NOT FOR PUBLICATION WITHOUT THE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.
10 A-5054-15T1