WELLS FARGO BANK, N.A. v. MONICA ZUNIGA-KOSTADINOV (F-025088-14, ESSEX COUNTY AND STATEWIDE) ( 2022 )

NOT FOR PUBLICATION WITHOUT THE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-1768-20
WELLS FARGO BANK, N.A.,
Plaintiff-Respondent,
v.
MONICA ZUNIGA-
KOSTADINOV, a/k/a MONICA
KOSTADINOV,
Defendant-Appellant,
and
PALMERA GROUP LIMITED
LIABILITY COMPANY,
FIA CARD SERVICES, N.A., and
ARTISAN BAKERS GROUP, LLC,
Defendants.
______________________________
Submitted January 24, 2022 – Decided March 7, 2022
Before Judges Accurso and Enright.
On appeal from the Superior Court of New Jersey,
Chancery Division, Essex County, Docket No.
F-025088-14.
Kenneth Rosellini, attorney for appellant.
Reed Smith, LLP, attorneys for respondent (Henry F.
Reichner, of counsel and on the brief).
PER CURIAM
Defendant Monica Zuniga-Kostadinov appeals from a February 1, 2021
post-judgment order entered in this foreclosure action. The order under review
denied her application to vacate prior orders rejecting her request to set aside a
sheriff's sale. We affirm.
In September 2005, defendant borrowed $441,050 from Wachovia Bank,
National Association. She executed a note evidencing the loan, and to secure
the payment of the debt, she executed a mortgage against her home in
Livingston. The mortgage was duly recorded. Defendant defaulted on the loan
in July 2009, and in 2011, she transferred title to the mortgaged property to
Palmera Group Limited Liability Company (Palmera).
In June 2014, plaintiff Wells Fargo, N.A., successor by merger to
Wachovia, commenced this foreclosure action. Defendant did not answer, and
final judgment was entered in favor of Wells Fargo in February 2016.
On June 6, 2016, plaintiff mailed a copy of a notice of sheriff's sale to
defendant by regular and certified mail, return receipt requested, informing her
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the sale was schedule for June 21, 2016. The sale was postponed over a dozen
times, due to emergent applications to stay the sale, defendant's failed efforts at
loss mitigation, and her bankruptcy filings.
On October 11, 2019, plaintiff's counsel sent notice to defendant by
certified mail, return receipt requested, confirming the sheriff's sale was
rescheduled to October 22, 2019. The sheriff's sale proceeded on October 22,
and the following month, defendant moved to vacate and set aside the sale. The
Chancery Division judge denied her application on December 6, 2019.
Defendant moved for reconsideration and that motion was denied on February
14, 2020. Ten months later, defendant moved to vacate the December 6 and
February 14 orders, contending she never received notice of the October 22,
2019 sale date.
In support of her application, defendant provided a certification from her
mail carrier. The carrier certified she delivered mail to defendant's home in
Livingston and remembered the tracking number for the letter plaintiff sent to
defendant, notifying defendant of the impending sheriff's sale. The mail carrier
certified "[t]he tracking number confirmed that the letter was delivered on
October 15, 2019." She also stated she "specifically remember[ed] delivering
the letter because [d]efendant's mailbox had a lot of junk mail . . . and the letter
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was mixed in there." The mail carrier further certified the letter was not signed
by defendant. Instead, the carrier admitted she signed for the letter on her
"scanner as a courtesy so [defendant] would not miss the certified mail." Noting
defendant was "not present" when the carrier signed for the letter without
defendant's authorization, the carrier certified it was "common practice in the
Livingston USPS mail area that we sign[ed] certified mail on behalf of some
residents as a courtesy so the residents [did not] miss the letter."
Following argument on defendant's motion to vacate the December 6 and
February 14 orders, the Chancery Division judge concluded:
I'm not vacating my denial of the motion to reconsider
from February, nor my denial of the motion to vacate
from December, and I'm not vacating the sheriff's sale.
It appears to me that everything was done correctly here
to the point now where we actually have [the mail
carrier] indicating, . . . "I delivered the notice." . . . . I
also note that the Samojeden1 case indicates that notices
of sale after adjournments can be by regular mail.
