DEUTSCHE BANK NATIONAL TRUST COMPANY, ETC. VS.JIN S. CHOI(F-6432-13, BERGEN COUNTY AND STATEWIDE)

• Court: New Jersey Superior Court Appellate Division
• Decided: August 25, 2017
• Docket: A-2947-15T3
• Status: Unpublished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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-2947-15T3

DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE OF THE INDYMAC INDX MORTGAGE TRUST 2007-AR5, MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2007-AR5 UNDER THE POOLING AND SERVICING AGREEMENT DATED MARCH 1, 2007,

Plaintiff-Respondent,

v.

JIN S. CHOI, HIS/HER HEIRS, DEVISEES, AND PERSONAL REPRESENTATIVES AND HIS/HER/THEIR OR ANY OF THEIR SUCCESSORS IN RIGHT, TITLE AND INTEREST, and IL Y. YOON, HIS/HER HEIRS, DEVISEES, AND PERSONAL REPRESENTATIVES AND HIS/HER/THEIR OR ANY OF THEIR SUCCESSORS IN RIGHT, TITLE AND INTEREST, and MRS. JIN CHOI, WIFE OF JIN CHOI, and MR. YOON, HUSBAND OF IL Y. YOON, and MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC., AS NOMINEE FOR FIRST AMERICAN REALTY CAPITAL CORP.,

Defendants-Appellants. ____________________________

Submitted August 15, 2017 – Decided August 25, 2017 Before Judges Manahan and Gilson.

On appeal from Superior Court of New Jersey, Chancery Division, Bergen County, Docket No. F-6432-13.

Joseph A. Chang & Associates, LLC, attorneys for appellants (Joseph A. Chang, of counsel; Mr. Chang and Jeffrey Zajac, on the brief)

Greenberg Traurig, LLP, attorneys for respondent (Lori G. Singer, of counsel; Jason H. Kislin, on the brief).

PER CURIAM

In this mortgage foreclosure action, defendants Jin S. Choi

and Il Y. Yoon appeal from a January 11, 2016 order denying

defendant Choi's motion to vacate default and a February 3, 2016

final judgment entered against both defendants. Defendants'

principal argument is that plaintiff failed to properly serve them

with the summons and complaint and, thus, the default should have

been vacated and the final judgment should not have been entered.

The Chancery Court found that plaintiff had attempted to personally

serve defendants and, after diligent inquiry, served defendants

by publication as allowed under Rule 4:4-5(a)(3). Accordingly,

the Chancery Court denied defendant's motion to vacate the default

and entered a final judgment. We discern no abuse of discretion

by the Chancery Court and affirm.

2 A-2947-15T3 I.

In January 2007, defendant Choi borrowed $750,000 and

executed a promissory note. That loan was secured by a mortgage

given by defendants Choi and Yoon on property located at 213 11th

Street, Palisades Park, New Jersey (the Property). The mortgage

was initially given to Mortgage Electronic Registration Systems,

Inc. (MERS), acting on behalf of First American Realty Capital

Corporation.

In 2008, defendants failed to make payments under the loan

and mortgage. In October 2012, the mortgage was assigned to

plaintiff Deutsche Bank National Trust Company, as trustee of the

IndyMac INDX Mortgage Trust 2007-AR5, Mortgage Pass-Through

Certificates, Series 2007-AR5 under the Pooling and Servicing

Agreement dated March 1, 2007 (plaintiff or Deutsche Bank).

On February 27, 2013, Deutsche Bank filed a foreclosure

complaint against defendants. Thereafter, in March 2013, Deutsche

Bank attempted to personally serve defendant Choi with the

complaint. The process server, hired by Deutsche Bank, made

attempts to serve defendant at the Property on several different

occasions. The process server also attempted to personally serve

Choi at 406 Crocus Hill, Norwood, New Jersey, which, as it turns

out, was defendant Choi's residence. The process server, however,

was not successful in personally serving defendant.

3 A-2947-15T3 Deutsche Bank then made various searches to identify

defendant's address. Those searches included postal inquiries,

internet searches, skip trace searches, searches of tax records,

and searches of records maintained by the Motor Vehicle Commission

(MVC). Those searches identified an address for defendant Choi

at 406 Crocus Hill, Norwood, New Jersey. Those inquiries also

revealed a mailing address for defendant Choi at P.O. Box 237,

Leonia, New Jersey. Deutsche Bank caused the complaint to be sent

to both the Norwood and Leonia addresses by certified mail, but

those mailings were returned unclaimed.

On October 1, 2013, Deutsche Bank caused a notice of the

complaint to be published in the Record newspaper, a newspaper of

general circulation in Bergen County, "the county in which the

venue is laid." R. 4:4-5(a)(3). Copies of that publication were

also sent to defendants at the Property, as well as the Norwood

and Leonia addresses.

On March 25, 2014, Deutsche Bank filed a request for entry

of default. In support of that application, Deutsche Bank also

filed a "CERTIFICATION OF INQUIRY AND MAILING NOTICE AND COMPLAINT

TO ABSENT DEFENDANTS AND PUBLICATION," dated March 20, 2014. On

April 25, 2014, a default was entered against defendants.

