Opinion
DOCKET NO. A-4344-13T3
11-06-2015
WELLS FARGO BANK, N.A., Plaintiff-Respondent, v. MARIE MARCELUS, his/her heirs, devisees, and personal representatives, and his, her, their or any of their successors in right, title and interest and JEANNOT CIMEUS, his/her heirs, devisees, and personal representatives, and his, her, their or any of their successors in right, title and interest, Defendants-Appellants, and MR. MARCELUS, husband of Marie Marcelus; Mrs. Jeannot Cimeus, wife of Jeannot Cimeus, Retina Vitreous Center, PA, Ocean Anesthesia Group, Irving G. Peyser, his/her heirs, devisees, and personal representatives, and his, her, their or any of their successors in right, title and interest, AGL Marketing Inc. dba Exquisite Home Products and State of New Jersey, Defendants.
Stanley S. Spector argued the cause for appellants. Henry F. Reichner argued the cause for respondent (Reed Smith, LLP, attorneys; Mr. Reichner, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Accurso and O'Connor. On appeal from Superior Court of New Jersey, Chancery Division, Monmouth County, Docket No. F-62521-09. Stanley S. Spector argued the cause for appellants. Henry F. Reichner argued the cause for respondent (Reed Smith, LLP, attorneys; Mr. Reichner, on the brief). PER CURIAM
This is a mortgage foreclosure matter. Defendants Marie Marcelus and Jeannot Cimeus appeal from the General Equity judge's denial of their motion, made four months after sheriff's sale, to vacate the default judgment entered against them and set aside the sale based on plaintiff Wells Fargo Bank, N.A.'s failure to properly serve the complaint. Because defendants have not successfully rebutted the presumption of service raised by the process server's return of service, we affirm.
The essential facts are both undisputed and easily summarized. Defendants, who are not married to one another, defaulted on a $277,800 purchase money mortgage two years after inception of the loan. Wells Fargo filed its complaint in foreclosure on December 1, 2009. For reasons unclear on the record, Wells Fargo did not serve defendants at the property. Instead, it sent a process server to serve the complaint on both defendants at another address. The proofs of service filed with the court included an affidavit of the process server that he made substitute service of the summons and complaint on Marcelus and Cimeus by leaving copies for both at their "dwelling place or usual place of abode" with "a competent member of the household" residing there, to wit, one Junior Marcelus, whom the process server described in the document.
When defendants failed to answer, Wells Fargo entered default against them. On November 12, 2010, Wells Fargo provided notice by regular and certified mail to Marcelus and Cimeus, at both the property and at the address used for service, that Wells Fargo would move for final judgment in ten days absent their response. The following month the Supreme Court issued a moratorium on residential foreclosures. Wells Fargo took no further action to prosecute its foreclosure until 2012, when it again entered default against defendants and applied for final judgment.
Final judgment of foreclosure was entered on September 18, 2012. The Bank scheduled a sheriff's sale of the property for October 15, 2013, providing defendants notice by certified and regular mail at the address used for service. The Bank also provided Marcelus, but not Cimeus, notice by regular and certified mail at the property address. Notice of the sale was also posted on the property. Marcelus used one of her two statutory adjournments to adjourn the sale for two weeks. See N.J.S.A. 2A:17-36. No further request for adjournment was made, and the property was sold at sheriff sale to Wells Fargo on October 28, 2013.
Four months later, defendants filed a motion to vacate the sale, vacate the default judgment and dismiss the action based on defective service. Defendants each submitted a certification in support of the motion as well as a certification of Junior Marcelus, defendant Marie Marcelus's son. In her certification, Marie Marcelus claimed never to have been "served with a Summons and Complaint or any other legal papers in this matter." She claimed to have been in negotiations "with the bank that claims they own this debt" and was never advised that there was a foreclosure action pending. In his certification, Cimeus likewise claimed never to have been served with the summons and complaint. Cimeus also claimed he never lived at the address where service was made and attached a copy of his driver's license listing a different address as proof.
Wells Fargo contends in its brief that the license submitted to the trial court was not issued until 2013, well after service was made, and thus not competent proof of Cimeus's residence at the time of service. The Bank also contends that the license included in defendants' appendix is not the same one submitted to the trial court. Defendants make no response to these allegations in their reply brief. --------
Junior Marcelus admitted in his certification residing at the property where service was made. He averred, however, that he was never served with any summons and complaint and was at work when the process server allegedly left the summons and complaint for his mother and Cimeus with him. In support of his certification, he attached what he contends is his timecard for the date in question. He also claimed that Cimeus did not reside in their household on the date of the alleged service or at any other time.
