DEUTSCHE BANK NATIONAL TRUST COMPANY, ETC. v. SANJAY PUROHIT (F-020204-19, MERCER COUNTY AND STATEWIDE) ( 2022 )

NOT FOR PUBLICATION WITHOUT THE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-2822-20
DEUTSCHE BANK NATIONAL
TRUST COMPANY, as
trustee for GSAA HOME
EQUITY TRUST 2007-5,
ASSET-BACKED CERTIFICATES,
SERIES 2007-5,
Plaintiff-Respondent,
v.
SANJAY PUROHIT,
Defendant-Appellant,
and
SHALINI PUROHIT,
MORTGAGE ELECTRONIC
REGISTRATION SYSTEMS,
INC., as nominee for
GREENPOINT MORTGAGE
FUNDING, INC.,
Defendants.
______________________________
Submitted September 14, 2022 – Decided October 4, 2022
Before Judges Gooden Brown and DeAlmeida.
On appeal from the Superior Court of New Jersey,
Chancery Division, Mercer County, Docket No.
F-020204-19.
Sanjay Purohit, appellant pro se.
Robertson, Anschutz, Schneid, Crane & Partners,
PLLC, attorneys for respondent (Brandon Pack, on the
brief).
PER CURIAM
In this residential foreclosure matter, defendant Sanjay Purohit appeals
from the May 28, 2021 Chancery Division order denying his motion to vacate
the April 12, 2021 final foreclosure judgment in favor of plaintiff Deutsche
Bank National Trust Company. Because the record does not establish that
plaintiff complied with the Fair Foreclosure Act (FFA), N.J.S.A. 2A:50-53 to -
68, by mailing a Notice of Intent to Foreclose (NOI) as required by N.J.S.A.
2A:50-56(a) to (b), we reverse the final judgment and order that the
foreclosure complaint be dismissed without prejudice.
We glean these facts from the record. In December 2006, defendant
borrowed $600,000 from Greenpoint Mortgage Funding, Inc. by executing a
thirty-year note and non-purchase money mortgage on his home in West
Windsor Township to Mortgage Electronic Registration Systems, Inc.
A-2822-20
2
(MERS), as nominee for Greenpoint. On September 4, 2009, MERS, as
nominee for Greenpoint, assigned the mortgage to plaintiff, which assignment
was recorded on September 21, 2009.
Despite executing subsequent loan modification agreements, defendant
defaulted on the loan by failing to make the required payment due February 1,
2019, and thereafter. As a result, plaintiff exercised its option to accelerate the
loan and, on October 29, 2019, mailed a NOI to defendant at the property
address. After defendant failed to cure the default, plaintiff filed a foreclosure
complaint on December 11, 2019.
Despite being personally served with the summons and complaint on
December 17, 2019, defendant did not file a responsive pleading. After the
time for serving an answer expired, plaintiff requested that default be entered
for defendant's "failure to plead or otherwise defend." Default was entered as
requested. Additionally, on March 2, 2020, plaintiff mailed a Notice to Cure
(NOC) to defendant at the property address. Over a year later, on March 5,
2021, plaintiff filed an uncontested motion for final judgment, which the trial
court granted in an April 12, 2021 order.
On May 11, 2021, defendant filed a pro se motion to vacate the final
judgment and entry of default. In support, defendant submitted a certification
A-2822-20
3
in which he averred that although he "reside[d] at [the] subject property," he
never "received a [NOI] nor a [NOC]." Plaintiff opposed the motion and
submitted a copy of the October 29, 2019 NOI, which included a printed
notation that read, "Sent via Certified Mail," along with a tracking number.
Additionally, plaintiff submitted an attorney certification averring that on
March 2, 2020, the NOC was sent to defendant at the property address via
"certified and regular mail." A tracking printout from the United States Postal
Service (USPS) confirmed the mailing and showed that the certified mail was
unclaimed.
In a May 28, 2021 order, the judge denied defendant's motion to vacate
the final judgment and default. In an accompanying written statement of
reasons, the judge explained:
Plaintiff's counsel establishe[d] that the . . . [NOI] was
sent via regular and certified mail on October 29,
2019. In the present application, [d]efendant has not
set forth any allegations that would constitute a reason
to vacate under Rule 4:50-1. Plaintiff had standing to
foreclose as the holder of the [n]ote and the
[m]ortgage, and was the assignee of the latter, when
the [c]omplaint was filed on December 11, 2019.
