THE BANK OF NEW YORK MELLON TRUST COMPANY, NA, ETC. VS. RAOUL NIAMIEN(F-003076-13, 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NOT FOR PUBLICATION WITHOUT THE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-5054-15T1

THE BANK OF NEW YORK MELLON
TRUST COMPANY, N.A., AS
UNDERLYING TRUSTEE FOR THE
FDIC 2013-N1 ASSET TRUST,

Plaintiff-Respondent,

v.

RAOUL NIAMIEN and MRS. RAOUL
NIAMIEN,

Defendants-Appellants.
_______________________________

Submitted September 26, 2017 – Decided November 30, 2017

Before Judges Carroll and Leone.

On appeal from Superior Court of New Jersey,
Chancery Division, Essex County, Docket No.
F-003076-13.

David J. Khawam, attorney for appellant.

Parker McCay, PA, attorneys for respondent
(Gene Mariano, of counsel; Stacy L. Moore,
Jr., on the brief).

PER CURIAM
 Defendant Raoul Niamien appeals from the May 12, 2016 order

denying his motion to vacate a final judgment of foreclosure for

lack of standing.1 We affirm.

I.

The following facts are taken from the trial court's opinion

on the motions to vacate and from the documents submitted by the

parties. On July 16, 2007, defendant dated and delivered a note

for $470,250 to All American Lending, LLC. To secure that note,

defendant executed and delivered a purchase money mortgage on his

residence to Mortgage Electronic Registration Systems, Inc.

(MERS), as a nominee for All American Lending. The mortgage was

recorded on July 26, 2007. On August 1, 2008, defendant defaulted

by failing to make the monthly payments. He has made no subsequent

payments.

In January 2009, MERS assigned the mortgage to Countrywide

Home Loans Servicing LP (Countrywide). Sometime thereafter,

Countrywide's name changed to BAC Home Loans Servicing, LP (BAC).

BAC later merged with Bank of America, NA. In the second

assignment on July 18, 2012, Bank of America assigned the mortgage

1
The caption lists defendants as: "Raoul Niamien and Mrs. Raoul
Niamien, his wife." However, the record establishes defendant
executed the mortgage as an unmarried person. His present marital
status is unknown. It appears "Mrs. Raoul Niamien" is a fictitious
placeholder of any interest or right a spouse might hold in the
property. Thus, we will refer only to defendant.

2 A-5054-15T1
to The Bank of New York Mellon Trust Company, N.A., as trustee for

FDIC 2011-N1 asset trust (BNY Mellon 2011), the current plaintiff

in this action. The second assignment was recorded on August 10,

2012.

BNY Mellon 2011 filed a complaint for foreclosure on January

30, 2013. Defendant did not file an answer or otherwise defend

against the action, which resulted in an entry of default against

him on April 29, 2013. On January 17, 2014, a third assignment

took place when BNY Mellon 2011 assigned the mortgage to The Bank

of New York Mellon Trust Company, NA, as trustee for FDIC 2013-N1

Asset trust (BNY Mellon 2013). BNY Mellon 2013 was substituted

as plaintiff in this action on May 19, 2014.

On July 21, 2014, defendant moved to vacate default pursuant

to Rule 4:43-3. On September 8, 2014, the trial court denied the

motion because defendant failed to show good cause for not

responding to the complaint. BNY Mellon 2013 filed a notice of

motion for final judgment on October 22, 2014. The trial court

entered final judgment on November 11, 2014.

On February 26, 2015, defendant filed a motion to vacate the

final judgment pursuant to Rule 4:50-1, which was denied on April

29, 2015. A sheriff's sale of the property occurred on February

16, 2016. On February 23, 2016, defendant again moved under Rule

4:50-1 to vacate the final judgment, and also to set aside the

3 A-5054-15T1
sheriff's sale. The trial court denied defendant's motion on May

12, 2016. Defendant appeals.

II.

Defendant argues the trial court erred in refusing to vacate

final judgment under Rule 4:50-1. "The decision whether to grant

such a motion is left to the sound discretion of the trial

court[.]" U.S. Bank Nat'l Ass'n v. Curcio, 444 N.J. Super. 94,

105 (App. Div. 2016) (quoting Mancini v. EDS ex rel. N.J. Auto.

Full Ins. Underwriting Ass'n, 132 N.J. 330, 334 (1993)). "The

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

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

discretion." US Bank Nat'l Ass'n v. Guillaume, 209 N.J. 449, 467

(2012). We must hew to that standard of review.

III.

Rule 4:50-1 permits a court, at its discretion, to relieve a

party from a final judgment, if the party is able to prove any of

the following six grounds:

(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;

4 A-5054-15T1
 (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.

Rule 4:50-1 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." Guillaume, supra, 209 N.J. at 467 (internal

quotation marks and citation omitted). Rule 4:50-1 "provides for

extraordinary relief and may be invoked only upon a showing of

exceptional circumstances." Ross v. Rupert, 384 N.J. Super. 1, 8

(App. Div. 2006) (quoting Baumann v. Marinaro, 95 N.J. 380, 393

(1984)).

Defendant's appellate brief does not even cite Rule 4:50-1.

Defendant's brief to the trial court cited Rule 4:50-1 but did not

invoke any particular subsection of the rule. It merely cited a

case mentioning "excusable neglect" and said the judgment was

void. Thus, it appears defendant's claim raised only Rule 4:50-

1(a) and (d).2

2
Defendant has never claimed subsections (b), (c), or (e) apply,
or identified a basis for relief under subsection (f). Moreover,
defendant has not alleged facts suggesting any new evidence under
(b), fraud under (c), or satisfaction, reversal, or inequitability

5 A-5054-15T1
 A.

To the extent defendant is relying on subsection (a), his

motion was time-barred.

In any event, the record amply supports the trial court's

finding that defendant "has not even offered the Court an argument

regarding any excusable neglect." Indeed, the trial court twice

found defendant had failed to show excusable neglect, in denying

his prior motion to vacate the judgment and his earlier motion to

vacate default. "Absent a showing of 'excusable neglect,'

[defendant] cannot meet the standard of Rule 4:50-1(a)."

Guillaume, supra, 209 N.J. at 468.

"[A] Rule 4:50 motion based on excusable neglect is barred

if it is filed more than one year after the foreclosure judgment

was entered." Deutsche Bank Nat'l Tr. Co. v. Russo, 429 N.J.

Super. 91, 99 (App. Div. 2012); see R. 4:50-2. The motion whose

denial defendant appeals was filed February 22, 2016, fifteen

months after the November 11, 2014 final judgment. Rule 4:50-2's

one-year limit may not be enlarged. R. 1:3-4(c).

"To prevail under Rule 4:50-1(a), [defendant is] further

compelled to prove the existence of a 'meritorious defense.'"

under (e). Finally, subsection (f) is unavailable to the defendant
because he has not shown "truly exceptional circumstances" or that
"a grave injustice would occur." Guillaume, supra, 209 N.J. at
484.

6 A-5054-15T1
Guillaume, supra, 209 N.J. at 469 (citation omitted). Defendant

does not challenge the validity of the note or mortgage or the

default on the loan; rather, defendant contends plaintiff lacks

standing.

In any event, defendant's standing arguments are not

meritorious. First, defendant argues Bank of America never had

the right to enforce the mortgage, but he does not dispute that

MERS assigned the mortgage to Countrywide, which changed its name

to BAC, which in turn merged with Bank of America. The merger

effected a "transfer of possession" of the mortgage, which "vests

in the transferee any right [the transferor had] to enforce the

instrument." N.J.S.A. 12A:3-201(a), -203(b). As Bank of America's

"right to enforce the mortgage arises by operation of its ownership

of the asset through mergers or acquisitions," defendant's

"assertions regarding standing have no bearing." Suser v. Wachovia

Mortg., 433 N.J. Super. 317, 321 (App. Div. 2013).

Moreover, defendant does not challenge the 2012 assignment

from Bank of America to BNY Mellon 2011, which filed the

foreclosure action. The "assignment of the mortgage that predated

the original complaint conferred standing" on BNY Mellon 2011.

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

318 (App. Div. 2012).

7 A-5054-15T1
 Second, defendant notes that after the foreclosure action was

filed, BNY Mellon 2011 assigned the mortgage to BNY Mellon 2013

twice, in an assignment recorded December 6, 2013, and in an

assignment dated January 14, 2014, and recorded April 1, 2014.

The assignments were identical save for the identity of the

attorney-in-fact handling the transaction. The record does not

reveal why two assignments were made, but the duplication is

irrelevant. Both assignments came almost a year after the

foreclosure complaint had been filed and served, and many months

after defendant defaulted in April 2013. There is no claim

anything of consequence occurred in the litigation in the period

between the December and January assignments. The January

assignment was recorded before the trial court substituted BNY

Mellon 2013 as the plaintiff in the foreclosure action. Defendant

has failed to present a published New Jersey appellate case finding

that duplicative assignments on different dates removes standing

from a subsequent assignee.

Defendant claims he sought a loan modification but was

prevented from saving his home due to the confusion regarding

ownership. He cites a January 4, 2016 email from an ombudsman for

the FDIC stating that defendant's loan "was sold as part of a

securitization that is being serviced by Seneca Mortgage Servicing

for Bank of New York. Therefore, the FDIC no longer has ownership

8 A-5054-15T1
interest in your mortgage loan." Whatever that email says about

the FDIC's interest, it confirms his loan was sold to Bank of New

York. Moreover, the email occurred almost three years after the

complaint and foreclosure was filed by BNY Mellon 2011, and long

after BNY Mellon 2013 obtained a final judgment.

B.

Even assuming defendant's standing argument had merit, he

would still be unable to show that "the judgment or order is void"

under Rule 4:50-1(d). In Russo, we declared that "standing 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)." Russo, supra,

429 N.J. Super. at 101. Accordingly, defendant may not vacate the

final judgment under subsection (d) or any provisions of Rule

4:50-1.

IV.

Defendant contends his standing argument justifies setting

aside the sheriff's sale of their property. Not only was

defendant's standing argument meritless, but defendant failed to

show any basis to set aside the sheriff's sale. Defendant has not

alleged that the notice requirements of Rule 4:65-2 were violated,

United States v. Scurry, 193 N.J. 492, 494-95 (2008), or that

there were "'reasons of fraud, accident, surprise, or mistake,

9 A-5054-15T1
irregularities in the conduct of the sale[.]'" First Trust Nat'l

Ass'n, Inc. v. Merola, 319 N.J. Super. 44, 49 (App. Div. 1999)

(quoting Karel v. Davis, 122 N.J. Eq. 526, 528 (E. & A. 1937)).

Thus, we agree with the trial court that "[t]here is simply no

grounds to vacate the sale." We need not reach whether defendant's

motion was untimely under Rule 4:65-5.

Affirmed.

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