PC II REO, LLC VS. JERILEAN ROBERTS (F-017984-16, MERCER COUNTY AND STATEWIDE)

• Court: New Jersey Superior Court Appellate Division
• Decided: December 19, 2019
• Docket: A-1863-18T3
• Status: Unpublished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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-1863-18T3

PC II REO, LLC,

Plaintiff-Respondent,

v.

JERILEAN ROBERTS,

Defendant-Appellant,

and

MR. ROBERTS, spouse of JERILEAN ROBERTS, ANDREWS FEDERAL CREDIT UNTION, s/b/m/t MCGUIRE FEDERAL CREDIT UNION, and NEW CENTURY FINANCIAL SERVICES INC.,

Defendants. __________________________________

Submitted December 9, 2019 – Decided December 19, 2019

Before Judges Fasciale and Moynihan.

On appeal from the Superior Court of New Jersey, Chancery Division, Mercer County, Docket No. F- 017984-16. Jerilean Roberts, appellant pro se.

Gary C. Zeitz LLC, attorneys for respondent (Gary C. Zeitz and Amber Jean Monroe, on the brief).

PER CURIAM

In this tax foreclosure case, defendant appeals an October 26, 2018 order

denying her reconsideration of motion to vacate a March 19, 2018 final

judgment. The motion that led to the order under review—although

characterized as a motion to vacate—was essentially a motion for

reconsideration of two earlier motions to vacate the judgment. Judge Paul Innes

entered the order and thoroughly explained that there was no basis to grant

reconsideration or vacate the judgment.

On appeal, defendant argues:

POINT I THE JUDGE'S DECISION WAS ARBITRARY AND CAPRICIOUS WHEN THE [JUDGE] MADE AN ISSUE ABOUT DEFENDANT'S ABSENCE AFTER SHE WAS INSTRUCTED NOT TO COME TO COURT.

POINT II THE [JUDGE] NEVER TOOK THE TIME TO HEAR FROM THE APPELLANT-DEFENDANT.[1]

1 This court also considered the arguments raised by defendant in her reply brief. A-1863-18T3 2 We conclude that defendant's contentions are without merit to warrant attention

in a written opinion. R. 2:11-3(e)(1)(E). We affirm substantially for the reasons

expressed by the judge, and add these brief remarks.

In December 2013, plaintiff purchased a tax sales certificate (the Tax

Lien) for the property. In June 2016, defendant received notice of intent to

foreclose on the property, and later that month, plaintiff filed its foreclosure

complaint. Defendant filed her answer in February 2017. In June 2017, plaintiff

obtained summary judgment. The court set January 12, 2018 as the last date to

redeem the Tax Lien. Defendant received the order setting that date, but did not

redeem the property. On March 20, 2018, defendant received the final

judgment.2 Thereafter, defendant filed three motions.

The first two motions—filed on April 27, 2018 and May 10, 2018

respectively—sought to vacate the final foreclosure judgment. The Foreclosure

Unit denied the first motion because it "must be noticed to the vicinage of the

court." The judge denied the second motion because defendant failed to appear

for oral argument. The judge denied the first two motions to vacate judgment

in one order dated May 25, 2018.

2 The property has since been sold. A-1863-18T3 3 On October 4, 2018, defendant filed her third motion, more than six

months later, which led to the order under review. She entitled that motion as

an application seeking to vacate the judgment, but as the judge observed, the

third motion sought reconsideration of the May 25, 2018 order. That order led

to this appeal.

The judge correctly denied reconsideration. A motion for reconsideration

is committed to the sound discretion of the court, which should be "'exercised

in the interest of justice.'" Cummings v. Bahr, 295 N.J. Super. 374, 384 (App.

Div. 1996) (quoting D'Atria v. D'Atria, 242 N.J. Super. 392, 401 (Ch. Div.

1990)). Reconsideration is appropriate only when a court has rendered a

decision "'based upon a palpably incorrect or irrational basis,'" or failed to

consider or "'appreciate the significance of probative, competent evidence.'"

Ibid. (quoting D'Atria, 242 N.J. Super. at 401). This court reviews the denial of

a motion for reconsideration to determine whether the judge abused his

discretionary authority. Id. at 389. This court "may only disturb the decision

below if it finds error which is 'clearly capable of producing an unj ust result.'"

Casino Reinvestment Dev. Auth. v. Teller, 384 N.J. Super. 408, 413 (App. Div.

2006) (quoting R. 2:10-2).

A-1863-18T3 4 Contrary to the twenty-day deadline imposed by Rule 4:49-2, defendant

waited until October 2018 to file the third motion. Defendant specifically

requested oral argument on her third motion only if plaintiff filed an opposition.

Consequently, the day after defendant filed her third motion, the foreclosure unit

notified her not to go to the courthouse and that her third motion would be

decided on October 26, 2018. That notice went out a day after she filed her

motion and before plaintiff filed an opposition.

Once plaintiff opposed defendant's motion, the parties were notified there

would be oral argument. In fact, the transcript containing the judge's oral

decision reflects that "[n]otice of oral argument [on the third motion] was given

to counsel[] and the self-represented individual. The matter was schedule[d] for

nine o'clock. It's now 9:37. There's been no appearance by [defendant]."

Even though the reconsideration motion was untimely, which could have

been a basis to deny it, the judge denied reconsideration on the merits by

adhering to the correct standard of review. Defendant provided no new

information, and the judge's earlier order was not palpably incorrect, irrational,

or the result of a failure to consider or "'appreciate the significance of probative,

competent evidence.'" Cummings, 295 N.J. Super. at 384 (citation omitted).

A-1863-18T3 5 Importantly, the judge also correctly found that defendant failed to

provide any basis to vacate the final judgment. A motion to vacate final

judgment must meet the standard of Rule 4:50-1:

On motion, with briefs, and upon such terms as are just, the court may relieve a party or the party's legal representative from a final judgment or order for the following reasons: (a) mistake, inadvertence, surprise, or excusable neglect; (b) newly discovered evidence which would probably alter the judgment or order and which by due diligence could not have been discovered in time to move for a new trial under R[ule] 4:49; (c) fraud . . . , misrepresentation, or other misconduct of an adverse party; (d) the judgment or order is void; (e) the judgment or order has been satisfied, released or discharged, or a prior judgment or order upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment or order should have prospective application; or (f) any other reason justifying relief from the operation of the judgment or order.

A trial judge's determination under this rule "warrants substantial deference, and

should not be reversed unless it results in a clear abuse of discretion." US Bank

Nat'l Ass'n v. Guillaume, 209 N.J. 449, 467 (2012) (citations omitted). "The

[c]ourt finds an abuse of discretion when a decision is made without a rational

explanation, inexplicably departed from established policies, or rested on an

impermissible basis." Ibid. (internal quotation marks and citations omitted).

A-1863-18T3 6 There is no abuse of discretion. The judge, relying on motion papers,

entered the May 25, 2018 order denying defendant's earlier two motions to

vacate, and concluded defendant was unable to satisfy Rule 4:50-1(a) or (f). He

also determined that she failed to demonstrate—on her third motion—excusable

neglect or a meritorious defense, or that she could have redeemed the property.

Indeed, even on this appeal, defendant does not argue to the contrary.

Affirmed.

A-1863-18T3 7