Opinion
DOCKET NO. A-2926-13T2
08-11-2015
NEW JERSEY HOUSING AND MORTGAGE FINANCE AGENCY, Plaintiff-Respondent, v. MARCIN A. WOLINSKI and BARBARA WOLINKSKI, Defendants-Appellants.
Marcin A. Wolinski, appellant pro se. Barbara Wolinski, appellant pro se. Pluese, Becker, & Saltzman, LLC, attorneys for respondent (Robert F. Thomas, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Simonelli and Leone. On appeal from the Superior Court of New Jersey, Chancery Division, Middlesex County, Docket No. F-1105-12. Marcin A. Wolinski, appellant pro se. Barbara Wolinski, appellant pro se. Pluese, Becker, & Saltzman, LLC, attorneys for respondent (Robert F. Thomas, on the brief). PER CURIAM
Defendants Marcin Wolinski and Barbara Wolinski appeal the denial of their motion to vacate a final judgment by default. We affirm.
I.
On July 6, 2007, defendants signed a $313,400 note from Weichert Financial Services, secured by a mortgage on their Woodbridge home. The mortgage was assigned to plaintiff New Jersey Housing and Mortgage Finance Agency. On January 1, 2010, defendants defaulted on the mortgage after failing to make regular monthly payments. On August 2, 2010, plaintiff filed a foreclosure action against defendants and "John Doe and Jane Doe 1-10 (Names Being Fictitious) Tenants/Occupants." Plaintiff voluntarily dismissed that action on October 25, 2011.
On January 19, 2012, plaintiff filed a second foreclosure action against defendants and "John Doe and Jane Doe 1-10 (Names Being Fictitious) Tenants/Occupants." Defendants were properly served with the second foreclosure complaint on January 27, 2012. On February 8, 2012, plaintiff filed another voluntary dismissal captioned "Voluntary Dismissal As To John Doe and Jane Doe 1-10 (Names Being Fictitious) Tenants/Occupants; Only." The text of the dismissal was identical to the October 25, 2011 voluntary dismissal, except it emphasized that the matter was dismissed "as to the Defendants(s), John Doe and Jane Doe 1-10 (Names Being Fictitious) Tenants/Occupants; only."
Defendants failed to answer the complaint, and plaintiff filed a request to enter default on March 29, 2012. On March 14, 2013, a final judgment by default was entered against defendants, and a sheriff's sale of the property was ordered.
Defendants sought protection in United States Bankruptcy Court and received an automatic stay of the sheriff's sale under 11 U.S.C.A. § 362(a). Plaintiff filed a motion for relief from the automatic stay, and that motion was granted on August 21, 2013. On December 4, 2013, defendants filed a motion to vacate the final judgment and dismiss the complaint. See R. 4:50-1. Following a hearing, the trial court denied defendants' motion to vacate the default judgment on December 20, 2013. Defendants appeal.
The trial court ordered defendants to submit a loan modification proposal by January 6, 2014. The record does not indicate that defendants submitted such a proposal. A sheriff's sale of the property occurred on June 11, 2014.
"The decision whether to grant such a motion [to vacate under Rule 4:50-1] is left to the sound discretion of the trial court[.]" Mancini v. EDS ex rel. N.J. Auto. Full Ins. Underwriting Ass'n, 132 N.J. 330, 334 (1993). "The trial court's determination . . . warrants substantial deference, and should not be reversed unless it results in a clear abuse of discretion." US Bank Nat'l Ass'n v. Guillaume, 209 N.J. 449, 467 (2012). An abuse of discretion is committed "when a decision is made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis." Id. at 467-68 (internal quotation marks omitted). We must hew to that standard of review.
II.
Defendants argue the trial court abused its discretion by denying their motion to vacate. They assert that, because the October 2011 dismissal and the February 2012 dismissal used similar language, they believed the January 2012 foreclosure action was dismissed to all parties, not just to John and Jane Does 1-10. The trial court properly understood defendants to be claiming that their subsequent failure to file an answer was excusable neglect under Rule 4:50-1(a).
To obtain relief on a motion to vacate a default judgment under Rule 4:50-1(a), the moving party must make a showing of "mistake, inadvertence, surprise, or excusable neglect." "'Excusable neglect' may be found when the default was 'attributable to an honest mistake that is compatible with due diligence or reasonable prudence.'" US Bank Nat'l Ass'n, supra, 209 N.J. at 468 (quoting Mancini, supra, 132 N.J. at 335). Further, "[a] motion to set aside a default judgment will not be granted unless the movant shows . . . that there is a meritorious defense." N.J. Div. of Youth & Family Servs. v. M.G., 427 N.J. Super. 154, 171 (App. Div. 2012).
