WELLS FARGO BANK, ETC. VS. RODNEY KELLY (F-15290-12, BURLINGTON COUNTY AND STATEWIDE)

• Court: New Jersey Superior Court Appellate Division
• Decided: July 14, 2017
• Docket: A-5708-14T2
• Status: Unpublished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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-5708-14T2

WELLS FARGO BANK, NATIONAL ASSOCIATION, AS TRUSTEE FOR CARRINGTON MORTGAGE LOAN TRUST SERIES 2006-FR1 ASSET-BACKED PASS-THROUGH CERTIFICATES,

Plaintiff-Respondent,

v.

RODNEY KELLY,

Defendant-Appellant,

and

MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC., Solely as Nominee for FGC Commercial Mortgage Finance, d/b/a Fremont Mortgage, its Successors and/or Assigns; NEW JERSEY HOUSING AND MORTGAGE FINANCE AGENCY, as Authorized Administrative Agent of the New Jersey Department of Community Affairs; Fictitious Spouse of Rodney Kelly,

Defendants. _______________________________

Submitted June 8, 2017 - Decided July 14, 2017 Before Judges Lihotz, Hoffman and O'Connor.

On appeal from Superior Court of New Jersey, Chancery Division, Burlington County, Docket No. F-15290-12.

Rodney Kelly, appellant pro se.

Udren Law Offices, P.C., attorneys for respondent (J. Eric Kishbaugh, on the brief).

PER CURIAM

In this contested foreclosure action, defendant Rodney Kelly

appeals from the denial of a motion for reconsideration of the

final judgment foreclosing his interest in residential real

property, located in Willingboro, and granting plaintiff Wells

Fargo Bank, N.A., the right to sell the realty to satisfy the

outstanding loan owed by defendant. On appeal, defendant

identifies nine errors, arguing the trial judge abused her

discretion in granting summary judgment, final judgment, and

ordering sheriff's sale of the realty. We affirm.

The trial court granted summary judgment in favor of plaintiff

on January 2, 2014. Final judgment of foreclosure was entered and

a writ of execution issued on February 26, 2015.1 Almost three

months later, defendant moved to dismiss the foreclosure action

entirely and sought frivolous litigation sanctions, which the

1 Although these documents are not included in the record on appeal, these facts are not disputed.

2 A-5708-14T2 trial judge considered as a motion for reconsideration of the

final judgment. In a written statement of reasons, Judge Karen

L. Suter reviewed defendant's challenges, which she denied. She

filed an order memorializing the denial of defendant's motions on

July 20, 2015. Thereafter, plaintiff purchased the property at

sheriff's sale on July 30, 2015.

The appeal timely challenges the July 20, 2015 order.

However, in his merits brief, defendant includes attacks on the

order granting summary judgment, which led to entry of the final

judgment of foreclosure. We recognize a challenge on

reconsideration may argue the legal sufficiency of an underlying

order. R. 4:49-2. However, here, summary judgment was granted

"for the reasons placed on the record on January 2, 2014," yet a

transcript of the proceeding is not provided, thus, precluding our

review. Cipala v. Lincoln Tech. Inst., 179 N.J. 45, 55 (2004)

(declining review because plaintiff failed to provide transcripts

of proceedings); Soc'y Hill Condo. Ass'n v. Soc'y Hill Assocs.,

347 N.J. Super. 163, 177 (App. Div. 2002) ("A party on appeal is

obliged to provide the court with 'such other parts of the record

. . . as are essential to the proper considerations of the issues.'

R. 2:6-1(a)(1)(H)").

More important, appeal from the final judgment of foreclosure

was not filed. Rule 2:4-1 mandates appeals from final judgments

3 A-5708-14T2 must be filed within forty-five days "of their entry." The time

limit is tolled by "the timely filing and service of a motion to

the trial court . . . for rehearing or reconsideration seeking to

alter or amend the judgment or order pursuant to R. 4:49-2." R.

2:4-3(e) (emphasis added). "The remaining time shall again begin

to run from the date of the entry of an order disposing of such a

motion." Ibid.

Unfortunately, when defendant filed his post-judgment motions

almost ninety days following entry, the time for appeal had long

expired. "[A]n untimely motion to reconsider does not[]" toll the

time limits of Rule 2:4-1. Eastampton Ctr., LLC v. Planning Bd.

of Eastampton, 354 N.J. Super. 171, 187 (App. Div. 2002). Stated

differently, defendant's appeal from the order denying

reconsideration cannot bootstrap challenges to the underlying

order for summary judgment he desires to reconsider.

Nevertheless, for completeness, we have considered the

merits, which we find unavailing. We have reviewed defendant's

motions asserting final judgment must be vacated because of fraud,

plaintiff's violations of the Truth in Lending Act, 15 U.S.C.A. §

1601, and plaintiff's lack of standing. We also reviewed

defendant's motion seeking sanctions because plaintiff pursued

frivolous litigation. Our review of the record reveals the issues

4 A-5708-14T2 were hotly contested and sufficiently litigated, prior to the

review of plaintiff's motion for summary judgment.

We also considered Judge Suter's findings of fact and

conclusions of law, delineated in her July 20, 2015 statement of

reasons accompanying the order under review. We determine her

findings are amply supported and her conclusions are legally sound.

Motions for reconsideration are granted only under very narrow circumstances:

Reconsideration should be used only for those cases which fall into that narrow corridor in which either (l) the Court has expressed its decision based upon a palpably incorrect or irrational basis, or (2) it is obvious that the Court either did not consider, or failed to appreciate the significance of probative, competent evidence. D'Atria v. D'Atria, 242 N.J. Super. 392, 401 (Ch. Div. 1990).

[Fusco v. Bd. of Educ. of City of Newark, 349 N.J. Super. 455, 462 (App. Div. 2002).]

We discern no error. Summary judgment was grounded on

undisputed facts in the record conclusively establishing

plaintiff's ownership of the debt and possession of the note and

mortgage documents. The claims of fraud and forgery are bald

allegations unsupported by direct or even circumstantial

evidential proof. Overall, defendant does not demonstrate the

orders were not rationally based upon competent evidence. Finally,

5 A-5708-14T2 defendant's arguments fail to persuade this court reconsideration

was legally unsound.

Affirmed.

6 A-5708-14T2