On appeal, defendant argues the judge abused his discretion by refusing
to vacate the sheriff's sale. She also contends her "motion to vacate and for other
relief at the trial court should have been granted pursuant to Rule 4:50-1(f)."
1
First Mut. Corp. v. Samojeden, 214 N.J. Super. 122, 123 (App. Div. 1986).
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We find insufficient merit in her arguments to warrant further discussion in a
written opinion. R. 2:11-3(e)(1)(E). We add only these few comments.
"[A]n application to open, vacate, or otherwise set aside a foreclosure
judgment or proceedings subsequent thereto is subject to an abuse of discretion
standard." United States v. Scurry, 193 N.J. 492, 502 (2008). An abuse of
discretion occurs "when a decision is 'made without a rational explanation,
inexplicably departed from established policies, or rested on an impermissible
basis.'" U.S. Bank Nat'l Ass'n v. Guillaume, 209 N.J. 449, 467-68
(2012) (quoting Iliadis v. Wal-Mart Stores, Inc., 191 N.J. 88, 123 (2007)).
Similarly, we review the denial of a motion under Rule 4:50-1 for an abuse of
discretion. Deutsche Bank Nat'l Tr. Co. v. Russo, 429 N.J. Super. 91, 98 (App.
Div. 2012).
Courts in this State have the authority to set aside a sheriff's sale "for
fraud, accident, surprise, or mistake, irregularities in the conduct of the sale, or
for other equitable consideration." First Tr. Nat. Ass'n v. Merola, 319 N.J.
Super. 44, 50 (App. Div. 1999). Despite the court's broad discretion to employ
equitable remedies, the power to set aside a sheriff's sale should be "sparingly
exercised." Id. at 52. Likewise, we are mindful relief from a judgment under
Rule 4:50-1 "is not to be granted lightly." Bank v. Kim, 361 N.J. Super. 331,
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336 (App. Div. 2003). The rule is "'designed to reconcile the strong interests in
finality of judgments and judicial efficiency with the equitable notion that courts
should have authority to avoid an unjust result in any given case.'" Mancini v.
EDS, 132 N.J. 330, 334 (1993) (quoting Baumann v. Marinaro, 95 N.J. 380, 392
(1984)).
When a residential property is being sold at a sheriff's sale, the seller must
provide notice to the record owner of the property. In fact, Rule 4:65-2 requires
"notice of the [sheriff's] sale . . . be posted in the office of the sheriff of the
county . . . where the property is located, and also, in the case of real property,
on the premises to be sold . . . ." In addition, "at least [ten] days prior to the date
set for sale, [the party obtaining the order or writ shall] serve a notice of sale by
registered or certified mail, return receipt requested," on "every party who has
appeared" and the "owner of record." Ibid. The sheriff "may continue such sale
by public adjournment, subject to such limitations and restrictions as are
provided specially therefor." R. 4:65-4. The rule does not require notice of
adjourned sale dates be served in any particular manner. Samojeden, 214 N.J.
Super. at 127-28. Instead, "some reasonable communication" suffices. Id. at
128.
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Here, plaintiff complied with Rule 4:65-2 by providing notice of the
sheriff's sale in 2016, when the sale was first scheduled. Additionally, the record
reflects that in October 2019, defendant received notice of the adjourned sale by
certified mail, return receipt requested, at her home address, as confirmed by her
mail carrier's certification.
"New Jersey cases have recognized a presumption that mail properly
addressed, stamped, and posted was received by the party to whom it was
addressed." Ssi Med. Servs. v. HHS, Div. of Med. Assistance and Health Servs.,
146 N.J. 614, 621 (1996). Thus, the record supports the judge's finding that
plaintiff complied with its duty to inform defendant of the adjourned sale date
and she had actual notice of the sale date, despite that she did not sign for the
certified mailing giving her such notice. Additionally, considering defendant
defaulted on the loan over a dozen years ago and judgment was entered against
her in 2014, she failed to demonstrate the existence of "truly exceptional
circumstances" to warrant relief under Rule 4:50-1(f). Hous. Auth. of
Morristown v. Little, 135 N.J. 274, 286 (1994). Therefore, the denial of
defendant's motion to vacate the judge's December 6 and February 14 orders and
to set aside the sheriff's sale was not an abuse of discretion.
Affirmed.
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