DEUTSCHE BANK NATIONAL TRUST COMPANY, ETC. VS. ATHENA KARAYANIS (F-028792-09, BERGEN COUNTY AND STATEWIDE)

• Court: New Jersey Superior Court Appellate Division
• Decided: September 18, 2017
• Docket: A-1466-15T1
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-1466-15T1

DEUTSCHE BANK NATIONAL TRUST COMPANY, as Trustee for Morgan Stanley ABS Capital I Inc. Trust 2006-HE4,

Plaintiff-Respondent,

v.

ATHENA KARAYANIS and WACHOVIA BANK, N.A.,

Defendants,

and

NICHOLAS KARAYANIS,

Defendant-Appellant. _________________________________________

Submitted September 11, 2017 – Decided September 18, 2017

Before Judges Sabatino and Ostrer.

On appeal from Superior Court of New Jersey, Chancery Division, General Equity, Bergen County, Docket No. F-028792-09.

Nicholas Karayanis, appellant pro se.

Reed Smith LLP, attorneys for respondent (Henry F. Reichner, on the brief).

PER CURIAM This is an appeal from the Chancery Division's December 2,

2015 order denying appellant's motion for relief from a Final

Judgement of Foreclosure issued on October 1, 2010 and an Amended

Final Judgment dated November 10, 2014. We affirm.

In February 2006, Nicholas and Athena Karayanis ("the

borrowers") borrowed $428,000 from Dana Capital Group, Inc. ("Dana

Capital") as part of a residential purchase. To secure the loan,

the borrowers executed a mortgage for that same amount which named

Mortgage Electronic Registration Systems, Inc. ("MERS") as the

nominee for Dana Capital. The mortgage was recorded on March 10,

2006.

On June 1, 2009, the mortgage was assigned to plaintiff,

Deutsche Bank National Trust Company. That assignment was recorded

on July 15, 2009.

The borrowers defaulted on their mortgage in January 2009,

and failed to make any payments thereafter. As a result, plaintiff

initiated foreclosure proceedings in June 2009, notice of which

was served on the borrowers.

Despite that notice, the borrowers failed to file any

responsive pleading and remained in default on the mortgage loan.

The trial court accordingly entered default judgment against the

borrowers. The borrowers participated in foreclosure mediation,

2 A-1466-15T1 which was unsuccessful. A final judgment was entered in

plaintiff's favor on October 1, 2010.

Thereafter, plaintiff served on the borrowers a supplemental

notice of its intent to foreclose in August 2012. At plaintiff's

request, the judgment was amended on November 10, 2014.

The borrowers moved to vacate the final judgment in December

2015, over three years after they had first received notice of the

intent to foreclose. The trial court denied that motion as

"without merit."

The borrowers moved for leave to file an emergent appeal with

this court, an application which we denied on January 5, 2016.

Meanwhile, the property was sold at a sheriff's sale. The

borrowers moved to vacate the sale, but the trial court denied

that motion as well.

The present appeal by Nicholas Karayanis, the co-borrower,

ensued. Appellant seeks to reverse the trial court's denial of

the motion to vacate the judgment. He apparently wishes to rescind

the sheriff's sale and somehow reclaim the foreclosed property.

In his brief, appellant essentially argues two core points.

First, he contends the trial court erred in denying his post-

judgment motion under Rule 4:50-1 because there was "excusable

neglect" for his delay in taking action, stemming from the alleged

inattentiveness of the attorney he had previously retained to

3 A-1466-15T1 represent his interests in this matter. Second, appellant

maintains he had meritorious defenses to the complaint because,

among other things, plaintiff lacked standing to foreclose on the

mortgage, and because plaintiff violated consumer protection laws

in its interactions with him and the co-borrower.

Our scope of review of the trial court's ruling on the Rule

4:50-1 motion is exceedingly narrow. As the Supreme Court has

observed in a foreclosure context, a trial court's decision under

Rule 4:50-1 "warrants substantial deference, and should not be

reversed unless it results in a clear abuse of discretion." U.S.

Bank Nat'l Assn. v. Guillaume, 209 N.J. 449, 467 (2012) (citations

omitted).

Moreover, where, as here, a litigant delays more than one

year after the entry of a judgment in moving to set it aside, the

available grounds for relief under Rule 4:50-1 are more restrictive

and do not include claims of "excusable neglect" under subsection

(a) of that provision. See R. 4:50-2 (expressing the one-year

limitation for motions filed under subsections (a), (b) and (c)

of Rule 4:50-1); Orner v. Liu, 419 N.J. Super. 431, 437 (App.

Div.) (recognizing this prescribed "outermost time limit"),

certif. denied, 208 N.J. 369 (2011).

4 A-1466-15T1 Applying these standards to the record presented, we readily

affirm the Chancery Division's denial of the motions to set aside

the final judgment.

Even if it was not too late for appellant to assert a claim

of excusable neglect, his former attorney's alleged

inattentiveness provides him with no recourse against plaintiff.

See Baumann v. Marinaro, 95 N.J. 380, 394 (1984) (holding that

"mere carelessness or lack of proper diligence on the part of an

attorney is ordinarily not sufficient to entitle his clients to

relief from an adverse judgment") (quoting In re T., 95 N.J. Super.

228, 235 (App. Div. 1967)).

We also agree with the trial court that appellant has failed

to put forth meritorious defenses that could justify unraveling

this final judgment years after its entry. Plaintiff's standing

to bring this foreclosure complaint is clearly supported by the

July 2009 recorded assignment of the mortgage. Deutsche Bank

Trust Co. Americas v. Angeles, 428 N.J. Super. 315, 318 (App. Div.

2012) (observing that either possession of the note or an

assignment of the mortgage predating the foreclosure complaint

confers standing).

There is no viable claim of consumer fraud presented, despite

appellant's undocumented contention that an unnamed loan servicing

agent allegedly told him that if he were in arrears he would be

5 A-1466-15T1 provided with financial assistance. The unrefuted key fact is

that the borrowers made no payments on this mortgage for over

seven years. They were not legally entitled to a loan modification

by the mortgagee, despite their unfortunate financial distress.

See Nat'l Cmty. Bank of N.J. v. G.L.T. Indus., Inc., 276 N.J.

Super. 1, 4 (App. Div. 1994).

To the extent that we have not already discussed them,

appellant's remaining arguments lack sufficient merit to warrant

comment here. R. 2:11-3(e)(1)(E).

Affirmed.

6 A-1466-15T1