WELLS FARGO BANK, NA VS. ADAM JUDELSON(F-042765-09, ESSEX 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NOT FOR PUBLICATION WITHOUT THE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-4412-15T2
WELLS FARGO BANK, NA,
Plaintiff-Respondent,
v.
ADAM JUDELSON,
Defendant-Appellant.
______________________________
Submitted September 27, 2017 – Decided October 23, 2017
Before Judges Fuentes and Manahan.
On appeal from Superior Court of New Jersey,
Chancery Division, Essex County, Docket No.
F-042765-09.
Adam Judelson, appellant pro se.
Knuckles Komosinski & Manfro, LLP, attorneys
for respondent (John E. Brigandi, on the
brief).
PER CURIAM
In this mortgage foreclosure matter, defendant Adam Judelson
appeals from the June 10, 2016 order of the Chancery Division
denying his motion to vacate final judgment. We affirm.
We derive the following procedural history and facts from the
record. On May 20, 2008, defendant executed and delivered a
promissory note to Wells Fargo Bank NA (Wells Fargo) in the amount
of $148,000. To secure payment, defendant delivered a mortgage
encumbering the real property located in Newark, New Jersey.
Defendant defaulted under the terms of the note on May 1,
2009. Upon defendant's failure to cure the default, a notice of
intention to foreclose was mailed, and on August 12, 2009, Wells
Fargo filed the complaint for foreclosure.
Wells Fargo engaged in concerted efforts to serve defendant
with the summons and complaint. Wells Fargo attempted service
upon defendant through a private process server at the mortgaged
property. According to the affidavit of service, an individual
acknowledged that defendant did not reside at the mortgaged
premises. Wells Fargo then performed a skip trace, which revealed
an address for defendant in New York. Additionally, an inquiry
through directory assistance was performed to locate a phone number
for defendant. Wells Fargo attempted to serve defendant with a
summons and complaint at the New York address via certified mail
and regular mail. The certified mail was returned as "unclaimed."
The regular mail was not returned. Attempts to reach defendant
by phone were unsuccessful, as the calls were not answered.
2 A-4412-15T2
After defendant failed to file a responsive pleading or to
appear, Wells Fargo filed a request and certification of default.
On December 29, 2009, default was entered against defendant.
Four months later, Wells Fargo notified defendant by
certified and regular mail of its intention to proceed with the
foreclosure action. After defendant again failed to respond,
Wells Fargo filed a motion for application of final judgment.
While the motion was pending, the action was inexplicably
dismissed for lack of prosecution. Wells Fargo filed a motion to
vacate dismissal and reinstate the case upon notice to defendant
via certified and regular mail. The motion was granted. Wells
Fargo then filed for final judgment upon service to defendant by
certified and regular mail. On March 17, 2015, final judgment was
entered.
Over a year after the entry of final judgment, defendant
filed a motion to vacate default judgment and final judgment based
upon lack of service, arguing a violation of due process. At the
conclusion of oral argument, defendant's motion was denied.
Thereafter, defendant filed a motion seeking leave to file
an untimely appeal. We denied the motion and limited defendant's
appeal to the order denying his motion to vacate the final
judgment. This appeal followed.
Defendant raises the following points on appeal:
3 A-4412-15T2
POINT I
THE APPELLATE DIVISION MUST DECIDE WHETHER THE
TRIAL COURT'S FINDING OF FACT AND CONCLUSION
OF THE LAW FELL SHORT AS TO [WELLS FARGO'S]
AFFIDAVIT OF SERVICE [TO] REFLECT THAT
DEFENDANT WAS NOT SERVED ON DECEMBER 22,
2010[,] AND WHERE DEFENDANT[] REBUTTED BY
CLEAR AND CONVINCING EVIDENCE THAT REFLECT[S]
THAT [HE] WAS NOT SERVE[D] AS A MATTER OF LAW.
POINT II
THE APPELLATE DIVISION MUST DECIDE WHETHER
[WELLS FARGO'S] PROOF TO SUPPORT ITS
APPLICATION FOR ENTRY FOR FINAL JUDGMENT
ESTABLISHED THAT WELLS FARGO BANK, N.A. HAD
LEGAL RIGHT SHOWING OWNERSHIP OR CONTROL OF
THE NOTE UNDER THE UCC ARTICLE 3 REGARDING THE
TRANSFER AND ENFORCEMENT OF NOTE ON OR BEFORE
FINAL JUDGMENT WAS ENTERED AS A MATTER OF LAW.
POINT III
THE APPELLATE COURT MUST [DECIDE] WHETHER THE
TRIAL COURT [FAILED] TO [PERFORM] ITS DUTY BY
PROVIDING DEFENDANT WITH A REASON AS TO WHY
HIS MOTION WAS DENIED WHERE A REVIEW OF THE
TRIAL COURT ORDER SHOWS NO FINDING OF FACT
WITH RELEVANT LEGAL CONCLUSIONS AS [A] MATTER
OF LAW.
We have considered these arguments in light of the record and
after consideration of applicable law, and conclude that they lack
sufficient merit to warrant extended discussion in a written
opinion. R. 2:11-3(e)(1)(E). We add only the following.
Our scope of review of the trial court’s ruling on a motion
for relief from a judgment or order is exceedingly narrow. As our
Supreme Court has observed in a foreclosure context, a trial
4 A-4412-15T2
court’s decision under Rule 4:50-1 "warrants substantial
deference, and should not be reversed unless it results in a clear
abuse of discretion." U.S. Bank Nat’l Ass'n. v. Guillaume, 209
N.J. 449, 467 (2012) (citations omitted).
Moreover, where a litigant delays more than one year after
the entry of a judgment in moving to set it aside, the available
grounds for relief under Rule 4:50-1 are more restrictive and do
not include claims of "excusable neglect" under subsection (a) of
that provision. R. 4:50-2.; Orner v. Liu, 419 N.J. Super. 431,
437 (App. Div.) (recognizing this prescribed "outermost time
limit"), certif. denied, 208 N.J. 369 (2011).
Even if the defense of excusable neglect was available to
defendant, the record supports that defendant's neglect was
inexcusable. Although defendant was not personally served, he was
properly served by mail. R. 4:4-4(b)(1)(C). U.S. Bank Nat'l.
Ass'n v. Curcio, 444 N.J. Super. 94, 107 (App. Div. 2016). Despite
notice of the foreclosure action, defendant did not respond or
otherwise appear for six years. It is without dispute that
defendant's willful lack of response was not attributable to
excusable neglect. See Baumann v. Marinaro, 95 N.J. 380, 394
(1984).
Defendant raises for the first time on appeal that Wells
Fargo lacked standing to foreclose the mortgage. Although an
5 A-4412-15T2
appellate court may consider allegations of error not brought to
the trial judge's attention, we frequently decline to consider
issues that were not presented before the trial court. Since
defendant's claim does not go to the jurisdiction of the trial
court, nor does it concern matters of substantial public interest,
we will not consider the claim on appeal. See State v. Robinson,
200 N.J. 1, 20-22 (2009); State v. Arthur, 184 N.J. 207, 327
(2005); Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973);
see Pressler & Verniero, Current N.J. Court Rules, comment on R.
2:6-2 (2015).
In closing, we are satisfied that the factual findings of the
court concerning defendant's contentions are fully supported by
the record and, in light of those facts, the legal conclusions
drawn therefrom are unassailable.
Affirmed.
6 A-4412-15T2