PHH MORTGAGE CORPORATION VS. AGRIPPA M. WIGGINS(F-35041-13, BURLINGTON 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NOT FOR PUBLICATION WITHOUT THE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-4011-15T4

PHH MORTGAGE CORPORATION,

Plaintiff-Respondent,

v.

AGRIPPA M. WIGGINS, and his
wife, MRS. WIGGINS,

Defendants-Appellants.
______________________________

Submitted August 30, 2017 – Decided September 8, 2017

Before Judges Rothstadt and Vernoia.

On appeal from the Superior Court of New
Jersey, Chancery Division, Burlington County,
Docket No. F-35041-13.

Agrippa M. Wiggins, appellant pro se.

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

PER CURIAM

In this mortgage foreclosure action, defendant Agrippa M.

Wiggins appeals from the Chancery Division's July 24, 2015 and

April 15, 2016 orders denying his separate motions to vacate a
July 24, 2014 final judgment and to dismiss the complaint. Finding

no merit to defendant's contentions, we affirm.

I.

In November 2007, defendant1 obtained a mortgage loan from

Metlife Bank, N.A., (Metlife). Defendant executed a promissory

note in favor of Metlife and, as security for the payment of the

loan, delivered a mortgage on property in Hainesport to Mortgage

Electronic Registration Systems, Inc. (MERS), as nominee for

Metlife and its successors or assigns. Defendant defaulted on the

note by failing to make the payment due on September 1, 2011, and

all payments thereafter. Metlife endorsed the note to plaintiff

PHH Mortgage Corporation (PHH) and in April 2012, MERS executed

an assignment of the mortgage to PHH.

PHH filed a foreclosure complaint in October 2013. Defendant

was served with the complaint, but did not file a responsive

pleading. Default was subsequently entered, and on July 24, 2014,

the court entered a final judgment against defendant and issued a

writ of execution.

Defendant first filed a pleading in the action eleven months

after entry of the final judgment. On May 13, 2015, the day before

the scheduled sheriff's sale, defendant filed a motion to stay the

1
Defendant's late wife was also a party to the loan.

2 A-4011-15T4
sheriff's sale, vacate the final judgment and dismiss the

complaint. Defendant argued PHH lacked standing to bring the

foreclosure action because there was no assignment of the mortgage

to PHH and, as a result, he was entitled to the requested relief.

The motion court entered an order delaying the sheriff's sale to

permit the adjudication of defendant's motion to vacate the final

judgment and dismiss the complaint.

After the submission of PHH's opposition, the court entered

a July 24, 2015 order denying defendant's motion to vacate the

final judgment and dismiss the complaint. The judge reasoned that

defendant failed to demonstrate either the excusable neglect or

meritorious defense required to vacate a judgment under Rule 4:50-

1(a).2 The property was sold to PHH at a sheriff's sale on January

28, 2016. PHH deeded the property to the Federal National Mortgage

Association (FNMA) on March 3, 2016.

Subsequent to PHH's transfer of the property to FNMA, and

twenty-months after entry of the July 24, 2014 final judgment,

defendant filed a second motion to vacate the judgment under Rule

2
Based on the record presented, it appears defendant sought to
vacate the final judgment claiming he had excusable neglect for
failing to timely respond to the complaint, and a meritorious
defense. Thus, defendant's request for relief from the final
judgment was made under subsection (a) of Rule 4:50-1.

3 A-4011-15T4
4:50-1 and to dismiss the foreclosure complaint.3 Defendant also

requested that the court vacate the sheriff's sale. Defendant

argued plaintiff lacked standing because it was not in possession

of the note, the note and mortgage were fraudulent, defendant was

induced into agreeing to a predatory and racially biased

transaction, and the court abused its discretion by entering the

judgment. The court rejected defendant's arguments and entered

an April 15, 2016 order denying defendant's motion. This appeal

followed.

II.

On appeal, defendant challenges the court's entry of the July

24, 2015 and April 15, 2016 orders denying his motions to vacate

the final judgment, and the portion of the April 15, 2016 order

denying his motion to vacate the sheriff's sale. Defendant does

not argue the court erred by denying his motions to dismiss the

complaint. We therefore do not address the issue because it is

waived. See Sklodowsky v. Lushis, 417 N.J. Super. 648, 657 (App.

Div. 2011) ("An issue not briefed on appeal is deemed waived.").

