EVERBANK VS. AIDA C. BASCOPE (F-003087-14, BERGEN 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NOT FOR PUBLICATION WITHOUT THE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-0735-17T3
EVERBANK,
Plaintiff-Respondent,
v.
AIDA C. BASCOPE,
Defendant,
and
JOSE B. BASCOPE,
Defendant-Appellant.
____________________________
Submitted June 5, 2018 – Decided June 29, 2018
Before Judges Hoffman and Gilson.
On appeal from Superior Court of New Jersey,
Chancery Division, Bergen County, Docket No.
F-003087-14.
Jose B. Bascope, appellant pro se.
McCabe Weisberg & Conway, LLC, attorneys for
respondent (James A. French, of counsel and
on the brief).
PER CURIAM
In this residential mortgage foreclosure matter, defendant
Jose Bascope appeals from a September 29, 2017 order denying his
motion to vacate a final judgment entered on June 10, 2016. We
affirm.
I.
On March 15, 2006, defendant borrowed $304,000 from
Countrywide Home Loans, Inc. (Countrywide). In connection with
that loan, defendant signed a note (Note) and he and his wife gave
a mortgage (Mortgage) on property located in Garfield. The Note
was given to Countrywide, and the Mortgage was delivered to
Mortgage Electronic Registration Systems, Inc. (MERS), as nominee
for Countrywide. On May 1, 2009, MERS assigned the Mortgage to
BAC Home Loans Servicing, L.P. (BAC). Three years later, on July
19, 2013, Bank of America, N.A., as successor by merger to BAC,
assigned the Mortgage to EverBank. Both of those assignments were
recorded.
In May 2013, defendant failed to make the monthly mortgage
payment and, thereafter, he defaulted on the Note and Mortgage.
Defendant has not cured those defaults.
In January 2014, EverBank filed a complaint seeking to
foreclose on the Mortgage. In its complaint, EverBank represented
that it was the holder of the Mortgage and it had "possession of
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the promissory note." Defendants1 filed a contesting answer, but
in October 2014, defendants withdrew their answer, and the Chancery
court entered an order returning the matter to the Office of
Foreclosure to proceed as an uncontested matter.
In May 2016, EverBank moved to enter a final judgment. In
support of that motion, an employee of the loan servicer for
EverBank filed an affidavit. The affiant certified that she was
authorized to file the affidavit as "attorney-in-fact for
EverBank," that she had "thoroughly reviewed" the business records
concerning the Note and Mortgage, and that EverBank was the holder
of the Note and Mortgage with the right to enforce those
obligations. Final judgment was entered on June 10, 2016. The
mortgaged property was then sold in a sheriff's sale in June 2017.
In August 2017, defendant filed a motion to vacate the final
judgment. Defendant alleged that EverBank lacked standing to
foreclose and that the affidavit submitted in support of the final
judgment was insufficient. The Chancery court heard oral arguments
and, on September 29, 2017, it issued an order and written opinion
denying the motion to vacate.
1
Defendant refers to Jose Bascope. Defendants refers to Jose and
Aida Bascope. Only Jose Bascope has appealed.
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II.
On appeal, defendant makes two arguments: (1) the Chancery
court abused its discretion in not vacating the final judgment
because EverBank did not establish its standing to file the
foreclosure action; and (2) the affidavit filed in support of the
final judgment did not establish that EverBank owned the Note
before final judgment was entered. We reject these arguments
because they are not supported by the record.
To vacate a judgment, defendant must establish one of the six
grounds identified in Rule 4:50-1. See US Bank Nat'l Ass'n v.
Guillaume, 209 N.J. 449, 466 (2012). Here, defendant relies on
subsections (d) and (f) of Rule 4:50-1. Those subsections provide
that a party may vacate a judgment if he or she can establish:
"(d) the judgment or order is void; . . . or (f) any other reason
justifying relief from the operation of the judgment or order."
R. 4:50-1(d), (f).
We review the Chancery court's order on a motion to vacate a
final judgment for abuse of discretion. Guillaume, 209 N.J. at
467. "A trial court's determination under [Rule 4:50-1] warrants
substantial deference," and the abuse of discretion must be clear
to warrant a reversal. Ibid. (citing DEG, LLC v. Twp. of
Fairfield, 198 N.J. 242, 261 (2009)).
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While phrased as two arguments, defendant essentially makes
a standing argument, contending that EverBank did not establish
that it owned or held the Note and Mortgage before it filed its
foreclosure action in January 2014. More specifically, defendant
argues that the affidavit EverBank filed was insufficient to
establish its right to enforce the Mortgage.
Initially, we note that such an argument is not a basis to
vacate a final judgment. Defendant has not submitted any proof
that EverBank did not hold or own the Mortgage and Note when it
filed its foreclosure action. Instead, defendant contends that
the affidavit by EverBank was deficient. The distinction is
important. Defendant's arguments challenge EverBank's proofs.
That proof argument needed to be made before the matter was
transferred to the Office of Foreclosure as uncontested and final
judgment was entered. See Deutsche Bank Nat'l Trust Co. v. Russo,
429 N.J. Super. 91, 101 (App. Div. 2012) (rejecting technical
objections to a foreclosure complaint as grounds to vacate final
judgment).
In addition, defendant has not established that the affidavit
by EverBank was insufficient. The affiant certified that she had
reviewed the relevant books and records and that EverBank was the
holder of both the Note and Mortgage. While we encourage trial
courts to be vigilant in assessing the proof submitted in support
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of foreclosure actions, here we discern no abuse of discretion by
the Chancery court. When EverBank moved for entry of the final
judgment, defendant did not offer any proof that EverBank did not
own or hold both the Note and Mortgage. To the contrary, the
affidavit submitted by EverBank was essentially uncontested.
Consequently, we reject defendant's attempt to vacate the final
judgment.
The record establishes that EverBank is the party with the
right to enforce the Note and Mortgage. The record also
establishes that defendant defaulted on his obligations under the
Note and Mortgage in 2013, and has not made any payments since
that time. The property was sold in June 2017, and there has been
no showing that any other party has claimed a right under the Note
or Mortgage. Indeed, plaintiff waited over a year after the final
judgment was entered and after the sale of the mortgaged property,
to file his motion to vacate the final judgment. Thus, the
equitable considerations presented in this matter supported entry
of the final judgment in favor of plaintiff. See Deutsche Bank
Tr. Co. Ams. v. Angeles, 428 N.J. Super. 315, 320 (App. Div. 2012)
("In foreclosure matters, equity must be applied to plaintiffs as
well as defendants.").
Affirmed.
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