Opinion
DOCKET NO. A-4098-14T3
07-08-2016
U.S BANK NATIONAL ASSOCIATION, AS TRUSTEE FOR CSMC MORTGAGE-BACKED PASS-THROUGH CERTIFICATES, SERIES 2006-2, Plaintiff-Respondent, v. SEAN EVANS, Defendant-Appellant.
Montell Figgins, attorney for appellant. Reed Smith, L.L.P., attorneys for respondent (Henry F. Reichner, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fisher and Fasciale. On appeal from Superior Court of New Jersey, Chancery Division, Essex County, Docket No. F-39797-08. Montell Figgins, attorney for appellant. Reed Smith, L.L.P., attorneys for respondent (Henry F. Reichner, on the brief). PER CURIAM
Defendant appeals from a March 31, 2015 amended final foreclosure judgment awarding plaintiff $333,039.17, together with advances and counsel fees, and ordering that the premises be sold at a sheriff's sale. We affirm.
Defendant obtained a loan in the amount of $304,000 from Credit Suisse Corporation, as evidenced by a note. The note was secured by a mortgage on defendant's home. Defendant defaulted. The allonge to the note was endorsed in blank, and the mortgage was assigned to plaintiff.
Plaintiff filed a foreclosure complaint. Plaintiff employed a process server, who made numerous attempts to personally serve defendant and ultimately concluded defendant was seeking to avoid service. Thereafter, plaintiff mailed the summons and complaint by regular and certified mail, return receipt requested. The certified mail envelope was returned as unclaimed, but the copy sent by regular mail was not.
An amended final judgment of foreclosure was entered and served on defendant. Defendant never appeared before the court to contest the foreclosure; instead, after the amended final judgment was entered, he filed a notice of appeal.
On appeal, defendant argues: that plaintiff was not the holder of the note and lacked standing to foreclose; that plaintiff's claim of assignment was not supported by the evidence, and therefore plaintiff failed to establish that it owned the note; and that we should vacate the court's decision, pursuant to Rule 4:50-1(a).
Because defendant failed to move before the trial court to vacate the judgment, and present his arguments to the judge in the first instance, we decline to address his arguments on appeal. Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973).
Even if we were to address defendant's arguments on appeal, we conclude they are without merit. Where, as here, "the court has entered a default judgment pursuant to Rule 4:43-2, the party seeking to vacate the judgment must meet the standard of Rule 4:50-1." US Bank Nat. Ass'n v. Guillaume, 209 N.J. 449, 467 (2012). Under Rule 4:50-1,
the court may relieve a party or the party's legal representative from a final judgment or order 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.Rule 4:50-1 provides for extraordinary relief and may be invoked only upon a showing of exceptional circumstances. Baumann v. Marinaro, 95 N.J. 380, 393 (1984).
Defendant's standing argument fails because it was not raised until after final judgment. See Deutsche Bank Nat'l Tr. Co. v. Russo, 429 N.J. Super. 91, 99 (App. Div. 2012) (explaining equitable considerations may bar a defendant from raising a standing argument after final judgment). Moreover, we have held that "either possession of the note or an assignment of the mortgage that predated the original complaint confer[s] standing." Deutsche Bank Tr. Co. Americas v. Angeles, 428 N.J. Super. 315, 318 (App. Div. 2012). Here, the record reflects that the mortgage was assigned to plaintiff before the foreclosure complaint was filed, but was not yet recorded. As assignment alone is sufficient, plaintiff had standing to foreclose.
As to defendant's argument that the court lacked jurisdiction over him, his contention is without merit. Rule 4:4-3 states, in pertinent part:
Summonses shall be served, together with a copy of the complaint, by the sheriff, or by a person specially appointed by the court for that purpose, or by plaintiff's attorney or the attorney's agent, or by any other competent adult not having a direct interest in the litigation. If personal service cannot be effected after a reasonable and
good faith attempt, which shall be described with specificity in the proof of service required by R. 4:4-7, service may be made by mailing a copy of the summons and complaint by registered or certified mail, return receipt requested, to the usual place of abode of the defendant or a person authorized by rule of law to accept service for the defendant or, with postal instructions to deliver to addressee only, to defendant's place of business or employment. If the addressee refuses to claim or accept delivery of registered or certified mail, service may be made by ordinary mail addressed to the defendant's usual place of abode. The party making service may, at the party's option, make service simultaneously by registered or certified mail and ordinary mail, and if the addressee refuses to claim or accept delivery of registered mail and if the ordinary mailing is not returned, the simultaneous mailing shall constitute effective service.Here, several attempts were made to serve defendant. Plaintiff engaged an investigator to locate defendant and verify his address. Plaintiff also confirmed with the United States Postal Service, Tax Office, and Division of Motor Vehicles that defendant had no other address. After undertaking these measures, plaintiff resorted to service by mail. Plaintiff comported with the proof of service requirements, R. 4:4-7, by including affidavits certifying that diligent inquiry was made and including the return receipt indicating that the envelope was unclaimed. It is undisputed the copy sent by ordinary mail was not returned. Therefore, service was effective.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION