NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-2448-17T1
JPMORGAN CHASE BANK, NATIONAL ASSOCIATION,
Plaintiff-Respondent,
v.
GEORGE MCCANTS,
Defendant-Appellant,
and
ERIN MCCANTS; MRS. MCCANTS, Wife of George McCants.,
Defendant.
Submitted February 11, 2019 – Decided March 6, 2019
Before Judges Gooden Brown and Rose.
On appeal from Superior Court of New Jersey, Chancery Division, Essex County, Docket No. F- 015420-17.
George McCants, appellant pro se. McCalla Raymer Leibert Pierce, LLC, attorneys for respondent (Brian P. Scibetta, on the brief).
PER CURIAM
The sole issue presented in this residential mortgage foreclosure case is
whether the trial court erred in denying defendant homeowner's motion to vacate
default, where lack of service, standing, and fraud in the loan's origination are
claimed. Having considered the record in light of the applicable law, we affirm
the trial court's December 15, 2017 order.
We glean the following facts and procedural history from the pleadings
and the motion record. On October 30, 2006, defendant George McCants
borrowed $199,200 from First National Bank of Arizona (First National
Arizona), and signed a note memorializing the loan. The same day, defendant
and his wife, Erin McCants 1 granted a mortgage for the same amount to
Mortgage Electronic Registration Systems, Inc. (MERS), as nominee for First
National Arizona, securing his residence in Newark. The mortgage was duly
recorded on November 22, 2006 in the Essex County Clerk's Office (ECCO).
1 Plaintiff acknowledges codefendant Erin McCants "does not have a recorded ownership interest" in the property; only executed the mortgage and not the note; and "is not personally obligated to pay the sums secured by the mortgage . . . ." Because she is not a party to this appeal, we refer to defendant in the singular in our opinion.
A-2448-17T1 2 On February 27, 2009, defendant and Chase Home Finance, LLC,
plaintiff's former servicing arm, executed a loan modification agreement,
effective March 1, 2010. Defendant defaulted on the loan as of January 1, 2015.
It is undisputed that plaintiff sent defendant a notice of intent (NOI) to foreclose
the loan, and defendant failed to cure the default.
By assignment of mortgage executed on February 27, 2017, MERS
assigned the mortgage to plaintiff (2017 assignment). The 2017 assignment was
duly recorded on March 17, 2017 in the ECCO.2
The foreclosure complaint was filed on June 22, 2017, reciting the
aforementioned history, and was served on defendant by a process server on
June 26, 2017 at 4:40 p.m. The affidavit of service notes that service was
effected by leaving a copy of the complaint with defendant's wife, Erin McCants,
described as a thirty-seven-year-old black female with black hair, who is five
feet ten inches tall and weighs 190 pounds.
On July 5, 2017, defendant filed a pro se 3 complaint in the Law Division
against First National Arizona and MERS, alleging "fraud in [the] mortgage ,
2 For unspecified reasons, the record also indicates MERS assigned the mortgage to plaintiff on August 17, 2009, which was duly recorded in the ECCO on September 17, 2009. 3 Defendant was self-represented throughout the trial court proceedings. A-2448-17T1 3 . . . lack of standing/wrongful foreclosure, fraud in the concealment, fraud in the
inducement, unconscionable contract, breach of contract, [and] breach of
fiduciary duty." Defendant did not, however, file an answer to the foreclosure
complaint. Accordingly, default was entered on August 10, 2017.
Before final judgment was entered, defendant filed a motion to dismiss
the foreclosure complaint on September 7, 2017. In its cogent statement of
reasons accompanying an October 18, 2017 order denying the motion, the trial
court initially noted the motion was procedurally defective because defendant
had not first filed a motion to vacate default pursuant to Rule 4:43-3.
Nonetheless, the court considered defendant's motion "as if it were a
motion to vacate default." Finding defendant had not demonstrated any of his
defenses had merit, the court denied the motion. In particular, the court
determined defendant failed "to rebut the presumption of valid service" where,
as here, "[d]efendant presented nothing more than an unauthenticated driver's
license and his uncorroborated statement to support his claim that service was
defective."
Thereafter, plaintiff filed its motion for final entry of judgment. The
following day, defendant attempted to file an answer, which apparently was
rejected by the clerk's office because defendant remained in default. Defendant
A-2448-17T1 4 then filed a motion to vacate default judgment, claiming "defective service, . . .
lack [of] standing, chain of title issues, fraud and collusion."
Following oral argument on December 15, 2017, the trial court noted that,
because judgment had not been entered, defendant's application would be
considered as a motion to vacate default. The court then reiterated its October
18, 2017 decision "that there was an insufficient basis to vacate the default based
upon claims of improper service." Further, because the 2017 assignment
preceded the filing of plaintiff's complaint, the court found plaintiff
demonstrated standing. Finally, the court recognized that although defendant's
fraud claim might be barred on statute of limitations grounds, defendant filed a
separate action alleging fraud against the loan's originator in the Law Divisi on.
In sum, although the trial court acknowledged motions to vacate default
are granted "with great liberality[,]" it declined to grant such relief here, where
defendant failed to provide new evidence to support any of his defenses "ranging
from standing to fraud to misrepresentation." As such, defendant did not
establish "good cause" under Rule 4:43-3.
On December 28, 2017, the court entered final judgment of foreclosure.
This appeal followed. As stated in his brief, defendant raises the following
points for our consideration:
A-2448-17T1 5 I. THE TRIAL COURT ERRED IN BREACH OF DUTY TO CONTRACT LAW WITH UCC [§] 1-103.6.
II. THE TRIAL COURT ERRED IN DISMI[]SSING THE DEFECTIVE SERVICE.
We discern from defendant's merits brief that he claims the court erred in
denying his motion to vacate default because the summons and complaint were
not properly served, plaintiff did not have standing to file the foreclosure
complaint, and the loan was fraudulent. Defendant has not appealed the court's
finding as to the adequacy of the NOI, or entry of the final judgment of
foreclosure.
We review the denial of a motion to vacate default based on an abuse of
discretion standard. See U.S. Bank Nat'l Ass'n v. Guillaume, 209 N.J. 449, 467
(2012). Pursuant to Rule 4:43-3, a court may vacate entry of default upon "good
cause shown." "[T]he requirements for setting aside a default under Rule 4:43-
3 are less stringent than . . .
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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-2448-17T1
JPMORGAN CHASE BANK, NATIONAL ASSOCIATION,
Plaintiff-Respondent,
v.
GEORGE MCCANTS,
Defendant-Appellant,
and
ERIN MCCANTS; MRS. MCCANTS, Wife of George McCants.,
Defendant.
Submitted February 11, 2019 – Decided March 6, 2019
Before Judges Gooden Brown and Rose.
On appeal from Superior Court of New Jersey, Chancery Division, Essex County, Docket No. F- 015420-17.
George McCants, appellant pro se. McCalla Raymer Leibert Pierce, LLC, attorneys for respondent (Brian P. Scibetta, on the brief).
PER CURIAM
The sole issue presented in this residential mortgage foreclosure case is
whether the trial court erred in denying defendant homeowner's motion to vacate
default, where lack of service, standing, and fraud in the loan's origination are
claimed. Having considered the record in light of the applicable law, we affirm
the trial court's December 15, 2017 order.
We glean the following facts and procedural history from the pleadings
and the motion record. On October 30, 2006, defendant George McCants
borrowed $199,200 from First National Bank of Arizona (First National
Arizona), and signed a note memorializing the loan. The same day, defendant
and his wife, Erin McCants 1 granted a mortgage for the same amount to
Mortgage Electronic Registration Systems, Inc. (MERS), as nominee for First
National Arizona, securing his residence in Newark. The mortgage was duly
recorded on November 22, 2006 in the Essex County Clerk's Office (ECCO).
1 Plaintiff acknowledges codefendant Erin McCants "does not have a recorded ownership interest" in the property; only executed the mortgage and not the note; and "is not personally obligated to pay the sums secured by the mortgage . . . ." Because she is not a party to this appeal, we refer to defendant in the singular in our opinion.
A-2448-17T1 2 On February 27, 2009, defendant and Chase Home Finance, LLC,
plaintiff's former servicing arm, executed a loan modification agreement,
effective March 1, 2010. Defendant defaulted on the loan as of January 1, 2015.
It is undisputed that plaintiff sent defendant a notice of intent (NOI) to foreclose
the loan, and defendant failed to cure the default.
By assignment of mortgage executed on February 27, 2017, MERS
assigned the mortgage to plaintiff (2017 assignment). The 2017 assignment was
duly recorded on March 17, 2017 in the ECCO.2
The foreclosure complaint was filed on June 22, 2017, reciting the
aforementioned history, and was served on defendant by a process server on
June 26, 2017 at 4:40 p.m. The affidavit of service notes that service was
effected by leaving a copy of the complaint with defendant's wife, Erin McCants,
described as a thirty-seven-year-old black female with black hair, who is five
feet ten inches tall and weighs 190 pounds.
