WELLS FARGO BANK, NA VS. EMMANUEL ETIM(F-025304-15, ESSEX COUNTY AND STATEWIDE)

• Court: New Jersey Superior Court Appellate Division
• Decided: September 29, 2017
• Docket: A-4545-15T1
• Status: Unpublished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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-4545-15T1

WELLS FARGO BANK, NA,

Plaintiff-Respondent,

v.

EMMANUEL ETIM,

Defendant-Appellant,

and

MRS. EMMANUEL ETIM, UNITED STATES OF AMERICA, SCHWARTZ BARKIN & MITCHELL, and SLOMINS, INC.,

Defendants. _________________________________________________

Submitted August 15, 2017 – Decided September 29, 2017

Before Judges Messano and Sumners.

On appeal from the Superior Court of New Jersey, Chancery Division, Essex County, Docket No. F-025304-15.

Law Offices of Montell Figgins, attorney for appellant (Mr. Figgins, on the brief).

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

PER CURIAM Defendant Emmanuel Etim never answered a summons and

complaint in foreclosure filed by plaintiff Wells Fargo Bank. 1

Through an apparent mistake, Wells Fargo's counsel filed both a

notice of dismissal without prejudice and a request to enter

default on the same day. The Office of Foreclosure filed the

notice of dismissal, even though it did not name any of the five

defendants, and rejected the request to enter default. Wells

Fargo re-filed the request to enter default, which was accepted

and filed on October 28, 2015.

On March 14, 2016, Wells Fargo moved to vacate dismissal and

reinstate the action. Defense counsel attempted to file an

appearance, but the court rejected the substitution of counsel for

reasons that are not clear from the record. On April 4, 2016, the

Chancery Judge entered an order vacating the dismissal and

reinstating the foreclosure complaint. The order further required

Wells Fargo to move for final judgment within 120 days, which it

did on April 12. Defendant never responded to the motion for

final judgment, and the court entered final judgment on May 12,

2016. Defendant never sought to vacate the default judgment in

the Chancery Division, but instead filed this appeal.

1 The briefs do not contain an order permitting service by regular and certified mail, but defendant does not raise any issue regarding service.

2 A-4545-15T1 Defendant argues Wells Fargo never moved for default after

its complaint was reinstated; therefore, the judge erroneously

entered final judgment by default. He also argues that Wells

Fargo lacked standing to bring the foreclosure action. These

arguments lack sufficient merit to warrant discussion in a written

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

Wells Fargo correctly argues that a direct appeal from a

default judgment is improper. See, e.g., N.J. Div. of Youth &

Family Servs. v. T.R., 331 N.J. Super. 360, 363 (App. Div. 2000)

(citing Haber v. Haber, 253 N.J. Super. 413, 416 (App. Div. 1992)

("The rule in New Jersey is that a direct appeal will not lie from

a judgment by default.")). The proper course is to seek relief

in the trial court pursuant to a Rule 4:50-1 motion. Id. at 364.

Moreover, whatever were the technical imperfections in the

procedural history, defendant is equitably stopped from raising

the standing argument now, years after the complaint was filed,

having failed to ever raise it before. Deutsche Bank Trust Co.

Americas v. Angeles, 428 N.J. Super. 315, 320 (App. Div. 2012).

Moreover, the record reveals the mortgage was assigned to Wells

Fargo before its complaint was filed, thereby conferring standing

upon the bank. Id. at 319.

Affirmed.

3 A-4545-15T1