WILMINGTON SAVINGS FUND SOCIETY, FSB, ETC. VS. ANDREW J. CHOE (F-011349-16, BERGEN COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-0167-17T4

WILMINGTON SAVINGS FUND

SOCIETY, FSB, d/b/a

CHRISTIANA TRUST, not in

its individual capacity

but solely as trustee for

BCAT 2015-13ATT,

Plaintiff-Respondent,

v.

ANDREW J. CHOE,

Defendant-Appellant,

and

MRS. ANDREW J. CHOE, his wife;

PARK PLACE AT PALISADES PARK

PHASE II CONDOMINIUM

ASSOCIATION; PNC BANK,

SUCCESSOR TO MIDLANTIC

COMMERCIAL LEASING

CORPORATION; and JALBERT

PRODUCTIONS INC.,

Defendants.

_______________________________

Submitted June 6, 2018 – Decided June 28, 2018

Before Judges Nugent and Geiger.

On appeal from Superior Court of New Jersey,

Chancery Division, Bergen County, Docket No.

F-011349-16.

Park & Kim, LLC, attorneys for appellant

(Kyungjoo Park, on the brief).

Knuckles Komosinski & Manfro LLP, attorneys

for respondent (John E. Brigandi, on the

brief).

PER CURIAM

Defendant Andrew Choe appeals from a March 17, 2017 order

denying his motion to vacate default and an August 1, 2017 final

judgment of foreclosure. We affirm.

We glean the following facts from the record. On December

21, 2006, defendant executed a promissory note and a purchase

money mortgage in the amount of $368,500 to Wells Fargo Bank, N.A.

securing a residential condominium unit located in Palisades Park,

New Jersey (the Property). The mortgage was assigned to Federal

Home Loan Mortgage Corporation by assignment dated November 9,

2009, and recorded February 1, 2010. The mortgage was subsequently

assigned to Wells Fargo, N.A. by assignment dated July 21, 2105,

and recorded September 25, 2015. The mortgage was ultimately

assigned to plaintiff Wilmington Savings Fund Society, FSB, d/b/a

Christiana Trust, not in its individual capacity but solely as

Trustee for BCAT 2015-13ATT, by assignment dated August 7, 2015,

and recorded November 16, 2015.

2 A-0167-17T4

Defendant defaulted on his monthly payment obligations due

under the note and mortgage in August 2009. After conducting a

title search of the property in November 2015, plaintiff served

defendant with a Notice of Intent to Foreclose by certified mail

on February 17, 2016. Defendant failed to cure the default and

plaintiff instituted this action on April 22, 2016.

Plaintiff attempted to personally serve defendant at the

Property address on April 28, 2016, but a male tenant informed the

process server that defendant does not reside at the Property.

The tenant refused to provide any additional information regarding

defendant's whereabouts. Having failed to personally serve

defendant, plaintiff conducted a diligent inquiry to locate

plaintiff, which included a search of postal records, tax records,

voter registration records, and Department of Motor Vehicles

records. Those searches all indicated plaintiff resided at the

Property address.

On June 23, 2017, plaintiff filed a certification of non-

military service with the court, indicating defendant was not on

active duty service. Since no additional addresses were found for

defendant, plaintiff effectuated service by publication on July

7, 2016. Defendant failed to answer the complaint or file a

responsive pleading. On August 16, 2017, plaintiff filed a

certification of inquiry with the court, outlining the efforts

3 A-0167-17T4

made to locate defendant and stating defendant was unable to be

located for purposes of service.

On August 25, 2016, plaintiff filed a request to enter default

against defendant. On September 14, 2016, plaintiff sent a copy

of the request for default to the Property addressed to defendant.

On the same date, plaintiff sent a copy of the "Notice of Entry

of Final Judgment 'Notice to Cure'" letter to the Property address

via regular and certified mail. The court subsequently entered

default.

On January 26, 2017, plaintiff moved for entry of final

judgement. A copy of the moving papers was sent to defendant at

the Property address via regular and certified mail. Defendant

filed an appearance and opposition to the motion. Shortly

thereafter, defendant moved to vacate default. Plaintiff opposed

the motion.

The trial court denied defendant's motion on March 17, 2017.

In its written statement of reasons, the trial court stated:

A default may be set aside upon the

movant's showing of good cause. R. 4:43-3.

The [c]ourt is required to view an application

to vacate a default with great liberality.

See, e.g., DYFS v. P.W.R., 410 N.J. Super.

501, 508 (App. Div. 2009), rev'd on other

grounds, 205 N.J. 17 (2011). A finding of

good cause under [Rule] 4:43 requires the

[c]ourt to exercise sound discretion in light

of the facts and circumstances of the

particular case. See O'Connor v. Abraham

4 A-0167-17T4

Altus, 67 N.J. 106, 129 (1975). However, when

the defendant takes no action to respond to

the foreclosure complaint and where the record

reflects no excuse for the defendant's

inaction, the [c]ourt will not grant relief

from an entry of default. US Nat. Ass'n v.

Guillaume, 209 N.J. 449, 469 (2012).

Also, before entry of default is set

aside, the defendant must, at the very least,

show the presence of a meritorious defense

worthy of judicial consideration. Local 478

v. Baron Holding Corp., 224 N.J. Super. 485,

489 (App. Div. 1988). "The requirement for

establishing a meritorious defense is

especially applicable in foreclosure cases."

Wells Fargo Bank[, N.A.] v. Wharwood, [No. A-

0135-14 (App. Div. Feb. 18, 2016) (slip. op.

at 5)]. Thus, a party's motion to vacate a

default must be accompanied by either an

answer to the complaint and Case Information

Statement or a dispositive motion pursuant to

[Rule] 4:6-2. R. 4:43-3.

Here, [d]efendant claims that he was

unaware of the foreclosure action against him,

because he never received the summons and

complaint and never received a notice of

intention to foreclose. However, [d]efendant

signed the certified green card accepting

receipt of the notice of intention to

foreclose. Also, when the process server

attempted to personally serve [d]efendant at

the mortgaged address, an individual at the

property informed the process server that

[d]efendant did not reside there and did not

provide any further information regarding

[d]efendant's residence. After conducting a

diligent inquiry with the motor vehicle

commission and the postmaster, [p]laintiff

could not find another address for [d]efendant

and thus served [d]efendant via publication.

Further, [d]efendant signed for the certified

mailing enclosing [p]laintiff's 14[-]day

letters at the mortgaged address prior to

5 A-0167-17T4

commencement, and [d]efendant did not deny

receipt of [p]laintiff's motion for final

judgment which was also sent to the mortgaged

address. Finally, [d]efendant has been in

default under the terms of his note and

mortgage since August 1, 2009. Thus, the

[c]ourt cannot accept that [d]efendant was

unaware of the instant foreclosure action.

Also, [d]efendant has failed to present

any meritorious defense. The only material

issues in a foreclosure proceeding are the

validity of the mortgage, the amount of

indebtedness, and the right of the mortgagee

to foreclose on the mortgaged property. Great

Falls Bank v. Pardo, 263 N.J. Super. 388, 394

(Ch. Div. 1993). Also, [p]laintiff has

demonstrated standing as either possession of

the note or assignment of the mortgage

predating the complaint confers standing.

Deutsche Bank [Trust Co. Am.] v. Angeles, 428

N.J. Super. 315 (App. Div. 2012). Here,

[p]laintiff has possession of the note and an

assignment predating the complaint. Thus,

[d]efendant fails to challenge any essential

element of [p]laintiff's right to foreclose.

On July 24, 2017, the trial court granted plaintiff's motion

to enter judgment. In its written statement of reasons, the trial

court found plaintiff submitted appropriate business records and

invoices to support its calculations of the amounts due, thereby

complying with Rule 4:64-2. As to the interest charged, defendant

contended plaintiff understated the amount of interest he owed by

$2355.74. Similarly, defendant contended plaintiff understated

the amount of late charges he owed. The trial court indicated it

6 A-0167-17T4

would not increase the amount of interest and late charges due

beyond the amounts set forth in plaintiff's proofs.

Defendant also contended plaintiff did not adequately support

the amount of real estate taxes and inspection fees claimed due.

The trial court rejected this argument, observing:

Defendant does not state what [d]efendants

believe that the amount due should be. Thus

[d]efendants fail to make a specific objection

to any of the amounts asserted as required

under [Rule] 4:64-9 nor have [d]efendants

supported the objections with any proof.

Defendants have only questioned the adequacy

of [p]laintiff's proofs. As [d]efendants did

not file any opposing proofs concerning the

amount due, [p]laintiff's calculations are

uncontested.

