WILMINGTON SAVINGS FUND SOCIETY, FSB, ETC. v. SIMON ZAROUR (L-1343-19, PASSAIC COUNTY AND STATEWIDE)

• Court: New Jersey Superior Court Appellate Division
• Decided: July 26, 2022
• Docket: A-0299-20
• Status: Unpublished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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-0299-20

WILMINGTON SAVINGS FUND SOCIETY, FSB, as trustee of STANWICH MORTGAGE LOAN TRUST A,

Plaintiff-Respondent,

v.

SIMON ZAROUR,

Defendant-Appellant,

and

GARDEN PLAZA, a/k/a GARDEN PLAZA CONSTRUCTION ENTERPRISES, LLC, and SAM HALPERIN,

Defendants. ______________________________

Argued January 3, 2022 – Decided July 26, 2022

Before Judges Accurso and Rose.

On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Docket No. L-1343-19. Simon Zarour, appellant, argued the cause pro se.

Michael C. Hughes (Houser LLP) argued the cause for respondent.

PER CURIAM

This is a replevin action. Defendant Simon Zarour admits that in August

2016, he took from his mother's front porch an original note and mortgage she

signed in 2006, which the loan servicer mistakenly sent to her instead of to the

lawyer pursuing a foreclosure action against her on behalf of plaintiff

Wilmington Savings Fund Society. Instead of returning the obviously

misdirected documents, defendant traded them to defendant Garden Plaza in

satisfaction of a debt. After unsuccessfully attempting to assert ownership of

the documents in the borrower's bankruptcy action, Garden Plaza returned the

loan documents to defendant, who then tried to enforce them in his own

bankruptcy action in New York.

Specifically, defendant filed an order to show cause in his Chapter 11

case to stay the sheriff's sale in his mother's foreclosure action, claiming in a

sworn statement that he took the letter containing his mother's original note

and mortgage from her porch without her knowledge, "because she [didn't]

want to get more depressed from all the mess from the foreclosure" by looking

at her mail. Defendant averred he considered the servicer's mistake as

A-0299-20 2 "Bracha, a blessing from Hashem," and claimed plaintiff's foreclosure

judgment was a fraud because it obtained the judgment without possession of

the original note and mortgage.1 The bankruptcy judge viewed it differently,

rejecting defendant's "finders keepers (losers weepers)" theory and denying the

motion.

A New York process server left the replevin complaint at defendant's

home in New York in July 2019, with a young man the process server

identified as defendant's son, whom the process server estimated to be between

seventeen and twenty years old but who apparently would not give his name.

Defendant sent a letter to the court the following October acknowledging

receipt of the complaint, which he contended, without proof, had been

improperly served. He expressed his willingness to accept service to "save

time" but asserted he needed an adjournment to seek legal advice. When no

answer was filed, plaintiff entered default in January 2020. Defendant

1 The General Equity judge presiding over the foreclosure in the vicinage was well aware when he entered summary judgment for plaintiff that it had lost possession of the original note and mortgage when they were inadvertently sent to the borrower. Plaintiff disclosed its servicer's error to the court on its motion to strike the borrower's answer and counterclaim — and its unsuccessful efforts to recover the documents. The judge ordered defendant's mother to "immediately" return the original note to plaintiff's counsel. A-0299-20 3 thereafter attempted to file an answer and counterclaim, but failed to take any

steps to vacate the default.

In May 2020, plaintiff filed a motion to enter judgment by default

against defendant and for summary judgment against all defendants, including

Garden Plaza and its principal. Defendant cross-moved to vacate the default.

The judge entered default judgment against defendant on July 16, 2020, and

ordered a writ of replevin should issue directing defendant to surrender

possession of the original loan documents to plaintiff, and that such surrender

should occur by July 31. Pending surrender, the judge restrained defendant

from tampering with or destroying the documents.

A different judge considered defendant's motion to vacate default.

Defendant's motion was denied on August 24, 2020, with the judge noting

defendant failed to show excusable neglect for the failure to file an answer to a

pleading filed more than a year before. The order noted defendant's brief was

"undecipherable." Defendant concedes his brief "admittedly, was not the most

lucid." He appeals from both orders.

A large portion of defendant's brief, reply brief and 469-page appendix

is taken up with his various arguments as to why plaintiff lacked standing to

pursue the foreclosure action against his mother without possession of the

A-0299-20 4 original note and mortgage. Leaving aside that the foreclosure judgment was

entered more than five years ago, the property sold at sheriff's sale nearly two

years ago and the time to appeal either long-since passed, defendant admits he

took the documents misdirected to his mother without his mother's knowledge

and has refused to return them to the rightful owner.

Defendant has no meritorious defense to his retention of plaintiff's

original loan documents. See US Bank Nat'l Ass'n v. Guillaume, 209 N.J. 449,

469 (2012) (noting beyond a showing of excusable neglect, a defendant

attempting to reopen a default judgment must possess a meritorious defense).

His retention of the documents is plainly wrongful, see Chicago Title Ins. Co.

v. Ellis, 409 N.J. Super. 444, 456-57 (App. Div. 2009) (noting "crux of

conversion is wrongful exercise of dominion or control over property of

another without authorization and to the exclusion of the owner's rights in the

property"). Accordingly, a writ of replevin was appropriate. See O'Keeffe v.

Snyder, 83 N.J. 478, 509 (1980) (Handler, J., dissenting) ("An action brought

for replevin is a proper means for an owner to regain possession of chattels

lost through conversion."); Baron v. Peoples Nat'l Bank of Secaucus, 9 N.J.

249, 255-256 (1952).

A-0299-20 5 Defendant's arguments to the contrary are without sufficient merit to

warrant discussion in a written opinion. See R. 2:11-3(e)(1)(E).

Affirmed.

A-0299-20 6