BANK OF AMERICA, NA VS. CHRISTOPHER J. ARTEAGAÂ (F-015602-14, HUDSON 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NOT FOR PUBLICATION WITHOUT THE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-4693-15T1
BANK OF AMERICA, N.A.,
Plaintiff-Respondent,
v.
CHRISTOPHER J. ARTEAGA and
VIVIANA J. ARTEAGA, his wife,
each of their heirs,
devisees, and personal
representatives, and his,
her, their, or any of their
successors in right, title,
and interest; BERGENWOOD
COMMONS ASSOCIATION, INC.,
and PORTFOLIO RECOVERY
ASSOCIATES,
Defendants.
___________________________________
Submitted September 6, 2017 – Decided November 15, 2017
Before Judges Alvarez and Gooden Brown.
On appeal from the Superior Court of New
Jersey, Chancery Division, Hudson County,
Docket No. F-015602-14.
Law Offices of Abe Rappaport, attorney for
appellant 4521 Smith Unit 6-1C Associates, LLC
(Kevin J. Bloom, on the briefs).
Powers Kirn, LLC, attorney for respondent
(Jeanette J. O'Donnell, on the brief).
PER CURIAM
Appellant third-party bidder, 4521 Smith Unit 6-1C
Associates, LLC, moved to vacate an April 1, 2016 Chancery Division
order setting aside a Sheriff's sale on the ground that appellant
failed to complete the sale. The trial court denied appellant's
motion on June 28, 2016. Appellant now appeals from the June 28,
2016 order, arguing it was never served with plaintiff Bank of
America's motion papers to set aside the Sheriff's sale. Appellant
also argues that the court erred in finding that its motion was
filed out of time. We disagree and affirm.
We derive the following facts from the record. On April 21,
2014, plaintiff filed a foreclosure complaint and obtained a final
judgment in its favor on March 17, 2015. On December 17, 2015, a
Sheriff's sale was conducted of the foreclosed-upon property, and
appellant was the successful bidder with a bid of $116,000. Under
the terms of the sale, appellant was required to "pay 20% of the
purchase price at the close of the sale" with the balance to be
paid within thirty days. The sale terms also specified that "[i]f
the purchaser fails to comply with any of the conditions of sale,
the property will be sold a second time, the former purchaser
being held responsible for all losses and expenses[,]" and "[t]he
deposit . . . to be retained by the Sheriff to be disbursed by
court order."
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Appellant failed to complete the sale by paying the balance
by the due date as required under the terms of the sale. On
January 20, 2016, plaintiff sent appellant a letter requesting
that the sale be completed within ten days of the date of the
letter or plaintiff would move to set aside the sale. When
appellant failed to comply, on March 10, 2016, plaintiff moved to
vacate the Sheriff's sale, which was granted by the court in an
April 1, 2016 order.
On May 10, 2016, appellant moved to vacate the April 1, 2016
order to allow it to complete the sale, certifying that it did not
receive a copy of plaintiff's motion and did not therefore have
an opportunity to oppose it. In opposing appellant's motion,
plaintiff certified that the moving papers were sent via regular
and certified mail to the same address as the April 1, 2016 order.
Plaintiff averred that while the certified mail "was returned
unclaimed[,] the regular mail was not returned." On June 28,
2016, the court denied appellant's motion.
In the statement of reasons accompanying the June 28, 2016
order, the court characterized appellant's motion as essentially
seeking reconsideration of the court's April 1, 2016 order. As a
result, the court determined that pursuant to Rule 4:49-2,
appellant's motion for reconsideration was out of time because it
"was served and filed on May 10, 2016, [thirty-nine] days after
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the [c]ourt's [o]rder granting [p]laintiff's motion to vacate the
Sheriff's [s]ale." Because Rule 4:49-2 requires a motion for
reconsideration to be filed "no later than [twenty] days after the
service of the [o]rder[,]" the court denied appellant's motion "as
untimely."
Nonetheless, the court considered appellant's motion on the
merits, but rejected appellant's argument "that service was not
properly effectuated[.]" The court found plaintiff's assertion
that it did not receive the original motion to vacate
"disingenuous[,] as [appellant's] counsel received a copy of the
[April 1, 2016] [o]rder, which was sent to the same address as the
motion." The court concluded there was "no basis in fact or law
to overturn its April 1, 2016 [o]rder[,]" particularly given the
fact that appellant was "now seeking to complete the sale after
forfeiting their deposit." This appeal followed.
On appeal, appellant raises the following points for our
consideration:
POINT I
APPELLANT'S MOTION WAS NOT FILED OUT OF TIME.
POINT II
PLAINTIFF'S ORDER TO SET ASIDE SHERIFF'S SALE
MUST BE VACATED BECAUSE APPELLANT NEVER
RECEIVED THE MOTION.
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POINT III
PRINCIPLES OF EQUITY COMPEL THE COURT NOT TO
SET ASIDE A SHERIFF'S SALE WHERE THE
SUCCESSFUL BIDDER DESIRES TO COMPLETE THE
SALE.
In Point I, appellant argues that the court erred in
considering its motion as a motion for reconsideration pursuant
to Rule 4:49-2, instead of a motion to be relieved from a judgment
or order pursuant to Rule 4:50-1. Appellant asserts that, in so
doing, the court erroneously rejected its motion as untimely. Rule
4:49-2 requires "a motion for rehearing or reconsideration seeking
to alter or amend a judgment or order [to] be served not later
than [twenty] days after service of the judgment or order upon all
parties by the party obtaining it." Pursuant to Rule 1:3-4(c),
"[n]either the parties nor the court may . . . enlarge the time
specified by . . . [Rule] 4:49-2[.]" Reconsideration is
appropriate only in those cases "in which either 1) the [c]ourt
has expressed its decision based upon a palpably incorrect or
irrational basis, or 2) it is obvious that the [c]ourt either did
not consider, or failed to appreciate the significance of
probative, competent evidence." D'Atria v. D'Atria, 242 N.J.
Super. 392, 401 (Ch. Div. 1990). We review a court's determination
of a motion for reconsideration under an abuse of discretion
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standard. Cummings v. Bahr, 295 N.J. Super. 374, 389 (App. Div.
1996).
Rule 4:50-1 authorizes a court to relieve a party from a
final judgment or order for reasons such as: mistake, inadvertence,
surprise, or excusable neglect, R. 4:50-1(a); certain newly
discovered evidence, R. 4:50-1(b); fraud, misrepresentation, or
other misconduct of an adverse party, R. 4:50-1(c); the fact that
the judgment or order is void, R. 4:50-1(d); or the fact that the
judgment has been satisfied, released or discharged, R. 4:50-1(e).
Rule 4:50-1(f) is a catch-all provision that authorizes a court
to relieve a party from a judgment or order for "any other
reason[.]" "All Rule 4:50 motions must be filed within a
reasonable time, which, in some circumstances, may be less than
one year from entry of the order in question." Orner v. Liu, 419
N.J. Super. 431, 437 (App. Div.), certif. denied, 208 N.J. 369(2011); R. 4:50-2. We also review a court's determination of a
Rule 4:50-1 motion under an abuse of discretion standard. Johnson
v. Johnson, 320 N.J. Super. 371, 378 (App. Div. 1999).
Appellant's May 10, 2016 motion was captioned "Notice of
Motion to Vacate Order" and indicated that appellant would seek
"an [o]rder to vacate the order setting aside the [S]heriff's sale
that was entered on April 1, 2016." The notice of motion stated
that in support of the motion, appellant would rely upon the
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accompanying "[c]ertification" and "letter brief." Nowhere in the
notice of motion, supporting certification, or letter brief did
appellant refer to Rule 4:50-1. Nowhere in its merits brief does
appellant suggest that it specifically asked the trial court to
consider its motion under Rule 4:50-1. Under these circumstances,
we conclude the court did not err by considering the motion under
Rule 4:49-2 and denying it as untimely filed.
In Point II, appellant renews its argument that although the
motion papers were sent to appellant via regular and certified
mail, the certified mail was returned to plaintiff as undelivered.
As a result, appellant asserts the court erred in finding that
service was properly effectuated. We disagree. It is fundamental
that a party is entitled to notice of any motion, including a
dispositive motion. See Pressler & Verniero, Current N.J. Court
Rules, comment 2 on R. 1:6-2 (2018) ("It is virtually axiomatic
that . . . all motions must be on notice to the adverse party.");
see also R. 1:6-3. However, Rule 1:6-3(c) provides that if service
of motion papers "is by ordinary mail, receipt will be presumed
on the third business day after mailing." Here, there is ample
evidence in the record to support the court's conclusion that
service was properly effectuated.
Finally, in Point III, appellant argues that because it fully
intended to complete the purchase of the property, principles of
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equity require reversal so that it may be permitted to complete
the purchase without the need for the Sheriff's office to institute
an additional and unnecessary Sheriff's sale. We have considered
this argument and reject it as without sufficient merit to warrant
discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
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