Opinion
DOCKET NO. A-3451-14T2
02-06-2017
WELLS FARGO BANK, N.A., Plaintiff-Respondent, v. KIM A. DAVIS, Defendant-Appellant.
Kim Davis, appellant pro se. Respondent has not filed a brief.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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. Before Judges Hoffman and O'Connor. On appeal from Superior Court of New Jersey, Chancery Division, Burlington County, Docket No. F-1047-13. Kim Davis, appellant pro se. Respondent has not filed a brief. PER CURIAM
Defendant Kim Davis appeals from a February 24, 2015 Chancery Court order denying her motion for reconsideration of a December 5, 2014 order that also denied her motion for reconsideration. After reviewing the record and applicable legal principles, we affirm.
I
The facts are taken from the motion record supplied by defendant. On February 12, 2007, defendant borrowed $160,370 from iFreedom Direct Corporation (iFreedom), a home loan lender. To secure repayment under the terms of a thirty-year note, defendant also executed a mortgage in favor of iFreedom. It is unclear from the record when the assignment occurred, but by mid-October 2008, the mortgage had been assigned to plaintiff.
Plaintiff Wells Fargo Bank, N.A., failed to file a timely answering brief and on March 29, 2016, we entered an order directing we would not accept a brief filed by plaintiff, absent a motion to vacate the order.
In a letter dated October 24, 2008, defendant informed plaintiff she was going to lose $1350 per month in child support because her son was about to turn eighteen. In addition, because she was paying back a loan taken out against her pension, her net disposable income had been reduced by approximately $1000 per month. She contacted plaintiff to inform it of her impending financial difficulties and request assistance.
In January 2009, plaintiff offered defendant a "Special Forbearance Plan" to address five monthly mortgage payments she had missed between September 1, 2008 and January 1, 2009. Under the terms of the plan, defendant was required to pay the past-due amounts by a certain time. Although under the terms of the plan plaintiff was not required to refrain from filing a mortgage foreclosure action, if defendant made each payment in accordance with the plan, plaintiff agreed to dismiss any foreclosure proceedings it had commenced.
On February 12, 2009, defendant signed a document accepting plaintiff's offer and agreeing to the terms of the plan. On October 9, 2009, the parties also agreed to an extension of the contractual due date and maturity date, and reduced the interest on the loan from a yearly rate of six percent to five-and-one-quarter.
Despite these measures to assist her, defendant fell behind on her monthly mortgage payments and, on January 10, 2013, plaintiff filed a foreclosure complaint against her. She was served with the complaint on January 13, 2013, but never filed a responsive pleading. On November 8, 2013, a default final judgment was entered. A sheriff's sale was subsequently scheduled for January 23, 2014.
Just before the sheriff's sale, defendant filed a motion to indefinitely stay the sale on the grounds plaintiff violated various State and federal criminal statutes and the United States constitution, and engaged in acts of fraudulent concealment and unlawful conversion. The Chancery Court adjourned the Sheriff's Sale to enable it to consider defendant's motion.
While the motion was still pending, defendant filed another motion to "dismiss plaintiff's complaint, permanently set aside the Sheriff's Sale, vacate the order granting default judgment, [and] vacate the writ of execution." In her motion, she raised multiple substantive grounds in support of her claims for relief. Because it does not materially aid in understanding the issues on appeal and for the sake of brevity, we dispense with setting forth the multiple factual and legal bases defendant advanced in support of her requests for relief in these two or any other motion addressed in this opinion.
On May 20, 2014, the Chancery Court denied both motions. The court initially determined there was no basis to vacate the judgment, finding defendant failed to show she had a meritorious defense and failed to file an answer to the foreclosure complaint as a result of excusable neglect. See Marder v. Realty Constr. Co., 84 N.J. Super. 313, 318 (App. Div. 1964). Although default judgment had been entered against her, the court did consider defendant's request to dismiss the complaint for failure to state a claim upon which relief can be granted, see Rule 4:6-2(e), as well as her motion to stay the sheriff's sale, but ultimately determined both motions lacked merit. The court declined to consider defendant's remaining substantive arguments because default judgment had been entered.
Thereafter, defendant filed a motion seeking "sanctions" against plaintiff and its counsel, as well as another motion to dismiss the complaint, permanently set aside the sheriff's sale, and vacate the default judgment. The court regarded the new motions as ones for reconsideration of the May 20, 2014 order because they sought essentially the same relief raised in the motions resulting in and denied by the May 20, 2014 order. Finding defendant failed to meet the standard for reconsideration pursuant to Rule 4:49-2, the court entered an order on August 6, 2014 denying both motions.
