STATE OF NEW JERSEY VS. JOHNSLER ERTILIENÂ (14-08-1962, ESSEX COUNTY AND STATEWIDE) ( 2017 )

NOT FOR PUBLICATION WITHOUT THE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-2510-15T2
INDYMAC FEDERAL
BANK, FSB,
Plaintiff-Respondent,
v.
MARISA L. BELL,
Defendant-Appellant.
________________________________
Submitted March 28, 2017 – Decided May 8, 2017
Before Judges Espinosa and Grall.
On appeal from the Superior Court of New
Jersey, Chancery Division, Essex County,
Docket No. F-11696-09.
Marisa L. Bell, appellant pro se.
Greenberg Traurig, LLP, attorneys for
respondent (Jason H. Kislin and Lori G.
Singer, of counsel and on the brief).
PER CURIAM
Defendant executed a note to plaintiff in the amount of
$304,000 in June 2006 and secured payment of the note by executing
a mortgage to plaintiff's nominee, the Mortgage Electronic
Registration Systems (MERS). She defaulted on the note in March
2008 and has not made any payments since that time. Plaintiff
filed a foreclosure complaint in March 2009. The record shows the
complaint was served upon defendant's sixteen-year-old daughter.
Defendant did not file an answer in the foreclosure proceeding or
respond to the entry of default in June 2009. Default judgment
was entered in May 2010.
More than four years later, after defendant was sent notice
of the scheduled sheriff's sale, defendant filed a motion to vacate
judgment pursuant to Rule 4:50-1(b). She appeals from the denial
of that motion,1 arguing she was entitled to relief as a matter of
law and that defendant lacks the right to force a sale of the
property because no competent admissible evidence was presented
to show its ownership interest in the note as a matter of law.
Defendant's arguments lack sufficient merit to warrant discussion
in a written opinion, Rule 2:11-3(e)(1)(E), beyond the following
brief comments.
Defendant's motion for relief was governed by Rule 4:50-1.
The trial court's determination is entitled to "substantial
deference" and left undisturbed unless there is "a clear abuse of
1By order of the court, defendant's appeal is limited to the order
entered on August 25, 2015, which denied her motion to vacate the
default judgment and does not include an appeal from the subsequent
order that denied her motion for reconsideration.
2 A-2510-15T2
discretion." U.S. Bank Nat'l Assoc. v. Guillaume, 209 N.J. 449,
467 (2012).
In Deutsche Bank National Trust Co. v. Mitchell, 422 N.J.
Super. 214, 216 (App. Div. 2011), we held either possession of the
note or an assignment of the mortgage that predated the original
complaint conferred standing. As noted in the foreclosure
complaint, there was an assignment of mortgage from MERS to
defendant, dated February 23, 2009, which was executed on March
6, 2009, the day after the foreclosure complaint was filed.
Although the record shows plaintiff did not achieve standing
through the assignment of the mortgage a day after the complaint
was filed, there is no evidence that plaintiff lacked possession
of the note at the time the complaint was filed. Therefore,
defendant has not definitively demonstrated a lack of standing.
Because defendant's motion was based upon Rule 4:50-1(b), she
was required to file the motion within one year after the judgment
was entered. R. 4:50-2. Even if she relied upon other grounds
for relief under the rule, defendant's motion was not made within
a reasonable time following entry of the judgment challenged. See
Deutsche Bank Tr. Co. Ams. v. Angeles, 428 N.J. Super. 315, 319
(App. Div. 2012). Accordingly, we discern no clear abuse of
discretion that would warrant disturbing the trial judge's
decision.
3 A-2510-15T2
Affirmed.
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