On July 5, 2017, defendant filed a pro se 3 complaint in the Law Division
against First National Arizona and MERS, alleging "fraud in [the] mortgage ,
2 For unspecified reasons, the record also indicates MERS assigned the mortgage to plaintiff on August 17, 2009, which was duly recorded in the ECCO on September 17, 2009. 3 Defendant was self-represented throughout the trial court proceedings. A-2448-17T1 3 . . . lack of standing/wrongful foreclosure, fraud in the concealment, fraud in the
inducement, unconscionable contract, breach of contract, [and] breach of
fiduciary duty." Defendant did not, however, file an answer to the foreclosure
complaint. Accordingly, default was entered on August 10, 2017.
Before final judgment was entered, defendant filed a motion to dismiss
the foreclosure complaint on September 7, 2017. In its cogent statement of
reasons accompanying an October 18, 2017 order denying the motion, the trial
court initially noted the motion was procedurally defective because defendant
had not first filed a motion to vacate default pursuant to Rule 4:43-3.
Nonetheless, the court considered defendant's motion "as if it were a
motion to vacate default." Finding defendant had not demonstrated any of his
defenses had merit, the court denied the motion. In particular, the court
determined defendant failed "to rebut the presumption of valid service" where,
as here, "[d]efendant presented nothing more than an unauthenticated driver's
license and his uncorroborated statement to support his claim that service was
defective."
Thereafter, plaintiff filed its motion for final entry of judgment. The
following day, defendant attempted to file an answer, which apparently was
rejected by the clerk's office because defendant remained in default. Defendant
A-2448-17T1 4 then filed a motion to vacate default judgment, claiming "defective service, . . .
lack [of] standing, chain of title issues, fraud and collusion."
Following oral argument on December 15, 2017, the trial court noted that,
because judgment had not been entered, defendant's application would be
considered as a motion to vacate default. The court then reiterated its October
18, 2017 decision "that there was an insufficient basis to vacate the default based
upon claims of improper service." Further, because the 2017 assignment
preceded the filing of plaintiff's complaint, the court found plaintiff
demonstrated standing. Finally, the court recognized that although defendant's
fraud claim might be barred on statute of limitations grounds, defendant filed a
separate action alleging fraud against the loan's originator in the Law Divisi on.
In sum, although the trial court acknowledged motions to vacate default
are granted "with great liberality[,]" it declined to grant such relief here, where
defendant failed to provide new evidence to support any of his defenses "ranging
from standing to fraud to misrepresentation." As such, defendant did not
establish "good cause" under Rule 4:43-3.
On December 28, 2017, the court entered final judgment of foreclosure.
This appeal followed. As stated in his brief, defendant raises the following
points for our consideration:
A-2448-17T1 5 I. THE TRIAL COURT ERRED IN BREACH OF DUTY TO CONTRACT LAW WITH UCC [§] 1-103.6.
II. THE TRIAL COURT ERRED IN DISMI[]SSING THE DEFECTIVE SERVICE.
We discern from defendant's merits brief that he claims the court erred in
denying his motion to vacate default because the summons and complaint were
not properly served, plaintiff did not have standing to file the foreclosure
complaint, and the loan was fraudulent. Defendant has not appealed the court's
finding as to the adequacy of the NOI, or entry of the final judgment of
foreclosure.
We review the denial of a motion to vacate default based on an abuse of
discretion standard. See U.S. Bank Nat'l Ass'n v. Guillaume, 209 N.J. 449, 467
(2012). Pursuant to Rule 4:43-3, a court may vacate entry of default upon "good
cause shown." "[T]he requirements for setting aside a default under Rule 4:43-
3 are less stringent than . . . those for setting aside an entry of default judgment
under Rule 4:50-1." N.J. Mfrs. Ins. Co. v. Prestige Health Grp., LLC, 406 N.J.
Super. 354, 360 (App. Div. 2009). "[G]ood cause . . . requires the exercise of
sound discretion by the court in light of the facts and circumstances of the
particular case." O'Connor v. Altus, 67 N.J. 106, 129 (1975) (citation omitted).