The Office of Foreclosure denied entry of judgment due to the

improper inclusion of a superior lien holder as a defendant. On

June 23, 2017, plaintiff re-filed its motion for entry of final

judgment, correcting the deficiency raised by the Office of

Foreclosure. Once again, defendant opposed the motion. On July

24, 2017, the trial court rejected defendant's objections, granted

the motion, and transferred the case to the Office of Foreclosure

as an uncontested matter. Final judgment was entered on August

1, 2017. This appeal followed.

On appeal, defendant raises the following points:

POINT I

STANDARD OF REVIEW: ABUSE OF DISCRETION.

7 A-0167-17T4

POINT II

THE CAUSE OF DELAY AND RESPONDING WITHIN A

REASONABLE TIME SHOWN BY THE DEFENDANT WELL

QUALIFIES FOR EXCUSABLE NEGLECTS.

POINT III

AMPLE MERITORIOUS DEFENSES WERE SHOWN BY

DEFENDANTS: MERITORIUS DEFENSES DO NOT NEED

TO BE STRONG.

A. Defective service of process.

B. Fraudulent title search before

filing complaint warrants the

dismissal of complaint and sanction

against Plaintiff, its attorneys,

and its employees.

C. Amount Due Schedule for final

judgment is erroneous and

unsupportive enough to vacate the

judgment.

POINT IV

TRIAL COURT CLEARLY ABUSED ITS DISCRETION BY

DISREGARDING EXCUSABLE NEGLECTS AND ARGUABLE

MERITORIOUS DEFENSES; THEREBY UNJUST,

OPPRESSIVE OR INEQUITABLE RESULTS WERE

SUBSTANTIATED.

We have carefully considered defendant's arguments in light

of the record and applicable legal standards and find them

unpersuasive. We affirm the denial of defendant's motion to vacate

default and the entry of final judgment substantially for the

reasons expressed by the trial court in its written decisions. We

add the following comments.

8 A-0167-17T4

Defendant received notice of the proceedings in this matter

consistent with due process. Notices were sent to the Property.

Plaintiff undertook diligent inquiry in an effort to ascertain

defendant's address in accordance with Rule 4:4-5. Plaintiff

accomplished service of process by publication in compliance with

Rule 4:4-5(a)(3).

The record also establishes plaintiff obtained a title search

of the Property before filing this action. The title search is

dated November 12, 2015. The complaint was filed on April 22,

2016.

As to defendant's objections to the amounts claimed due for

interest, late fees, realty taxes, and inspection fees, plaintiff

supplied all of the required documents at the time it filed its

motion pursuant to Rule 4:64-2, including an affidavit of amount

due with an attached schedule detailing those amounts. Defendant

did not provide any conflicting proof as to the amount of realty

taxes and inspection fees advanced by plaintiff. In light of the

substantial documentation supporting plaintiff's motion for entry

of judgment, we conclude that defendant's objection to the amount

claimed due for realty taxes and inspection fees lacks the

requisite specificity required by Rule 4:64-1(d)(3). See also

Mony Life Ins. Co. v. Paramus Parkway Bldg., Ltd., 364 N.J. Super.

92, 106 (App. Div. 2003) (concluding that no hearing was warranted

9 A-0167-17T4

where defendant failed to offer conflicting proof or establish a

contested fact to be resolved). Accordingly, no further

proceedings were required as to this issue.

Defendant also contends the amount claimed due for interest

is understated by more than by more than $13,000, and the amount

claimed due for late fees is understated because late fees were

assessed for only forty months, not the eighty-two months since

the default date. The judge imposed the lower amounts claimed due

by plaintiff. Consequently, the alleged error in the amount of

unpaid interest and late fees was harmless and to defendant's

benefit by reducing the redemption amount and the amount

potentially due in a subsequent deficiency action. A judgment

should not be set aside for harmless error. See Pellicer ex rel.

Pellicer v. St. Barnabas Hosp., 200 N.J. 22, 55 (2009) (recognizing

"even a large number of errors, if inconsequential, may not operate

to create an injustice" requiring a judgment to be set aside);

Nicosia v. Wakefern Food Corp., 136 N.J. 401, 412 (1994) (declining

to order a new trial in a civil case where the trial court's errors

were not shown to be harmful).

The record supports the trial court's finding that defendant

did not establish excusable neglect and did not present any

meritorious defense. We discern no abuse of discretion by the

trial court in denying defendant's motion to vacate default.

10 A-0167-17T4

Defendant's remaining arguments are of insufficient merit to

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

Affirmed.

11 A-0167-17T4