STATE OF NEW JERSEY VS. DALE BURNETT(81-02-0211, MERCER 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NOT FOR PUBLICATION WITHOUT THE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-2108-15T4

DLJ MORTGAGE CAPITAL, INC.,

Plaintiff-Respondent,

v.

JOSEPH LUCCA,

Defendant,

and

COLETTE LUCCA a/k/a COLETTE M. LUCA,
his wife,

Defendant-Appellant,

and

BANK OF AMERICA, NATIONAL ASSOCIATION,
Successor by Merger to Fleet
National Bank, and STATE OF
NEW JERSEY,

Defendants.
_____________________________________________________

Submitted February 28, 2017 – Decided March 10, 2017

Before Judges Fisher and Vernoia.

On appeal from the Superior Court of New
Jersey, Chancery Division, Bergen County,
Docket No. F-030405-12.
 Tomas Espinosa, attorney for appellant.

Milstead & Associates, LLC, attorneys for
respondent (Mark E. Herrera, on the brief).

PER CURIAM

Defendant Colette Lucca appeals both a final judgment of

foreclosure and an order which denied her motion to vacate that

judgment. We find no merit in her arguments and affirm.

The record reveals that, in response to plaintiff DLJ Mortgage

Capital, Inc.'s foreclosure complaint, defendant filed a timely

answer and counterclaim and, also, moved to dismiss. Her motion

was based, in part, on an assertion that plaintiff was not in

possession of the original promissory note and, in part, on a

claim that her signature on the note was forged. On the motion's

return date, plaintiff's counsel physically showed defense counsel

the original note, ostensibly resolving defendant's contention

about plaintiff lacking standing to seek foreclosure. Judge Gerald

C. Escala reserved on the balance of defendant's arguments and

later denied the motion to dismiss for reasons set forth in a

written opinion. A trial was thereafter scheduled.

At the conclusion of a two-day trial in April 2014, during

which defendant presented her own testimony and the testimony of

a forensic document examiner, Judge Escala found no impediment to

foreclosure and, by way of an order entered on June 12, 2015, he

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struck defendant's answer and counterclaim and returned the matter

to the Office of Foreclosure. Final judgment was entered on July

28, 2015.

Defendant did not appeal the judgment or the orders that

preceded it. Instead, on November 18, 2015, defendant moved for

relief from the final judgment, asserting that her purported

signature on the note was a forgery; she relied on her own

certification, as well as the affidavit of a self-described

"homeowner and [] blog publisher," who claims to have "devoted

more than five thousand man-hours in the attentive study of all

and every issue which interplays with details of securitized home

loans and [their] relation to foreclosure." In denying the motion,

Judge Escala provided a thorough written decision, which he

appended to his December 10, 2015 order. The judge recognized that

defendant previously presented arguments about the note and her

execution of it when moving to dismiss and during the trial that

followed. The judge also observed that defendant had not denied

entering into the loan agreement, executing a note and mortgage,

or being in default on the note since January 1, 2006.

Defendant appeals, arguing:

I. THE APPEAL FROM THE FINAL JUDGMENT WAS
TIMELY FILED BECAUSE [PLAINTIFF] NEVER SERVED
A COPY OF THE FINAL JUDGMENT ON [DEFENDANT'S]
ATTORNEY OR [DEFENDANT].

3 A-2108-15T4
 II. THE FINAL JUDGMENT SHOULD BE VACATED
BECAUSE IT WAS OBTAINED BY FRAUD ON THE COURT.

A. [Defendant] raised the Fraud
through the proceedings below.

B. [Defendant] Brought to the
attention of the Court Below also
the Matter of Fraud and Forgering
[sic] During Trial.

C. Newly discovered Evidence that
was found by the [Defendant] While
Searching for Documents that
Further corroborate the Fraud
Committed by [Plaintiff] on the
Court and the Claim of lack of
Standing of the [Plaintiff].

III. THE MOTION TO VACATE . . . SHOULD HA[VE]
BEEN GRANTED BECAUSE OF NEWLY DISCOVERED
EVIDENCE.

IV. THE COMPLAINT SHOULD HA[VE] BEEN DISMISSED
WITH PREJUDICE.

V. THE FAILURE TO PROVIDE DISCOVERY AS PER THE
CASE MANAGEMENT ORDER WAS SUFFICIENT GROUND
FOR DISMISSAL.[1]

We will assume there is merit to the argument in Point I, in which

defendant claims her appeal of the final judgment is timely, but

we find insufficient merit in all the other arguments to warrant

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

affirm the final judgment, the order that denied defendant's motion

to dismiss, the order that struck defendant's answer and

1
We have renumbered the points because defendant did not number
some of them.

4 A-2108-15T4
counterclaim, and the order denying defendant's motion to vacate,

substantially for the reasons set forth by Judge Escala in his

comprehensive and thoughtful written and oral decisions.

Affirmed.

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