OCWEN LOAN SERVICING LLC VS. TOSSA D. THORPE, (F-010710-16, BURLINGTON COUNTY AND STATEWIDE) ( 2019 )

NOT FOR PUBLICATION WITHOUT THE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-5104-17T3
OCWEN LOAN SERVICING LLC,
Plaintiff-Respondent,
v.
TOSSA D. THORPE,
Defendant-Appellant,
and
R and R SURGICAL ASSOCIATION,
CHESTERFIELD TOWNSHIP, NEW
JERSEY HOUSING & MORTGAGE
FINANCE AGENCY, STATE OF NEW
JERSEY, THE RIDINGS HOMEOWNERS
ASSOCIATION, INC., and RANCOCAS
ANESTHESIOLOGY,
Defendants.
___________________________________
Submitted September 16, 2019 – Decided September 26, 2019
Before Judges Sumners and Geiger.
On appeal from the Superior Court of New Jersey,
Chancery Division, Burlington County, Docket No.
F-010710-16.
Tossa D. Thorpe, appellant pro se.
Blank Rome LLP, attorneys for respondent (Francis
Xavier Crowley and Michael P. Trainor, on the brief).
PER CURIAM
Defendant Tossa D. Thorpe appeals from a Chancery Division order
denying her motion to vacate the final judgment of foreclosure and sheriff's sale,
and to dismiss the complaint, in this residential mortgage foreclosure action.
We affirm.
On October 26, 2007, Thorpe executed a promissory note (the Note) in
the principal amount of $64,390 in favor of GMAC Mortgage LLC, f/k/a GMAC
Mortgage Corporation. On the same day, Thorpe executed a mortgage affecting
her property in Chesterfield Township (the Property), in favor of Mo rtgage
Electronic Registration Systems, Inc. (MERS), as nominee for GMAC
Mortgage, LLC f/k/a GMAC Mortgage Corporation, to secure payment of the
Note. MERS recorded the mortgage on December 14, 2007.
On February 4, 2009, MERS assigned the mortgage to GMAC Mortgage,
LLC. The assignment was recorded on March 10, 2009. The mortgage was
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reassigned to plaintiff Ocwen Loan Servicing, LLC on March 7, 2016. Plaintiff
recorded the second assignment on March 22, 2016.
Thorpe defaulted on the payments required by the Note. Plaintiff filed the
complaint on April 15, 2016. The summons and complaint were served on
Thorpe's mother at her residence in Burlington (the Burlington residence).
Plaintiff then filed an amended complaint on May 18, 2016. Service of the
amended complaint was attempted at the Property on June 12, 2016. The process
server indicated the Property was visibly vacant, without furnishings inside and
an accumulation of old mail. A neighbor advised the process server that the
Property was vacant. Plaintiff then served Thorpe with the amended complaint
by regular and certified mail, return receipt requested, addressed to the
Burlington residence. The certified mail went unclaimed; the regular mail was
not returned by the postal service as undeliverable. Thorpe did not file a
responsive pleading to the complaint or amended complaint.
An order for default was entered on February 2, 2017, and uploaded into
eCourts on February 13, 2017. 1 On June 21, 2017, a final judgment of
foreclosure was entered in the amount of $75,635.23. The Property was sold by
sheriff's sale on October 19, 2017. Plaintiff was the successful bidder at the
1
Through clerical error, the order for default was dated February 2, 2016.
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sale. The Property was conveyed to plaintiff by sheriff's deed dated October 30,
2017. Plaintiff applied for a writ of possession of the Property in February 2018.
On May 3, 2018, Thorpe moved to vacate the entry of default and final
judgment of foreclosure, cancel the sheriff's sale, and to dismiss the complaint.
Thorpe argued: (1) the order entering default is defective and should be vacated
because it was entered before the complaint was filed; (2) the judgment of
foreclosure must be vacated because the summons and complaint was not served
on her; and (3) the judgment was procured by fraud.
The motion judge issued an order and written statement of reasons
denying the motion in its entirety. As to the February 2, 2016 order entering
default, the motion judge determined the clearly erroneous date was a mere
clerical error. The judge noted the motion to enter default was filed on January
18, 2017, and the order granting the motion "was uploaded to eCourts on
February 13, 2017." The order mistakenly stated 2016 "when it should have
stated 2017." The motion judge corrected the date of the order entering default
to February 2, 2017, pursuant to Rule 1:13-1.
As to vacating the final judgment under Rule 4:50-1, due to alleged lack
of service of process, the motion judge stated:
Plaintiff provides an affidavit of service
indicating that service of the initial summons and
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complaint was effected upon defendant by serving
JoAnne Thorpe, defendant's mother, at [the Burlington
residence]. A "Proof of Diligence" provided by
plaintiff indicates that service of the amended
complaint was attempted at the subject property but
was unsuccessful. Among the reasons listed for the
unsuccessful attempt at service were: "property is
visibly vacant", "no furnishings inside", "junk piled up
inside the house", "accumulation of old mail".
Additionally, a "male neighbor . . . confirmed
vacancy."
Plaintiff thereafter sent the amended complaint
by regular and certified mail, return receipt requested
to the address of [the Burlington residence]. Plaintiff
did not receive a signed return receipt, but the regular
mailing was not returned as undeliverable.
Plaintiff moved for final judgment on May 25,
2017. The certification of service indicates copies
were mailed to defendant both at the subject property
and at [the Burlington residence]. Final judgment was
entered on June 21, 2017 and plaintiff served
defendant with a copy thereof by forwarding it to both
the subject property and [the Burlington residence].
