U.S. BANK NATIONAL ASSOCIATION, ETC. VS. MERVIN HODGE (F-022401-15, ESSEX COUNTY AND STATEWIDE) ( 2018 )

NOT FOR PUBLICATION WITHOUT THE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-0174-17T1
U.S. BANK NATIONAL
ASSOCIATION, AS TRUSTEE
OF THE NRZ PASS-THROUGH
TRUST V,
Plaintiff-Respondent,
v.
MERVIN HODGE,
Defendant-Appellant,
and
MRS. HODGE, WIFE OF MERVIN
HODGE, and CITIMORTGAGE
INC.,
Defendants.
____________________________________
Submitted October 9, 2018 – Decided October 18, 2018
Before Judges Fasciale and Gooden Brown.
On appeal from Superior Court of New Jersey,
Chancery Division, Essex County, Docket No. F-
022401-15.
Mervin Hodge, appellant pro se.
Sandelands Eyet LLP, attorneys for respondent
(Kathleen Cavanaugh, on the brief).
PER CURIAM
In this residential foreclosure action, defendant Mervin Hodge appeals
from an August 15, 2017 final judgment entered in favor of U.S. Bank National
Association, As Trustee of the NRZ Pass-Through Trust V (plaintiff). We
affirm.
In March 2005, defendant obtained a mortgage loan from Lehman
Brothers Bank, FSB. Plaintiff received an assignment of the mortgage in
November 2014. In May 2013, defendant defaulted on the mortgage and has
failed to make a mortgage payment since.
In January 2015, defendant filed for Chapter 7 Bankruptcy in the United
States Bankruptcy Court for the District of New Jersey. In April 2015, the
bankruptcy court entered an Order of Discharge of Debt. But the bankruptcy
court did not discharge plaintiff's mortgage lien.
Plaintiff filed a foreclosure complaint in June 2015. Plaintiff attempted
to serve defendant personally with the summons and complaint on nine different
occasions at the property, but was unsuccessful. On the ninth attempt, the
process server noted, "[t]hey will not come down[.] I ring the bell[, and] they
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look out the window but will not come down. He does live there[,] the tenants
already confirmed that. He lives on the [third] floor." Because personal service
was unsuccessful, plaintiff mailed the foreclosure complaint to defendant at the
property in July 2015, via regular and certified mail, return receipt requested.
The certified mail return receipt card was returned to plaintiff as "unclaimed,"
but the regular mail was not returned.
In November 2015, the court entered default against all defendants. But
in December 2016, the court administratively dismissed the complaint for lack
of prosecution. In April 2017, plaintiff filed a motion to reinstate the case, and
served the motion to the property via regular and certified mail, which defendant
received. He failed to pay a filing fee when he responded to the motion, so the
court refused to accept his response. The court reinstated the complaint in May
2017.
Defendant attempted to refile his opposition in June 2017, but the filing
was marked "[r]eceived but not filed," because the court had already reinstated
the complaint. Thereafter, defendant did not file an answer or address the merits
of the case. On August 15, 2017, the court entered an uncontested order of final
judgment against all defendants.
On appeal, defendant argues:
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[POINT I]
LACK OF PERSONAL JURISDICTION OVER
[DEFENDANT].
[POINT II]
LACK OF SUBJECT MATTER JURISDICTION.
[POINT III]
DENIAL OF EQUAL ACCESS TO THE COURT AND
DENIAL OF REMEDY UNDER THE LAW.
[POINT IV]
THE INDIVIDUALS WORKING IN THE OFFICE OF
FORECLOSURE ARE IN VIOLATION OF
FEDERAL LAW PURSUANT TO 18 U.S.C. 2071.
Defendant primarily claims, for the first time, that the final judgment should be
vacated – pursuant to Rule 4:50-1(a) and (d) – because the court lacked personal
and subject matter jurisdiction. He also claims that the court violated his due
process rights by rejecting his purported opposition.
Defendant never filed a Rule 4:50-1 motion to vacate the foreclosure
judgment. He should have done so in the first instance, before requesting that
we vacate default judgment as part of his appeal. See e.g., U.S. Bank Nat’l
Ass’n v. Guillaume, 209 N.J. 449, 483 (2012) (stating that the Court need not
consider the defendant's claim that default judgment entered against them should
be declared void under Rule 4:50-1(d) because defendant did not raise the
argument in the trial court of the Appellate Division); Nieder v. Royal Indem.
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Ins. Co., 62 N.J. 229, 234 (1973) (stating that "our appellate courts will decline
to consider questions or issues not properly presented to the trial court when an
opportunity for such a presentation is available unless the questions so raised on
appeal go to the jurisdiction of the trial court or concern matters of great public
interest" (citation omitted)). Nevertheless, we reject his arguments that he is
entitled to relief under that rule because he failed to show excusable neglect and
a meritorious defense to the allegations in plaintiff's complaint. See Guillaume,
209 N.J. at 468 (stating that a party seeking to vacate a default judgment under
Rule 4:50-1(a) must show both excusable neglect and a meritorious defense).
Defendant relies on Rule 4:43-3, and argues that all that he must show is
good cause to vacate the entry of default. Rule 4:43-3 provides that "[f]or good
cause shown, the court may set aside an entry of default and, if a judgment by
default has been entered, may likewise set it aside in accordance with R. 4:50."
As is clear from the language of the rule, Rule 4:43-3 pertains to an entry of
default, not a default judgment. Defendant's reliance on Rule 4:43-3 is
misplaced.
"Service by mail is not effective . . . unless plaintiff first made 'a
reasonable and good faith attempt' to serve defendant personally." City of
Passaic v. Shennett, 390 N.J. Super 475, 483 (App. Div. 2007) (quoting R. 4:4-
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3(a)). "A party's good faith effort to personally serve a defendant must be
'described with specificity in the proof of service.'" Ibid. (quoting R. 4:4-3).
Plaintiff previously made good faith attempts by trying to personally serve the
complaint nine times on defendant at the property. Plaintiff then properly served
defendant with the foreclosure complaint pursuant to Rule 4:4-3(a) and Rule
4:4-7.
And after the court dismissed the complaint for failure to prosecute,
defendant received plaintiff's motion to reinstate the complaint. In fact, plaintiff
served the motion at the same address where defendant had been avoiding
service on multiple occasions. As further evidence that he received plaintiff's
motion to reinstate the complaint, defendant unsuccessfully attempted to oppose
the motion. Defendant's failure to answer the complaint cannot therefore be
attributed to an "honest mistake that is compatible with due diligence or
reasonable prudence." See Guillaume, 209 N.J. at 468.
There is no basis for relief under Rule 4:50-1(d), which allows the court
to vacate a void judgment. A judgment is void for lack of subject matter
jurisdiction when the court has no authority to adjudicate the controversy. See
Bank v. Kim, 361 N.J. Super. 331, 339 (App. Div. 2003) (mortgage foreclosure
judgment void in violation of bankruptcy automatic stay). Defendant contends
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the court lacked subject matter jurisdiction because plaintiff engaged in
"malicious use of process when it asked the [O]ffice of [F]oreclosure to grant
[p]laintiff's order for final judgment." Defendant maintains that the Office of
Foreclosure did not have "any jurisdictional authority." Defendant also argues
that plaintiff attempted to collect a debt that the bankruptcy court discharged.
Plaintiff did not engage in malicious activity, and the Office of
Foreclosure acted within its authority. According to Rule 4:64-1(d)(1), the
procedure to enter judgment in uncontested foreclosure cases is that "the
application shall be filed with the Office of Foreclosure in the Administrative
Office of the Courts." Moreover, Rule 1:34-6 provides that the Office of
Foreclosure "shall be responsible for recommending the entry of orders or
judgments in uncontested foreclosure matters pursuant to R. 4:64-1 and R. 4:64-
7 subject to the approval of a Superior Court Judge designated by the Chief
Justice." Plaintiff complied with the Rule by submitting the motion for final
judgment to the Office of Foreclosure. Then, the judge – not the Office of
Foreclosure as defendant contends – entered the final judgment on the
recommendation of the Office of Foreclosure.
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We conclude that defendant's remaining contentions are "without
sufficient merit to warrant discussion in a written opinion." R. 2:11-3(e)(1)(E).
We add the following brief remarks.
Defendant argues that the Office of Foreclosure "alter[ed]" his opposition
motion after he filed it by stamping it as "Filed" and then crossing out the stamp.
He contends that the Office of Foreclosure "[i]ntentionally alter[ed] the record"
to make it appear as though the opposition was received at a later date. Contrary
to defendant's contentions, the court rejected his opposition for failing to pay
the filing fee. When he attempted to refile the opposition on June 16, 2017, the
motion was marked "[r]eceived but not filed" because an order granting the
reinstatement of the foreclosure action had already been entered on May 11,
2017.
The Chapter 7 discharge of debt did not impact plaintiff's mortgage lien.
The Order of Discharge specifically notes "a creditor may have the right to
enforce a valid lien, such as a mortgage or security interest, against the debtor's
property after the bankruptcy, if that lien was not avoided or eliminated in the
bankruptcy case." Defendant did not move to eliminate plaintiff's mortgage lien
on the property. Therefore, plaintiff properly proceeded in the foreclosure
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action because the mortgage was not discharged in defendant's Chapter 7
bankruptcy proceeding.
Affirmed.
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