In August 2015, Deutsche Bank filed a motion for final

judgment. Deutsche Bank mailed a copy of that motion to defendant

4 A-2947-15T3 Choi. Defendant Choi acknowledged receiving a copy of the motion

for final judgment and represented that such notice was the first

notice he had of the foreclosure action.

The following month, in September 2015, prior to the entry

of final judgment, defendant Choi moved to vacate the default.

Defendant contended that the attempts to personally serve him were

insufficient and that the service by publication was defective.

After hearing oral argument on January 8, 2016, the Chancery Court

denied defendant's motion to vacate the default in an order issued

on January 11, 2016. The court also issued a written statement

of reasons explaining its ruling.

The Chancery Court found that Deutsche Bank had provided

adequate proof of its diligent efforts to locate and personally

serve defendant. The court also found that the service by

publication was proper under Rule 4:4-5(a)(3). The court went on

to reason that Deutsche Bank had complied with the requirements

of due process. Finally, the court reasoned that defendant had

offered no meritorious defense to the foreclosure action.

The final judgment in favor of Deutsche Bank was entered on

February 3, 2016. The judgment entitles Deutsche Bank to receive

$1,119,823.41, together with interest, costs of suit, and counsel

fees of $7500.

5 A-2947-15T3 II.

Defendants now appeal the denial of the motion to vacate the

default and the entry of the final judgment. Defendants argue

that plaintiff failed to properly serve the summons and complaint

and, thus, the Chancery Court was without jurisdiction and it

erred in not vacating the default and entering final judgment. In

making that argument, defendants contend that the affidavit of

diligent inquiry "lacked reliability" and was filed out of time

because it was filed six months after the publication of service.

Defendants also argue that the Chancery Court erred in not

conducting a plenary hearing on allegedly disputed issues

concerning whether defendant was properly served with the summons

and complaint. Having considered these arguments in light of the

record, we reject them and affirm.

We review a motion to vacate default for abuse of discretion.

See Bernhardt v. Alden Café, 374 N.J. Super. 271, 282 (App. Div.

2005) (reversing on the ground that "failure to vacate default was

an improper exercise of discretion"). A court abuses its

discretion "when a decision is 'made without a rational

explanation, inexplicably departed from established policies, or

rested on an impermissible basis.'" U.S. Bank Nat. Ass'n v.

Guillaume, 209 N.J. 449, 467 (2012) (quoting Iliadis v. Wal-Mart

Stores, Inc., 191 N.J. 88, 123 (2007)).

6 A-2947-15T3 Here, the Chancery Court denied defendant's motion to vacate

default finding that defendant was properly served by publication

following a diligent inquiry that failed to lead to personal

service, and, having been properly served, defendant failed to

present a meritorious defense.

In Modan v. Modan, we surveyed other appellate courts across

the country to determine what constitutes a diligent inquiry such

that service by publication becomes appropriate. 327 N.J. Super.

44, 48-49 (App. Div. 2000). We found that "a plaintiff need not

exhaust all conceivable means of personal service before service

by publication is authorized. A plaintiff need only follow up on

that information possessed by plaintiff which might reasonably

assist in determining defendant's whereabouts." Id. at 48 (quoting

Carson v. Northstar Dev. Co., 62 Wn. App. 310, 316 (1991)).

Plaintiff's affidavit of diligent inquiry establishes that

plaintiff made substantial efforts to locate defendant and effect

personal service. A search of MVC records yielded an address of

20 10th Street, Palisades Park, New Jersey, an address that pre-

dated the mortgage. A tax search listed the mortgaged premises

as the address of record. An internet search yielded the same

result. A skip trace provided an address for Choi at 406 Crocus

Hill, Norwood, New Jersey. The Postmaster for Norwood confirmed

that mail was delivered to this address.

7 A-2947-15T3 A second skip trace provided an address for Choi at P.O. Box

237, Leonia, New Jersey. The Postmaster affirmed this was a valid

address for Choi, but could provide no other address where personal

service might be effected. Searches performed with the Social

Security Death Index, the County Voter Registration Office, and

the Surrogate's Office, yielded no results. The Office of Vital

Statistics was unable to provide any information.

A private process server was hired to attempt personal

service. Six attempts were made. The first at the mortgaged

premises, in which at least one tenant was residing. This tenant

did not provide any information about an address where Choi might

be located. Personal service was attempted five times at 406

Crocus Hill, Norwood, New Jersey, over a two-week period, at

varying times of day. Plaintiff then attempted to serve Choi by

regular and certified mail at all known addresses, but the

certified mails were returned unclaimed. Thus, we agree with the

Chancery Court that plaintiff's thorough search to locate

defendant and its multiple attempts at personal service constitute

a diligent inquiry as required by Rule 4:4-5.

After such diligent inquiry was conducted and plaintiff was

unable to effectuate service, defendant was properly served by

"publication of a notice to absent defendants once in a newspaper

8 A-2947-15T3 published or of general circulation in the county in which the

venue is laid[.]" R. 4:4-5(a)(3).

