NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-4907-18
PHH MORTGAGE CORPORATION,
Plaintiff-Respondent,
v.
YVETTE LABOSSIERE, MR. LABOSSIERE, husband of YVETTE LABOSSIERE,
Defendants-Appellants. ________________________
Argued March 1, 2021 – Decided March 18, 2021
Before Judges Fasciale and Mayer.
On appeal from the Superior Court of New Jersey, Chancery Division, Camden County, Docket No. F-013704-12.
Yvette Labossiere, appellant pro se.1
1 Defendant was notified that oral argument was scheduled to commence at 10:15 a.m. The court and counsel waited until 10:37 a.m. but defendant did not appear. Staff attempted to contact defendant by phone and email, unsuccessfully. Michael Eskenazi argued the cause for respondent (Friedman Vartolo, LLP, attorneys; Michael Eskenazi, on the brief).
PER CURIAM
Defendant appeals from June 6, 2019 order denying her motion to vacate
an order providing that PHH Mortgage Corporation (PHH) had standing to
maintain its foreclosure action and reinstating a June 19, 2017 final judgment of
foreclosure (Second Final Judgment of Foreclosure). She also appeals from the
Second Final Judgment of Foreclosure and a November 12, 2014 order
suppressing her answer with prejudice. We have carefully considered
defendant's contentions and affirm.
On November 17, 2007, defendant obtained a mortgage loan from PHH
and in return executed a security agreement to Mortgage Electronic Registration
Systems, Inc. (MERS), as nominee for PHH. On November 27, 2009, defendant
and PHH entered into a loan modification agreement, which provided "[i]f
applicable, [defendant's] total mortgage payment may change due to changes in
[defendant's] escrow account." On June 7, 2010, PHH learned that defendant
had failed to pay property taxes and that the property would go to a tax sale by
the end of the month. PHH paid the overdue property taxes, exercised its
contractual right to escrow the loan, and in January 2011, notified defendant that
A-4907-18 2 her loan would be escrowed, and her monthly payments would increase
beginning in March 2011.
Thereafter, defendant defaulted on her mortgage. On July 19, 2012, PHH
initiated the underlying foreclosure action. Defendant defaulted by failing to
respond to the complaint, which resulted in a default judgment. On April 30,
2013, Judge Paul Innes issued a final judgment of foreclosure (First Final
Judgment of Foreclosure) and permitted the sheriff's sale to proceed. In
September 2013, defendant filed a motion to vacate the entry of default
judgment and First Final Judgment of Foreclosure. On September 6, 2013,
Judge Mary Eva Colalillo stayed the sheriff's sale, and on October 25, 2013,
vacated the default judgment and permitted defendant to file an answer to
plaintiff's complaint.
On October 1 and November 6, 2014, Judge Nan S. Famular presided over
the foreclosure trial. On November 13, 2014, Judge Famular suppressed
defendant's answer and defenses with prejudice and returned the matter to the
Office of Foreclosure. Defendant filed a motion to vacate the order, which Judge
Famular denied on January 9, 2015. On June 19, 2017, Judge Innes issued the
Second Final Judgment of Foreclosure and permitted the sheriff's sale to
proceed. Defendant filed a motion to vacate the Second Final Judgment of
A-4907-18 3 Foreclosure, which Judge Famular denied on October 17, 2017. Effective
December 21, 2017, PHH transferred its interest in the mortgaged property to
Selene Finance, LP (Selene) who collected payments on behalf of BlueWater
Investment Holdings, LLC. (BlueWater).
In January 2018, defendant filed a second motion to vacate the Second
Final Judgement of Foreclosure. The next month she filed for bankruptcy. On
September 10, 2018, following the lifting of the bankruptcy stay, Judge Famular
again entered an order denying the second motion to vacate the Second Final
Judgment of Foreclosure. Defendant then filed a motion to stay the sheriff's
sale, which Judge Famular denied on September 12, 2018. The following
March, defendant moved to stay the sheriff's sale and vacate the Second Final
Judgment of Foreclosure. On March 12, 2019, Judge Famular denied the motion
to stay the sheriff's sale, but scheduled oral argument on whether to vacate the
Second Final Judgment of Foreclosure.
