WILMINGTON SAVINGS FUND SOCIETY, FSB, ETC. v. SIMON ZAROUR (L-1343-19, PASSAIC 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NOT FOR PUBLICATION WITHOUT THE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-0299-20
WILMINGTON SAVINGS FUND
SOCIETY, FSB, as trustee of
STANWICH MORTGAGE
LOAN TRUST A,
Plaintiff-Respondent,
v.
SIMON ZAROUR,
Defendant-Appellant,
and
GARDEN PLAZA, a/k/a GARDEN
PLAZA CONSTRUCTION
ENTERPRISES, LLC, and SAM
HALPERIN,
Defendants.
______________________________
Argued January 3, 2022 – Decided July 26, 2022
Before Judges Accurso and Rose.
On appeal from the Superior Court of New Jersey,
Law Division, Passaic County, Docket No. L-1343-19.
Simon Zarour, appellant, argued the cause pro se.
Michael C. Hughes (Houser LLP) argued the cause for
respondent.
PER CURIAM
This is a replevin action. Defendant Simon Zarour admits that in August
2016, he took from his mother's front porch an original note and mortgage she
signed in 2006, which the loan servicer mistakenly sent to her instead of to the
lawyer pursuing a foreclosure action against her on behalf of plaintiff
Wilmington Savings Fund Society. Instead of returning the obviously
misdirected documents, defendant traded them to defendant Garden Plaza in
satisfaction of a debt. After unsuccessfully attempting to assert ownership of
the documents in the borrower's bankruptcy action, Garden Plaza returned the
loan documents to defendant, who then tried to enforce them in his own
bankruptcy action in New York.
Specifically, defendant filed an order to show cause in his Chapter 11
case to stay the sheriff's sale in his mother's foreclosure action, claiming in a
sworn statement that he took the letter containing his mother's original note
and mortgage from her porch without her knowledge, "because she [didn't]
want to get more depressed from all the mess from the foreclosure" by looking
at her mail. Defendant averred he considered the servicer's mistake as
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"Bracha, a blessing from Hashem," and claimed plaintiff's foreclosure
judgment was a fraud because it obtained the judgment without possession of
the original note and mortgage.1 The bankruptcy judge viewed it differently,
rejecting defendant's "finders keepers (losers weepers)" theory and denying the
motion.
A New York process server left the replevin complaint at defendant's
home in New York in July 2019, with a young man the process server
identified as defendant's son, whom the process server estimated to be between
seventeen and twenty years old but who apparently would not give his name.
Defendant sent a letter to the court the following October acknowledging
receipt of the complaint, which he contended, without proof, had been
improperly served. He expressed his willingness to accept service to "save
time" but asserted he needed an adjournment to seek legal advice. When no
answer was filed, plaintiff entered default in January 2020. Defendant
1
The General Equity judge presiding over the foreclosure in the vicinage was
well aware when he entered summary judgment for plaintiff that it had lost
possession of the original note and mortgage when they were inadvertently
sent to the borrower. Plaintiff disclosed its servicer's error to the court on its
motion to strike the borrower's answer and counterclaim — and its
unsuccessful efforts to recover the documents. The judge ordered defendant's
mother to "immediately" return the original note to plaintiff's counsel.
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thereafter attempted to file an answer and counterclaim, but failed to take any
steps to vacate the default.
In May 2020, plaintiff filed a motion to enter judgment by default
against defendant and for summary judgment against all defendants, including
Garden Plaza and its principal. Defendant cross-moved to vacate the default.
The judge entered default judgment against defendant on July 16, 2020, and
ordered a writ of replevin should issue directing defendant to surrender
possession of the original loan documents to plaintiff, and that such surrender
should occur by July 31. Pending surrender, the judge restrained defendant
from tampering with or destroying the documents.
A different judge considered defendant's motion to vacate default.
Defendant's motion was denied on August 24, 2020, with the judge noting
defendant failed to show excusable neglect for the failure to file an answer to a
pleading filed more than a year before. The order noted defendant's brief was
"undecipherable." Defendant concedes his brief "admittedly, was not the most
lucid." He appeals from both orders.
A large portion of defendant's brief, reply brief and 469-page appendix
is taken up with his various arguments as to why plaintiff lacked standing to
pursue the foreclosure action against his mother without possession of the
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original note and mortgage. Leaving aside that the foreclosure judgment was
entered more than five years ago, the property sold at sheriff's sale nearly two
years ago and the time to appeal either long-since passed, defendant admits he
took the documents misdirected to his mother without his mother's knowledge
and has refused to return them to the rightful owner.
Defendant has no meritorious defense to his retention of plaintiff's
original loan documents. See US Bank Nat'l Ass'n v. Guillaume, 209 N.J. 449,
469 (2012) (noting beyond a showing of excusable neglect, a defendant
attempting to reopen a default judgment must possess a meritorious defense).
His retention of the documents is plainly wrongful, see Chicago Title Ins. Co.
v. Ellis, 409 N.J. Super. 444, 456-57 (App. Div. 2009) (noting "crux of
conversion is wrongful exercise of dominion or control over property of
another without authorization and to the exclusion of the owner's rights in the
property"). Accordingly, a writ of replevin was appropriate. See O'Keeffe v.
Snyder, 83 N.J. 478, 509 (1980) (Handler, J., dissenting) ("An action brought
for replevin is a proper means for an owner to regain possession of chattels
lost through conversion."); Baron v. Peoples Nat'l Bank of Secaucus, 9 N.J.
249, 255-256 (1952).
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Defendant's arguments to the contrary are without sufficient merit to
warrant discussion in a written opinion. See R. 2:11-3(e)(1)(E).
Affirmed.
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