Nothing in the language of Rule 4:4-5 requires that an

affidavit of diligent inquiry be filed with the court prior to

service by publication. See, e.g. M & D Associates v. Mandara,

336 N.J. Super. 341, 347 (App. Div.), certif. denied, 180 N.J. 151

(2004) (where service by publication was made nearly four months

before the affidavit of diligent inquiry was filed). It requires

only that a diligent inquiry be made prior to such service. If a

defendant fails to respond or appear, plaintiff must file an

affidavit of diligent inquiry before default can be entered if

such inquiry was required to properly effectuate service. See R.

4:43-1 (stating that a request for entry of default must be

supported by an affidavit that "shall recite the service of the

process").

Plaintiff filed its request for entry of default, along with

its affidavit of diligent inquiry, on March 25, 2014, less than

six months after the publication of service on October 1, 2013.

It follows that plaintiff requested default "within [six] months

of the actual default," as required by R. 4:43-1. Since there is

nothing in the Rules that requires filing the affidavit of diligent

inquiry prior to requesting entry of default, plaintiff's

affidavit of diligent inquiry was not untimely. Even if more than

9 A-2947-15T3 six months had passed, plaintiff simply would have been required

to seek default by notice of motion, instead of having default

entered by the clerk.

A motion to set aside default is "viewed with great

liberality, and every reasonable ground for indulgence is

tolerated to the end that a just result is reached." Trs. of

Local 478 Trucking and Allied Indus. Pension Fund v. Baron Holding

Corp., 224 N.J. Super. 485, 489 (App. Div. 1988) (quoting Marder

v. Realty Constr. Co., 84 N.J. Super. 313, 319 (App. Div.), aff'd,

43 N.J. 508 (1964)). "Nevertheless, before a default is set aside,

defendant must at the very least show the presence of a meritorious

defense worthy of a judicial determination." Ibid. Particularly

in a foreclosure matter, "[i]f there is no bona fide contest, a

secured creditor should have prompt recourse to its collateral."

Ibid. If the defendant was not properly served, however, the

showing of a meritorious defense "cannot be required as a matter

of due process." Pressler & Verniero, Current N.J. Court Rules,

comment on R. 4:43-3 (2017) (citing Peralta v. Heights Med. Ctr.,

Inc., 485 U.S. 80, 86-87, 108 S. Ct. 896, 900, 99 L. Ed. 2d 75,

82 (1988); Midland Funding, LLC v. Albern, 433 N.J. Super. 494,

501 (App. Div. 2013)).

Here we agree with the Chancery Court that defendant was

properly served by publication, thus the Chancery Court

10 A-2947-15T3 appropriately considered defendant's failure to assert a

meritorious defense as part of defendant's motion to vacate

default. Since service of process was properly effectuated, the

Chancery Court properly denied defendant's motion to vacate

default based on the lack of a meritorious defense.

Defendant Choi's September 29, 2015 motion to vacate default

also requested "a [p]lenary [h]earing relative to the service of

the [s]ummons and [c]omplaint against [d]efendant." When there

is a genuine dispute of material fact, and evidence beyond the

motion papers is necessary for a resolution, the Chancery Court

cannot resolve the issue without a plenary hearing. See K.A.F.

v. D.L.M., 437 N.J. Super. 123, 137-38 (App. Div. 2014). "[A]

court may not make credibility determinations or resolve genuine

factual issues based on conflicting affidavits." Ibid. (citing

Conforti v. Guliadis, 245 N.J. Super. 561, 565-66 (App. Div. 1991),

aff'd in part and modified in part on other grounds, 128 N.J. 318

(1992)).

Here, defendant requested a plenary hearing only with regard

to the issue of service of the summons and complaint. There is

no genuine dispute of material fact regarding that issue. It is

indisputable that plaintiff conducted an inquiry to locate

defendant for personal service. Plaintiff, as part of its request

for entry of default against defendant, filed an affidavit of

11 A-2947-15T3 diligent inquiry with the court as proof that defendant had been

properly served by publication. Although defendant challenged

whether plaintiff's efforts constituted a sufficient affidavit of

diligent inquiry under Rule 4:4-5(b), defendant did not argue that

any specific part of the affidavit were untrue.

The assertion that the affidavit and circumstances of service

lacked reliability is not, by itself, sufficient to warrant a

plenary hearing. Furthermore, defendants have not pointed to any

information in plaintiff's possession that would have "reasonably

assist[ed] in determining defendant's whereabouts." Modan, supra,

327 N.J. Super. at 48 (quoting Carson v. Northstar Dev. Co., 62

Wn. App. 310, 316 (1991)). In Modan plaintiff failed to disclose

that he was in possession of defendant's e-mail address,

information that may have helped effect actual notice. Id. at 49.

Here, defendants make no comparable assertion about information

in plaintiff's possession. Therefore, the determination of

whether defendant was properly served did not involve a genuine

dispute of material fact. Thus, no plenary hearing was necessary.

Affirmed.

12 A-2947-15T3