A-2448-17T1 6 In considering whether good cause exists, courts generally consider the
movant's "absence of any contumacious conduct" and the presence of a
meritorious defense. Ibid. In particular, "the showing of a meritorious defense
is a traditional element necessary for setting aside both a default and a default
judgment . . . ." Pressler & Verniero, Current N.J. Court Rules, cmt. on R. 4:43-
3 (2019). As with a motion to vacate a default judgment, there is no point in
setting aside an entry of default if the defendant has no meritorious defense.
"The time of the courts, counsel and litigants should not be taken up by such a
futile proceeding." Guillaume, 209 N.J. at 469 (citation omitted). We have
noted,
This is especially so in a foreclosure case where the mere denominating of the matter as a contested case moves it from the expeditious disposition by the Office of Foreclosure in the Administrative Office of the Courts, R. 1:34-6 and R. 4:64-1(a), to a more protracted treatment by the Chancery Division providing discovery and raising other problems associated with trial calendars. If there is no bona fide contest, a secured creditor should have prompt recourse to its collateral.
[Trs. of Local 478 Trucking & Allied Indus. Pension Fund v. Baron Holding Corp., 224 N.J. Super. 485, 489 (App. Div. 1988).]
Here, defendant claims the trial court erred by finding he was personally
served with the foreclosure complaint. Specifically, he argues there were errors
A-2448-17T1 7 in the affidavit of service regarding his wife's age, height, weight, "and [she] has
brown hair as opposed to the affidavit describing her as having black hair" based
on a driver's license.
To obtain personal jurisdiction, service of process must conform with the
methods of service permitted by the Rules. See generally R. 4:4-4. Pertinent to
this appeal, service is properly effected
by causing the summons and complaint to be personally served within this State pursuant to Rule 4:4-3, as follows:
(1) Upon a competent individual of the age of 14 or over, by delivering a copy of the summons and complaint to the individual personally, or by leaving a copy thereof at the individual's dwelling place or usual place of abode with a competent member of the household of the age of 14 or over then residing therein ....
[R. 4:4-4(a).]
"[A] substantial deviation from service of process rules . . . casting
reasonable doubt on proper notice" generally will render a default judgment
void. Jameson v. Great Atl. & Pac. Tea Co., 363 N.J. Super. 419, 425 (App.
Div. 2003). However, a return of service consistent with Rule 4:4-7 "raises a
presumption that the facts recited therein are true." Resolution Tr. Corp. v.
Associated Golf Contractors, Inc., 263 N.J. Super. 332, 343 (App. Div. 1993)
A-2448-17T1 8 (citation omitted). The presumption can be "rebutted only by clear and
convincing evidence that the return is false." Id. at 344 (citation omitted).
"[M]inor flaws in the service of process" are not enough to vacate a default
judgment. Sobel v. Long Island Entm't Prods., Inc., 329 N.J. Super. 285, 292
(App. Div. 2000). Where there is "evidence 'tending to disprove' the presumed
fact, the presumption disappears." Jameson, 363 N.J. Super. at 427 (citation
omitted).
Here, defendant failed to demonstrate service was ineffective based on
alleged errors concerning his wife's physical attributes in the affidavit of service.
Rather, there is ample support in the record supporting the judge's finding that
service was proper. For example, the address of the premises where service
occurred is the same as that set forth in the note and mortgage. Defendant never
gave notice he moved to another address, despite this requirement in the
mortgage. Indeed, the record is devoid of a sworn statement by defendant's wife
disputing she was served. See Goldfarb v. Roeger, 54 N.J. Super. 85, 90 (App.
Div. 1959) (recognizing "uncorroborated testimony of the defendant alone is not
sufficient to impeach the return"). On this record, we have no reason to disturb
the trial court's finding that the homeowner failed to muster clear, convincing
A-2448-17T1 9 proof sufficient to overcome the presumption that he was legally served with the
foreclosure summons and complaint.
Nor do we discern any merit in defendant's standing argument. Plaintiff
presented evidence of the assignment of the mortgage along with its recording
before the foreclosure complaint was filed, satisfying the requirement that
"either possession of the note or an assignment of the mortgage t hat predated
the original complaint confer[s] standing." Deutsche Bank Tr. Co. Ams. v.
Angeles, 428 N.J. Super. 315, 318 (App. Div. 2012). Notably, defendant did
not certify that any entity other than plaintiff sought repayment of the mortgage
loan.
We have considered defendant's remaining arguments in light of the
record and applicable legal principles, and conclude they are without sufficient
merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
A-2448-17T1 10