NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-2469-21 A-2766-21
M&T BANK,
Plaintiff-Respondent,
v.
VAROUJAN KHOROZIAN,
Defendant-Appellant,
and
ANGELA KHOROZIAN,
Defendant-Respondent,
STATE OF NEW JERSEY,
Defendant. ______________________________
v. VAROUJAN KHOROZIAN,
Defendant. _______________________________
Submitted April 9, 2024 – Decided May 10, 2024
Before Judges Sumners and Torregrossa-O’Connor.
On appeal from the Superior Court of New Jersey, Chancery Division, Bergen County, Docket No. F-006389-19.
Asatrian Law Group, LLC, attorneys for appellant in A- 2469-21 and respondent in A-2766-21 Varoujan Khorozian (Vartan Asatrian, of counsel and on the briefs; Jeffrey Zajac, on the briefs).
Jay Kanetkar, Esq., LLC, attorney for appellant in A- 2766-21 and respondent in A-2469-21 Angela Khorozian (Jayat Pramod Kanetkar, of counsel; Jeffrey Zajac, on the brief).
Parker McCay PA, attorneys for respondent M&T Bank (Eugene R. Mariano, on the brief).
A-2469-21 2 PER CURIAM
In these separate but related residential foreclosure appeals which we
consolidate to issue a single opinion, Angela Khorozian and Varoujan
Khorozian1 challenge the Chancery court's March 18, 2022 order denying
reconsideration of its November 8, 2021 order denying Angela's motion to
vacate default and its January 28, 2022 order denying her motion to compel
amendment of the foreclosure complaint to add her as defendant.
Plaintiff, M & T Bank, commenced foreclosure after Varoujan's default on
a loan, which Varoujan, allegedly unbeknownst to Angela, secured with a
mortgage on their home (the property) in Alpine. Central to both appeals is the
Chancery court's determination that Angela, seeking to vacate default against
her over two years after its entry, lacked good cause under Rule 4:43-3.
Specifically, the court denied the motion as an unsuccessful delay tactic, finding
Angela inexcusably failed to respond earlier despite having actual notice of the
foreclosure and default, and she nevertheless held no interest in the property,
having relinquished both ownership and possessory rights decades earlier when
Varoujan simultaneously purchased the property as sole owner.
1 For clarity, we reference the Khorozians by their first names. A-2469-21 3 After careful review of the record and the Chancery court's trio of
decisions repeatedly exploring and rejecting the claims raised here, we discern
no abuse of discretion and affirm.
I.
A. The Deeds and The Loan
We glean the following facts and procedural history from the record.
Angela and Varoujan were married in 1980 and currently reside in the property,
purchased by Varoujan in 1998. Varoujan acquired the property solely in his
name because Angela admittedly "had recently filed a bankruptcy to address a
large business loss, and [they] could not get financing for the purchase."
Consequently, the deed, dated January 14, 1998, and recorded on January 28,
1998 (Deed I), lists Varoujan as sole owner.
A second deed (Deed II), labelled a "quitclaim deed" and
contemporaneously executed on January 14, 1998 and filed on January 28, 1998,
on its face memorializes Angela's intent to irrevocably "release," "assign,"
"extinguish," and "alienate" her present and future rights and claims to the
property to Varoujan. Deed II specifically states that Angela, as "Grantor,"
"grants and conveys (transfers ownership of) the property . . . to the Grantee,"
designated as Varoujan. Deed II bears the Grantor's signature and declares:
A-2469-21 4 "In accordance with N.J.S.A. 37:2-18 etc. and the amendment and supplements thereto it is specifically intended hereby to release and assign irrevocably to the party of the second part herein [, Varoujan,] any vested, inchoate or possible future estate of (dower or curtesy, as applicable) arising by virtue of statute, court decision, public policy or implication of law out of the marital relationship of the parties hereto and to equitable distribution under N.J.S.A. 2A:34-23. It is also the intention of the Grantor herein to release, extinguish and alienate any right of possession the Grantor may have pursuant to N.J.S.A. 3B:28-3."
Ten years later, to fund a business opportunity, Varoujan executed a
$2,800,000 promissory note in favor of plaintiff's predecessor, Hudson City
Savings Bank, secured by a mortgage on the property. Only Varoujan signed
the note and mortgage, and the Khorozians claim Angela knew nothing of the
loan at the time. Varoujan defaulted on payment in late 2018, and plaintiff
accelerated the loan, demanding the remaining principal and unpaid interest.
