BANK OF AMERICA, N.A. VS. WADELL P. SMITH (F-007676-16, UNION COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-0912-18T1
BANK OF AMERICA, N.A.,
Plaintiff-Respondent,
v.
WADELL P. SMITH,
Defendant-Appellant.
_____________________________
Submitted May 29, 2019 – Decided June 19, 2019
Before Judges Hoffman and Suter.
On appeal from Superior Court of New Jersey,
Chancery Division, Union County, Docket No. F-
007676-16.
Wadell P. Smith, appellant pro se.
Parker McCay, PA, attorneys for respondent (Eugene
R. Mariano, of counsel; Stacy L. Moore, Jr., on the
brief).
PER CURIAM
Defendant Wadell Smith appeals from the August 17, 2018 trial court
order denying his motion to set aside the sheriff's sale and allow redemption on
a foreclosed property due to plaintiff's alleged failure to file proper proofs. For
the reasons that follow, we affirm.
I.
In December 2008, defendant executed a note to Allied Mortgage Group,
Inc. (Allied) for the sum of $403,987. On the same day, defendant executed a
mortgage to Mortgage Electronic Registration Systems, Inc. as nominee for
Allied. Plaintiff came into possession of the debt as successor to an assignee of
the mortgage.
In August 2010, defendant defaulted. Plaintiff filed a foreclosure
complaint in March 2016. In December 2016, the trial court granted plaintiff's
motion for summary judgment. In December 2017, plaintiff submitted an
application for final judgment, which the court granted in January 2018.
In April 2018, defendant filed a motion to vacate final judgment. The
court denied the motion the following month. In June 2018, defendant filed a
motion to dismiss, which the court denied. The same month, a sheriff's sale was
held and plaintiff purchased the property. Subsequently, in July 2018, defendant
filed a motion to set aside the sheriff's sale. The trial court denied this motion
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in August 2018. This appeal followed, based only on the motion to set aside the
sheriff's sale.
II.
To succeed in a foreclosure action, a plaintiff need merely prove: (1) the
validity of the note and mortgage; (2) the defendant defaulted on the loan; and
(3) plaintiff has the right to resort to the mortgaged property in satisfaction of
the loan. Great Falls Bank v. Pardo, 263 N.J. Super. 388 (Ch. Div. 1993).
Defendant does not contest any of these material elements. Rather, defendant
argues plaintiff failed to comply with amended foreclosure Rules 4:64-1 and
4:64-2. Essentially, defendant argues plaintiff erred by filing certifications
rather than affidavits.
We review motions to set aside a sheriff's sale for abuse of discretion.
United States v. Scurry, 193 N.J. 492, 502-03 (2008). To set aside, we require
a showing of fraud, accident, surprise or mistake, irregularities in the sale, or
other similar circumstances. See R. 4:50-1; Karel v. Davis, 122 N.J. Eq. 526,
528 (E & A 1937).
Here, even assuming the bank's attorneys made mistakes, we find no
circumstances to justify an order under Rule 4:50-1 vacating the judgment.
Indeed, after reviewing the record, we find insufficient merit in defendant's
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arguments to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We
add the following brief comments.
On June 9, 2011, our Supreme Court adopted amendments to the rules
governing foreclosure actions. See N.J. Judiciary, Residential Mortgage
Foreclosure Rules: Amendments to Rules 4:64-1 and 4:64-2; Revised Form
Certifications/ Affidavits (June 9, 2011).
The amendments require an attorney for a foreclosure plaintiff to execute
a Certification of Diligent Inquiry confirming the attorney has communicated
with an employee of the plaintiff or its loan servicer and confirmed the accuracy
of the Note and other foreclosure documents. Pressler & Verniero, Current N.J.
Court Rules, cmt. 1 on R. 4:64-1 and cmt. 1 on R. 4:64-2 (2019). Likewise, the
plaintiff must file an affidavit of amount due. R. 4:64-2.
However, despite defendant's argument to the contrary, the rule "permits
proof of the amount due to be submitted by certification . . . ." See Pressler &
Verniero, cmt. 1 on R. 4:64-2 (2019). Likewise, the rule explicitly allows for a
certification for the diligent inquiry. See R. 4:64-1.
Additionally, defendant only appealed the denial of his motion to set aside
the sheriff's sale. He did not appeal the orders denying his motion to vacate final
judgment or his motion to dismiss. Thus, we are unable to set aside the final
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judgment as defendant requests. See Pressler & Verniero, 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. 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).
Affirmed.
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