In this ensuing appeal, defendant argues the judge "erred and abused
[his] discretion by not vacating the [f]inal [j]udgment and [e]ntry of [d]efaul t"
A-2822-20
4
because plaintiff failed to serve him with the NOI and the NOC as required by
the FFA.
"Our Rules prescribe a two-step default process, and there is a
significant difference between the burdens imposed at each stage." US Bank
Nat'l Ass'n v. Guillaume, 209 N.J. 449, 466 (2012). "When nothing more than
an entry of default pursuant to Rule 4:43-1 has occurred, relief from that
default may be granted on a showing of good cause." Guillaume, 209 N.J. at466-67 (citing R. 4:43-3). "When the matter has proceeded to the second stage
and the court has entered a default judgment pursuant to Rule 4:43-2, the party
seeking to vacate the judgment must meet the standard of Rule 4:50-1."
Guillaume, 209 N.J. at 467.
In pertinent part, Rule 4:50-1 permits a court to vacate a final judgment
on the following grounds:
(a) mistake, inadvertence, surprise, or excusable
neglect; (b) newly discovered evidence . . . ; (c)
fraud . . . ; (d) the judgment or order is void; (e) the
judgment or order has been satisfied, released or
discharged . . . ; or (f) any other reason justifying
relief from the operation of the judgment . . . .
[R. 4:50-1.]
Rule 4:50-1 is "designed to reconcile the strong interests in finality of
judgments and judicial efficiency with the equitable notion that courts should
A-2822-20
5
have authority to avoid an unjust result in any given case." Guillaume, 209
N.J. at 467 (quoting Mancini v. EDS, 132 N.J. 330, 334 (1993)).
"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 discretion 'arises when a decision is made
without a rational explanation, inexplicably departed from established policies,
or rested on an impermissible basis.'" Kornbleuth v. Westover, 241 N.J. 289,
302 (2020) (quoting Flagg v. Essex Cnty. Prosecutor, 171 N.J. 561, 571
(2002)).
The FFA provides that prior to commencing a residential foreclosure
action, a lender must provide an NOI to the debtor "at least [thirty] days . . . in
advance." N.J.S.A. 2A:50-56(a). The NOI must be "in writing" and "sent to
the debtor by registered or certified mail, return receipt requested, at the
debtor's last known address, and, if different, to the address of the property
which is the subject of the residential mortgage." N.J.S.A. 2A:50-56(b)
(emphasis added). Further, the notice is "effectuated on the date the notice is
delivered in person or mailed to the party." Ibid.The FFA also requires a lender to send a NOC to the debtor, which must
include the lender's contact information and "the amount required to cure the
A-2822-20
6
default," at least fourteen days before applying for entry of final judgment.
N.J.S.A. 2A:50-58(a)(1). The mailing requirements for the NOC are the same
as those for the NOI. Ibid.In Guillaume, our Supreme Court held that when a properly served NOI
does not satisfy the requirements of N.J.S.A. 2A:50-56(c)(11), which requires
the NOI to include the lender's contact information, a court may "dismiss the
action without prejudice, permit a cure or impose such other remedy as may be
appropriate to the specific case." Guillaume, 209 N.J. at 458. The Court
explained:
Under the FFA, service of a [NOI] . . . must be
effected thirty days "before any residential mortgage
lender may . . . commence any foreclosure or other
legal action to take possession of the residential
property which is the subject of the mortgage." The
Legislature did not expressly require dismissal, or
otherwise prescribe a remedy, in the event that a
notice of intention is timely served but is
noncompliant with one or more of the eleven
subsections set forth in N.J.S.A. 2A:50-56(c).
[Id. at 476 (emphases added) (citation omitted)
(quoting N.J.S.A. 2A:50-56(a)).]
Thus, courts may impose equitable remedies if the contents of an NOI
fail to comply with N.J.S.A. 2A:50-56(c). Ibid. However, failure to timely
A-2822-20
7
serve the NOI in compliance with the FFA cannot be similarly remedied.
EMC Mortg. Corp. v. Chaudhri, 400 N.J. Super. 126, 139 (App. Div. 2008).
In Guillaume, the defendants/homeowners argued, among other things,
that "the default judgment entered against them should be declared void under
Rule 4:50-1(d) because [the plaintiff] failed to comply with the FFA." Id. at
483. The Court disagreed, finding "no basis to declare the default judgment
void" because "the omission of information required by N.J.S.A. 2A:50-
56(c)(11) from a properly served notice of intention does not deprive the court
of jurisdiction to consider a foreclosure action." Ibid. (emphasis added).