After hearing oral argument, the General Equity judge denied the motion. The judge found defendants' motion to vacate the sheriff's sale untimely under Rule 4:65-5, and likewise found their motion to vacate the judgment untimely under Rule 4:50-1. Defendants appeal, contending the judgment is void for failure to properly serve them with the complaint, and that the court erred in failing to conduct a hearing regarding service.
It has long been the law of this State that a "substantial deviation from service of process rules . . . casting reasonable doubt on proper notice" will generally render a default judgment void. Jameson v. Great Atl. and Pac. Tea Co., 363 N.J. Super. 419, 425 (App. Div. 2003), certif. denied, 179 N.J. 309 (2004). The law is also well settled that return of service in accordance with Rule 4:4-7 "raises a presumption that the facts recited therein are true," Resolution Trust Corp. v. Associated Gulf Contractors, Inc., 263 N.J. Super. 332, 343 (App. Div.) (quoting Garley v. Waddington, 177 N.J. Super. 173, 180 (App. Div. 1981)), certif. denied, 134 N.J. 480 (1993), and is "prima facie evidence that service was proper." Jameson, supra, 363 N.J. Super. at 426. Although the presumption that the facts stated in the return are true "is a rebuttable one, 'it can be rebutted only by clear and convincing evidence that the return is false.'" Associated Gulf Contractors, Inc., supra, 263 N.J. Super. at 344 (quoting Garley, supra, 177 N.J. Super. 173 at 180-81).
Applying those principles here, we conclude defendants failed to present evidence sufficient to rebut the presumption of good service established by the filed return.
The certifications submitted by defendants Marcelus and Cimeus were not executed in accordance with Rule 1:4-4(b). Instead of stating that "I certify that the foregoing statements made by me are true. I am aware that if any of the foregoing statements made by me are willfully false, I am subject to punishment," as required by the Rule, Marcelus and Cimeus stated only that "I hereby sign this certification mindful of the penalties of perjury." Improperly sworn documents such as these cannot be considered by a court to contain cognizable facts. See Gonzalez v. Ideal Tile Importing Co., 371 N.J. Super. 349, 358 (App. Div. 2004), aff'd, 184 N.J. 415 (2005), cert. denied, 546 U.S. 1092, 126 S. Ct. 1042, 163 L. Ed. 2d 857 (2006) (noting unsworn opposing letter incapable of conveying facts for summary judgment purposes).
Although the certification submitted by Junior Marcelus was sworn in accordance with Rule 1:4-4, the timecard, on which he relies to assert he was not at home to be served at the hour stated on the return, was not properly authenticated. See Wells Fargo Bank, N.A. v. Ford, 418 N.J. Super. 592, 599-600 (App. Div. 2011). More to the point, however, Mr. Marcelus acknowledged that he resided with his mother and makes no attempt to explain how the process server obtained his name and described him in the affidavit of service if no service was ever made. His assertion that Cimeus did not reside at the address for service, although properly sworn, is not corroborated by other competent evidence in the record. "[U]ncorroborated testimony of the defendant alone is not sufficient to impeach the return." Goldfarb v. Roeger, 54 N.J. Super. 85, 90 (App. Div. 1959). Although Mr. Marcelus was not a defendant, Cimeus himself provided no admissible evidence of his residence at the time of service. A bald assertion that the sheriff's return is false is insufficient to overcome the presumption of service. Associated Gulf Contractors, Inc., supra, 263 N.J. Super. at 344.
Because the certifications by defendants Marcelus and Cimeus contain no admissible evidence and Junior Marcelus's certification is insufficient to impeach the process server's return, we conclude defendants failed to produce sufficient evidence to rebut the presumption created by the process server's affidavit and thus no evidentiary hearing was required.
We also have no cause to disturb the General Equity judge's ruling that defendants' motion, made fifteen months after entry of judgment of foreclosure and four months after sheriff's sale, was untimely under Rules 4:50-2 and 4:65-5. See M & D Assocs. v. Mandara, 366 N.J. Super. 341, 352 (App. Div.), certif. denied, 180 N.J. 151 (2004); Last v. Audubon Park Assocs., 227 N.J. Super. 602, 608 (1988), certif. denied, 114 N.J. 491 (1989).
As we have observed elsewhere, "[i]n foreclosure matters, equity must be applied to plaintiffs as well as defendants." Deutsche Bank Trust Co. Americas v. Angeles, 428 N.J. Super. 315, 320 (App. Div. 2012). This purchase money mortgage loan went into default in 2009, two years after inception. The sheriff's sale did not occur until over four years later. We cannot find under these circumstances that the Chancery judge abused her discretion in finding defendants' motion, made four months after the sheriff's sale adjourned at Marcelus's request, was untimely. See Orner v. Liu, 419 N.J. Super. 431, 437-38 (App. Div.), certif. denied, 208 N.J. 369 (2011).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION