ONEWEST BANK, FSB VS. ERROL JEFFERSON (F-014293-12, 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NOT FOR PUBLICATION WITHOUT THE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-5197-16T1
ONEWEST BANK, FSB,
Plaintiff-Respondent,
v.
ERROL JEFFERSON, his heirs, devisees,
and personal representatives, and
his, her, their successors in right,
title and interest, and MRS. JEFFERSON,
wife of ERROL JEFFERSON, HAMILTON PARK
HEALTHCARE CENTER, THE STATE OF NEW
JERSEY and UNITED STATES OF AMERICA,
Defendants,
and
JOANN JEFFERSON,
Defendant-Appellant.
______________________________
Submitted June 5, 2018 – Decided June 22, 2018
Before Judges Moynihan and Natali.
On appeal from Superior Court of New Jersey,
Chancery Division, General Equity Part, Hudson
County, Docket No. F-014293-12.
Joann Jefferson, appellant pro se.
Fein, Such, Kahn & Shepard, PC, attorneys for
respondent (Douglas J. McDonough, on the
brief).
PER CURIAM
This is a residential foreclosure action. Defendant Joann
Jefferson appeals from the final judgment and order denying her
motion to vacate that judgment. We affirm.
According to the foreclosure complaint, in 2007, Ena and
Errol Jefferson1 executed a $175,000 promissory note to East Coast
Mortgage Corp. (East Coast). The note was transferred three times
by formal allonge2 and ultimately held by plaintiff OneWest Bank,
FSB (OneWest). As security for repayment, Ena and Errol executed
a mortgage in the same amount to Mortgage Electronic Registration
Systems, Inc., as nominee for East Coast. The mortgage was duly
recorded. The East Coast mortgage was assigned to OneWest on May
24, 2012.
Errol defaulted on the note in January 2011 and plaintiff
filed a foreclosure complaint on July 24, 2012, naming only Errol
as it was correctly believed Ena died in August 2010. Errol did
1
We refer to Ena, Errol and Joann Jefferson by their first names
in the interest of clarity. We intend no disrespect by this
informality.
2
An allonge is "[a] slip of paper sometimes attached to a
negotiable instrument for the purpose of receiving . . .
indorsements." Black's Law Dictionary 92 (10th ed. 2014).
2 A-5197-16T1
not answer the complaint and default was entered. Plaintiff agreed
to vacate the default and Errol's counsel filed an answer without
a single affirmative defense. After the close of discovery and
less than three months before the scheduled trial date, Errol and
plaintiff entered into a consent order by which Errol agreed to
withdraw his contesting answer conditioned upon plaintiff
refraining from moving for final judgment until December 2013.
In January 2014, Errol died. Final judgment was entered on
August 6, 2014, and vacated on plaintiff's motion on September 1,
2015 to permit plaintiff to file an amended complaint. In January
2016, plaintiff filed its first amended complaint to join new
judgment creditors and unknown heirs and to plead Errol's death.
In May 2016, plaintiff filed a second amended complaint to add
Joann as Errol’s heir and described her as the "only known heir
[at] law and next of kin of the decedent, E[rrol] J[efferson]."
On July 27, 2016, default was entered against all defendants.
That same day, and on two separate occasions thereafter, Joann
attempted to file contesting answers. Each time the Clerk rejected
the answers for various procedural irregularities and issued
deficiency notices. On August 30, 2016, Joann also attempted to
file a motion to vacate default. That filing was also rejected
because, at the time, Errol still had an attorney of record.
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On September 16, 2016, Joann moved to vacate default claiming
she inadvertently failed to include the required filing fee and
case information statement. Joann did not include a proposed
contesting answer with her motion as required by Rule 4:43-3. On
October 28, 2016, Judge Marybeth Rogers concluded that Joann had
not satisfied the requirements of Rule 4:43-3 and denied the
motion. She reasoned:
Here, the [c]ourt is compelled to deny
[d]efendant's sought relief. Defendant has
not demonstrated good cause. Defendant has
certified about her mistake at filing her
[a]nswer without the proper [case information
statement] and filing fee. Defendant received
deficiency notices from the Office of
Foreclosure after the filings were made with
notice to correct the mistake within ten days.
Defendant did not attempt to correct her
mistake and instead sent her filings to the
Office of Foreclosure again. Defendant does
not provide a reason as to why she did not
rectify the errors. Moreover, [d]efendant has
not attached her proposed [a]nswer in her
[m]otion papers for the [c]ourt to determine
whether there is a meritorious defense.