In GE Capital Mortgage Services, Inc. v. Weisman, 339 N.J. Super. 590,
592 (Ch. Div. 2000), a Chancery Division judge found the plaintiff could not
demonstrate compliance with the FFA's notice requirements by merely
submitting "an internal copy of the NOI allegedly sent." Because the pla intiff
could not produce "(1) a Postal Service certified mail receipt indicating that
plaintiff ha[d] sent the NOI via certified mail to [the] defendants; (2) a Postal
Service return receipt verifying that the defendants received the NOI; or (3) a
certification of mailing signed by the bank employee who mailed the NOI," the
judge required the plaintiff to remedy the deficiency by mailing a new NOI to
A-2822-20
8
the defendants and allowing the defendants thirty days from the date of the
new mailing to cure the default. Id. at 595.
In Chaudhri, we agreed with the judge's determination that the plaintiff
in GE Capital did not demonstrate "compliance with the FFA notice
requirements" but "disapprove[d] of the remedy employed in that case."
Chaudhri, 400 N.J. Super. at 139 (citing GE Cap. Mortg. Servs., Inc., 339 N.J.
Super. at 592, 595). We stressed that "[t]he Legislature specifically intended
that lenders faithfully comply with the FFA provisions" and stated that the
foreclosure complaint should have been dismissed without prejudice because
although "the lender claimed compliance with the FFA notice requirements,
. . . it was unable to produce proof." Ibid. We noted that "the notice
provisions are mandatory" and "courts are not free to deviate from the
unambiguous statute." Ibid. (citing Cho Hung Bank v. Kim, 361 N.J. Super.
331, 343 (App. Div. 2003)).
Here, defendant certified he never received the NOI. In response,
plaintiff submitted a copy of the NOI purportedly sent with a certified mail
tracking number printed on the document. Plaintiff did not submit any
confirmatory documents from the USPS or certification of mailing averring
A-2822-20
9
that the NOI was sent via certified mail, return receipt requested, as mandated
in N.J.S.A. 2A:50-56(b).
"Return receipt service is not automatically part of certified mail service
but rather is an optional service." Green v. East Orange, 21 N.J. Tax 324, 334
(2004). When the Legislature chooses to impose a requirement to use the
return-receipt-request option for certified mail, as it did in the FFA, we must
assume that the requirement is significant and cannot be disregarded.
Moreover, we expect that financial institutions would have little difficulty
complying with this requirement, and later proving that they had done s o by
simply retaining the USPS receipt indicating that this option had been
purchased. That receipt would satisfy the service requirements of the FFA
even in cases where the return is not signed by the addressee. However, partial
compliance by using certified mail without the return-receipt-requested option
does not satisfy the statutory requirement.
Here, the unverified certified mail tracking number printed on the copy
of the NOI submitted by plaintiff in opposition to defendant's motion is
insufficient proof that plaintiff sent the NOI in accordance with the FFA's
service requirements. Absent from the record is any indication that plaintiff
used the requisite return-receipt-requested mailing option. Because plaintiff
A-2822-20
10
did not establish it sent a timely NOI, see N.J.S.A. 2A:50-56(a), the judge
lacked jurisdiction to consider the foreclosure action and the judgment is
therefore void pursuant to Rule 4:50-1(d).
"A Rule 4:50-1(d) motion, based on a claim that the judgment is void,
does not require a showing of excusable neglect but must be filed within a
reasonable time after entry of the judgment." Deutsche Bank Nat'l Tr. Co. v.
Russo, 429 N.J. Super. 91, 98 (App. Div. 2012). Defendant's motion was filed
one month after final judgment was entered. Because we conclude the judge
mistakenly exercised his discretion by denying defendant's timely motion, we
reverse the decision, vacate the final judgment, and remand for the entry of an
order dismissing the foreclosure complaint without prejudice. We note th at
this remedy "has no effect on the underlying contractual obligations of the
parties," Chaudhri, 400 N.J. Super. at 140, and our ruling "does not bar
reinstitution of the same claims in a later action." Ibid. (quoting Woodward-
Clyde Consultants v. Chem. & Pollution Scis., Inc., 105 N.J. 464, 472 (1987)).
Reversed and remanded for entry of an order consistent with this
opinion. We do not retain jurisdiction.
A-2822-20
11