AURORA LOAN SERVICES, LLC VS. PEDRO L. PEREZ Â (F-4032-10, BERGEN 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NOT FOR PUBLICATION WITHOUT THE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-3184-15T1
AURORA LOAN SERVICES, LLC,
Plaintiff-Respondent,
v.
PEDRO L. PEREZ, his heirs, devisees
and personal representatives and his
successors in right, title and interest,
MRS. PEREZ, wife of PEDRO L. PEREZ,
her heirs, devisees, and personal
representatives,
Defendants-Appellants,
and
CITIBANK and FEDERAL SAVINGS BANK,
Defendants.
_________________________________________
Submitted June 6, 2017 – Decided June 23, 2017
Before Judges Fisher and Vernoia.
On appeal from the Superior Court of New
Jersey, Chancery Division, Bergen County,
Docket No. F-4032-10.
Pedro L. Perez, appellant pro se.
Powers Kirn, LLC, attorneys for respondent
(Michael B. McNeil, on the brief).
PER CURIAM
Defendant Pedro L. Perez appeals a June 12, 2015 order denying
his motion to vacate a final judgment and invalidate a sheriff's
deed, and an August 7, 2015 order denying his motion for
reconsideration. We affirm.
On September 10, 2004, defendant purchased property located
at 425 Greenwich Street in Bergenfield. He obtained financing for
the purchase from Ark Mortgage, Inc., and executed a note in Ark's
favor that was secured by a mortgage from defendant to Mortgage
Electronic Registration Systems, Inc., as Ark's nominee. Ark
assigned the mortgage to plaintiff Aurora Loan Services, LLC on
January 4, 2010, and the assignment was recorded in January 2010.
Defendant defaulted under the note and mortgage by failing
to make a August 1, 2009 payment, and all subsequent payments.
Plaintiff forwarded to defendant a notice of intent to foreclose
in September 2009, and filed a foreclosure action on January 13,
2010. After defendant failed to respond to the complaint, default
was entered on April 6, 2010, and a final judgment and writ of
execution were entered on January 11, 2012. Plaintiff purchased
the property at a sheriff's sale and received a sheriff's deed
that was recorded on September 11, 2012.
On April 22, 2015, defendant first appeared in the matter,
filing a motion to vacate the final judgment and void the sheriff's
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deed. Defendant argued he was entitled to the relief because he
was never served with the complaint. The court denied defendant's
motion in a detailed written decision finding the request to vacate
the sheriff's deed was untimely under Rule 4:65-5, and that the
affidavit of service showed the complaint and summons were served
in 2010 in accordance with Rule 4:4-4(a)(1). The court determined
defendant failed to present clear and convincing evidence
rebutting the presumption of service which arose based on the
sworn affidavit of service, Garley v. Waddington, 177 N.J. Super.
173, 180-81 (App. Div. 1981), and entered a June 12, 2015 order
denying defendant's motion.
Defendant filed a motion for reconsideration arguing
plaintiff did not have standing to bring the foreclosure action.
In another detailed written opinion, the court rejected
defendant's argument, noting he failed to demonstrate that the
court's June 12, 2015 order was based on a palpably incorrect or
irrational basis or that the court failed to consider or appreciate
probative or competent evidence. See R. 4:49-2; In re Estate of
Brown, 448 N.J. Super. 252, 268 (App. Div. 2017). The court also
found plaintiff had standing because it received and filed an
assignment of the mortgage prior to the filing of the complaint.
See Deutsche Bank Trust Co. Ams. v. Angeles, 428 N.J. Super. 315,
3 A-3184-15T1
318 (App. Div. 2012). The court entered an August 7, 2015 order
denying defendant's motion.
On appeal, defendant argues only that the court erred in
entering the orders because the evidence showed "a deviation from
the service of process rules," and that he otherwise presented
clear and convincing evidence rebutting the presumption of proper
service that arose from the affidavit of service showing service
of the summons and complaint in 2010.
We find insufficient merit in defendant's contentions to
warrant a discussion in a written opinion, R. 2:11-3(e)(1)(E), and
affirm substantially for the reasons in Judge Menelaos W. Toskos's
well-reasoned June 12, 2015 and August 7, 2015 written decisions.
Affirmed.
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