Defendant then filed a motion to vacate the August 6, 2014 order, and again sought to have sanctions imposed upon plaintiff's counsel, bar the sheriff's sale, dismiss plaintiff's complaint, and recuse the Chancery judge. On October 15, 2014, the court entered an order denying the motion. Neither a copy of the order nor the court's statement of reasons was provided, but in a subsequent opinion the court stated the relief defendant sought in this motion was the same as that sought in previous post-judgment motions.
Thereafter, defendant filed another motion to vacate the final judgment and the post-judgment orders, indefinitely stay the Sheriff's Sale, dismiss plaintiff's complaint, and recuse the Chancery Judge. The court denied her motion on December 5, 2014.
In its written statement of reasons, the court noted the sheriff's sale had taken place on November 13, 2014. It determined defendant's motion sought "nearly [the] identical relief" as in the motion denied by the October 15, 2014 order. Regarding the latest motion as yet another that did not qualify for reconsideration under Rule 4:49-2, the court wrote:
Defendant has now filed a new motion seeking nearly identical relief. Not only are defendant's arguments identical to those made before, but her briefing is, in fact, largely copied from the prior briefing . . . .
Motions for reconsideration are governed by R. 4:49-2. . . . "A litigant should not seek reconsideration merely because of dissatisfaction with a decision of the court." [D'Atria v. D'Atria, 242 N.J. Super. 392, 400 (Ch. Div. 1990)]. Furthermore, reconsideration is only to point out the matters or controlling decisions which counsel believes the court has overlooked or as to which it has erred. R. 4:49-2. . . .
Not only has defendant failed to provide any new evidence or argument for her motion to reconsider the court's prior orders (which have already denied all of the defendant's other requested relief here), but she has
made largely the same submission to the court as previously submitted. None of this provides new arguments.The court also rejected defendant's argument her disagreement with the court's previous rulings warranted the court's recusal.
Defendant filed another motion that was ultimately denied by order dated February 24, 2015. It is from this order defendant appeals. The notice of motion was not provided, but according to her brief and the court's written decision, defendant sought to vacate the final judgment and post-judgment orders; "strike the assignment and the true copy of the mortgage"; void the sheriff's sale; and stay defendant's eviction from the property. Again, because these matters do not impact the issues on appeal, we do not burden this opinion with the myriad arguments defendant made in support of her requests for relief.
With the exception of her request to stay her eviction from the property, a remedy not previously sought, defendant admitted during oral argument neither the relief sought nor the arguments advanced in support of such relief was new, acknowledging, "There are no new arguments. The argument[s] remain[] the same."
The court declined to stay the eviction because defendant did not meet the factors necessary to warrant the issuance of a stay. See Crowe v. De Gioia, 90 N.J. 126, 132-34 (1982). The court denied the remaining relief sought in her motion because she "has not presented any new evidence for reconsideration of the court's prior orders; to the contrary, defendant stated at oral argument that she makes no new arguments regarding the motion for reconsideration."
II
On appeal defendant raises the following points for our consideration:
POINT I - THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION BY NOT VACATING THE DEFAULT, FINAL JUDGMENT, WRIT OF EXECUTION, AND SHERIFF SALE PROCURED BY THE [PLAINTIFF]'S WILLFUL, RECKLESS, AND DELIBERATE VIOLATION OF 24 CFR § 203.604, 24 CFR § 203.606, AND BREACH OF THE TERMS AND CONDITIONS SET FORTH IN THE DISPUTED PAPER NOTE AND MORTGAGE INSTRUMENT PROHIBITING ACCELERATION AND FORECLOSURE OF A FHA INSURED MORTGAGE.
POINT II - THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION BY NOT VACATING THE DEFAULT, FINAL JUDGMENT, WRIT OF EXECUTION, AND SHERIFF SALE PROCURED BECAUSE OF THE [DEFENDANT]'S EXCUSABLE NEGLIGENCE AS A RESULT OF THE [PLAINTIFF]'S WILLFUL, RECKLESS, AND DELIBERATE PRACTICE OF DUAL TRACKING IN VIOLATION OF THE NATIONAL MORTGAGE SETTLEMENT'S CONSENT ORDER.
POINT III - THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION BY NOT VACATING THE DEFAULT, FINAL JUDGMENT, WRIT OF EXECUTION, AND SHERIFF SALE PROCURED BY THE [PLAINTIFF]'S AND ZGA'S PRESENTATION OF A DEFECTIVE INSTRUMENT CERTIFIED AS A "TRUE COPY" OF THE ORIGINAL DISPUTED PAPER PROMISSORY NOTE,
VOID OF ANY INDORSEMENTS, AND OR AN ALLONGE PAYABLE TO THE ORDER OF THE [PLAINTIFF].
POINT IV - THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION BY NOT VACATING THE DEFAULT, FINAL JUDGMENT, WRIT OF EXECUTION, AND SHERIFF SALE PROCURED BY THE [PLAINTIFF]'S AND ZGA'S USE OF PERJURED CERTIFICATIONS AND FRAUDULENT CONCEALMENT OF TWO ADDITIONAL "BOGUS" RECORDED "ASSIGNMENT" INSTRUMENTS, RECITING ONLY ONE RECORDED "ASSIGNMENT" THAT IS ALSO FALSELY UTTERED, VOID AB INITIO.
POINT V - THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION BY NOT VACATING THE DEFAULT, FINAL JUDGMENT, WRIT OF EXECUTION, AND SHERIFF SALE PROCURED BY THE [PLAINTIFF] WHO FRAUDULENTLY CONCEALED ITS TRAFFICKING OF AN UNLAWFULLY CONVERTED, FORGED, AND STOLEN TRANSFERRABLE RECORD WORTH AT LEAST $160,370.00 FOR WHICH THE [PLAINTIFF]'S AFFILIATE COMPANY IS DECLARED THE OWNER.
POINT VI - THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION BY NOT VACATING THE DEFAULT, FINAL JUDGMENT, WRIT OF EXECUTION, AND SHERIFF SALE PROCURED BY THE [PLAINTIFF] WHO FRAUDULENTLY CONCEALED ITS AFFIL[IATE] COMPANY'S RECEIPT OF $13,167.23 TENDER BY THE [DEFENDANT] THROUGH AN UNRECORDED SPECIAL FORBEARANCE AGREEMENT OMITTED FROM THE TRIAL COURT.
POINT VII - THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION BY NOT VACATING THE DEFAULT, FINAL JUDGMENT, WRIT OF EXECUTION, AND SHERIFF SALE UPON THE [DEFENDANT]'S PRESENTATION OF EVIDENCE FORWARDED FROM THE [PLAINTIFF]'S COMPANY DECLARING THE [PLAINTIFF] IS NOT THE OWNER OF THE DISPUTED "MORTGAGE LOAN."
POINT VIII - THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION BY NOT VACATING THE DEFAULT, FINAL JUDGMENT, WRIT OF EXECUTION,
AND SHERIFF SALE UPON THE [DEFENDANT]'S SUBMISSION OF EVIDENCE FORWARDED FROM THE [PLAINTIFF]'S AFFIL[IATE] COMPANY WELLS FARGO HOME MORTGAGE INDICATING THE DISPUTED "MORTGAGE LOAN" WAS TABLE FUNDED, AND NEVER CONSUMMATED FOR IFREEDOM WAS NOT THE LENDER OF $160,370.00 ON 02/12/2007, [MORTGAGE ELECTRONIC REGISTRATION SYSTEM, INC.] IS NOT A MORTGAGEE, AND THE EXISTENCE OF AN UNLAWFULLY CONVERTED TRANSFERABLE RECORD.
POINT IX - THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION BY NOT VACATING THE DEFAULT, FINAL JUDGMENT, WRIT OF EXECUTION, AND SHERIFF SALE PROCURED BY THE [PLAINTIFF]'S AND ZGA'S USE OF FALSE EVIDENCE, FRAUDULENT CONCEALMENT OF EVIDENCE, AND THEIR FAILURE TO ADHERE TO THE AMENDED RULES OF COURT CONSTITUTING, IN PART, VIOLATIONS OF THE [PLAINTIFF]'S DUE PROCESS RIGHTS AND EQUAL PROTECTION.
For the reasons set forth below, we do not reach these arguments and affirm the February 24, 2015 order.
The argument points defendant raises on appeal were essentially asserted in the motion which resulted in the February 24, 2015 order. But the Chancery judge did not rule on any of these points because the court had previously considered and decided these points, and defendant failed to show why reconsideration was warranted. See Rule 4:49-2.
Defendant did not appeal the denial of her request to stay her eviction from the property.
Rule 2:5-1(f)(3)(A) states, "[I]n civil actions the notice of appeal shall . . . designate the judgment, decision, action or rule, or part thereof appealed from[.]" Therefore, "it is only the judgments or orders or parts thereof designated in the notice of appeal which are subject to the appeal process and review." Pressler & Verniero, Current N.J. Court Rules, comment 6.1 on R. 2:5-1 (2017); see also Campagna ex rel. Greco v. Am. Cyanamid Co., 337 N.J. Super. 530, 550 (App. Div.) (refusing to consider an order not listed in the notice of appeal), certif. denied, 168 N.J. 294 (2001).
"Consequently, if the notice [of appeal] designates only the order entered on a motion for reconsideration, it is only that proceeding and not the order that generated the reconsideration motion that may be reviewed." Pressler & Verniero, supra, comment 6.1 on R. 2:5-1 (2017); see also W.H. Industr., Inc. v. Fundicao Balancins, Ltda, 397 N.J. Super. 455, 458-59 (App. Div. 2008) (considering only the order denying reconsideration because it was the sole order designated in the notice of appeal); Fusco v. Bd. of Educ. of City of Newark, 349 N.J. Super. 455, 461-62 (App. Div.) (reviewing only denial of the plaintiff's motion for reconsideration and refusing to review the original grant of summary judgment because that order was not designated in the notice of appeal), certif. denied, 174 N.J. 544 (2002).
As noted, defendant's notice of appeal listed the February 24, 2015 order denying reconsideration as the only order being appealed. Therefore, we limit our review to the provisions of that order.
Defendant's appeal from the denial of her motion for reconsideration is governed by Rule 4:49-2. When a trial court denies a party's motion for reconsideration, a reviewing court shall overturn the denial only in the event there was an abuse of discretion by such court. Marinelli v. Mitts & Merrill, 303 N.J. Super. 61, 77 (App. Div. 1997). In determining whether such an abuse has taken place, a reviewing court should be mindful that reconsideration is not to be utilized by a party just because of their "'dissatisfaction with a decision of the [c]ourt.'" Capital Fin. Co. of Delaware Valley, Inc. v. Asterbadi, 398 N.J. Super. 299, 310 (App. Div. 2008) (quoting D'Atria v. D'Atria, 242 N.J. Super. 392, 401 (Ch. Div. 1990)).
"'Reconsideration should be utilized only for those cases [that] fall into that narrow corridor in which either 1) the [c]ourt has expressed its decision based upon a palpably incorrect or irrational basis, or 2) it is obvious that the [c]ourt either did not consider, or failed to appreciate the significance of probative, competent evidence.'" Cummings v. Bahr, 295 N.J. Super. 374, 384 (App. Div. 1996) (quoting D'Atria, supra, 242 N.J. Super. at 401); see also Fusco, supra, 349 N.J. Super. at 462. Trial courts should grant motions for reconsideration "only under very narrow circumstances." Fusco, supra, 349 N.J. Super. at 462.
Guided by these principles, we conclude the Chancery judge did not abuse her discretion by denying defendant's motion for reconsideration. The record clearly supports the finding defendant's arguments for reconsideration amounted to a repetition of previous arguments made in prior motions already considered and rejected by the court.
We note further defendant has not succeeded in vacating the default judgment entered against her and, thus, it is premature for her to challenge the judgment and the other orders on substantive grounds. "[T]he rule in New Jersey is that a direct appeal will not lie from a judgment by default." New Jersey Div. of Youth and 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). Quoting the court of Errors and Appeals, we stated in Haber:
As previously stated, although defendant previously attempted to vacate the default judgment, the court found she did not assert a meritorious defense and did not show her failure to file an answer to the foreclosure complaint was the result of excusable neglect. See Marder v. Realty Constr. Co., 84 N.J. Super. 313, 318 (App. Div. 1964). --------
The reason underlying this rule is that the very theory and constitution of a court of appellate jurisdiction is only the correction of errors which a court below may have committed, and a court below cannot be said to have committed an error when its judgment was never called into exercise, and the point of law was never taken into consideration, but was abandoned by acquiescence or default of the party who raised it.Applying these principles in Haber, we held:
[Haber, supra, 253 N.J. Super. at 416 (quoting McDermott v. Patterson, 122 N.J.L. 81, 84 (E. & A. 1939)).]
Defendant's voluntary conduct in absenting himself from the proceedings should not give him a better advantage on direct appeal than he would have as a movant under R. 4:50-1 where he is obligated to prove both excusable neglect and a meritorious defense.
[Id. at 417.]
Accordingly, we affirm the February 24, 2015 order.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION