Docket No. A-0180-15T2.


Superior Court of New Jersey, Appellate Division.

Decided February 8, 2017.

Attorney(s) appearing for the Case

Selina A. Rothweiler, appellant pro se.

Stern, Lavinthal & Frankenberg, LLC, attorneys for respondent ( Mark S. Winter , on the brief).

Before Judges Sabatino and Haas.


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.


In this mortgage foreclosure matter, defendant Selina Rothweiler appeals from the July 29, 2011 Chancery Division order striking her answer to plaintiff BAC Home Loans Servicing LP f/k/a Countrywide Home Loans Servicing LP's foreclosure complaint as noncontesting; the court's November 3, 2014 order permitting plaintiff to file a curative notice of intent to foreclose; the March 13, 2015 final judgment of foreclosure, and the court's July 24, 2015 order denying defendant's motion to vacate the final judgment of foreclosure. We affirm.

We derive the following procedural history and facts from the record. On May 9, 2007, defendant executed a note to Atlantic Coast Mortgage Services, Inc. ("Atlantic") in the amount of $240,000. To secure payment of the note, defendant executed a mortgage on property she owned in Northfield to Mortgage Electronic Registration Systems, Inc. ("MERS"), as nominee for Atlantic. The mortgage was recorded with the Atlantic County Clerk on May 18, 2007.

Ownership of defendant's note was transferred through a series of transactions to Fannie Mae. Plaintiff serviced the note on Fannie Mae's behalf. Recon Trust Company, N.A. ("Recon Trust") acted as plaintiff's document custodian.1 On plaintiff's behalf, Recon Trust obtained physical possession of defendant's note on June 29, 2007.

On December 1, 2009, defendant defaulted when she stopped making her monthly mortgage payments. On April 8, 2010, plaintiff served a notice of intention ("NOI") to foreclose upon defendant. On May 12, 2010, MERS, acting as Atlantic's nominee, executed an assignment of defendant's mortgage to plaintiff.

On May 13, 2010, plaintiff filed a complaint for foreclosure. Defendant filed an answer, asserting that plaintiff lacked standing to bring the foreclosure action, and she also filed a motion to dismiss the complaint. Plaintiff responded by filing a motion to strike defendant's answer as noncontesting.

Following oral argument, Judge William C. Todd III granted plaintiff's motion to deem defendant's answer as noncontesting, and denied defendant's motion to dismiss the complaint. In a detailed oral opinion, Judge Todd found that plaintiff had physical possession of both the note and mortgage on May 13, 2010, the date it filed the complaint for foreclosure. Therefore, the judge held that plaintiff had standing to bring the foreclosure action against defendant. The judge remanded the matter "to the Foreclosure Unit of the Superior Court of New Jersey in Trenton to proceed as an uncontested matter[.]"

Thereafter, further proceedings in the case were postponed pending our Supreme Court's decision in U.S. Bank Nat. Ass'n v. Guillaume, 209 N.J. 449 (2012), and its subsequent review of uncontested foreclosure procedures. On October 11, 2013, the Clerk's Office dismissed plaintiff's complaint without prejudice for lack of prosecution. Plaintiff thereafter filed a motion to reinstate the complaint and for permission to file a curative NOI.

On November 3, 2014, Judge Raymond Batten granted plaintiff's motion. In a thorough written opinion, Judge Batten found that plaintiff's delay in prosecuting the matter was attributable to the Supreme Court's review of the foreclosure procedures. Therefore, the judge granted plaintiff's motion to reinstate the complaint and ordered plaintiff to file a curative NOI within thirty days. As required, plaintiff filed the NOI on November 5, 2014.

On February 13, 2015, plaintiff filed a motion for entry of final judgment, together with a certification of proof of amount due. Defendant filed no opposition to this motion. On March 13, 2015, the trial court entered a final judgment of foreclosure. Defendant did not file a notice of appeal to this court from this judgment within forty-five days as required by Rule 2:4-1(a).

