WELLS FARGO BANK, N.A. v. MONICA ZUNIGA-KOSTADINOV (F-025088-14, ESSEX COUNTY AND STATEWIDE)

• Court: New Jersey Superior Court Appellate Division
• Decided: March 7, 2022
• Docket: A-1768-20
• Status: Unpublished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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-1768-20

WELLS FARGO BANK, N.A.,

Plaintiff-Respondent,

v.

MONICA ZUNIGA- KOSTADINOV, a/k/a MONICA KOSTADINOV,

Defendant-Appellant,

and

PALMERA GROUP LIMITED LIABILITY COMPANY, FIA CARD SERVICES, N.A., and ARTISAN BAKERS GROUP, LLC,

Defendants. ______________________________

Submitted January 24, 2022 – Decided March 7, 2022

Before Judges Accurso and Enright.

On appeal from the Superior Court of New Jersey, Chancery Division, Essex County, Docket No. F-025088-14. Kenneth Rosellini, attorney for appellant.

Reed Smith, LLP, attorneys for respondent (Henry F. Reichner, of counsel and on the brief).

PER CURIAM

Defendant Monica Zuniga-Kostadinov appeals from a February 1, 2021

post-judgment order entered in this foreclosure action. The order under review

denied her application to vacate prior orders rejecting her request to set aside a

sheriff's sale. We affirm.

In September 2005, defendant borrowed $441,050 from Wachovia Bank,

National Association. She executed a note evidencing the loan, and to secure

the payment of the debt, she executed a mortgage against her home in

Livingston. The mortgage was duly recorded. Defendant defaulted on the loan

in July 2009, and in 2011, she transferred title to the mortgaged property to

Palmera Group Limited Liability Company (Palmera).

In June 2014, plaintiff Wells Fargo, N.A., successor by merger to

Wachovia, commenced this foreclosure action. Defendant did not answer, and

final judgment was entered in favor of Wells Fargo in February 2016.

On June 6, 2016, plaintiff mailed a copy of a notice of sheriff's sale to

defendant by regular and certified mail, return receipt requested, informing her

A-1768-20 2 the sale was schedule for June 21, 2016. The sale was postponed over a dozen

times, due to emergent applications to stay the sale, defendant's failed efforts at

loss mitigation, and her bankruptcy filings.

On October 11, 2019, plaintiff's counsel sent notice to defendant by

certified mail, return receipt requested, confirming the sheriff's sale was

rescheduled to October 22, 2019. The sheriff's sale proceeded on October 22,

and the following month, defendant moved to vacate and set aside the sale. The

Chancery Division judge denied her application on December 6, 2019.

Defendant moved for reconsideration and that motion was denied on February

14, 2020. Ten months later, defendant moved to vacate the December 6 and

February 14 orders, contending she never received notice of the October 22,

2019 sale date.

In support of her application, defendant provided a certification from her

mail carrier. The carrier certified she delivered mail to defendant's home in

Livingston and remembered the tracking number for the letter plaintiff sent to

defendant, notifying defendant of the impending sheriff's sale. The mail carrier

certified "[t]he tracking number confirmed that the letter was delivered on

October 15, 2019." She also stated she "specifically remember[ed] delivering

the letter because [d]efendant's mailbox had a lot of junk mail . . . and the letter

A-1768-20 3 was mixed in there." The mail carrier further certified the letter was not signed

by defendant. Instead, the carrier admitted she signed for the letter on her

"scanner as a courtesy so [defendant] would not miss the certified mail." Noting

defendant was "not present" when the carrier signed for the letter without

defendant's authorization, the carrier certified it was "common practice in the

Livingston USPS mail area that we sign[ed] certified mail on behalf of some

residents as a courtesy so the residents [did not] miss the letter."

Following argument on defendant's motion to vacate the December 6 and

February 14 orders, the Chancery Division judge concluded:

I'm not vacating my denial of the motion to reconsider from February, nor my denial of the motion to vacate from December, and I'm not vacating the sheriff's sale.

It appears to me that everything was done correctly here to the point now where we actually have [the mail carrier] indicating, . . . "I delivered the notice." . . . . I also note that the Samojeden1 case indicates that notices of sale after adjournments can be by regular mail.

On appeal, defendant argues the judge abused his discretion by refusing

to vacate the sheriff's sale. She also contends her "motion to vacate and for other

relief at the trial court should have been granted pursuant to Rule 4:50-1(f)."

1 First Mut. Corp. v. Samojeden, 214 N.J. Super. 122, 123 (App. Div. 1986). A-1768-20 4 We find insufficient merit in her arguments to warrant further discussion in a

written opinion. R. 2:11-3(e)(1)(E). We add only these few comments.

"[A]n application to open, vacate, or otherwise set aside a foreclosure

judgment or proceedings subsequent thereto is subject to an abuse of discretion

standard." United States v. Scurry, 193 N.J. 492, 502 (2008). An abuse of

discretion occurs "when a decision is 'made without a rational explanation,

inexplicably departed from established policies, or rested on an impermissible

basis.'" U.S. Bank Nat'l Ass'n v. Guillaume, 209 N.J. 449, 467-68

(2012) (quoting Iliadis v. Wal-Mart Stores, Inc., 191 N.J. 88, 123 (2007)).

Similarly, we review the denial of a motion under Rule 4:50-1 for an abuse of

discretion. Deutsche Bank Nat'l Tr. Co. v. Russo, 429 N.J. Super. 91, 98 (App.

Div. 2012).

Courts in this State have the authority to set aside a sheriff's sale "for

fraud, accident, surprise, or mistake, irregularities in the conduct of the sale, or

for other equitable consideration." First Tr. Nat. Ass'n v. Merola, 319 N.J.

Super. 44, 50 (App. Div. 1999). Despite the court's broad discretion to employ

equitable remedies, the power to set aside a sheriff's sale should be "sparingly

exercised." Id. at 52. Likewise, we are mindful relief from a judgment under

Rule 4:50-1 "is not to be granted lightly." Bank v. Kim, 361 N.J. Super. 331,

A-1768-20 5 336 (App. Div. 2003). The rule is "'designed to reconcile the strong interests in

finality of judgments and judicial efficiency with the equitable notion that courts

should have authority to avoid an unjust result in any given case.'" Mancini v.

EDS, 132 N.J. 330, 334 (1993) (quoting Baumann v. Marinaro, 95 N.J. 380, 392

(1984)).

When a residential property is being sold at a sheriff's sale, the seller must

provide notice to the record owner of the property. In fact, Rule 4:65-2 requires

"notice of the [sheriff's] sale . . . be posted in the office of the sheriff of the

county . . . where the property is located, and also, in the case of real property,

on the premises to be sold . . . ." In addition, "at least [ten] days prior to the date

set for sale, [the party obtaining the order or writ shall] serve a notice of sale by

registered or certified mail, return receipt requested," on "every party who has

appeared" and the "owner of record." Ibid. The sheriff "may continue such sale

by public adjournment, subject to such limitations and restrictions as are

provided specially therefor." R. 4:65-4. The rule does not require notice of

adjourned sale dates be served in any particular manner. Samojeden, 214 N.J.

Super. at 127-28. Instead, "some reasonable communication" suffices. Id. at

128.

A-1768-20 6 Here, plaintiff complied with Rule 4:65-2 by providing notice of the

sheriff's sale in 2016, when the sale was first scheduled. Additionally, the record

reflects that in October 2019, defendant received notice of the adjourned sale by

certified mail, return receipt requested, at her home address, as confirmed by her

mail carrier's certification.

"New Jersey cases have recognized a presumption that mail properly

addressed, stamped, and posted was received by the party to whom it was

addressed." Ssi Med. Servs. v. HHS, Div. of Med. Assistance and Health Servs.,

146 N.J. 614, 621 (1996). Thus, the record supports the judge's finding that

plaintiff complied with its duty to inform defendant of the adjourned sale date

and she had actual notice of the sale date, despite that she did not sign for the

certified mailing giving her such notice. Additionally, considering defendant

defaulted on the loan over a dozen years ago and judgment was entered against

her in 2014, she failed to demonstrate the existence of "truly exceptional

circumstances" to warrant relief under Rule 4:50-1(f). Hous. Auth. of

Morristown v. Little, 135 N.J. 274, 286 (1994). Therefore, the denial of

defendant's motion to vacate the judge's December 6 and February 14 orders and

to set aside the sheriff's sale was not an abuse of discretion.

Affirmed.

A-1768-20 7