to the sale, "not to reopen the case"

and vacate the sale.    Consequently, the judge declined to "undo the final

judgment and allow [defendant] to relitigate that which was litigated and

brought to the Appellate Division" when "[t]here's already an owner of the

property." The judge issued two memorializing orders on November 19, 2019—

one denying defendant's motion to deny writ of possession and the other denying

defendant's motion for reconsideration of the October 16, 2019 order denying

his motion to vacate the sheriff's sale. This appeal ensued.




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        In his appellate brief, defendant failed to provide point headings in

violation of Rule 2:6-2(a)(6).2     However, from his brief, we interpret his

arguments to assert the judge erred because the writ of possession is void; the

judge ignored evidence demonstrating fraud; consumer discrimination based on

plaintiff's alleged deception upon the court, "American citizens and companies";

and an alleged illegal "transfer of rights" of the note between BANA and

plaintiff. Defendant contends the "loan in question" was sold to Fannie Mae,

and as of July 1, 2012, BANA was "officially removed from the management of

the loan" by Fannie Mae. Defendant seeks to vacate the judgment of foreclosure,

the sheriff's sale, and writ of possession.      Since we already affirmed the

judgment of foreclosure, defendant's other arguments lack merit warranting

discussion in a written opinion under Rule 2:11-3(e)(1)(E).              We affirm




 2 Rule 2:6-2(a)(6) provides:

              The legal argument for the appellant, which shall be
              divided, under appropriate point headings, [shall be]
              distinctively printed or typed, into as many parts as
              there are points to be argued. For every point, the
              appellant shall include in parentheses at the end of the
              point heading the place in the record where the opinion
              or ruling in question is located or if the issue was not
              raised below a statement indicating that the issue was
              not raised below.
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substantially for the reasons expressed by the Chancery judge and add the

following brief remarks.

      Appellate courts reviewing a trial court's findings adhere to a well -settled

standard of review. "The general rule is that findings by the trial court are

binding on appeal when supported by adequate, substantial, credible evidence."

Gnall v Gnall,  222 N.J. 414, 428 (2015) (citing Cesare v. Cesare,  154 N.J. 394,

411-12 (1998)). "Therefore, an appellate court should not disturb the factual

findings and legal conclusions of the trial judge unless [it is] convinced that they

are so manifestly unsupported by or inconsistent with the competent, relevan t

and reasonably credible evidence as to offend the interests of justice." K.D. v.

A.S.,  462 N.J. Super. 619, 633-34 (App. Div. 2020) (alteration in original)

(internal quotations omitted) (quoting Cesare,  154 N.J. at 412).

      We also bear in mind that appellate courts are generally reluctant to

interfere with the exercise of judgment by a court of equity, therefore, [a

reviewing court] must accord considerable deference to the discretion of the

judges who make such equitable rulings. Sears Mortg. Corp. v. Rose,  134 N.J.
 326, 354 (1993). "[A] judge sitting in a court of equity has a broad range of

discretion to fashion the appropriate remedy in order to vindicate a wrong

consistent with principles of fairness, justice, and the law." Graziano v. Grant,


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 326 N.J. Super. 328, 342 (App. Div. 1999). However, we review the trial court's

determinations on legal issues de novo. In re Pantano,  428 N.J. Super. 478, 483

(App. Div. 2013) (citing Manalapan Realty v. Twp. Comm.,  140 N.J. 366, 378

(1995)) a trial judge's "interpretation of the law and the legal consequences that

flow from established facts are not entitled to any special deference." Ibid.

      "Motions for reconsideration are governed by Rule 4:49-2, which provides

that the decision to grant or deny a motion for reconsideration rests within the

sound discretion of the trial court." Branch v. Cream-O-Land Dairy,  244 N.J.
 567, 582 (2021); Kornbleuth v. Westover,  241 N.J. 289, 301 (2020); Pitney

Bowes Bank, Inc. v. ABC Caging Fulfillment,  440 N.J. Super. 378, 382 (App.

