Malone v. Midlantic Bank, N.A.

758 A.2d 157, 334 N.J. Super. 236, 2000 N.J. Super. LEXIS 339

• Court: New Jersey Superior Court Appellate Division
• Decided: August 4, 2000
• Status: Published

Opinion

PER CURIAM.

This appeal arises from two decisions of Judge Gibson denying:(l) defendant Robert Herdelin’s motion under R. 4:50-1 to vacate a final judgment of foreclosure on a Brigantine condominium that had been obtained by plaintiff Monica Malone; and (2) defendants Geraldine Herdelin’s and Wade McKissick’s application as tenants in occupancy to redeem the Brigantine condominium in question.

After reviewing the record in light of the parties’ arguments and the pertinent law, we affirm substantially for the reasons stated by Judge Gibson in his April 23, 1999 oral decision dealing with Mr. Herdelin’s claim and his September 9, 1999 decision, Malone v. Herdelin, published at 334 N.J.Super. 238, 758 A.2d 158 (Ch.Div.2000), dealing with Ms. Herdelin’s and Mr. McKissick’s claims.

We add only that defendant Robert Herdelin never argued that the foreclosure judgment should be vacated under R. 4:50 — 1(f) when he was before Judge Gibson. Therefore, we need not consider this issue. Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234, 300 A.2d 142 (1973). Nevertheless, we conclude that the circumstances presented do not justify relief from the judgment under this provision of the applicable rule.

We acknowledge that Mr. Herdelin allegedly will lose a substantial investment because of the foreclosure, and plaintiff’s judgment constitutes a significant profit. However, to vacate plaintiffs judgment in this case would, in our opinion, significantly impair the integrity of the Recording Act. N.J.SA.. 46:22-1. There is simply no excuse for Mr. Herdelin’s failure to record his deed.

Affirmed.