On May 9, 2017, plaintiff obtained final judgment for the
second time. Less than a month later, Joann moved to vacate the
final judgment pursuant to Rule 4:50-1. She supported her
application with a non-compliant Rule 1:6-6 certification that
improperly contained hearsay and speculated regarding the veracity
of Ena's signature on the loan documents and her competence to
execute those instruments. She also alleged numerous legal and
4 A-5197-16T1
factual deficiencies including plaintiff's compliance with the
Fair Foreclosure Act, N.J.S.A. 2A:50-53 to -73.
Judge Rogers denied Joann's motion and correctly observed
that Joann's certification was not based on personal knowledge and
ignored other critical facts from the extensive procedural
history. The trial judge considered Joann's application pursuant
to Rule 4:50-1(a) and determined she had established neither
excusable neglect nor a meritorious defense:
Here, the [c]ourt declines to grant
[d]efendant's relief sought. . . . The
[c]ourt does not find excusable neglect. As
addressed in the [c]ourt's [o]rder dated
October 28, 2016, [d]efendant was notified to
correct her deficiency within ten days, but
instead of doing that [d]efendant sent her
deficient filings again to the Office of
Foreclosure on multiple occasions. Defendant
provided no reasoning as to why she did not
rectify the errors. Now [d]efendant seeks to
vacate [f]inal [j]udgment on the same basis,
which the [c]ourt has already denied.
Moreover, [d]efendant lists numerous alleged
meritorious defenses, however, there is no
proof to substantiate these defenses and based
on [d]efendant's submission as presented,
these allegations are nothing more than
hearsay statements.
Joann raises the following points on appeal:
POINT I
ONE WEST BANK FSB VIOLATED ALL APPLICABLE
CONDITION PRECEDENTS. ONE WEST BANK FSB DID
NOT FULFILL CERTAIN PRE-CONDITIONS PRIOR TO
THE ONSET OF THIS FRAUDULENT FORECLOSURE
5 A-5197-16T1
ACTION. ONE WEST BANK FSB ENGAGED IN
DISREPUTALE AND ILLICIT PRACTICES.
POINT II
ORIGINAL LENDER ENGAGED IN PREDACIOUS ABUSE
IN THE ORIGINATION OF THE ALLEGED MORTGAGE
TRANSACTION. ONE WEST BANK FSB SUBMITTED
DEFECTIVE DOCUMENTS AS PROOF OF STANDING TO
FORECLOSE AND THE TRIAL COURT ERRED IN THE
PRESUMPTION OF ITS VALIDITY.
POINT III
RELIANCE ON FORGED AND FRAUDULENT EVIDENTIARY
DOCUMENTS IS BRUTAL AND UNCONSCIONABLE. THE
APPLICATION OF LAW TO SUCH DOCUMENTS MUST BE
REVIEWED AND REVERSED.
After carefully reviewing the record in light of the written
arguments advanced by the parties, we conclude that the issues
presented by Joann are without sufficient merit to warrant
extensive discussion in this opinion, R. 2:11-3(e)(1)(A), (E), and
we affirm substantially for the reasons expressed by the trial
judge in her written statements of reasons. We add the following.
Our review is governed by Rule 4:50-1, which permits a court,
in its discretion, to relieve a party from a final judgment for the
following reasons:
(a) mistake, inadvertence, surprise, or
excusable neglect; (b) newly discovered
evidence which would probably alter the
judgment or order and which by due diligence
could not have been discovered in time to move
for a new trial under [Rule] 4:49; (c) fraud
(whether heretofore denominated intrinsic or
extrinsic), misrepresentation, or other
6 A-5197-16T1
misconduct of an adverse party; (d) the
judgment or order is void; (e) the judgment
or order has been satisfied, released or
discharged, or a prior judgment or order upon
which it is based has been reversed or
otherwise vacated, or it is no longer
equitable that the judgment or order should
have prospective application; or (f) any other
reason justifying relief from the operation
of the judgment or order.
We review a trial court's grant or denial of a Rule 4:50-1
motion with substantial deference and will not reverse "unless it
results in a clear abuse of discretion." U.S. Bank Nat'l Ass'n
v. Guillaume, 209 N.J. 449, 467 (2012). "[A]n abuse of discretion
occurs when a decision is 'made without a rational explanation,
inexplicably departed from established policies, or rested on an
impermissible basis.'" Deutsche Bank Trust Co. Ams. v. Angeles,
428 N.J. Super. 315, 319 (App. Div. 2012) (alteration in original)
(quoting Guillaume, 209 N.J. at 467-68). Here, we discern no
abuse of discretion.