On June 19, 2015, over three months after the entry of the final judgment of foreclosure, defendant filed a motion to vacate the final judgment. In support of her motion, defendant again alleged that plaintiff did not have standing to file a foreclosure action against her. On July 24, 2015, Judge Batten denied defendant's motion. In his oral decision, the judge found that the court had already determined that plaintiff had standing and, therefore, defendant failed to establish any basis for vacating the final judgment of foreclosure.

On September 8, 2015, defendant filed her notice of appeal. On September 17, 2015, Judge Mark Sandson granted defendant's motion for a stay of the sheriff's sale on the condition that defendant obtain a $25,000 supersedeas bond. Defendant failed to do so. On October 21, 2015, we denied defendant's motion for a stay of the sheriff's sale pending appeal. On November 5, 2015, plaintiff purchased the property at the sheriff's sale and thereafter assigned the deed to another financial institution.

On appeal, defendant raises the following contentions:

Point 1 — The [c]ourt abused its discretion [by] not enforcing the possession requirement of the NJUCC. Point 2 — The [c]ourt abused its discretion [by] concluding [p]laintiff's assignment was valid. Point 3 — The [c]ourt abused its discretion of not enforcing the notice requirement of the Fair Foreclosure Act. Point 4 — There is still the issue of the amount due, and the [t]rial [c]ourt abused its discretion by not fixing the amount due after [p]laintiff's admission.

We have considered defendant's contentions in light of the record and applicable legal principles and conclude they are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We add the following brief comments.

"An appeal from a final judgment must be filed with the Appellate Division within forty-five days of its entry[.]" Lombardo v. Masso, 207 N.J. 517, 540 (2011) (citing R. 2:4-1). In her notice of appeal, defendant seeks to appeal the March 13, 2015 final judgment of foreclosure, and the July 29, 2011 and November 3, 2014 interlocutory orders that were subsumed therein. However, defendant did not file her notice of appeal until September 8, 2015, which was 179 days after the entry of the final judgment of foreclosure.

Rule 2:4-4(a) permits a maximum thirty-day extension of time to file a notice of appeal, but only if the notice of appeal was actually filed within the time as extended, which did not occur here. Therefore, we are without jurisdiction to consider defendant's arguments relating to the March 13, 2015 final judgment or the earlier July 29, 2011 and November 3, 2014 orders, including her contention that the November 5, 2014 curative NOI was defective, and her claim that the amount of the final judgment was incorrectly calculated. In re Hill, 241 N.J.Super. 367, 372 (App. Div. 1990) (holding that "[w]here the appeal is untimely, the Appellate Division has no jurisdiction to decide the merits of the appeal") (citing Alberti v. Civil Service Comm'n, 41 N.J. 147, 154 (1963)).

Defendant's appeal from the trial court's July 24, 2015 denial of her motion to vacate the judgment of foreclosure was timely. We review a trial court's decision on a motion to vacate a judgment of foreclosure for abuse of discretion. Guillaume, supra, 209 N.J. at 467-68. "The trial court's determination under [Rule 4:50-1] warrants substantial deference," and the abuse of discretion must be clear to warrant reversal. Id. at 467.

We discern no abuse of discretion in this case. "[S]tanding is not a jurisdictional issue in our State court system and, therefore, a foreclosure judgment obtained by a party that lacked standing is not `void' within the meaning of Rule 4:50-1(d)." Deutsche Bank Nat'l Trust Co. v. Russo, 429 N.J.Super. 91, 101 (App. Div. 2012). The judgment is voidable unless the plaintiff has standing from either possession of the note or an assignment of the mortgage that predated the original complaint. Deutsche Bank Trust Co. Ams. v. Angeles, 428 N.J.Super. 315, 319-20 (App. Div. 2012).

Here, plaintiff had possession of the note and an assignment of the mortgage prior to filing the complaint. Although defendant claims that assignment was "a forgery," there is nothing in the record to support her bald assertion. Thus, Judge Batten correctly determined that plaintiff had standing to file the foreclosure complaint and he properly denied defendant's motion to vacate the judgment of foreclosure.



1. Both plaintiff and Recon Trust are subsidiaries of Bank of America.


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