After mailing to Varoujan the notice of intent to accelerate and foreclose,
plaintiff, on April 3, 2019, filed the present foreclosure complaint.
B. Early Foreclosure Proceedings
Plaintiff captioned the foreclosure complaint: "M & T Bank v. Varoujan
Khorozian; Mrs. Varoujan Khorozian, His Wife; State of New Jersey" and the
case information statement designated Mrs. Varoujan Khorozian as a "fictitious
party." After four unsuccessful attempts to serve Mrs. Varoujan Khorozian
A-2469-21 5 personally at the residence, plaintiff effectuated service via certified mail to the
post office box mailing address for the property. A lis pendens was recorded on
March 23, 2019.
Varoujan filed a contesting answer on June 24, 2019, making no reference
to Angela or her alleged spousal interest in the property. On July 19, 2019, the
court granted default against "Mrs. Varoujan Khorozian," as no answer or
pleading had been filed. After plaintiff moved for summary judgment against
Varoujan in October 2019, Varoujan cross-moved to compel discovery, opposed
plaintiff's summary judgment motion, and moved to dismiss, again apparently
with no mention of Angela or her potential interest. 2 On December 31, 2019,
the court granted plaintiff's motion for summary judgment and denied Varoujan's
cross-motions.
Varoujan filed but withdrew a motion for reconsideration, instead entering
into three consecutive consent orders between March 2020 and March 2021, in
which plaintiff voluntarily stayed application for final judgment giving Varoujan
the ability to sell the property. In exchange, Varoujan expressly waived his right
to appeal any final judgment entered by the trial court. Varoujan never sold the
2 It appears the only mention of Angela Khorozian in Varoujan's filings was a demand to produce "any and all notices made to Angela Khorozian, the wife and proof of service of the foreclosure on Angela Khorozian." A-2469-21 6 property or satisfied the obligation, nor did he raise or invoke Angela's alleged
interest to oppose foreclosure. By late 2021, the extensions expired, and
foreclosure proceeded toward final judgment.
C. Angela's Motions
Around that same time in October of 2021, Angela, for the first time,
moved to vacate the 2019 default. She acknowledged the deliberate strategy
back in 1998 to have Varoujan acquire the home as sole owner due to her
bankruptcy. Asserting a spousal possessory interest in the property where she
claimed to reside since the time of its purchase, Angela denied signing Deed II
or having knowledge of Varoujan's loan. Challenging service, Angela contended
she was not properly named and was away at the time of service by mail to the
post office box Varoujan maintains. Admitting that she returned home in late
2019 and knew of the foreclosure and default as far back as January of 2020,
Angela alleged that she delayed taking action because she consulted counsel
who gave her wrongful advice that the courts were closed and that she lacked a
defense. Angela indicated she would retain a handwriting expert to prove the
signature on Deed II was forged. She alleged, alternatively, that even if she had
signed Deed II, the law at the time, specifically N.J.S.A. 3B:28-3 establishing
spousal possessory rights, required both spouses' signatures and prohibited
unilateral renunciation of possessory rights to a marital residence. A-2469-21 7 Plaintiff urged that Angela was inexcusably late and nonetheless lacked
standing because she relinquished all rights and claims to the marital property
via Deed II. As such, plaintiff explained that it never considered Angela a party
to the case and instead named "Mrs. Varoujan Khorizian" to cover any possible
subsequent spouse that might have acquired an interest after Angela
extinguished her rights. Plaintiff argued that the 1998 version of N.J.S.A.
3B:28-3 required only the "consent" of both spouses, not both signatures, to
extinguish one spouse's possessory right, which could be readily inferred here
from Varoujan's simultaneously purchasing the property as sole owner by grant
from Angela.
The Chancery court, applying Rule 4:43-3's "good cause" standard, denied
Angela's motion. In a written decision accompanying the November 8, 2021
order, the court found that Angela, aware of the default since at least January
2020, offered no sufficient "excuse or reason for why [she] waited nearly two
years to take action as to the default." The court characterized the motion as
"simply a tactic to delay this action further," taking issue with counsel's
admission that throughout the proceedings, including the seventeen months of
consent stays, the Khorozians made no attempt to sell the property. The court
relied on Deed II and determined that Angela lacked a meritorious defense as
A-2469-21 8 she "never signed the mortgage or note" and had no "interest in the subject
property because she waived her interest in 1998."
Thereafter, plaintiff moved for entry of final judgment. In support,
plaintiff's counsel certified that the pleadings reflected that "Angela Khorozian
may be the spouse of Varoujan . . . ." The certification further referenced Deed
II as conveying entirely Angela's interest in the property and identified a March
23, 2020 deed conveying an interest from Varoujan to Angela. As such, counsel
confirmed plaintiff's position that Angela's "interest is subject to and bound by
Plaintiff's foreclosure and the request for Final Judgment . . . ." Plaintiff’s
counsel further certified that "Mrs. Varoujan Khorozian, his wife, remains a
necessary defendant," because "she was served with the complaint and the
marital status of Varoujan Khorozian has not been confirmed by Varoujan
Khorozian."
Varoujan filed only a general objection to the foreclosure amount baldly
claiming it was "inaccurate, inflated, and in violation of the Rules of the Court,"
which the court denied for lack of specificity under Rules 4:64-1(d)(3) and 4:64-
9. Angela filed a "cross-motion" to compel plaintiff to amend the complaint to
include her as a specific defendant and to allow her to file an answer. She
renewed her prior arguments and claimed that a judgment against "Mrs.
Varoujan Khorozian" would mislead creditors to assume the judgment was A-2469-21 9 against her without first allowing her the ability to answer and contest. Plaintiff
again countered that Angela has no interest in the property, further urging that
Angela's attempt to relitigate the default fell outside the limited scope of
permissible Rule 4:64-1(d)(3) objections.
The court denied Angela's motion calling it "the latest effort to prolong
the foreclosure action" when Angela "does not have an interest in the subject
property." Finding her claims outside the reach of Rule 4:64-1 relief, the court
found Angela sought to improperly "re-litigate the entire matter" despite the
court's earlier ruling that she lacked a meritorious defense. The court deemed
the fictitious spouse designation "irrelevant," explaining that "the fact remains
that Angela Khorozian expressly and irrevocably released and assigned all her
interest in the property to Mortgagor." Further, the court explained:
Because of that fact, [p]laintiff is unable to independently confirm that [m]ortgagor has been married to Angela Khorozian at all times since she transferred her interest in the subject property to Mortgagor in 1998. Therefore, [p]laintiff intentionally chose to list [d]efendant as “Mrs. Varoujan Khorozian, his wife” because, despite the admission [p]laintiff knew [d]efendant was Mortgagor's wife, [p]laintiff did not want to risk excluding [d]efendant from its [m]otion for [f]inal [j]udgment since [p]laintiff must insure clear title after the subject property is sold at Sherriff Sale.
Final judgment was entered on February 7, 2022.
A-2469-21 10 Angela filed a motion for reconsideration on February 16, 2022, joined by
Varoujan with no independent filing, which was denied. The court found the
motion raised for the third time the same previously rejected arguments and
amounted to "nothing more than an attempt to take another bite at the proverbial
apple after Final Judgment was entered . . . ." From this order, both Angela and
Varoujan appeal.
II.
A. Angela's Appeal
Angela raises the following arguments for our consideration:
BECAUSE THE CHANCERY DIVISION COMMITTED PLAIN ERROR IN DENYING ANGELA'S MOTION FOR RECONSIDERATION, THE FINAL JUDGMENT ENTERED AGAINST THE MORTGAGOR SHOULD BE VACATED.
A. The Chancery Division Committed Reversible Error In Denying the Motion to Vacate the Entry of Default.
B. The Defendant Possesses a Meritorious Defense Under the Possessory Rights Granted to Her By N.J.S.A. 3B:28-3.
C. The Chancery Division's Decision and Reasoning With Respect to . . . Plaintiff's Fictitious Spouse Designation Fails to Comport With Well[-]Established Law.
A-2469-21 11 Angela contends that the Chancery court abused its discretion in denying
reconsideration of its earlier decisions. She again argues that good cause existed
to vacate the default as "[t]here was no willful or bad faith conduct" and "[t]he
default was entered without her knowledge, and her failure to answer was the
result of excusable neglect." She reiterates her claim that she was not properly
named in the complaint or served, despite having actual notice as far back as
January 2020 by her own admission. Angela asserts that nevertheless the court
ignored that she "possesse[d] a strong defense on the merits."