Judge Famular conducted oral argument on April 26, 2019. Then-attorney
for defendant argued that the Final Order of Foreclosure should be vacated
because "new evidence presented to the bankruptcy court" showed that PHH had
repeatedly transferred its interest in the mortgage. Judge Famular requested that
both parties file supplemental briefs addressing whether PHH retained standing
A-4907-18 4 to foreclose the mortgage despite transferring its interest after instituting the
foreclosure action. On June 6, 2019, after reviewing the parties' submissions,
Judge Famular concluded that PHH retained standing to foreclose, denied
defendant's motion to vacate the Second Final Judgment of Foreclosure,
reinstated the Second Final Judgment of Foreclosure, and returned the file to the
Office of Foreclosure.
On July 12, 2019, defendant filed a notice of appeal of the June 6, 2019
order. The following February, defendant filed an amended notice of appeal
adding the Second Final Judgment of Foreclosure and the November 13, 2014
order dismissing her answers and claims with prejudice.
On appeal, defendant raises the following arguments for this court's
consideration:
POINT I
THE TRIAL [JUDGE] ERRED BY RULING IN PLAINTIFF'S FAVOR DESPITE DEFENDANT'S EVIDENCE OF NO DEFAULT UNDER THE SUBJECT MODIFICATION AGREEMENT, NOTE AND MORTGAGE AND PLAINTIFF'S UNCONSCIONABLE PRACTICES TO FALSIFY A DEFAULT.
POINT II
THE TRIAL [JUDGE] ERRED UPON FAILING TO REMAIN NEUTRAL BY CREATING AN
A-4907-18 5 EXPLANATION FOR PLAINTIFF AND ITS WITNESSES WHO WERE UNABLE TO EXPLAIN, JUSTIFY AND PROVE THE DEFAULT AND AMOUNTS DECLARED DUE AND OWING UNDER THE SUBJECT MODIFICATION AGREEMENT, NOTE AND MORTGAGE.
POINT III
THE TRIAL [JUDGE] ERRED UPON DECLARING THAT PLAINTIFF'S CLAIMS OF AGENCY WITH [MERS] AS ITS ALLEGED "NOMINEE" WERE NOT RELEVANT DESPITE EXISTING LAWS OF AGENCY AND PLAINTIFF'S ASSERTIONS MADE TO CLAIM STANDING BELOW.
POINT IV
THE TRIAL [JUDGE] ERRED BY ALLOWING AN INSTRUMENT PRESENTED AS AN "ASSIGNMENT" OF THE SUBJECT MORTGAGE TO BE PRESENTED AT TRIAL THAT WAS CREATED BY PHELAN HALLINAN SCHMIEG, P.C. / PHELAN HALLINAN DIAMOND & JONES, P.C., DISPLAYS THE NAME AND SIGNATURES OF THE FIRM'S ATTORNEY AS AN OFFICER OF THE ALLEGED ASSIGNOR BEFORE A NOTARY PUBLIC ALSO EMPLOYED BY THE FIRM(S), AND CONSTITUTES (AT BEST) A CONFLICT OF INTEREST.
POINT V
THE TRIAL [JUDGE] ERRED BY ALLOWING PLAINTIFF TO PROCEED WITH [THE] SHERIFF['S] SALE TO PRESENT DATE MORE THAN TWO YEARS AFTER PLAINTIFF RECEIVED CONSIDERATION FOR THE SUBJECT
A-4907-18 6 NOTE AND MORTGAGE FROM A THIRD-PARTY, AND PLAINTIFF ABSOLVED ITSELF OF ANY INTEREST IN THE SUBJECT MODIFICATION AGREEMENT, NOTE, MORTGAGE, AND PROPERTY.
POINT VI
THE TRIAL [JUDGE] ERRED BY IGNORING PLAINTIFF'S COMMUNICATION MADE PURSUANT TO FEDERAL LAW, NOTIFYING DEFENDANT OF PLAINTIFF BECOMING THE "NEW OWNER" OF THE SUBJECT NOTE AND MORTGAGE AFTER THE MATTER BELOW WAS COMMENCED.
In her reply, defendant raises the following additional arguments, which
we have renumbered:
[POINT VII]
CONTRARY TO PLAINTIFF'S . . . REPEATED CLAIM, THE DEFAULT ALLEGED WITHIN THE UNDERLYING FORECLOSURE COMPLAINT AND SUBJECT OF FINAL JUDGMENT IS FALSE, FABRICATED, UNPROVEN AND CONTRADICTORY.
[POINT VIII]
FALSE, UNSUBSTANTIATED AND CONTRADICTORY AFFIDAVIT OF AMOUNT DUE IN SUPPORT OF FINAL JUDGMENT.
A-4907-18 7 [POINT IX]
THE SCALES OF EQUITY FAVOR DEFENDANT'S . . . APPEAL IN RETROSPECT OF THE NEW JERSEY CONSENT JUDGMENT ENTERED AGAINST PLAINTIFF . . . AND THE LATTER'S CONTINUED ENGAGEMENT IN UNFAIR, DECEPTIVE AND UNLAWFUL SERVICING AND FORECLOSURE PRACTICES BELOW AND FAILURE TO REMEDIATE.
[POINT X]
A MISCARRIAGE OF JUSTICE WILL OCCUR ABSENT RELIEF TO DEFENDANT[.]
Defendant has not established a basis for vacation of the June 6, 2019 order, and
her arguments pertaining to the Second Final Judgment of Foreclosure and
November 12, 2014 order are untimely under Rule 2:4-1(a) and unpersuasive on
the merits.
I.
We first address defendant's contention that the motion judge erred in
denying the motion to vacate the Second Final Judgment of Foreclosure.
Where a party seeks to vacate a final judgment or order, they must meet
the standard of Rule 4:50-1:
On motion, with briefs, and upon such terms as are just, the [judge] may relieve a party or the party's legal representative from a final judgment or order for the following reasons: (a) mistake, inadvertence, surprise,
A-4907-18 8 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 on a motion to vacate a final judgment "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).
An abuse of discretion is a decision "made without a rational explanation,
inexplicably departed from established policies, or rested on an impermissible
basis." Ibid. (quoting Iliadis v. Wal-Mart Stores, Inc., 191 N.J. 88, 123 (2007)).
Rule 4:50-1(a) permits vacation of a final judgment as a result of "mistake,
inadvertence, surprise, or inexcusable neglect." Our Court has recognized that
these words were meant to "encompass situations in which a party, through no
fault of its own, has engaged in erroneous conduct or reached a mistaken
judgment on a material point at issue in the litigation." DEG, LLC v. Twp. of
Fairfield, 198 N.J. 242, 262 (2009). That conduct must be the type of "litigation
A-4907-18 9 errors that a party could not have protected against." Id. at 263 (citation and
internal quotation marks omitted).
Rule 4:50-1(b) permits vacation of a final judgment where a party
demonstrates "that the evidence would probably have changed the result, that it
was unobtainable by the exercise of due diligence for use at the trial, and that
the evidence was not merely cumulative." Id. at 264 (quoting Quick Chek Food
Stores v. Twp. of Springfield, 83 N.J. 438, 445 (1980)). All three of these
requirements must be met to justify vacatur. Ibid. "'[N]ewly discovered
evidence' does not include an attempt to remedy a belated realization of the
inaccuracy of an adversary's proofs." Ibid. (quoting at Posta v. Chung-Loy, 306
N.J. Super. 182, 206 (App. Div. 1997)).
A.
Defendant argues that the Second Final Judgment of Foreclosure should
be vacated because of defendant's failure to include evidence at trial due to
innocent mistake, R. 4:50-1(a), and "new evidence presented to the bankruptcy
court," R. 4:50-1(b), which defendant contends demonstrates plaintiff does not
have standing to foreclose on the subject property. Defendant asserts that
because the mortgage was assigned multiple times prior to the commencement
of the foreclosure, and because plaintiff transferred the mortgage to BlueWater
A-4907-18 10 after plaintiff commenced the foreclosure action, PHH does not have standing
to maintain the foreclosure action.
"Standing is not a jurisdictional issue in New Jersey." Capital One, N.A.
v. Peck, 455 N.J. Super. 254, 259 (App. Div. 2018) (citing Deutsch Bank Nat'l
Tr. Co. v. Russo, 429 N.J. Super. 91, 101 (App Div. 2012)). Instead, standing
"is an element of justiciability" that "affects whether a matter is appropriate for
judicial review rather than whether the court has the power to review the matter."
Russo, 429 N.J. Super at 102 (quoting New Jersey Citizens Action v. Riviera
Motel Corp., 296 N.J. Super. 402, 411 (App. Div. 1997)). To have standing, "a
party must have 'a sufficient stake and real adverseness with respect to the
subject matter of the litigation.'" Triffin v. Somerset Valley Bank, 343 N.J.
Super. 73, 81 (App. Div. 2001) (quoting In re Adoption of Baby T., 160 N.J.
332, 340 (1999)). Additionally, "[a] sufficient likelihood of some harm visited
upon the plaintiff in the event of an unfavorable decision is needed[.]" Ibid.