We instead turn our attention to defendant's argument that the

3
In the papers supporting his motion, defendant generally argued
the complaint should be dismissed but did not identify the Rule
upon which his motion to dismiss the complaint was founded.

4 A-4011-15T4
court erred by denying his motions to vacate the final judgment

under Rule 4:50-1.4

Rule 4:50-1 provides six grounds for relief from a final

judgment. The court may relieve a party from a final judgment

upon a showing of:

(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
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 decision whether to grant a motion for relief from a

final judgment under Rule 4:50-1 "is left to the sound discretion

of the trial court." Mancini v. EDS ex rel. N.J. Auto. Full Ins.

4
Defendant appeals that portion of the April 15, 2016 order
denying his motion to vacate the sheriff's sale, but in his brief
on appeal he does not include any argument that the sheriff's sale
should be vacated. We broadly read defendant's brief to argue that
because the final judgment should be vacated, the sheriff's sale
should be vacated as well. We therefore limit our discussion to
defendant's argument that the court erred by denying his motions
to vacate the final judgment.

5 A-4011-15T4
Underwriting Ass'n, 132 N.J. 330, 334 (1993). "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.'" US Bank Nat'l Ass'n v. Guillaume, 209 N.J. 449, 467

(2012) (quoting Mancini, supra, 132 N.J. at 334). "The trial

court's determination . . . warrants substantial deference, and

should not be reversed unless it results in a clear abuse of

discretion." Ibid. An abuse of discretion occurs "when a

decision is 'made without a rational explanation, inexplicably

departed from established policies, or rested on an impermissible

basis.'" Id. at 467-68 (quoting Iliadis v. Wal-Mart Stores, Inc.,

191 N.J. 88, 123 (2007)).

We discern no abuse of discretion in the court's July 24,

2015 order denying defendant's first motion to vacate the final

judgment. The court determined defendant failed to demonstrate

either excusable neglect or a meritorious defense sufficient to

afford relief under Rule 4:50-1(a).5 "'Excusable neglect' may be

5
To the extent defendant's brief might be deemed to assert
arguments he was entitled to relief under other subsections of the
Rule, we do not consider such arguments because they were not
raised before the motion court and do not involve jurisdictional
issues or matters of public concern. See Nieder v. Royal Indem.
Ins. Co., 62 N.J. 229, 234 (1973) (noting that our appellate courts
decline to consider issues not properly presented to the trial

6 A-4011-15T4
found when the default was 'attributable to an honest mistake that

is compatible with due diligence or reasonable prudence.'"

Deutsche Bank Nat'l Tr. Co. v. Russo, 429 N.J. Super. 91, 98 (App.

Div. 2012) (quoting Guillaume, supra, 209 N.J. at 468). Defendant

did not present any evidence before the motion court demonstrating

excusable neglect.

Defendant argued only that he had a meritorious defense to

the foreclosure complaint; that plaintiff allegedly lacked

standing. "A just, sufficient and valid defense to the original

cause of action stated in clear and unmistakable terms is a

prerequisite to opening a judgment." Schulwitz v. Shuster, 27

N.J. Super. 554, 561 (App. Div. 1953). Here, the evidence showed

defendant signed the note and mortgage and defaulted on his

obligations. In addition, the mortgage had been assigned to PHH

and PHH was in possession of the note when the foreclosure

complaint was filed. Based on the evidence presented on

defendant's initial motion to vacate the final judgment, plaintiff

established it had standing to bring the foreclosure complaint,

and defendant failed to demonstrate otherwise. See Deutsche Bank

Nat'l Tr. Co. v. Mitchell, 422 N.J. Super. 214, 216 (App. Div.

2011) (holding possession of the note or an assignment of the

court unless the issues on appeal go to jurisdiction or concern
matters of great public concern).

7 A-4011-15T4
mortgage prior to the filing of the complaint confers standing in

a mortgage foreclosure action).

The court therefore correctly determined plaintiff failed to

establish either excusable neglect or a meritorious defense as

required for relief under Rule 4:50-1(a). The court's denial of

the motion was supported by the evidence and its entry of the July

24, 2015 order denying defendant's motion to vacate the final

judgment was not an abuse of discretion.

