GMAC MORTGAGE, LLC VS. JESSICA L. PERYEA(F-036302-08, 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NOT FOR PUBLICATION WITHOUT THE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-1860-15T4
GMAC MORTGAGE, LLC,
Plaintiff-Respondent,
v.
JESSICA L. PERYEA and MR.
PERYEA, husband of JESSICA
L. PERYEA,
Defendants,
and
NICK and JOSEPHINE NISEVIC,
Defendants/Interveners-
Appellants.
_______________________________________
Submitted September 6, 2017 – Decided November 17, 2017
Before Judges Alvarez and Gooden Brown.
On appeal from the Superior Court of New
Jersey, Chancery Division, Bergen County,
Docket No. F-036302-08.
Ameri & Associates, LLC, attorneys for
appellants (Nina Ameri, on the brief).
Clark L. Cornwell, III, attorney for
respondent GMAC Mortgage, LLC.
PER CURIAM
In this mortgage foreclosure action, third-party interveners,
Nick and Josephine Nisevic, appeal from the November
25, 2015 Chancery Division order denying their motion to vacate a
2009 final judgment of foreclosure in favor of plaintiff GMAC
Mortgage, LLC. The judgment was entered against defendant Jessica
Peryea on property formerly owned by the Nisevics. The Nisevics
claim they were the real owners of the foreclosed-upon property,
which was sold at a Sheriff's sale in 2009. We affirm.
The record discloses that on January 11, 2007, the Nisevics
conveyed ownership of the property to Denton Friedman for
consideration in the amount of $480,000. On January 15, 2008,
Friedman, in turn, conveyed ownership of the property to Peryea
for consideration in the amount of $473,000. On the same date,
Peryea executed a note in the amount of $378,400, secured by a
mortgage on the property in favor of Mortgage Electronic
Registration Systems, Inc. (MERS), as nominee for Mercury, Inc.
The mortgage was recorded on June 10, 2008. On September 15,
2008, MERS assigned the mortgage to plaintiff, which possessed the
note.
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Peryea defaulted on the mortgage on June 1, 2008. Plaintiff
filed a foreclosure complaint against Peryea on September 19,
2008, and obtained a default judgment after Peryea failed to file
an answer. Final judgment was entered on June 23, 2009, and a
Sheriff's sale was conducted on October 2, 2009. GMAC was the
successful bidder and assigned its bid to Federal Home Mortgage
Corporation (Federal). Federal then filed an application against
the Nisevics for possession of the property, and on December 12,
2013, the trial court entered an order for ejectment. The order
directed the Nisevics, who had continuously occupied the property,
to vacate the property by January 20, 2014. The Nisevics
subsequent application to vacate the December 12, 2013 ejectment
order was denied.
Thereafter, pursuant to Rule 4:50-1, the Nisevics moved to
vacate the final judgment of foreclosure entered against Peryea
and set aside the Sheriff's sale. Following oral argument, Judge
Menelaos Toskos denied the motion in a November 25, 2015 written
opinion. The judge encapsulated the Nisevics' allegations thusly:
The crux of the [Nisevics'] allegations
is that they were defrauded by a scheme called
"Rivertown", featured on the television show
American Greed. According to the [Nisevics],
several of the perpetrators are presently
serving prison sentences. The [Nisevics]
claim that Rivertown would provide financing
to homeowners in distress by having the
homeowners sign a deed over to Rivertown and
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then allegedly lease the homes back.
Rivertown would place a mortgage on the
premises. Again according to the [Nisevics],
at this point the homeowners "felt they simply
had a mortgage[,"] rather than having deeded
the house away. The [Nisevics] allege that
after payments were made to Rivertown, the
home was to be transferred back to them. [The
Nisevics] claim Rivertown would use straw
buyers to apply for mortgages on the property.
The straw buyers would sign documents to
become members of Rivertown holding companies
that received titles to the properties "but
never spent any money required under the
deals."
Here, the [Nisevics] allege that they
executed a deed to Denton Friedman
("Friedman"), a Rivertown representative.
Friedman then fraudulently transferred
ownership to Peryea, a straw buyer. The deed
that vested title to Friedman was recorded on
March 4, 2008. The deed that vested interest
to Peryea was recorded on June 10, 2008.
Peryea took out four mortgages on the property
and allegedly paid nothing towards them.
The mortgage owned by [p]laintiff was
originally owned by Mercury, Inc. ("Mercury").
On January 15, 2008, Peryea executed a note
in favor of Mercury for $378,400. Peryea
executed a mortgage for the same amount in
favor of Mortgage Electronic Registration
Systems, Inc. as nominee for Mercury ("MERS").
On September 15, 2008, Mercury assigned the
mortgage to GMAC. The [Nisevics] claim that
upon learning of the fraudulent scheme, the
companies that owned the other three mortgages
withdrew any claim to the property. The
[Nisevics] contend that Mercury failed to
notice the fraudulent scheme in its title
search.
The [Nisevics] also contend that their
former attorney, Louis A. Capazzi, Jr., Esq.,
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committed malpractice and contributed to them
losing their home. Allegedly, Mr. Capazzi is
currently suspended and is the subject of an
investigation by the Oradell Police
Department. The [Nisevics] claim that Mr.
Capazzi took over $100,000 from them, received
compensation from [p]laintiff and Rivertown
for the fraudulent scheme, and failed to show
up to court on numerous occasions. The court
ultimate[ly] issued an order for ejectment in
favor of [p]laintiff. Mr. Capazzi advised the
[Nisevics] to ignore all notices that they
received, including the Notice of Ejectment,
and that they should not come to court. The
[Nisevics] are currently filing a malpractice
claim against Mr. Capazzi.
Initially, Judge Toskos found that the Nisevics did not move
to vacate the final judgment "within a reasonable time" as
prescribed by Rule 4:50-2, because the "judgment [was] six years
old." According to the judge, the Nisevics provided no explanation
for the lengthy delay but offered only "general assertions[.]"
Specifically, the Nisevics made "general assertions that they were
conned by their attorney at the time, but they provide[d] no
exhibits and no timeline as to when they hired Mr. Capazzi, how
long he represented them, and the sequence of the events that led
them to wait this long to move to vacate judgment." According to
the judge, "[s]uch general assertions . . . must be reinforced by
evidence; without support, the prejudicial impact of unavailable
evidence, lost witnesses, and other such issues resulting from the
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six[-]year lapse outweighs any benefit that might be derived from
granting the [Nisevics'] motion."
Next, Judge Toskos evaluated the Nisevics arguments on the
merits to determine whether relief was justified under Rule 4:50-
1, but determined that the Nisevics "failed to show any meritorious
defense." Rather, "[a]ll they do is point to their alleged
victimization by con men and lawyers." The judge rejected the
Nisevics' contention that service "only by publication . . . was
inadequate notice[,]" rendering the final judgment defective. The
judge noted that the argument was predicated on the premise "that
they, and not Peryea, were the rightful owners of the property"
and therefore should have been "named or served in the foreclosure
complaint[.]" However, the judge rejected the Nisevics' assertion
"that they were the true owners of the mortgaged premises[,]" in
light of their admission "that they deeded the property over to
Riverton[,]" and their failure to submit "copies of their mortgage
and lease-back agreement" or any other document "to support their
assertion[.]"
Judge Toskos also rejected the Nisevics' claim that the
mortgage was fraudulent, noting that "[a] fraudulent deed does not
affect the rights of a bona fide third[-]party purchaser." The
judge explained further:
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[The Nisevics'] pleadings of a fraudulent
mortgage appear to be mistaken. [The
Nisevics] may have been improperly induced
into deeding away the property at issue, but
no mortgage was executed by [the Nisevics] in
return for said deed. [The Nisevics] state
that they "felt they simply had a mortgage"
after they deeded their home over to
Rivertown. This feeling, however, is not
legally binding, and no such mortgage existed.
Indeed, just the opposite is true, as the
[Nisevics'] original mortgage was in fact paid
off. Since that time, moreover, [the
Nisevics] have lived without having to make
mortgage payments or, it appears, tax payments
on the property. Thus, although [the
Nisevics] may have been duped out of the deed
to the property, it bears mentioning that the
[Nisevics] also derived a benefit.