As the trial court properly held, defendants cannot establish excusable neglect merely because they "read something wrong." Though awkwardly phrased, the February 2012 dismissal clearly dismissed only the fictitious parties and not the named defendants. The dismissal plainly stated in the heading, and stated in bold in the body of the text, that the dismissal pertained to "John Doe and Jane Doe 1-10 (Names Being Fictitious) Tenants/Occupants; only." "'[M]ere carelessness or lack of proper diligence'" is "'not sufficient'" to warrant relief from a default judgment. Baumann v. Marinaro, 95 N.J. 380, 394 (1984). Defendants' mere carelessness in misreading the dismissal, and their lack of "'due diligence [and] reasonable prudence'" in failing to confirm that they too had been dismissed, do not establish excusable neglect. See US Bank Nat'l Ass'n, supra, 209 N.J. at 468 (holding the defendants' claim of confusion based on communications with their bank was "properly rejected" by the trial court).
Defendants were properly served with the January 2012 foreclosure complaint. The summons attached to the complaint specifically stated they had thirty-five days to respond to the complaint, and that a judgment could be entered against them if they failed to do so. They acknowledge they had an obligation to answer the complaint. Thus, as in US Bank National Association, defendants "were fully informed of the existence of a 'court process' requiring a legal response," yet for well over a year they "took no action to respond to the foreclosure complaint, and the record reflects no excuse for their inaction." Id. at 468-69. They "have failed to make a showing of excusable neglect and, accordingly, their motion to vacate the default judgment under Rule 4:50-1(a) was properly denied by the trial court." Id. at 469.
Moreover, defendants have failed to show a meritorious defense. They do not deny that they executed the note and mortgage, that they failed to make all required payments and defaulted on the loan, or that plaintiff was entitled to foreclose. Cf. R. 4:64-1(c)(2) (stating a mortgage foreclosure action is deemed uncontested when "none of the pleadings responsive to the complaint" raise an argument "with respect to plaintiff's right to foreclose").
III.
Defendants next argue the trial court abused its discretion when it concluded the amount due in the final judgment was accurate. However, this contention alone does not establish a meritorious defense worthy of vacating the final judgment under Rule 4:50-1(a).
On March 1, 2013, plaintiff filed an application for a final judgment by default. See R. 4:43-2(a). As the application was "made after the expiration of six months following the entry of default" in March 2012, defendants were given notice of the application through regular mail and certified mail. Ibid; see also R. 4:64-1(d)(2). Attached to the application was the certification of proof of amount due. See R. 4:64-1(d)(2). It specified that defendants owed $381,150.14, comprised of $303,286.70 in principal, $49,731.36 in interest, $938.08 in late charges, and $27,194.00 in net advances.
Defendants now claim plaintiff should not have included certain advances listed in the certification, namely plaintiff's payments of the premiums for hazard and mortgage insurance, of $510.75 of real estate tax, and of $327.00 for inspections. Despite having knowledge of those numbers in March 2013, defendants failed to challenge them until December 2013, nine months after the default judgment was entered against them. The trial court properly found the time to challenge those numbers has passed, as defendants earlier "had an opportunity to contest those numbers."
Upon receiving the certification in March 2013, defendants had the option to object "to the calculation of the amount due" by filing a "specific objection" in the Office of Foreclosure. R. 4:64-1(d)(3). The Office of Foreclosure would then "refer the matter to the judge" for a hearing on the amount due. Ibid.; see also R. 4:43-2(b).
Further, the trial court correctly found that contesting the figures now "is not a basis upon which to vacate a final judgment that was entered." A motion to vacate under Rule 4:50-1(b) can be based on "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." Here, however, the "assertions in [plaintiff's] certification . . . constituted facts known to [defendant] prior to the entry" of the final judgment. Palombi v. Palombi, 414 N.J. Super. 274, 289 (App. Div. 2010) (denying reconsideration). A motion to vacate a final judgment will be denied "if based on unraised facts known to the movant prior to the entry of judgment." Pressler & Verniero, Current N.J. Court Rules, comment 2 on R. 4:49-2 (2015). "Moreover, 'newly discovered evidence' does not include an attempt to remedy a belated realization of the inaccuracy of an adversary's proofs." DEG, LLC v. Twp. of Fairfield, 198 N.J. 242, 264 (2009).
"A motion to vacate a judgment is characterizable as a motion to alter or amend a judgment under [Rule 4:49-2]." Ibid.; see also Casino Reinvestment Dev. Auth. v. Teller, 384 N.J. Super. 408, 413 (App. Div. 2006). --------
IV.
In their reply brief, defendants complain for the first time that plaintiff filed its request for default on March 29, 2012, but did not mail a copy to defendants until February 13, 2013. See R. 4:43-1.
"It is improper to raise an argument for the first time in a reply brief. Typically, such an argument will not be recognized." A.D. v. Morris Cnty. Bd. of Soc. Servs., 353 N.J. Super. 26, 30-31 (App. Div. 2002). Further, "'our appellate courts will decline to consider questions or issues not properly presented to the trial court when an opportunity for such a presentation is available unless the questions so raised on appeal go to the jurisdiction of the trial court or concern matters of great public interest.'" State v. Robinson, 200 N.J. 1, 20 (2009) (quoting Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973)). Moreover, defendants fail to assert prejudice as a result of the delay. Accordingly, we decline to address the merits of this claim.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION