WELLS FARGO BANK, ETC. VS. RODNEY KELLY (F-15290-12, BURLINGTON 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NOT FOR PUBLICATION WITHOUT THE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-5708-14T2
WELLS FARGO BANK, NATIONAL
ASSOCIATION, AS TRUSTEE FOR
CARRINGTON MORTGAGE LOAN TRUST
SERIES 2006-FR1 ASSET-BACKED
PASS-THROUGH CERTIFICATES,
Plaintiff-Respondent,
v.
RODNEY KELLY,
Defendant-Appellant,
and
MORTGAGE ELECTRONIC REGISTRATION
SYSTEMS, INC., Solely as Nominee
for FGC Commercial Mortgage
Finance, d/b/a Fremont Mortgage,
its Successors and/or Assigns;
NEW JERSEY HOUSING AND MORTGAGE
FINANCE AGENCY, as Authorized
Administrative Agent of the New
Jersey Department of Community
Affairs; Fictitious Spouse of
Rodney Kelly,
Defendants.
_______________________________
Submitted June 8, 2017 - Decided July 14, 2017
Before Judges Lihotz, Hoffman and O'Connor.
On appeal from Superior Court of New Jersey,
Chancery Division, Burlington County, Docket
No. F-15290-12.
Rodney Kelly, appellant pro se.
Udren Law Offices, P.C., attorneys for
respondent (J. Eric Kishbaugh, on the brief).
PER CURIAM
In this contested foreclosure action, defendant Rodney Kelly
appeals from the denial of a motion for reconsideration of the
final judgment foreclosing his interest in residential real
property, located in Willingboro, and granting plaintiff Wells
Fargo Bank, N.A., the right to sell the realty to satisfy the
outstanding loan owed by defendant. On appeal, defendant
identifies nine errors, arguing the trial judge abused her
discretion in granting summary judgment, final judgment, and
ordering sheriff's sale of the realty. We affirm.
The trial court granted summary judgment in favor of plaintiff
on January 2, 2014. Final judgment of foreclosure was entered and
a writ of execution issued on February 26, 2015.1 Almost three
months later, defendant moved to dismiss the foreclosure action
entirely and sought frivolous litigation sanctions, which the
1
Although these documents are not included in the record on
appeal, these facts are not disputed.
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trial judge considered as a motion for reconsideration of the
final judgment. In a written statement of reasons, Judge Karen
L. Suter reviewed defendant's challenges, which she denied. She
filed an order memorializing the denial of defendant's motions on
July 20, 2015. Thereafter, plaintiff purchased the property at
sheriff's sale on July 30, 2015.
The appeal timely challenges the July 20, 2015 order.
However, in his merits brief, defendant includes attacks on the
order granting summary judgment, which led to entry of the final
judgment of foreclosure. We recognize a challenge on
reconsideration may argue the legal sufficiency of an underlying
order. R. 4:49-2. However, here, summary judgment was granted
"for the reasons placed on the record on January 2, 2014," yet a
transcript of the proceeding is not provided, thus, precluding our
review. Cipala v. Lincoln Tech. Inst., 179 N.J. 45, 55 (2004)
(declining review because plaintiff failed to provide transcripts
of proceedings); Soc'y Hill Condo. Ass'n v. Soc'y Hill Assocs.,
347 N.J. Super. 163, 177 (App. Div. 2002) ("A party on appeal is
obliged to provide the court with 'such other parts of the record
. . . as are essential to the proper considerations of the issues.'
R. 2:6-1(a)(1)(H)").
More important, appeal from the final judgment of foreclosure
was not filed. Rule 2:4-1 mandates appeals from final judgments
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must be filed within forty-five days "of their entry." The time
limit is tolled by "the timely filing and service of a motion to
the trial court . . . for rehearing or reconsideration seeking to
alter or amend the judgment or order pursuant to R. 4:49-2." R.
2:4-3(e) (emphasis added). "The remaining time shall again begin
to run from the date of the entry of an order disposing of such a
motion." Ibid.
Unfortunately, when defendant filed his post-judgment motions
almost ninety days following entry, the time for appeal had long
expired. "[A]n untimely motion to reconsider does not[]" toll the
time limits of Rule 2:4-1. Eastampton Ctr., LLC v. Planning Bd.
of Eastampton, 354 N.J. Super. 171, 187 (App. Div. 2002). Stated
differently, defendant's appeal from the order denying
reconsideration cannot bootstrap challenges to the underlying
order for summary judgment he desires to reconsider.
Nevertheless, for completeness, we have considered the
merits, which we find unavailing. We have reviewed defendant's
motions asserting final judgment must be vacated because of fraud,
plaintiff's violations of the Truth in Lending Act, 15 U.S.C.A. §
1601, and plaintiff's lack of standing. We also reviewed
defendant's motion seeking sanctions because plaintiff pursued
frivolous litigation. Our review of the record reveals the issues
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were hotly contested and sufficiently litigated, prior to the
review of plaintiff's motion for summary judgment.
We also considered Judge Suter's findings of fact and
conclusions of law, delineated in her July 20, 2015 statement of
reasons accompanying the order under review. We determine her
findings are amply supported and her conclusions are legally sound.
Motions for reconsideration are granted only
under very narrow circumstances:
Reconsideration should be used only
for those cases which fall into that
narrow corridor in which either
(l) the Court has expressed its
decision based upon a palpably
incorrect or irrational basis, or
(2) it is obvious that the Court
either did not consider, or failed
to appreciate the significance of
probative, competent evidence.
D'Atria v. D'Atria, 242 N.J. Super.
392, 401 (Ch. Div. 1990).
[Fusco v. Bd. of Educ. of City of Newark, 349
N.J. Super. 455, 462 (App. Div. 2002).]
We discern no error. Summary judgment was grounded on
undisputed facts in the record conclusively establishing
plaintiff's ownership of the debt and possession of the note and
mortgage documents. The claims of fraud and forgery are bald
allegations unsupported by direct or even circumstantial
evidential proof. Overall, defendant does not demonstrate the
orders were not rationally based upon competent evidence. Finally,
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defendant's arguments fail to persuade this court reconsideration
was legally unsound.
Affirmed.
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