Towd Point Mortgage Trust 2017-Fre1, Etc. v. Sheri L. Best

• Court: New Jersey Superior Court Appellate Division
• Decided: April 3, 2024
• Docket: A-2176-22
• Status: Unpublished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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-2176-22

TOWD POINT MORTGAGE TRUST 2017-FRE1, U.S. BANK NATIONAL ASSOCIATION, as Indenture Trustee,

Plaintiff-Respondent,

v.

SHERI L. BEST,

Defendant-Appellant,

and

DENNIS RIORDON and NATIONAL CITY BANK,

Defendants. ______________________________

Submitted March 18, 2024 – Decided April 3, 2024

Before Judges Marczyk and Vinci.

On appeal from the Superior Court of New Jersey, Chancery Division, Hunterdon County, Docket No. F-019349-19. Sheri L. Best, appellant pro se.

Fein, Such, Kahn & Shepard, PC, attorneys for respondent (Michael S. Hanusek, on the brief).

PER CURIAM

In this foreclosure action, defendant Sheri L. Best appeals from a March

17, 2023 order denying her motion to vacate default judgment filed two years

after judgment was entered in favor of plaintiff Towd Point Mortgage Trust

2017-FRE1 (Towd Point). Based on our review of the record and applicable

legal standards, we affirm.

On May 18, 2007, Best executed a note and purchase-money mortgage in

the amount of $372,000 for property located in Califon, and delivered the note

and mortgage to Bank of America, N.A. (Bank of America). Bank of America

recorded the mortgage on June 4, 2007. The note provides Best, as the borrower,

"understand[s] that the Lender [Bank of America] may transfer this [n]ote."

On September 11, 2012, Bank of America assigned the mortgage to

Ocwen Loan Servicing, LLC (Ocwen). The assignment was recorded on

September 25, 2012. On April 28, 2017, Ocwen assigned the mortgage to Select

Portfolio Servicing, Inc. (SPS). The assignment was recorded on May 18, 2017.

On April 23, 2019, SPS assigned the mortgage to Towd Point. The

assignment was recorded on May 10, 2019, and states SPS, as the "Assignor[,]

A-2176-22 2 does hereby grant, sell, assign, transfer and convey, unto the above-named

Assignee [Towd Point] all interest under that certain Mortgage Dated: [May 18,

2007], in the amount of $372,000[], executed by Sheri L. Best and Dennis

Riordon, wife and husband to Bank of America, N.A."

On August 1, 2018, Best defaulted on her obligations under the note and

mortgage. On November 14, 2019, Towd Point filed the underlying foreclosure

complaint. On November 29, 2019, Best was personally served. Best did not

answer the complaint. On January 20, 2020, Towd Point filed a request for and

certification of default. On February 17, 2021, the court entered default

judgment in favor of Towd Point in the amount of $331,422.87. On June 16,

2021, at Best's request, Towd Point faxed Best a payoff letter. On December

12, 2021, Towd Point assigned the mortgage to FirstKey Mortgage, LLC.

On February 14, 2023, Best, appearing pro se, moved to vacate default

judgment pursuant to Rule 4:50-1. On March 13, 2023, the court heard oral

argument and denied Best's motion in an oral decision, finding it was "entirely

without merit" because: (1) she did not address any excusable neglect that

warrants disturbing a default judgment; and (2) it was unreasonable that she filed

her motion two years after judgment was entered. The court noted Best "clearly

was aware of this litigation" because she was personally served with the

A-2176-22 3 complaint, was mailed copies of all documents, and requested and received a

pay-off letter, yet did "not indicate at all why she failed to participate in this

lawsuit."

On March 17, 2023, the trial court entered an order denying Best's motion

for the reasons set forth on the record on March 13, 2023. On appeal, Best

argues the court abused its discretion in denying her motion to vacate default

judgment because Towd Point lacked standing to foreclose.

"The trial court's determination under [Rule 4:50-1] warrants substantial

deference, and should not be reversed unless it results in a clear abuse of

discretion." U.S. Bank Nat'l Ass'n v. Guillaume, 209 N.J. 449, 467 (2012). An

abuse of discretion exists "when a decision is 'made without a rational

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

impermissible basis.'" Id. at 467-68 (quoting Iliadis v. Wal-Mart Stores, Inc.,

191 N.J. 88, 123 (2007)).

We affirm substantially for the reasons set forth in the court's thorough

and well-reasoned oral opinion. We add the following comments.

Pursuant to Rule 4:50-1,

the court may relieve a party . . . 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

A-2176-22 4 judgment or order and which by due diligence could not have been discovered in time to move for a new trial under [Rule] 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.

Without referring to a specific ground for relief under Rule 4:50-1, Best

contends the court improperly denied her motion to vacate default judgment

because Towd Point lacked standing to foreclose. Best's argument implicates

Rule 4:50-1(a), excusable neglect, or (f), any other reason justifying relief from

the operation of the judgment or order.

To obtain relief from a default judgment under Rule 4:50-1(a), the movant

must demonstrate both excusable neglect and a meritorious defense. Dynasty

Bldg. Corp. v. Ackerman, 376 N.J. Super. 280, 285 (App. Div. 2005). For relief

under Rule 4:50-1(f), the movant must demonstrate the circumstances are

exceptional, and that enforcement of the order or judgment would be unjust,

oppressive, or inequitable. Badalamenti v. Simpkiss, 422 N.J. Super. 86, 103

(App. Div. 2011) (citing Linek v. Korbeil, 333 N.J. Super. 464, 473-74

(App. Div. 2000)).

A-2176-22 5 Best failed to establish a meritorious defense or exceptional circumstances

warranting relief because, as the court correctly determined, Towd Point had

standing to foreclose. "As a general proposition, a party seeking to foreclose a

mortgage must own or control the underlying debt." Wells Fargo Bank, N.A. v.

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)). A party has standing

to foreclose if it either (a) "demonstrate[s] that it possessed the note" when it

filed the complaint, or (b) "present[s] an authenticated assignment indicating

that it was assigned the note before it filed the original complaint." Deutsche

Bank Nat'l Tr. Co. v. Mitchell, 422 N.J. Super. 214, 224-25 (App. Div. 2011)

(citing N.J.S.A. 46:9-9).

The court correctly found Towd Point had standing to foreclose based on

certified copies of the note, mortgage, and assignment of mortgage that

demonstrate Towd Point was the legal owner of the mortgage at the time it filed

its foreclosure complaint. Because Best's claim that Towd Point lacked standing

was without merit, the court did not abuse its discretion by denying her motion

to vacate default judgment.

The court also did not abuse its discretion in determining Best's motion

was untimely. A motion to vacate pursuant to Rule 4:50-1(a) must be filed "not

A-2176-22 6 more than one year after the judgment, order or proceeding was entered or

taken." R. 4:50-2. A motion pursuant to Rule 4:50-1(f) must be filed "within a

reasonable time." Ibid. A court may not "enlarge the time specified by . . .

[Rule] 4:50-2." R. 1:3-4(c).

If Best's motion was premised on Rule 4:50-1(a), it was precluded because

it was filed more than one year after judgment was entered. If Best sought relief

under Rule 4:50-1(f), the court did not abuse its discretion by determining her

motion was untimely. As the court noted, Best did not offer any explanation for

her failure to participate in the litigation or delay in waiting two years to move

to vacate default judgment. There is no reason to disturb the court's

determination that Best failed to seek relief under Rule 4:50-1(f) within a

reasonable time. The court did not abuse its discretion by denying Best's motion

Affirmed.

A-2176-22 7