U.S. BANK NATIONAL ASSOCIATION, ETC. VS. RUI AMARAL (F-032972-09, ESSEX COUNTY AND STATEWIDE)

• Court: New Jersey Superior Court Appellate Division
• Decided: July 17, 2018
• Docket: A-4124-16T4
• Status: Unpublished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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-4124-16T4

U.S. BANK NATIONAL ASSOCIATION, AS TRUSTEE FOR SASCO 2007-WF2,

Plaintiff-Respondent,

v.

RUI AMARAL,

Defendant-Appellant,

and

SOPHIA B. COSTA, WACHOVIA BANK, NATIONAL ASSOCIATION and UNITED STATES OF AMERICA,

Defendants.

Submitted June 19, 2018 — Decided July 17, 2018

Before Judges Simonelli and Koblitz.

On appeal from Superior Court of New Jersey, Chancery Division, Essex County, Docket No. F-032972-09.

Rui Amaral, appellant pro se.

Reed Smith, attorneys for respondent (Henry F. Reichner, of counsel and on the brief; Kristy L. Keiser, on the brief). PER CURIAM

In this residential foreclosure case, defendant Rui Amaral

appeals from the May 1, 2017 final judgment, and an earlier March

28, 2017 order denying defendant's objection to the entry of

default judgment. Defendant argues his motion to vacate default

should have been granted because he was not served with the

complaint, and plaintiff did not have the right to foreclose. We

disagree and affirm.

On May 14, 2007, defendant obtained a $352,000 loan from

Wells Fargo, N.A. and executed a note and home mortgage to secure

the note. Defendant failed to make any payments beginning on

March 1, 2009. On June 18, 2009 Wells Fargo assigned the note to

plaintiff, U.S. Bank National Association, as Trustee For Sasco

2007-WF2. On June 23, 2009, plaintiff, who held the note, filed

the foreclosure complaint, which was personally served on

defendant on August 5, 2009 at 9:00 a.m. The affidavit of service

contains a physical description of the male served. Defendant did

not file an answer and default was entered in October 2010. In

September 2013, the matter was dismissed for lack of prosecution.

On August 21, 2014 a motion to reinstate was served on defendant

by regular and certified mail. It was granted unopposed on

September 22, 2014. On October 30, 2015, the matter was again

2 A-4124-16T4 dismissed for lack of prosecution, and again reinstated without

opposition on May 27, 2016.

On August 2, 2016, plaintiff served defendant with a motion

for final judgment. Defendant then filed a motion to vacate

default and file an answer out of time, claiming he had not been

served with the initial complaint. The facts recited in a proof

of service are presumed true, and can only be rebutted by clear

and convincing evidence. Resolution Tr. v Associated Gulf

Contractors, Inc., 213 N.J. Super. 332, 343 (App. Div. 1993).

Defendant provided his driver's license to the motion judge, who

found that the description on the license matched that of the man

served in 2009. The judge found defendant had not provided good

cause, as required by Rule 4:43-3, to vacate default after so many

years. In his thorough written opinion appended to the September

23, 2016 order, Judge Donald A. Kessler explained why he denied

defendant's motion to vacate default. Defendant does not appeal

from that order.

Defendant appeals from the order denying his opposition to

the entry of default judgment for the same reasons he sought to

vacate default. A motion to vacate default may be granted for

good cause, but defendant had previously failed to meet that

standard. An opposition to a final foreclosure judgment must be

based on a disagreement with the amount due only. R. 4:64-1(d)(3).

3 A-4124-16T4 No such argument is expressed by defendant. We find his appeal

of the grant of default judgment and final judgment is therefore

without sufficient merit to require further discussion in a written

opinion. R. 2:11-3(e)(1)(E).

Affirmed.

4 A-4124-16T4