Additionally, their argument that "Friedman
never had possession to vest title to Peryea
making the transfer fraudulent" is incorrect.
The [Nisevics] likely confused the dates, as
their own papers state that Friedman recorded
on March 4, 2008 and Peryea recorded on June
10, 2008.
The judge concluded:
This paucity of evidence is insufficient to
convince the [c]ourt that equitable concerns
justify vacating the judgment as requested.
There is no indication given that, even if the
judgment were vacated, [the Nisevics] would
be able to pay the loan at this time. The
lack of evidence presented to the court
precludes granting the relief sought by [the
Nisevics]. [The Nisevics] have lived in the
property rent-free for nine years. They have
clearly benefited by having the original loan
paid off, and to vacate this judgment in their
favor would clearly be prejudicial and
inequitable to the [p]laintiff.
A memorializing order was entered and this appeal followed.
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On appeal, the Nisevics renew their argument that "the default
judgment should be set aside" because they "were not personally
served, but were served only by publication." They also reiterate
that "the bank . . . gave a mortgage on a property that the seller
did not own at the time according to the recording dates." We
reject these arguments and affirm substantially for the reasons
set forth in Judge Toskos' cogent and well-reasoned written
opinion. We add the following comments.
Under Rule 4:50—1, the trial court may 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 R. 4:49; (c) fraud
(whether heretofore denominated intrinsic or
extrinsic), misrepresentation, or other
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.
[R. 4:50-1.]
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Generally, a party seeking to reopen a default judgment must show
"that a meritorious defense is available." Hous. Auth. of
Morristown v. Little, 135 N.J. 274, 284 (1994).
Motions made under Rule 4:50-1 must be filed within a
reasonable time. R. 4:50-2; see also Deutsche Bank Trust Co. Ams.
v. Angeles, 428 N.J. Super. 315, 319 (App. Div. 2012). Motions
based on Rule 4:50-1(a), (b), and (c) must be filed within a year
of the judgment. Angeles, supra, 428 N.J. Super. at 319. However,
the one-year limitation for subsections (a), (b), and (c) does not
mean that filing within one year automatically qualifies as "within
a reasonable time." Orner v. Liu, 419 N.J. Super. 431, 437 (App.
Div.), certif. denied, 208 N.J. 369 (2011); R. 4:50-2. "[T]he
one-year period represents only the outermost time limit for the
filing of a motion based on Rule 4:50-1(a), (b)[,] or (c). [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, supra, 419 N.J. Super. at 437.
A motion for relief under Rule 4:50-1 should be granted
sparingly and is addressed to the sound discretion of the trial
court, whose determination will not be disturbed absent a clear
abuse of discretion. U.S. Bank Nat'l Ass'n v. Guillaume, 209 N.J.
449, 467 (2012). "[A]buse of discretion only arises on
demonstration of 'manifest error or injustice[,]'" Hisenaj v.
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Kuehner, 194 N.J. 6, 20 (2008) (quoting State v. Torres, 183 N.J.
554, 572 (2005)), and occurs when the trial court's decision is
"made without a rational explanation, inexplicably departed from
established policies, or rested on an impermissible basis."
Guillaume, supra, 209 N.J. at 467. Here, we discern no abuse of
discretion.
The Nisevics raise additional arguments in their reply brief.
However, "raising an issue for the first time in a reply brief is
improper." Goldsmith v. Camden Cnty. Surrogate's Office, 408 N.J.
Super. 376, 387 (App. Div.) (quoting Borough of Berlin v. Remington
& Vernick Eng'rs, 337 N.J. Super. 590, 596 (App. Div.), certif.
denied, 168 N.J. 294 (2001)), certif. denied, 200 N.J. 502 (2009);
see also L.J. Zucca, Inc. v. Allen Bros. Wholesale Distribs. Inc.,
434 N.J. Super. 60, 87 (App. Div.), certif. denied, 218 N.J. 273
(2014). Similarly, it is improper for a party to use a reply
brief to enlarge an argument asserted in the merits brief. State
v. Smith, 55 N.J. 476, 488, cert. denied, 400 U.S. 949, 91 S. Ct.
232, 27 L. Ed. 2d 256 (1970). Thus, we decline to consider those
arguments.
Affirmed.
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