PHH MORTGAGE CORPORATION VS. ERIC MOORE(F-001008-13, ESSEX 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NOT FOR PUBLICATION WITHOUT THE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-4105-14T2

PHH MORTGAGE CORPORATION,

Plaintiff-Respondent,

v.

ERIC MOORE,

Defendant-Appellant.
_________________________________

Submitted May 8, 2017 – Decided September 8, 2017

Before Judges Nugent and Currier.

On appeal from Superior Court of New Jersey,
Chancery Division, Essex County, Docket No.
F-001008-13.

Eric Moore, appellant pro se.

Ballard Spahr LLP, attorneys for respondent
(Daniel JT McKenna and Christopher N. Tomlin,
on the brief).

PER CURIAM

Defendant Eric Moore appeals from a February 5, 2015 Chancery

Division order denying his motion to vacate the final judgment in

this mortgage foreclosure action. For the reasons that follow,

we affirm.
 On August 22, 2003, defendant borrowed $173,000 from Fleet

National Bank ("Fleet"). Defendant delivered a note to Fleet in

that amount and secured the debt by executing a mortgage

encumbering property he owned in Irvington. Defendant executed

the mortgage in favor of Mortgage Electronic Registration Systems,

Inc. ("MERS") as nominee for Fleet. The mortgage was duly recorded

in the Office of Essex County Register on August 28, 2003.

Thereafter, Fleet endorsed the note without recourse to Cendant

Mortgage Corporation ("Cendant").1 Cendant endorsed the note in

blank.

Six years later, on October 26, 2009, MERS assigned the

mortgage to PHH Mortgage Corporation ("PHH"). The assignment was

duly recorded on December 21, 2009.

According to the foreclosure complaint that PHH filed on

January 10, 2013, defendant defaulted by failing to make an

installment payment due June 1, 2012, and has since failed to make

any payments.

On February 4, 2014, defendant filed a motion to set aside a

default that had been entered pursuant to Rule 4:43-3.2

1
Plaintiff Cendant Mortgage Corporation is the former name of
plaintiff PHH Mortgage Corporation.
2
The record on appeal does not include an order disposing of
defendant's motion.

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Thereafter, plaintiff filed a notice of motion for entry of

judgment. Defendant opposed the motion and filed a cross motion

to dismiss the complaint. The court denied defendant's cross

motion and entered final judgment on November 21, 2014.

Defendant moved to vacate the final judgment. The court

denied the motion on February 5, 2015. This appeal followed.

On appeal, defendant argues "[t]he Appellate Division must

decide whether the defendant [is] entitled to relief as a matter

of law." Defendant also argues plaintiff produced no competent

admissible evidence that it owned an interest in the note secured

by defendant's mortgage. Defendant contends the "Certification

of Proof of Amount Due" signed by plaintiff's assistant vice-

president, attesting "[p]laintiff is the holder of the . . . note,"

is not based on personal knowledge. Defendant further argues the

vice-president did not address the note's endorsement in blank.

In short, defendant contends plaintiff failed to demonstrate it

was entitled to judgment as a matter of law.

Defendant seeks relief under Rule 4:50-1, which states:

On motion, with briefs, and upon such
terms as are just, the court may relieve a
party or the party's legal representative from
a final judgment or order for the following
reasons: (a) mistake, inadvertence, surprise,
or excusable neglect; (b) newly discovered
evidence which would probably alter the
judgment or order and which by due diligence
could not have been discovered in time to move

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 for a new trial under R. 4:49; (c) fraud
(whether heretofore denominated intrinsic or
extrinsic), misrepresentation, or other
misconduct of an adverse party; (d) the
judgment or order is void; (e) the judgment
or order has been satisfied, released or
discharged, or a prior judgment or order upon
which it is based has been reversed or
otherwise vacated, or it is no longer
equitable that the judgment or order should
have prospective application; or (f) any other
reason justifying relief from the operation
of the judgment or order.

The rule "governs an applicant's motion for relief from default

when the case has proceeded to judgment" pursuant to Rule 4:43-2.

US Bank Nat'l Ass'n v. Guillaume, 209 N.J. 449, 466-67 (2012).

"The rule is 'designed to reconcile the strong interests in

finality of judgments and judicial efficiency with the equitable

notion that courts should have authority to avoid an unjust result

in any given case.'" Id. at 467 (citing Mancini v. EDS, 132 N.J.

330, 334 (1993)).

Relief from judgment under Rule 4:50-1 "is not to be granted

lightly." Bank v. Kim, 361 N.J. Super. 331, 336 (App. Div. 2003).

Moreover, "the showing of a meritorious defense is a traditional

element necessary for setting aside both a default and a default

judgment . . . ." Pressler & Verniero, Current N.J. Court Rules,

comment on R. 4:43-3 (2017). That is so because when a party has

no meritorious defense, "[t]he time of the courts, counsel and

litigants should not be taken up by such a futile proceeding."

4 A-4105-14T2
Guillaume, supra, 209 N.J. at 469 (quoting Schulwitz v. Shuster,

27 N.J. Super. 554, 561 (App. Div. 1953)).

An appellate court reviews a trial court's order denying a

Rule 4:50-1 motion for relief under an abuse of discretion

standard, giving the trial court's ruling substantial deference.

Id. at 467 (citations omitted). An appellate court "finds an

abuse of discretion when a decision is 'made without rational

explanation, inexplicably departed from established policies, or

rested on an impermissible basis.'" Id. at 467-68 (citing Iliadis

v. Wal-Mart Stores, Inc., 191 N.J. 88, 123 (2007)).

Here, defendant did not demonstrate he had a meritorious

defense to the foreclosure action. His primary contention on

appeal is PHH did not have standing when it filed the foreclosure

complaint. The argument is unavailing. A mortgage assignment

that predates the original complaint confers standing on a

plaintiff. Deutsche Bank Trust Co. Ams. v. Angeles, 428 N.J.

Super. 315, 318 (App. Div. 2012) (citing Deutsche Bank Nat'l Trust

Co. v. Mitchell, 422 N.J. Super. 214, 216 (App. Div. 2011)). Here,

it is undisputed that MERS, as nominee for Fleet, assigned the

mortgage to PHH on October 26, 2009, and that the mortgage was

duly recorded on December 21, 2009, more than three years before

PHH filed the complaint on January 10, 2013.

5 A-4105-14T2
 Defendant has no other defenses. We have considered his

remaining arguments and found them to be without sufficient merit

to warrant further discussion. R. 2:11-3(e)(1)(E).

Affirmed.

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