FREEDOM MORTGAGE CORPORATION VS. DWAYNE R. SMITH(F-009024-12, UNION 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NOT FOR PUBLICATION WITHOUT THE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-3741-15T1
FREEDOM MORTGAGE CORPORATION,
Plaintiff-Respondent,
v.
DWAYNE R. SMITH,
Defendant-Appellant.
________________________________
Submitted May 2, 2017 – Decided July 21, 2017
Before Judges Rothstadt and Sumners.
On appeal from Superior Court of New Jersey,
Chancery Division, Union County, Docket No.
F-009024-12.
Dwayne Smith, appellant pro se.
Pluese, Becker, & Saltzman, L.L.C., attorneys
for respondent (Stuart H. West, on the brief).
PER CURIAM
In this residential mortgage foreclosure action, a writ of
execution was entered on May 23, 2013, and the residence was sold
to plaintiff Freedom Mortgage at a Sheriff's sale on December 11,
2013. On April 7, 2016, the Chancery Division denied defendant
Dwayne Smith's motion to vacate the final judgment of foreclosure
and to dismiss the complaint. In a statement of reasons issued
with the order, Judge Joseph P. Perfilio explained the motion was
treated as one for reconsideration under Rule 4:49-2 because of
previous orders denying similar relief. He found that the motion
was untimely because defendant had not filed it within twenty days
after service of the prior orders. As to the merits, the judge
determined defendant's contentions were without factual and legal
merit. The judge noted defendant failed to establish that the
prior decisions were palpably incorrect or based on an irrational
manner.
On appeal, defendant contends the court abused its discretion
in refusing to vacate the final judgment and dismiss the complaint.
In particular, defendant argues that he is entitled to relief
because there are "open [] tax, water, and utility bills . . . in
[his] name, but more importantly there is no new deed recorded,
[he] is receiving monthly statements from plaintiff, and plaintiff
is still paying private mortgage insurance."
We review the court's denial of reconsideration only for
abuse of discretion. Fusco v. Bd. of Educ. of City of Newark, 349
N.J. Super. 455, 462 (App. Div.), certif. denied, 174 N.J. 544(2002). Reconsideration is "a matter within the sound discretion
of the [c]ourt, to be exercised in the interest of justice."
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Palombi v. Palombi, 414 N.J. Super. 274, 288 (App. Div. 2010)
(quoting D'Atria v. D'Atria, 242 N.J. Super. 392, 401 (Ch. Div.
1990)). Governed by Rule 4:49-2, reconsideration is appropriate
for a "narrow corridor" of cases in which either the court's
decision was made upon a "palpably incorrect or irrational basis,"
or where "it is obvious that the [c]ourt either did not consider,
or failed to appreciate the significance of probative, competent
evidence." Ibid. (quoting D'Atria, supra, 242 N.J. Super. at
401).
We have considered defendant's arguments in light of the
record and applicable legal principles and conclude that they are
without sufficient merit to warrant discussion in a written
opinion. R. 2:11-3(e)(1)(E). We discern no abuse of discretion
in this case, and affirm substantially for the reasons expressed
by Judge Perfilio's well-reasoned statement of reasons.
Affirmed.
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