GDBT 1 TRUST 2011-1 VS. DENARD C. TRAPP(F-11243-13, MONMOUTH 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NOT FOR PUBLICATION WITHOUT THE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-1489-15T4
GDBT 1 TRUST 2011-1,
Plaintiff-Respondent,
v.
DENARD C. TRAPP,
Defendant-Appellant.
_______________________________
Submitted May 25, 2017 - Decided July 5, 2017
Before Judges O'Connor and Mawla.
On appeal from Superior Court of New Jersey,
Chancery Division, Monmouth County, Docket No.
F-11243-13.
Denard C. Trapp, appellant pro se.
Parker McCay P.A., attorneys for respondent
(Gene Mariano, of counsel; Stacy L. Moore,
Jr., on the brief).
PER CURIAM
Defendant Denard C. Trapp appeals from a writ of possession
entered on November 2, 2015, following entry of a final judgment
of foreclosure on September 22, 2014, in favor of plaintiff GDBT
1 Trust 2011-1. Defendant's appeal is without merit and out of
time. For the reasons stated herein, the appeal is dismissed.
The following facts are found in the record. Defendant is
the owner of a residential property located in Tinton Falls. On
November 30, 2006, he executed a note with FGC Commercial Mortgage
Finance, DBA Fremont Mortgage for the sum of $420,000. Defendant
executed a mortgage with Mortgage Electronic Registration Systems,
Inc., as nominee for FGC Commercial Mortgage Finance, DBA Fremont
Mortgage, which served as security for repayment of the debt. The
mortgage was recorded on December 21, 2006, and subsequently
assigned on August 11, 2008, to Southstar III, LLC. Southstar
III, LLC assigned the mortgage to SRP 2010-6, LLC on March 18,
2011, which assigned the mortgage to Goshen Mortgage, LLC on July
18, 2012. The mortgage was then assigned to plaintiff on March
13, 2013. All assignments were duly recorded, including the
assignment to plaintiff, which was recorded on April 4, 2013.
On March 1, 2012, defendant defaulted on the note and since
has made no payments. A notice of intent to foreclose was sent
to defendant by SRP 2010-6, LLC on April 24, 2012. After the
final assignment, plaintiff recorded the mortgage, and filed a
foreclosure complaint on April 5, 2013. Defendant filed an answer
on June 5, 2013. Plaintiff moved for summary judgment on October
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3, 2013. The trial judge deemed the motion unopposed because
defendant's cross-motion was not timely.
On November 21, 2013, the trial court granted summary judgment
in plaintiff's favor and struck defendant's answer with prejudice.
Thereafter, on April 30, 2014, defendant filed a complaint in
federal court to "quiet title." The District Court dismissed
defendant's complaint, denied his motion for reconsideration, and
the Third Circuit Court of Appeals affirmed the dismissal.
On September 22, 2014, a final judgment of foreclosure was
entered in the amount of $386,301.73. The property was
subsequently sold at Sheriff's sale on June 8, 2015. The court
issued a writ of possession on November 2, 2015. On December 28,
2015, defendant filed a notice of appeal, which he later amended.
Defendant twice sought to stay removal, which this court denied.
The Supreme Court also denied a request to stay his removal.
Defendant was removed from the property on April 13, 2016.
Although defendant has appealed from the writ of possession,
he attacks the final judgment of foreclosure. Specifically, he
challenges plaintiff's standing to file a foreclosure because
plaintiff is not licensed or registered to do business in New
Jersey; thus he claims plaintiff is not permitted to utilize the
New Jersey courts. Also, defendant asserts plaintiff committed
fraud upon the court, voiding the entry of summary judgment in
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plaintiff's favor and the foreclosure judgment. Next, defendant
argues the trial judge violated his due process rights when she
did not consider his cross-motion and opposition to plaintiff's
motion for summary judgment. He further claims the foreclosure
action was invalid because his cross-motion asserted a meritorious
defense, namely, the mortgage was a predatory loan. Lastly,
defendant asserts because the mortgage note is lost, plaintiff is
not entitled to enforcement of the note because it has not
established possession of the documents necessary to foreclose.
In response, plaintiff argues defendant's claims lack merit
and none of the issues he raises were set forth in the notice of
appeal. Plaintiff contends defendant's brief presents arguments
pertaining to the 2013 entry of summary judgment, yet his appeal
is limited to the writ of possession. Plaintiff notes if we reach
the merits of defendant's claims, the trial judge appropriately
exercised her discretion by declining to consider defendant's late
cross motion.
Rule 2:5-1(f)(1) states:
A notice of appeal to the Appellate Division
may be in the form prescribed by the
Administrative Director of the Courts as set
forth in Appendix IV of these Rules.
. . . .
The notice of appeal to the Appellate Division
shall have annexed thereto a Case Information
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Statement as prescribed by subparagraph 2 of
this rule.
"While the rule does not in terms so provide, it is clear
that it is only the judgments or orders or parts thereof designated
in the notice of appeal which are subject to the appeal process
and review." Pressler & Verniero, Current N.J. Court Rules, cmt.
6.1 on R. 2:5-1(f)(1) (2017) (citing Sikes v. Twp. of Rockaway,
269 N.J. Super. 463, 465-66 (App. Div.), aff'd o.b., 138 N.J. 41(1994), (rejecting review of the trial court's denial of a request
for special interrogatories because the issue was not listed in
the notice of appeal)). Also, for example, "if the notice
designates only the order entered on a motion for reconsideration,
it is only that proceeding and not the order that generated the
reconsideration motion that may be reviewed." Ibid. (citing W.H.
Indus., Inc. v. Fundicao Balancins, Ltda, 397 N.J. Super. 455,
458-59 (App. Div. 2008)).
Defendant's original and amended notice of appeal state he
challenges the November 2, 2015 writ of possession, not the
November 21, 2013 summary judgment order or the September 22, 2014
judgment of foreclosure. Conversely, defendant's brief addresses
the summary judgment order and the final judgment of foreclosure,
not the writ of possession. For these reasons, pursuant to Rule
2:5-1(f)(1), we decline to review defendant's requests as they
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pertain to the summary judgment order or the foreclosure judgment.
More importantly, the time to appeal both the entry of summary
judgment and the foreclosure judgment has long passed. See R.
2:4-1(a).
Lastly, we note a writ of possession is a means to enforce a
judgment by granting a successful plaintiff possession of the
property to satisfy its judgment, see Black's Law Dictionary 1750
(9th ed. 2009). Defendant may not use an attack on the post-
judgment writ of possession to have us review determinations he
failed to timely challenge. Defendant's brief purports to have
us "vacate . . . all judgments," which is also time barred. R.
2:4-1(a) (mandating appeals shall be filed within forty-five days
of entry of trial judgments or orders).
The appeal is dismissed. R. 2:8-2.
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