Opinion
DOCKET NO. A-2369-13T1
12-08-2015
FREEDOM MORTGAGE CORPORATION, Plaintiff-Respondent, v. DWAYNE R. SMITH, Defendant-Appellant.
Dwayne R. Smith, appellant pro se. Pluese, Becker & Saltzman, L.L.C., attorneys for respondent (Stuart H. West, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Rothstadt and Currier. On appeal from Superior Court of New Jersey, Chancery Division, Union County, Docket No. F-009024-12. Dwayne R. Smith, appellant pro se. Pluese, Becker & Saltzman, L.L.C., attorneys for respondent (Stuart H. West, of counsel and on the brief). PER CURIAM
Defendant Dwayne R. Smith appeals from three orders entered by the Chancery Division in this foreclosure action filed against him by plaintiff Freedom Mortgage Corporation in May 2012. On appeal, defendant argues "[t]he trial court abused its discretion and erred [by] not considering the false statements in the Certification of Diligent Inquiry that all documents submitted, and assertions made were true."
Defendant did not respond to the complaint. The court entered a default against him on December 31, 2012. On January 10, 2013, plaintiff served defendant with a Notice of Intent to Enter Judgment and, in May 2013, a motion for entry of default judgment. Defendant again failed to respond and the court entered a final judgment on May 23, 2013. A writ of execution was issued and a sheriff's sale was scheduled for October 16, 2013. At that point, defendant exercised his statutory adjournments and the sale was postponed to November 13, 2013.
The day before the scheduled sale, defendant obtained a stay until December 10, 2013. The court considered defendant's application to stay the sale and vacate judgment, determined there was no basis to stay the sale, and allowed it to proceed. Defendant filed another motion to stay the sale, after it had occurred, which the court considered on January 17, 2014, and denied on January 23, 2014. An eviction proceeding ensued and defendant vacated the premises, but he pursued a stay of the eviction and vacating of the sale. The trial court denied the stay on April 15, 2014. We granted a temporary stay before denying defendant's application for emergent relief.
Defendant appealed the entry of the December 10, 2013, January 23, 2014, and April 15, 2014 orders. He does not offer any specific arguments regarding the entry of the first two orders. As such, we deem his appeal from those orders waived. See Liebling v. Garden State Indem., 337 N.J. Super. 447, 46566 (App. Div.) ("[A]n issue not briefed, as is the case here, is deemed waived."), certif. denied, 169 N.J. 606 (2001).
Defendant's claim of error arises from his appearance before the court on January 17, 2014, when the court heard argument regarding his motion to vacate a previously ordered and completed sheriff's sale. According to defendant, he "informed the trial court of [a] letter [he] recently found that [stated] the ownership of [the] subject loan was recently transferred to a third-party, EverBank, on July 28, 2010." The letter was sent to him by plaintiff as a "Notice of Assignment, Sale or Transfer of Mortgage Loan," and advised that plaintiff remained the "servicer" of defendant's loan. The Chancery judge applied the provisions of Rule 4:65-5, governing objections to sheriff's sales, and concluded that defendant presented no facts to support the court exercising its equitable powers to vacate the sale, and that, in any event, his application was too late.
Defendant believes that once he brought the letter to the court's attention it "should have revisited the matter in the interest of justice." We disagree.
We have considered defendant's argument in light of our review of the record and the applicable principles of law. We conclude defendant's argument is without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We simply observe that, even if there were any merit to defendant's argument regarding plaintiff's standing — and there is none — defendant failed to establish any compelling distinction between this case and others in which we declined to disturb foreclosure judgments based on standing challenges brought long after entry of judgment. See Deutsche Bank Nat'l Tr. Co. v. Russo, 429 N.J. Super. 91, 101 (App. Div. 2012) ("[L]ack of standing [does] not constitute a meritorious defense to the foreclosure complaint . . . [as] standing 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 Tr. Co. Americas v. Angeles, 428 N.J. Super. 315, 316-20 (App. Div. 2012) (holding that "trial court did not abuse its discretion in determining that defendant was not equitably entitled to vacate the judgment" where late application was a "last-ditch effort," filed "when all hope of further delay expired, after his home was sold and he was evicted").
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION