LASALLE BANK N.A., ETC. VS. KELLEY A. SPEAR(F-017220-08, 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NOT FOR PUBLICATION WITHOUT THE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-5377-15T1

LASALLE BANK N.A. AS TRUSTEE
FOR THE MLMI TRUST SERIES 2006-AHL1,

Plaintiff-Respondent,

v.

KELLEY A. SPEAR,

Defendant-Appellant,

and

WILLIAM R. SPEAR and
RJM ACQUISITIONS LLC,

Defendants.

Submitted September 26, 2017 – Decided October 5, 2017

Before Judges Carroll and Mawla.

On appeal from the Superior Court of New
Jersey, Chancery Division, Essex County,
Docket No. F-017220-08.

Kelley A. Spear, appellant pro se.

Sandelands Eyet LLP, attorneys for respondent
(Kathleen Cavanaugh, of counsel and on the
brief).
PER CURIAM

Defendant Kelley A. Spear appeals from a June 28, 2016 order

denying her motion to vacate a March 15, 2016 amended final

judgment of foreclosure entered in plaintiff's favor. We affirm.

The record reveals that, in January 2006, defendant borrowed

$225,000 from Accredited Home Lenders, Inc. Repayment was secured

by a mortgage, which was recorded the following month. Defendant

defaulted by failing to make the monthly payment due on January

1, 2008, and all payments that came due thereafter.

Plaintiff filed a foreclosure complaint on May 1, 2008, and

an amended complaint on August 18, 2008. Defendant did not file

a responsive pleading, and default was entered against her on

February 10, 2009, followed by entry of a final judgment of

foreclosure on January 5, 2010. Defendant then filed a motion to

vacate the default judgment on February 24, 2011, which Judge

Kenneth S. Levy denied on June 17, 2011.

On February 9, 2016, plaintiff moved for entry of an amended

final judgment to update the amount due. Plaintiff's motion was

granted, and an amended final judgment of foreclosure was entered

on March 15, 2016. On April 19, 2016, defendant filed a motion

to vacate the amended final judgment, pursuant to Rule 4:50-1(a),

(d), and (f), on the basis that plaintiff lacked standing to seek

foreclosure. Judge Walter Koprowski, Jr., denied defendant's

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motion on June 28, 2016. In his accompanying written statement

of reasons, the judge found that "[d]efendant admitted her failure

to answer the foreclosure [complaint] at her own peril, thus,

there is no excusable neglect here." The judge also found that

Judge Levy had previously rejected defendant's argument that

plaintiff lacked standing to foreclose when he denied her first

motion to vacate final judgment in June 2011.

On appeal, defendant renews her argument that plaintiff

failed to establish that it was the holder of the note when it

initiated the foreclosure action and hence lacked standing to

foreclose. Defendant continues to seek relief from the final

judgment of foreclosure pursuant to Rule 4:50-1 on this basis.

Based on our review of the record and applicable law, we are not

persuaded by defendant's argument.

Our standard of review is well-settled. As the Court noted

in US Bank National Ass'n v. Guillaume, 209 N.J. 449, 467 (2012),

a "party seeking to vacate [a default] judgment" in a foreclosure

action must satisfy Rule 4:50-1, which states in pertinent part

that

[o]n 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; . . . (d) the judgment or
order is void; . . . or (f) any other reason

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 justifying relief from the operation of the
judgment or order.
"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.'" Ibid. (quoting Mancini v. EDS, 132 N.J. 330,

334 (1993)).

We afford "substantial deference" to the trial judge and

reverse only if the judge's determination amounts to a clear abuse

of discretion. Ibid. An abuse of discretion is "when a decision

is made without a rational explanation, inexplicably departed from

established policies, or rested on an impermissible basis." Ibid.

In support of the motion to vacate, defendant relied on

subsections (a), (d), and (f) of Rule 4:50-1. We conclude that

defendant has not demonstrated that she is entitled to relief

under any of these sections. As such, the judge did not abuse his

discretion.

Regarding her Rule 4:50-1(a) contention, defendant has not

demonstrated excusable neglect and a meritorious defense as

required under this section of the rule and case law. See

Guillaume, supra, 209 N.J. at 469. "'Excusable neglect' may be

found when the default was 'attributable to an honest mistake that

is compatible with due diligence or reasonable prudence.'"

Guillaume, supra, 209 N.J. at 468 (quoting Mancini, supra, 132

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N.J. at 335). Such was clearly not the case here, as Judge

Koprowski correctly determined.

Furthermore, we reject defendant's reliance on subsection (d)

because defendant is unable to show, on the merits, that she is

entitled to a vacation of the judgment. "A Rule 4:50-1(d) motion,

based on a claim that the judgment is void, does not require a

showing of excusable neglect but must be filed within a reasonable

time after entry of the judgment." Deutsche Bank Nat'l Trust Co.

v. Russo, 429 N.J. Super. 91, 98 (App. Div. 2012) (citing R.

4:50-2). Under certain circumstances, "equitable considerations

may justify a court in rejecting a foreclosure defendant's belated

attempt to raise as a defense the plaintiff's lack of standing[.]"

Id. at 99-100. Such is the case here.

We stated in Deutsche Bank Trust Co. Americas v. Angeles, 428

N.J. Super. 315, 320 (App. Div. 2012), that "[i]n foreclosure

matters, equity must be applied to plaintiffs as well as

defendants." In Russo, supra, 429 N.J. Super. at 101, we held

based on Guillaume and Angeles, that "even if [the] plaintiff did

not have the note or a valid assignment when it filed the

complaint, but obtained either or both before entry of judgment,

dismissal of the complaint would not have been an appropriate

remedy [] because of [the] defendants' unexcused, years-long delay

in asserting that defense." In Russo, defendants challenged

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plaintiff's standing to file the foreclosure complaint because it

did not take an assignment of the mortgage until after the

complaint was filed. Id. at 96. We concluded, "in this post-

judgment context, lack of standing would not constitute a

meritorious defense to the foreclosure complaint." Id. at 101.

"[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)." Ibid.

Finally, we disagree that Rule 4:50-1(f) justifies vacation

of the judgment. Subsection (f) permits a judge to vacate a

default judgment for "any other reason justifying relief from the

operation of the judgment or order," and "is available only when

'truly exceptional circumstances are present.'" Guillaume, supra,

209 N.J. at 484 (quoting Hous. Auth. of Morristown v. Little, 135

N.J. 274, 286 (1994)). The applicability of this subsection is

limited to "situations in which, were it not applied, a grave

injustice would occur." Ibid. As plaintiff points out, defendant

has made no mortgage or tax payment since 2007. On this record,

defendant has not shown any such "exceptional circumstances" that

would warrant relief under subsection (f), or any other section

of the rule.

Affirmed.

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