Div. 2015). Reconsideration "is not appropriate merely because a litigant is

dissatisfied with a decision of the court or wishes to reargue a motion." Palombi

v. Palombi,  414 N.J. Super. 274, 288 (App. Div. 2010).

      A reconsideration motion "cannot be used to expand the record and

reargue a motion" but "is only to point out the matters or controlling decisions

which counsel believes the court has overlooked or as to which it has erred."

Cap. Fin. Co. of Del. Valley, Inc. v. Asterbadi,  398 N.J. Super. 299, 310 (App.

Div. 2008) (internal quotation marks omitted) (quoting R. 4:49-2). "In short, a

motion for reconsideration provides the court, and not the litigant, with an


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opportunity to take a second bite at the apple to correct errors inherent in a prior

ruling." Medina v. Pitta,  442 N.J. Super. 1, 18 (App. Div. 2015).

      Instead, reconsideration

            should be utilized only for those cases which fall into
            that narrow corridor in which either . . . the [c]ourt has
            expressed its decision based upon a palpably incorrect
            or irrational basis, or . . . it is obvious that the [c]ourt
            either did not consider, or failed to appreciate the
            significance of probative, competent evidence.

            [Palombi,  414 N.J. Super. at 288 (quoting D'Atria v.
            D'Atria,  242 N.J. Super. 392, 401 (Ch. Div. 1990))].

Thus, we may not disturb a trial court judge's denial of a motion for

reconsideration absent an abuse of discretion. Pitney Bowes Bank,  440 N.J.

Super. at 382. An "abuse of discretion only arises on [a] demonstration of

'manifest error or injustice,'" Hisenaj v. Kuehner,  194 N.J. 6, 20 (2008) (quoting

State v. Torres,  183 N.J. 554, 572 (2005)), and occurs when the judge's decision

is "made without a rational explanation, inexplicably departed from established

policies, or rested on an impermissible basis," Milne v. Goldenberg,  428 N.J.

Super. 184, 197 (App. Div. 2012) (quoting Flagg v. Essex Cnty. Prosecutor,  171 N.J. 561, 571 (2002)).

      "[F]oreclosure proceedings seek primary or principal relief which is

equitable in nature . . . ." U.S. ex rel. U.S. Dep't of Agric. v. Scurry, 193 N.J.


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492, 502 (2008). This court reviews a trial court's decision declining to set aside

a sheriff's sale under the abuse of discretion standard. See id. at 501-02 (citing

First Tr. Nat'l Ass'n v. Merola,  319 N.J. Super. 44, 49 (App. Div. 1999)). Rule

4:65-5 governs a motion to vacate a sheriff's sale. The rule requires serving an

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

before the delivery of the conveyance." R. 4:65-5. "Examples of valid grounds

for objection include fraud, accident, surprise, irregularity, or impropriety in the

sheriff's sale." Brookshire Equities v. Montaquiza,  346 N.J. Super. 310, 317

(App. Div. 2002) (citing Orange Land Co. v. Bender,  96 N.J. Super. 158, 164

(App. Div. 1967)).

      Here, defendant did not move to vacate the sheriff's sale until twenty -two

days after the sale took place—twelve days beyond the ten-day requirement set

forth in Rule 4:65-5. Kour promptly and rightfully filed a writ of possession

thereafter. The judge correctly determined there was an absence of fraud or any

other bases to vacate the sheriff's sale or "deny" the writ of possession. Based

upon our careful review of the record, we discern no abuse of discretion.

Brookshire Equities,  364 N.J. Super. at 317 (citing Orange Land Co.,  96 N.J.

Super. at 164).




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      Moreover, the prior Chancery judge concluded defendant "could not

provide proof of fraud against" BANA. The record supports that determination.

Defendant has not provided any evidence or substantive arguments

demonstrating the alleged manifest error. Hisenaj,  194 N.J. at 20 (quoting

Torres,  183 N.J. at 572). Therefore, we discern no basis to disturb the judge's

November 19, 2019 findings or orders.

      Affirmed.




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