U.S. BANK NATIONAL ASSOCIATION, ETC. VS. RUI AMARAL (F-032972-09, 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NOT FOR PUBLICATION WITHOUT THE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-4124-16T4
U.S. BANK NATIONAL ASSOCIATION,
AS TRUSTEE FOR SASCO 2007-WF2,
Plaintiff-Respondent,
v.
RUI AMARAL,
Defendant-Appellant,
and
SOPHIA B. COSTA, WACHOVIA
BANK, NATIONAL ASSOCIATION
and UNITED STATES OF
AMERICA,
Defendants.
Submitted June 19, 2018 — Decided July 17, 2018
Before Judges Simonelli and Koblitz.
On appeal from Superior Court of New Jersey,
Chancery Division, Essex County, Docket No.
F-032972-09.
Rui Amaral, appellant pro se.
Reed Smith, attorneys for respondent (Henry
F. Reichner, of counsel and on the brief;
Kristy L. Keiser, on the brief).
PER CURIAM
In this residential foreclosure case, defendant Rui Amaral
appeals from the May 1, 2017 final judgment, and an earlier March
28, 2017 order denying defendant's objection to the entry of
default judgment. Defendant argues his motion to vacate default
should have been granted because he was not served with the
complaint, and plaintiff did not have the right to foreclose. We
disagree and affirm.
On May 14, 2007, defendant obtained a $352,000 loan from
Wells Fargo, N.A. and executed a note and home mortgage to secure
the note. Defendant failed to make any payments beginning on
March 1, 2009. On June 18, 2009 Wells Fargo assigned the note to
plaintiff, U.S. Bank National Association, as Trustee For Sasco
2007-WF2. On June 23, 2009, plaintiff, who held the note, filed
the foreclosure complaint, which was personally served on
defendant on August 5, 2009 at 9:00 a.m. The affidavit of service
contains a physical description of the male served. Defendant did
not file an answer and default was entered in October 2010. In
September 2013, the matter was dismissed for lack of prosecution.
On August 21, 2014 a motion to reinstate was served on defendant
by regular and certified mail. It was granted unopposed on
September 22, 2014. On October 30, 2015, the matter was again
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dismissed for lack of prosecution, and again reinstated without
opposition on May 27, 2016.
On August 2, 2016, plaintiff served defendant with a motion
for final judgment. Defendant then filed a motion to vacate
default and file an answer out of time, claiming he had not been
served with the initial complaint. The facts recited in a proof
of service are presumed true, and can only be rebutted by clear
and convincing evidence. Resolution Tr. v Associated Gulf
Contractors, Inc., 213 N.J. Super. 332, 343 (App. Div. 1993).
Defendant provided his driver's license to the motion judge, who
found that the description on the license matched that of the man
served in 2009. The judge found defendant had not provided good
cause, as required by Rule 4:43-3, to vacate default after so many
years. In his thorough written opinion appended to the September
23, 2016 order, Judge Donald A. Kessler explained why he denied
defendant's motion to vacate default. Defendant does not appeal
from that order.
Defendant appeals from the order denying his opposition to
the entry of default judgment for the same reasons he sought to
vacate default. A motion to vacate default may be granted for
good cause, but defendant had previously failed to meet that
standard. An opposition to a final foreclosure judgment must be
based on a disagreement with the amount due only. R. 4:64-1(d)(3).
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No such argument is expressed by defendant. We find his appeal
of the grant of default judgment and final judgment is therefore
without sufficient merit to require further discussion in a written
opinion. R. 2:11-3(e)(1)(E).
Affirmed.
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