NOT FOR PUBLICATION WITHOUT THE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-4545-15T1
WELLS FARGO BANK, NA,
Plaintiff-Respondent,
v.
EMMANUEL ETIM,
Defendant-Appellant,
and
MRS. EMMANUEL ETIM, UNITED STATES
OF AMERICA, SCHWARTZ BARKIN
& MITCHELL, and SLOMINS, INC.,
Defendants.
_________________________________________________
Submitted August 15, 2017 – Decided September 29, 2017
Before Judges Messano and Sumners.
On appeal from the Superior Court of New
Jersey, Chancery Division, Essex County,
Docket No. F-025304-15.
Law Offices of Montell Figgins, attorney for
appellant (Mr. Figgins, on the brief).
Reed Smith, LLP, attorneys for respondent
(Henry F. Reichner, of counsel and on the
brief).
PER CURIAM
Defendant Emmanuel Etim never answered a summons and
complaint in foreclosure filed by plaintiff Wells Fargo Bank. 1
Through an apparent mistake, Wells Fargo's counsel filed both a
notice of dismissal without prejudice and a request to enter
default on the same day. The Office of Foreclosure filed the
notice of dismissal, even though it did not name any of the five
defendants, and rejected the request to enter default. Wells
Fargo re-filed the request to enter default, which was accepted
and filed on October 28, 2015.
On March 14, 2016, Wells Fargo moved to vacate dismissal and
reinstate the action. Defense counsel attempted to file an
appearance, but the court rejected the substitution of counsel for
reasons that are not clear from the record. On April 4, 2016, the
Chancery Judge entered an order vacating the dismissal and
reinstating the foreclosure complaint. The order further required
Wells Fargo to move for final judgment within 120 days, which it
did on April 12. Defendant never responded to the motion for
final judgment, and the court entered final judgment on May 12,
2016. Defendant never sought to vacate the default judgment in
the Chancery Division, but instead filed this appeal.
1
The briefs do not contain an order permitting service by regular
and certified mail, but defendant does not raise any issue
regarding service.
2 A-4545-15T1
Defendant argues Wells Fargo never moved for default after
its complaint was reinstated; therefore, the judge erroneously
entered final judgment by default. He also argues that Wells
Fargo lacked standing to bring the foreclosure action. These
arguments lack sufficient merit to warrant discussion in a written
opinion. R. 2:11-3(e)(1)(E).
Wells Fargo correctly argues that a direct appeal from a
default judgment is improper. See, e.g., N.J. Div. of Youth &
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)
("The rule in New Jersey is that a direct appeal will not lie from
a judgment by default.")). The proper course is to seek relief
in the trial court pursuant to a Rule 4:50-1 motion. Id. at 364.
Moreover, whatever were the technical imperfections in the
procedural history, defendant is equitably stopped from raising
the standing argument now, years after the complaint was filed,
having failed to ever raise it before. Deutsche Bank Trust Co.
Americas v. Angeles, 428 N.J. Super. 315, 320 (App. Div. 2012).
Moreover, the record reveals the mortgage was assigned to Wells
Fargo before its complaint was filed, thereby conferring standing
upon the bank. Id. at 319.
Affirmed.
3 A-4545-15T1