EVERBANK VS. AIDA C. BASCOPE (F-003087-14, BERGEN COUNTY AND STATEWIDE)

• Court: New Jersey Superior Court Appellate Division
• Decided: June 29, 2018
• Docket: A-0735-17T3
• Status: Unpublished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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-0735-17T3

EVERBANK,

Plaintiff-Respondent,

v.

AIDA C. BASCOPE,

Defendant,

and

JOSE B. BASCOPE,

Defendant-Appellant. ____________________________

Submitted June 5, 2018 – Decided June 29, 2018

Before Judges Hoffman and Gilson.

On appeal from Superior Court of New Jersey, Chancery Division, Bergen County, Docket No. F-003087-14.

Jose B. Bascope, appellant pro se.

McCabe Weisberg & Conway, LLC, attorneys for respondent (James A. French, of counsel and on the brief).

PER CURIAM In this residential mortgage foreclosure matter, defendant

Jose Bascope appeals from a September 29, 2017 order denying his

motion to vacate a final judgment entered on June 10, 2016. We

affirm.

I.

On March 15, 2006, defendant borrowed $304,000 from

Countrywide Home Loans, Inc. (Countrywide). In connection with

that loan, defendant signed a note (Note) and he and his wife gave

a mortgage (Mortgage) on property located in Garfield. The Note

was given to Countrywide, and the Mortgage was delivered to

Mortgage Electronic Registration Systems, Inc. (MERS), as nominee

for Countrywide. On May 1, 2009, MERS assigned the Mortgage to

BAC Home Loans Servicing, L.P. (BAC). Three years later, on July

19, 2013, Bank of America, N.A., as successor by merger to BAC,

assigned the Mortgage to EverBank. Both of those assignments were

recorded.

In May 2013, defendant failed to make the monthly mortgage

payment and, thereafter, he defaulted on the Note and Mortgage.

Defendant has not cured those defaults.

In January 2014, EverBank filed a complaint seeking to

foreclose on the Mortgage. In its complaint, EverBank represented

that it was the holder of the Mortgage and it had "possession of

2 A-0735-17T3 the promissory note." Defendants1 filed a contesting answer, but

in October 2014, defendants withdrew their answer, and the Chancery

court entered an order returning the matter to the Office of

Foreclosure to proceed as an uncontested matter.

In May 2016, EverBank moved to enter a final judgment. In

support of that motion, an employee of the loan servicer for

EverBank filed an affidavit. The affiant certified that she was

authorized to file the affidavit as "attorney-in-fact for

EverBank," that she had "thoroughly reviewed" the business records

concerning the Note and Mortgage, and that EverBank was the holder

of the Note and Mortgage with the right to enforce those

obligations. Final judgment was entered on June 10, 2016. The

mortgaged property was then sold in a sheriff's sale in June 2017.

In August 2017, defendant filed a motion to vacate the final

judgment. Defendant alleged that EverBank lacked standing to

foreclose and that the affidavit submitted in support of the final

judgment was insufficient. The Chancery court heard oral arguments

and, on September 29, 2017, it issued an order and written opinion

denying the motion to vacate.

1 Defendant refers to Jose Bascope. Defendants refers to Jose and Aida Bascope. Only Jose Bascope has appealed.

3 A-0735-17T3 II.

On appeal, defendant makes two arguments: (1) the Chancery

court abused its discretion in not vacating the final judgment

because EverBank did not establish its standing to file the

foreclosure action; and (2) the affidavit filed in support of the

final judgment did not establish that EverBank owned the Note

before final judgment was entered. We reject these arguments

because they are not supported by the record.

To vacate a judgment, defendant must establish one of the six

grounds identified in Rule 4:50-1. See US Bank Nat'l Ass'n v.

Guillaume, 209 N.J. 449, 466 (2012). Here, defendant relies on

subsections (d) and (f) of Rule 4:50-1. Those subsections provide

that a party may vacate a judgment if he or she can establish:

"(d) the judgment or order is void; . . . or (f) any other reason

justifying relief from the operation of the judgment or order."

R. 4:50-1(d), (f).

We review the Chancery court's order on a motion to vacate a

final judgment for abuse of discretion. Guillaume, 209 N.J. at

467. "A trial court's determination under [Rule 4:50-1] warrants

substantial deference," and the abuse of discretion must be clear

to warrant a reversal. Ibid. (citing DEG, LLC v. Twp. of

Fairfield, 198 N.J. 242, 261 (2009)).

4 A-0735-17T3 While phrased as two arguments, defendant essentially makes

a standing argument, contending that EverBank did not establish

that it owned or held the Note and Mortgage before it filed its

foreclosure action in January 2014. More specifically, defendant

argues that the affidavit EverBank filed was insufficient to

establish its right to enforce the Mortgage.

Initially, we note that such an argument is not a basis to

vacate a final judgment. Defendant has not submitted any proof

that EverBank did not hold or own the Mortgage and Note when it

filed its foreclosure action. Instead, defendant contends that

the affidavit by EverBank was deficient. The distinction is

important. Defendant's arguments challenge EverBank's proofs.

That proof argument needed to be made before the matter was

transferred to the Office of Foreclosure as uncontested and final

judgment was entered. See Deutsche Bank Nat'l Trust Co. v. Russo,

429 N.J. Super. 91, 101 (App. Div. 2012) (rejecting technical

objections to a foreclosure complaint as grounds to vacate final

judgment).

In addition, defendant has not established that the affidavit

by EverBank was insufficient. The affiant certified that she had

reviewed the relevant books and records and that EverBank was the

holder of both the Note and Mortgage. While we encourage trial

courts to be vigilant in assessing the proof submitted in support

5 A-0735-17T3 of foreclosure actions, here we discern no abuse of discretion by

the Chancery court. When EverBank moved for entry of the final

judgment, defendant did not offer any proof that EverBank did not

own or hold both the Note and Mortgage. To the contrary, the

affidavit submitted by EverBank was essentially uncontested.

Consequently, we reject defendant's attempt to vacate the final

judgment.

The record establishes that EverBank is the party with the

right to enforce the Note and Mortgage. The record also

establishes that defendant defaulted on his obligations under the

Note and Mortgage in 2013, and has not made any payments since

that time. The property was sold in June 2017, and there has been

no showing that any other party has claimed a right under the Note

or Mortgage. Indeed, plaintiff waited over a year after the final

judgment was entered and after the sale of the mortgaged property,

to file his motion to vacate the final judgment. Thus, the

equitable considerations presented in this matter supported entry

of the final judgment in favor of plaintiff. See Deutsche Bank

Tr. Co. Ams. v. Angeles, 428 N.J. Super. 315, 320 (App. Div. 2012)

("In foreclosure matters, equity must be applied to plaintiffs as

well as defendants.").

Affirmed.

6 A-0735-17T3