Rule 4:50-1 is "designed to reconcile the strong interests in
finality of judgments and judicial efficiency with the equitable
notion that courts should have authority to avoid an unjust result
in any given case." Guillaume, 209 N.J. at 467 (quoting Mancini
v. EDS ex rel. N.J. Auto. Full Underwriting Ass'n, 132 N.J. 330,
334 (1993)). Relief from a judgment pursuant to Rule 4:50-1 "is
not to be granted lightly." Cho Hung Bank v. Kim, 361 N.J. Super.
7 A-5197-16T1
331, 336 (App. Div. 2003). Rather, Rule 4:50-1 "provides for
extraordinary relief and may be invoked only upon a showing of
exceptional circumstances." Ross v. Rupert, 384 N.J. Super. 1, 8
(App. Div. 2006) (quoting Baumann v. Marinaro, 95 N.J. 380, 393
(1984)). Indeed, the discretionary authority afforded to the
trial court under Rule 4:50-1 is to be "exercised with equitable
principles in mind, and will not be overturned in the absence of an
abuse of that discretion." Marder v. Realty Constr. Co., 84 N.J.
Super. 313, 318 (App. Div. 1964).
In addition, "the showing of a meritorious defense is a
traditional element necessary for setting aside . . . a default
judgment." Pressler & Verniero, Current N.J. Court Rules, cmt. on
R. 4:43-3 (2018); see also Marder, 84 N.J. Super. at 318-19. That
is so because when a party has no meritorious defense, "[t]he time
of the courts, counsel and litigants should not be taken up by such
a futile proceeding." Guillaume, 209 N.J. at 469 (quoting Schulwitz
v. Shuster, 27 N.J. Super. 554, 561 (App. Div. 1953)).
Joann does not identify the specific section of Rule 4:50-1
in which she bases her request for relief. The trial judge
considered the application pursuant to Rule 4:50-1(a) and
correctly determined that Joann had not demonstrated excusable
neglect or a meritorious defense. For purposes of completeness,
8 A-5197-16T1
we have reviewed the record and do not find support under any
section of Rule 4:50-1, including subsection (f).
Subsection (f) is a catch-all provision that authorizes a
court to relieve a party from a judgment or order for "any other
reason justifying relief from the operation of the judgment or
order." R. 4:50-1(f). "Because of the importance that we attach
to the finality of judgments, relief under Rule 4:50-1(f) is
available only when 'truly exceptional circumstances are
present.'" Hous. Auth. of Morristown v. Little, 135 N.J. 274, 286
(1994) (quoting Baumann, 95 N.J. at 395). "The rule is limited
to 'situations in which, were it not applied, a grave injustice
would occur.'" Guillaume, 209 N.J. at 484 (quoting Little, 135
N.J. at 289).
On appeal, Joann renews the same arguments that were properly
rejected by the trial court. Joann has made no showing to justify
vacating the final judgment under any provision of Rule 4:50-1 and
has not established a meritorious defense. As the trial judge
correctly noted, Joann was not a party to the loan transaction and
failed to provide competent evidence to challenge the note or
mortgage. Indeed, her "certification" submitted to the trial court
substantially violated Rule 1:6-6 and 1:4-4(b) as it was unsworn and
based almost entirely on speculation, legal arguments and
inadmissible hearsay. Further, Joann's appendix contains
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unauthenticated medical records that do not appear to have been
presented to the trial court and which contain inadmissible embedded
hearsay. See N.J.R.E. 803(c)(6), 805, 808; Konop v. Rosen, 425 N.J.
Super. 391, 402-03 (App. Div. 2012).
Finally, Joann ignores the fact that according to the
foreclosure complaint, both Ena and Errol paid on the note for years
before Ena died, a fact not disputed in the trial court. Further,
after her death, Errol, a co-signatory to the disputed loan
transaction, retained counsel and filed an answer without affirmative
defenses. Facing a trial date, he further agreed to withdraw his
answer in exchange for plaintiff's forbearance until December 2013.
With Errol's counsel's consent, plaintiff filed an amended complaint
to name additional parties, but again Errol's counsel did not
challenge service, standing, default or any other element of
plaintiff's prima facie case for foreclosure. See Thorpe v.
Floremoore Corp., 20 N.J. Super. 34, 37 (App. Div. 1952); see also
Great Falls Bank v. Pardo, 263 N.J. Super. 388, 394 (Ch. Div.), aff'd,
273 N.J. Super. 542 (App. Div. 1994).
The record on appeal presents no facts from which we can
conclude the trial judge clearly abused her discretion or that a
grave injustice would occur if the orders under review are not
vacated. Accordingly, we affirm the final foreclosure judgment
as well as the order denying Joann's motion to vacate the judgment.
10 A-5197-16T1
Affirmed.
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