Notice of the Sheriff's Sale was also sent to defendant
at both addresses by certified mail and/or by courier
service. Despite the several notices sent to defendant
at both addresses, defendant did not file the within
motion to vacate until May 17, 2018.
Defendant maintains that she was not served a
copy of the summons and complaint and that service
upon her mother, JoAnn Thorpe was ineffective
because she was never a household member "of the
subject property" and that the subject property is her
"primary residence." Defendant further disputes the
accuracy of the statements made in the return of
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service suggesting that the property was vacant.
Defendant avers that the subject property was and is
her residence. Defendant states that she learned of the
foreclosure from a "third-party" whom she fails to
identify. Defendant does not dispute having received
any of the other notices of the pleadings in this matter,
or explain why she delayed in filing the within
motion. Further, although [Thorpe] certifies that the
subject property is her principal residence, she does
not certify that [the Burlington residence] was not her
dwelling place or usual place of abode.
The judge found Thorpe failed to demonstrate exceptional circumstances
to justify vacating the judgment under Rule 4:50-1(f). She explained:
Here, [Thorpe] has not explained why she did
not receive the many notices sent to her at the subject
property that she maintains is her place of residence.
In fact, [Thorpe] does not indicate that she did not
receive any of those notices or when it was she
became aware of the current proceedings. Plaintiff
has served all notices in accordance with the
requirements imposed upon it. Plaintiff would be
unduly and unnecessarily prejudiced if judgment were
to be vacated, where the property has been sold at
sheriff's sale after all due notice was provided to
[Thorpe].
Finally, as to vacating the sheriff's sale, the motion judge determined
Thorpe "makes no assertions that the Sheriff's sale was procedurally or
substantively defective in any way and thus she raises no valid basis for vacating
the sheriff's sale." This appeal followed.
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On appeal, Thorpe argues: (1) the trial court erred and abused its
discretion in refusing to set aside a default judgment under Rules 4:50-1(d), (f),
and 4:50-3; (2) plaintiff's fraud warrants a dismissal; and (3) the request for
entry of default was entered before the filing of the complaint. We reject these
arguments and affirm substantially for the reasons expressed by the motion
judge in her written statement of reasons. We add the following comments.
Motions made under any subsection of Rule 4:50-1 must be filed within a
reasonable time. R. 4:50-2; see Deutsche Bank Tr. Co. v. Angeles, 428 N.J.
Super. 315, 319 (App. Div. 2012). Despite receiving notice of each stage of the
ongoing foreclosure action and sheriff's sale, Thorpe first raised her procedural
objections more than ten eleven months after the entry of judgment and almost
seven months after the sheriff's sale. She offered no explanation for the delay.
Her motion was not filed within a reasonable time.
Thorpe's motion also lacked substantive merit. "The only material issues
in a foreclosure proceeding are the validity of the mortgage, the amount of the
indebtedness, and the right of the mortgagee to resort to the mortgaged
premises." Inv'rs Bank v. Torres, 457 N.J. Super. 53, 65 (App. Div. 2018)
(quoting Great Falls Bank v. Pardo, 263 N.J. Super. 388, 394 (Ch. Div. 1993),
aff'd o.b., 273 N.J. Super. 542 (App. Div. 1994)). Notably, Thorpe does not
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attack the validity of the mortgage, the payment default, the amount of the
indebtedness, or plaintiff's right to foreclose. She does not "contest the validity
or priority of the mortgage or lien being foreclosed or create an issue with
respect to plaintiff's right to foreclose it," or otherwise contest the allegations
set forth in the complaint. R. 4:64-1(c)(2).
Relief from judgment under Rule 4:50-1 "is not to be granted lightly."
Bank v. Kim, 361 N.J. Super. 331, 336 (App. Div. 2003). Moreover, "the
showing of a meritorious defense is a traditional element necessary for setting
aside both a default and a default judgment." Pressler & Verniero, Current
N.J. Court Rules, cmt. on R. 4:43-3 (2019). That is so because when a party
has no meritorious defense, "[t]he time of the courts, counsel and litigants
should not be taken up by such a futile proceeding." U.S. Bank Nat'l Ass'n v.
Guillaume, 209 N.J. 449, 469 (2012) (quoting Schulwitz v. Shuster, 27 N.J.
Super. 554, 561 (App. Div. 1953)). Thorpe has not met her burden of
demonstrating a meritorious defense. See id. at 467.
An appellate court reviews a trial court's order denying a Rule 4:50-1
motion for relief under an abuse of discretion standard. Ibid. "The trial court's
determination under the rule warrants substantial deference, and should not be
reversed unless it results in a clear abuse of discretion." Ibid. An abuse of
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discretion occurs "when a decision is 'made without a rational explanation,
inexplicably departed from established policies, or rested on an impermissible
basis.'" Id. at 467-68 (quoting Iliadis v. Wal-Mart Stores, Inc., 191 N.J. 88,
123 (2007)). We discern no abuse of discretion.
The motion judge properly corrected the clerical error in the order entering
default. The error is obvious given the date plaintiff moved for entry of default
and the date the order was uploaded into eCourts. Rule 1:13-1 permits a court
to correct clerical errors in orders at any time "on its own initiative."
The motion judge also properly determined there was no factual or legal
basis to vacate the sheriff's sale because the motion to vacate the order entering
default and the judgment of foreclosure lacked merit.
Thorpe's argument that the judgment should be set aside for fraud upon
the court pursuant to Rule 4:50-3 lacks sufficient merit to warrant discussion in
a written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
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