She maintains that although she deeded the property to her husband at the
time of its purchase, her rights in the property were not extinguished as she did
not sign Deed II and, relying on the 1998 version of N.J.S.A. 3B:28-3, the deed
is invalid nonetheless without Varoujan's signature. She further contends that,
under Rules 4:26-5 and 4:26-6, the court improperly failed to compel
amendment of the complaint to allow her to assert her position and insists that
default judgment should not stand against a fictitious party when her identity is
known.
Plaintiff responds that the court properly denied reconsideration of its
decisions because Angela holds no interest in this property, as Deed II, taken
together with Deed I, simultaneously created and recorded, reflects that both
Angela and Varoujan intended and consented that Angela have no present or A-2469-21 12 future interest in the property to admittedly avoid her creditors in 1998. As such,
plaintiff asserts that it properly named "Mrs. Varoujan Khorozian, his wife" as
the defendant and judgment must stand as entered. Further, plaintiff contends
that Angela's unreasonably belated attempt to vacate default failed to justify the
two-year delay or show a meritorious defense supporting the Chancery court's
repeated rejection of those arguments.
B. Varoujan's Appeal
Varoujan's appeal mirrors Angela's, with a brief identical to Angela's with
the exception of a slightly edited cover page. Plaintiff responds that Varoujan's
appeal should be summarily dismissed as waived by his consent orders in the
matter foregoing his right to appeal. Alternatively, plaintiff incorporates and
repeats its arguments in response to Angela's indistinguishable claims. In his
reply brief, Varoujan counters that his consent agreements do not bar his appeal
because the Chancery court applied incorrect legal standards and debuts a
challenge to the calculation of the final judgment amount.
III.
A.
We review with deference a trial court's denial of a motion for
reconsideration under Rule 4:49-2 and disturb those findings only upon an abuse
of discretion. Branch v. Cream-O-Land Dairy, 244 N.J. 567, 582 (2021). A A-2469-21 13 dissatisfied litigant's desire to reargue an unsuccessful motion does not warrant
reconsideration. Palombi v. Palombi, 414 N.J. Super. 274, 288 (App. Div. 2010).
Indeed, "a motion for reconsideration provides the court, and not the litigant,
with an opportunity to take a second bite at the apple to correct errors inherent
in a prior ruling." Medina v. Pitta, 442 N.J. Super. 1, 18 (App. Div. 2015). Thus,
a trial court's discretion will not be disturbed unless its determination lacked "a
rational explanation, inexplicably departed from established policies, or rested
on an impermissible basis." U.S. Bank Nat'l Ass'n v. Guillaume, 209 N.J. 449,
467 (2012) (quoting Iliadis v. Wal-Mart Stores, Inc., 191 N.J. 88, 123 (2007)).
Likewise, we do not disturb trial court decisions on motions to vacate
default absent an abuse of discretion. See U.S. Bank Nat. Ass'n v. Curcio, 444
N.J. Super. 94, 105 (App. Div. 2016); see also Guillaume, 209 N.J. at 467. It is
well-settled that "the 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. Mfr.'s Ins. v. Prestige Health Grp., 406 N.J. Super. 354,
360 (App. Div. 2009) (citing Bernhardt v. Alden Cafe, 374 N.J. Super. 271, 277
(App. Div. 2005)). Under Rule 4:43-3, a court may vacate the entry of default
upon a mere showing of "good cause," which exists in the "presence of a
meritorious defense . . . and the absence of any contumacious conduct . . . ."
O'Connor v. Altus, 67 N.J. 106, 129 (1975). Considering whether good cause to A-2469-21 14 vacate default exists "requires the exercise of sound discretion by the court in
light of the facts and circumstances of the particular case." Ibid.; see also
Delaware Valley Wholesale Florist, Inc. v. Addalia, 349 N.J. Super. 228, 232
(App. Div. 2002) (explaining that the application of good cause "requires the
exercise of sound discretion in light of the facts and circumstances of the
particular case considered in the context of the purposes of the Court Rule being
applied"). Applying this standard, we discern no basis to disturb the Chancery
court's decisions that are grounded in the record and applicable law.
In denying Angela's motion to vacate default and her cross-motion to
compel amendment of the complaint to include her as defendant, the court
reasonably concluded that Angela's failure to take timely action, admittedly
knowing of the forfeiture action and default for approximately two years,
undermined any claim of good cause. Attuned to the history of the proceedings,
the court viewed Angela's motion, coming just as Varoujan's stays of litigation
expired and the matter verged on final judgment as a deliberate delay tactic. As
contumacious conduct is antithetical to good cause, we take no issue with the
court's conclusion that the motions were designed to stall the matter as final
forfeiture became imminent.
Further, we discern no abuse of discretion in the court's reliance upon
Deed II to conclude Angela held no interest in the property and therefore lacked A-2469-21 15 a meritorious defense. On its face, Deed II unambiguously identified its scope
and intent to "irrevocably" transfer and extinguish vested and future rights and
claims to ownership, spousal possessory interest, and equitable distribution of
the property. N.J.S.A. 3B:28-3, in its present and prior forms, entitles "married
individuals to joint possession" of any jointly occupied "principal marital
residence." That right, then and now, is not absolute. Angela correctly observes
that N.J.S.A. 3B:28‐3 in 1998, provided that a spousal possessory interest "may
not be released, extinguished or alienated without the consent of both spouses."
Here, however, Deeds I and II, executed and filed in tandem, clearly support the
inference that the transfer of Angela's rights occurred by consent of both Angela
and Varoujan to admittedly avoid Angela's creditors. We also find unavailing
Angela's belated claim that Deed II was forged. Without a handwriting expert
or further explanation, the court was not compelled to accept at face value her
certification denying the authenticity of her signature. See Miller v. Bank of
Am. Home Loan Servicing, L.P., 439 N.J. Super. 540, 551 (App. Div. 2015)
(finding in the context of summary judgment that "self-serving assertions,
unsupported by documentary proof . . . are insufficient to create a genuine issue
of material fact.").
Likewise, we find no error in the Chancery court's denial of Angela's
motion to compel amendment of the complaint. Awaiting final judgment under A-2469-21 16 Rule 4:64-1(d)(3), objections were restricted to specific and detailed disputes of
the amount due. Ibid. (requiring objections to state "with specificity the basis
of the dispute" and present "a specific objection to the calculation of the amount
due . . ."). Angela's motion made no such challenge. Instead, ignoring the court's
prior ruling that she had no interest in the property, she filed a "cross-motion"
in an improper effort to resuscitate her prior failed claims. We concur with the
court's determination that Angela's attempted retread of her prior arguments was
not cognizable at that juncture.
Despite viewing Angela's application as procedurally flawed, the court
again recounted its basis for rejecting her arguments. Regarding the decision to
proceed to final judgment against "Mrs. Varoujan Khorozian," the court
explained that although plaintiff knew of Angela's existence, plaintiff was
"unable to independently confirm that Mortgagor has been married to Angela
. . . at all times since she transferred her interest in the subject property . . . ."
Recognizing that plaintiff was obligated to insure good title, the court did not
abuse its discretion in finding the general designation appropriate in these
circumstances. See R. 4:26-5 (allowing for the designation of an unknown
spouse in a Rule 4:4-5 in rem action by the “given name and surname . . . ” of
the known defendant spouse with “Mrs. [or alternatively Mr. as appropriate]
prefixed thereto”). A-2469-21 17 Angela's claims fell far outside the "narrow corridor" of cases ripe for
reconsideration "in which either 1) the [c]ourt has expressed its decision based
upon a palpably incorrect or irrational basis, or 2) it is obvious that the [c]ourt
either did not consider, or failed to appreciate the significance of probative,
competent evidence . . . ." Triffin v. SHS Grp., LLC, 466 N.J. Super. 460, 466
(App. Div. 2021). We therefore see no abuse of discretion in the Chancery
court's denying Angela's application for reconsideration of these prior decisions.
B.
We need not reach the merits of Varoujan's appeal as he expressly waived
his right to appeal each time he executed three separate and consecutive consent
agreements to delay foreclosure. See Mt. Hope Dev. Assocs. v. Mt. Hope
Waterpower Project L.P., 154 N.J. 141, 147 (1998) (recognizing that voluntary
and knowing waiver of the right to appeal is valid and enforceable).
Nevertheless, we comment only to state the obvious—as Angela's appeal fails,
so does Varoujan's as it simply echoes Angela's arguments and repeats verbatim
her claims and brief on appeal.
To the extent we have not specifically addressed Varoujan's remaining
arguments, we conclude they are without sufficient merit to warrant discussion
in a written opinion. See R. 2:11-3(e)(1)(E).
The consolidated appeals are affirmed. A-2469-21 18