NOT FOR PUBLICATION WITHOUT THE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-2169-15T2
U.S. BANK NATIONAL
ASSOCIATION, AS TRUSTEE,
SUCCESSOR IN INTEREST TO
WACHOVIA BANK, NATIONAL
ASSOCIATION, AS TRUSTEE
FOR WELLS FARGO ASSET
SECURITIES CORPORATION,
MORTGAGE PASS-THROUGH
CERTIFICATES, SERIES
2004-D,
Plaintiff-Respondent,
v.
KEVIN MORRIS,
Defendant-Appellant,
and
MRS. KEVIN MORRIS, HIS
WIFE and UNITED STATES
OF AMERICA,
Defendants.
______________________________
Submitted February 7, 2017 – Decided July 13, 2017
Before Judges Espinosa and Suter.
On appeal from Superior Court of New Jersey,
Chancery Division, Somerset County, Docket No.
F-044394-13.
Montell Figgins, attorney for appellant.
Reed Smith, L.L.P., attorneys for respondent
(Henry F. Reichner, of counsel and on the
brief).
PER CURIAM
Defendant Kevin Morris (Morris) appeals an August 25, 2015
final judgment foreclosing his interest in certain residential
real estate.
In 2004, Morris executed a $650,000 note and a mortgage with
Wells Fargo Home Mortgage, Inc. (Wells Fargo) to purchase a
residential property in Watchung. In March 2013, Morris's recorded
mortgage was assigned by Wells Fargo to plaintiff U.S. Bank
National Association, as Trustee, successor in interest to
Wachovia Bank, National Association, as Trustee for Wells Fargo
Asset Securities Corporation, Mortgage Pass-Through Certificates,
Series 2004-D (U.S. Bank), and recorded. Morris defaulted on the
mortgage loan in February 2013.
U.S. Bank filed a foreclosure complaint on November 27, 2013,
which named Morris as a defendant along with his wife and other
judgment creditors. Morris filed an answer with separate defenses
in February 2014 in which he admitted executing the note and
mortgage, and that the property was subject to the mortgage. By
neither admitting nor denying that he had defaulted on the mortgage
loan, Morris admitted to the default pursuant to Rule 4:64-1(c).
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Morris retained new counsel at the end of November 2014.1
Within days, Morris executed a consent order wherein he withdrew
his answer. It was entered as a court order on December 3, 2014
and provided:
1. Defendant KEVIN MORRIS hereby
withdraws his contesting answer and
any and all counterclaims are hereby
withdrawn; and
2. Defendant hereby waives formal
notice under Section 6 of the New
Jersey Fair Foreclosure Act; and
3. Plaintiff shall not submit its
proofs for entry of judgment until
April 2, 2015[; and]
4. The matter shall be returned to
the Office of Foreclosure to proceed
as an uncontested matter.
Consistent with the consent order, U.S. Bank did not file a
motion for entry of a final judgment until July 2015, after the
other defendants were defaulted. A final judgment of foreclosure
(Final Judgment) was entered on August 25, 2015, followed in
December 2015 by a writ of execution. Morris received a copy of
the Final Judgment on January 9, 2016 and filed this appeal. We
1
This is the same counsel who is representing Morris in this
appeal.
3 A-2169-15
granted Morris's request to consider the appeal filed as within
time.
Morris appeals the Final Judgment, contending its entry was
not adequately supported. He contends U.S. Bank did not establish
it had standing to file the foreclosure complaint because it did
not allege it had possession of the note at the time the complaint
was filed. Morris further contends he was denied the right to
discovery. Morris requests to vacate the Final Judgment under
Rule 4:50-1 because he has shown excusable neglect, and because
to do so would be in the interests of justice.
Generally, we "decline to consider questions or issues not
properly presented to the trial court when an opportunity for such
a presentation is available unless the questions so raised on
appeal go to the jurisdiction of the trial court or concern matters
of great public interest." Selective Ins. Co. of Am. v. Rothman,
208 N.J. 580, 586 (2012) (quoting Nieder v. Royal Indem. Ins. Co.,
62 N.J. 229, 234 (1973)); accord Johnson v. Roselle EZ Quick,
L.L.C., 226 N.J. 370, 396-97 (2016). "A judgment or order entered
with the consent of the parties is ordinarily not appealable for
the purpose of challenging its substantive provisions." Pressler
& Verniero, Current N.J. Court Rules, comment 2.2.3 on R. 2:2-3
(2017); see also N.J. Sch. Constr. Corp. v. Lopez, 412 N.J. Super.
298, 308 (App. Div. 2010) (finding it "clear" that "an 'order
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. . . consented to by the attorneys for each party . . . is . . .
not appealable.'") (quoting Winberry v. Salisbury, 5 N.J. 240,
255, cert. denied, 340 U.S. 877, 71 S. Ct. 123, 95 L. Ed. 638
(1950)).
Morris appeals from the entry of the Final Judgment. He did
not file a motion before the trial court to vacate the Final
Judgment under Rule 4:50-1, nor did he raise the issues he has
presented to us in this appeal. He did not file a motion before
the trial court to vacate the consent order, in which he agreed
to strike his contesting answer. Therefore, none of the issues
raised by Morris now about standing or discovery were presented
to a trial court because Morris signed a consent order that allowed
the case to proceed as uncontested.
However, here we choose to exercise our original jurisdiction
under Rule 2:10-5 to resolve the issues on appeal, and affirm the
Final Judgment. Morris has provided no valid reason why he should
not be held to his agreement. The consent order by its terms was
entered into "with the agreement and consent of, [Morris], by and
through his counsel, Montell Figgins, Esquire, appearing."
Additionally, "[p]ublic policy favors the settlement of disputes."
Willingboro Mall, Ltd. v. 240/242 Franklin Ave. L.L.C., 215 N.J.
242, 253 (2013); see also Gere v. Louis, 209 N.J. 486, 500 (2012)
(noting "New Jersey's strong public policy in favor of the
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settlement of litigation"). Morris provides no reason to vacate
either the consent order or the Final Judgment.
Morris's belated attempt to vacate the Final Judgment by
raising the issue of U.S. Bank's standing to foreclose is
erroneous; see also Deutsche Bank Nat'l Tr. Co. v. Russo, 429 N.J.
Super. 91, 101 (App. Div. 2012) ("[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)."). Moreover,
Morris opted not to pursue discovery by signing the consent order
that withdrew his contesting answer. Thus, there is no merit to
Morris's appeal of the Final Judgment.
The Final Judgment is affirmed.
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