We next consider defendant's challenge to the court's denial

of defendant's second motion to vacate the final judgment. The

motion was filed in March 2016, twenty months after the entry of

the July 24, 2014 final judgment. Although defendant's motion did

not identify the subsection of Rule 4:50-1 upon which his request

for relief was based, he was barred from obtaining relief under

sections (a), (b) and (c) because his motion was not filed within

one year of the judgment's entry. R. 4:50-2; R. 1:3-4; see also

Deutsche Bank Tr. Co. Americas v. Angeles, 428 N.J. Super. 315,

319 (App. Div. 2012) (finding Rule 4:50-2 bars motions under Rule

4:50-1(a), (b), or (c) filed more than one year after entry of the

judgment from which relief is sought). We therefore do not

consider on appeal any contention that the court erred by failing

to grant defendant's March 2016 motion under subsections (a), (b)

or (c) of Rule 4:50-1 other than to note that any such claims are

8 A-4011-15T4
time barred. Angeles, supra, 428 N.J. Super. at 319.

Although he appeals the April 15, 2016 order denying his

second motion under Rule 4:50-1 to vacate the final judgment,

defendant's brief does not mention the Rule, identify the

subsections of the Rule pursuant to which he contends he was

entitled to relief, or address our standard of review. Generally,

a failure to make an argument in an appellate brief constitutes a

waiver of the argument. Sklodowsky, supra, 417 N.J. Super. at

657. However, we will address the merits of defendant's arguments,

and broadly read his pro se brief as asserting that the court

erred by failing to grant relief from the final judgment under

subsections (d) and (f) of Rule 4:50-1.6

We reject defendant's contention the court erred by denying

his motion to vacate the final judgment under subsection (d) of

Rule 4:50-1, which permits relief from a final judgment that is

void. Defendant argues the judgment is void based on his claim

that for a multitude of reasons, plaintiff lacked standing to

bring the foreclosure action. Any purported lack of standing does

render the July 24, 2014 final judgment void. See Russo, supra,

429 N.J. Super. at 101 ("[S]tanding is not a jurisdictional issue

6
As noted, any claim defendant was entitled to relief under
subsections (a), (b) or (c) is time barred. In addition, there is
no claim the judgment is satisfied, and therefore subsection (e)
of Rule 4:50-1 is inapplicable.

9 A-4011-15T4
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).").

We are also not persuaded that defendant is entitled to relief

from the final judgment under subsection (f) of Rule 4:50-1, "which

permits courts to vacate judgments for 'any other reason justifying

relief from the operation of the judgment or order.'" Guillaume,

supra, 209 N.J. at 484 (quoting Rule 4:50-1(f)). Relief under the

Rule is "available only when 'truly exceptional circumstances are

present.'" Ibid. (quoting Housing Auth. of Morristown v. Little,

135 N.J. 274, 286 (1994)). Where exceptional circumstances are

presented, "Rule 4:50-1(f) is 'as expansive as the need to achieve

equity and justice.'" Ibid. (quoting Court Inv. Co. v. Perillo,

48 N.J. 334, 341 (1966)). The Rule, however, "is limited to

'situations in which, were it not applied, a grave injustice would

occur.'" Ibid. (quoting Little, supra, 135 N.J. at 289).

Based on our careful review of the record and plaintiff's

arguments, we discern no basis permitting relief from the final

judgment under Rule 4:50-1(f). Defendant failed to participate

in the foreclosure action, waited twenty months following the

entry of the final judgment to file his second motion to vacate

the judgment, and did not file his second motion until after the

sheriff's sale and subsequent transfer of the property to the

10 A-4011-15T4
FNMA. He makes many arguments concerning plaintiff's purported

lack of standing, but the record shows plaintiff had possession

of the note and had been assigned the mortgage prior to the filing

of the complaint, and therefore had standing to bring the

foreclosure action. Mitchell, supra, 422 N.J. Super. at 216; see

also Angeles, supra, 428 N.J. Super. at 319-20 (finding mortgagor

was not "equitably entitled to vacate" a final judgment where he

did not deny the debt owed to the mortgagee, did not "definitively

demonstrate[] a lack of standing," and did not challenge the

mortgagee's standing until the property "was sold and he was

evicted"). Defendant has not demonstrated any exceptional

circumstances or that a grave injustice will result if the final

judgment is not vacated.

Defendant's remaining arguments are without merit sufficient

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

Affirmed.

11 A-4011-15T4