"Standing has been broadly construed in New Jersey as '[the] courts have
considered the threshold for standing to be fairly low.'" Ibid. (quoting Reaves
v. Egg Harbor Twp., 277 N.J. Super. 360, 366 (App. Div. 1994)).
To have standing in a foreclosure action, "a party seeking to foreclose a
mortgage must own or control the underlying debt." Wells Fargo Bank, N.A. v.
A-4907-18 11 Ford, 418 N.J. Super. 592, 597 (App. Div. 2011) (quoting Bank of N.Y. v.
Raftogianis, 418 N.J. Super. 323, 327-28 (Ch. Div. 2010)). If a party does not
have ownership or control of the underlying debt, the complaint must be
dismissed. Ibid. However, "possession of the note or an assignment of the
mortgage that predated the original complaint confer[s] standing." Deutsche
Bank Tr. Co. Americas v. Angeles, 428 N.J. Super 315, 218 (App. Div. 2012)
(citing Deutsche Bank Nat. Tr. Co. v. Mitchell, 422 N.J. Super. 214, 216 (App.
Div. 2011)).
Defendant has not established under Rule 4:50-1(a) any facts or
circumstances that would warrant vacating the Second Final Judgment of
Foreclosure. Nor has defendant established under Rule 4:50-1(b) that new
evidence which was unobtainable through due diligence would have changed
the outcome of the trial. MERS, as nominee for PHH, recorded the mortgage
on December 5, 2007, and conveyed its beneficial interest in the mortgage to
defendant on March 3, 2009. Plaintiff later commenced this action in July 2012.
Plaintiff controlled the mortgage on the date of the filing of the complaint and
therefore had standing to maintain the foreclosure action. PHH's transfer of its
interest to Selene is of no moment, and PHH retains standing to maintain the
foreclosure action. And even if it were the case that plaintiff did not have
A-4907-18 12 standing, the judgment would still not be void under Rule 4:50-1(d). See Russo,
429 N.J. Super. at 101 (noting that "a foreclosure judgment obtained by a party
that lacked standing is not 'void' within the meaning of Rule 4:50-1(d)").
B.
Defendant additionally argues that the sheriff's sale cannot proceed
because she submitted a loss mitigation application to Selene in September
2018, but Selene has not issued a decision. While not directly addressed, this
argument appears to be based on provisions of the Real Estate Settlement
Procedures Act (RESPA) and its accompanying regulations. Defendant does not
point to a particular subsection of Rule 4:50-1 as the basis for vacation as to the
loss mitigation application, so we will address each basis. See F.B. v. A.L.G,
176 N.J. 201, 208 (2003).
RESPA was enacted to protect borrowers from "certain abusive practices
that have developed in some areas of the country." 12 U.S.C. § 2601(a).
Congress authorized the Consumer Financial Protection Bureau (CFPB) to
promulgate rules and regulations in furtherance of RESPA's goals. 12 U.S.C. §
2617(a). Pertinent to this appeal, 12 C.F.R. § 1024.41(g) provides:
[i]f a borrower submits a complete loss mitigation application after a servicer has made the first notice or filing required by applicable law for any judicial or non-judicial foreclosure process but more than [thirty-
A-4907-18 13 seven] days before a foreclosure sale, a servicer shall not . . . conduct a foreclosure sale, unless:
(1) The servicer has sent the borrower a notice pursuant to paragraph (c)(1)(ii) of this section that the borrower is not eligible for any loss mitigation option and the appeal process in paragraph (h) of this section is not applicable, the borrower has not requested an appeal within the applicable time period for requesting an appeal, or the borrower's appeal has been denied;
(2) The borrower rejects all loss mitigation options offered by the servicer; or
(3) The borrower fails to perform under an agreement on a loss mitigation option.
Although borrowers have a private right of action to enforce the procedural
requirements set forth 12 C.F.R. § 1024.41, RESPA authorizes only mone tary
damages for any violations. 12 U.S.C. § 2605(f)(1)(A).
Defendant states that she completed and submitted a loss mitigation
application to Selene on September 7, 2018, but Selene has yet to respond to the
application. Defendant submits a confirmation email purporting to show that
she submitted the loss mitigation application, but it is unclear what documents
were provided; the confirmation page states that sixteen pages were delivered,
but only provides eleven pages of documents as part of the exhibit. Even if it
A-4907-18 14 were the case that defendant submitted a complete loss mitigation application to
Selene within the regulatory timeframe and Selene failed to respond, or if
defendant submitted an incomplete loss mitigation application and Selene failed
to notify defendant of additional documents needed to make the application
complete, 12 C.F.R. § 1024.41(b)(2)(i)(B), defendant's relief would be monetary
damages and not equitable relief, as defendant now seeks.
Defendant failed to establish that the motion judge abused her discretion
in denying the motion to vacate the Second Final Judgment of Foreclosure.
Whether or not defendant filed a loss mitigation application, defendant has not
demonstrated "mistake, inadvertence, surprise, or inexcusable neglect" which
would warrant vacation under Rule 4:50-1(a). There is no new evidence that
would have altered the outcome because defendant's property would still be
foreclosed and if Selene improperly failed to respond to defendant's loss
mitigation application, defendant would only be entitled to monetary damages
and not a stay of the sheriff's sale. Defendant does not allege that the PHH or
Selene made false representations to induce defendant's reliance. The Second
Final Judgement of Foreclosure is not void, nor has there been a change in
circumstances after the entry of the Final Judgment of Foreclosure that would
result in an extreme or unexpected hardship for defendant.
A-4907-18 15 II.
Defendant asserts numerous arguments on appeal relating to her
mortgage, the validity of the default, and the institution of the escrow account
because of the alleged failure to pay property taxes, which fall outside the issues
addressed in the June 6, 2019 order. Defendant is procedurally barred from
raising such arguments.
"An appeal from a final judgment must be filed with the Appellate
Division within forty-five days of its entry[.]" Lombardi v. Masso, 207 N.J.
517, 540 (2011) (citing Rule 2:4-1(a)). Where an appeal is filed beyond the time
limit, "the court normally lacks jurisdiction over the matter and it must be
dismissed." In re Christie's Appointment of Perez as Public Member 7 of
Rutgers Univ. Bd. of Governors, 436 N.J. Super. 575, 584 (App. Div. 2014).
However, even in circumstances where appeals have not been timely filed, o ur
courts may decide issues presented which touch upon "issues of genuine public
importance[.]" Id. at 585.
Defendant appealed the June 6, 2019 order on July 12, 2019, which is
within the forty-five days required by Rule 2:4-1(a). That order provided that
PHH did have standing, reinstated the Second Final Judgment of Foreclosure
against defendant, and transferred the file back to the Office of Foreclosure. On
A-4907-18 16 February 2, 2020, defendant filed an amended notice of appeal and case
information statement which added that she was appealing the Second Final
Judgment of Foreclosure and the November 13, 2014 order, as well as the June
6, 2019 order. Both the Second Final Judgment of Foreclosure and the
November 13, 2014 order are well beyond the forty-five-day time limit, and
there is nothing to suggest that the issues raised are "of genuine public
importance[.]" In re Christie, 436 N.J. Super. at 585; see Jacobs v. N.J. State
Highway Auth, 54 N.J. 393, 396 (1969) (addressing compulsory retirement
policy of the State Highway Authority because of "the importance of the public
question involved"); In re Rodriguez, 423 N.J. Super. 440, 447-48 (App. Div.
2011) (addressing "allegations of correctional officers' use of excessive force"
despite being time-barred because it was "a matter of public importance and
interest").
As a result, this court does not have jurisdiction to address the specific
arguments raised pertaining to the Second Final Judgment of Foreclosure and
the November 13, 2014 order dismissing defendant's answer and claims with
prejudice, nor do they present a basis for vacating the June 6, 2019 order. We
nevertheless add the following remarks on the merits of defendant's contentions.
A-4907-18 17 Defendant asserts that MERS was unable to assign the mortgage to PHH
because it was not an agent of PHH, and that MERS could not be an agent
without a power of attorney. This court has recognized in previous
circumstances that MERS's role as a nominee creates an agency relationship.
See Raftogianis, 418 N.J. Super. 347 (noting that MERS, as nominee, "does not
have any real interest in the underlying debt, or the mortgage which secured that
debt. It acts simply an agent or 'straw man' for the lender"). A power of attorney
is not necessary in this case.
Defendant asserts that the trial judge overlooked the December 4, 2013
Consent Order between New Jersey and PHH. However, there is no evidence in
the record to suggest that defendant fell within any of the borrower categories
provided for in the Consent Order which would entitle her with relief. And even
if it were the case that defendant was identified as one of the borrowers that fell
within the categories proscribed by the Consent Order, the Consent Order only
provides that those borrowers would receive restitution payment, not that
defendant would have been shielded from her default or that the sheriff's sale
would have been stayed.
Affirmed.
A-4907-18 18