NOT FOR PUBLICATION WITHOUT THE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-2956-17T2
WILMINGTON SAVINGS
FUND SOCIETY, FSB,
as Trustee,
Plaintiff-Respondent,
v.
YUN SOON PARK,
Defendant-Appellant.
____________________________
Submitted May 6, 2019 – Decided May 15, 2019
Before Judges Haas and Susswein.
On appeal from Superior Court of New Jersey,
Chancery Division, Bergen County, Docket No. F-
026717-15.
Yun Soon Park, appellant pro se.
Stern & Eisenberg, PC, attorneys for respondent
(Salvatore Carollo, on the brief).
PER CURIAM
In this residential mortgage foreclosure matter, defendant Yun Soon Park
appeals from the trial court's September 1, 2017 order denying her motion to
stay the entry of final judgment, and vacate her default. Defendant also
challenges the court's November 17, 2017 order denying her motion for
reconsideration, and the court's January 26, 2018 order denying her motion for
a stay of the prior two orders pending appeal. We affirm substantially for the
reasons expressed by Judge Edward A. Jerejian in his thoughtful written
statements of reasons accompanying each order.
The parties are fully familiar with the relevant facts of this matter and,
therefore, a brief summary will suffice here. On July 30, 2007, defendant
executed a $389,600 note to the original lender, Mortgage World Bankers, Inc.
(Mortgage World). To secure payment of the note, defendant also signed and
delivered a mortgage to Mortgage Electronic Registrations Systems, Inc., as
nominee for Mortgage World. Through a series of subsequent assignments
documented by plaintiff Wilmington Savings Fund Society, FSB in its
pleadings, plaintiff acquired both the note and the mortgage.
Defendant stopped making mortgage payments in December 2008.
Plaintiff filed its complaint for foreclosure in August 2015, and served the
pleadings upon defendant by leaving them with defendant's cousin, Jennifer Lee,
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who accepted service at the subject property. Defendant did not file a responsive
pleading, and the trial court entered default against her. In July 2017, plaintiff
filed a motion for the entry of a final judgment against defendant, who responded
by submitting a motion to stay the entry of the judgment and to vacate her
default.
On September 1, 2017, Judge Jerejian issued an order denying defendant's
motion to vacate the default. The judge found that defendant had not raised any
meritorious defense to plaintiff's complaint for foreclosure. See U.S. Bank Nat'l
Ass'n v. Guillaume, 209 N.J. 449, 468 (2012). In this regard, Judge Jerejian first
rejected defendant's contention that she had not been properly serv ed with
plaintiff's complaint. Citing Rule 4:4-4(a)(1), which permits service to be made
by leaving a copy of the summons and complaint "at the [defendant's] dwelling
place or usual place of abode with a competent member of the household of the
age of [fourteen] or over then residing therein," the judge found that plaintiff
served the pleadings upon defendant's cousin, an adult who was present at
defendant's home.
Next, defendant argued that plaintiff lacked standing to bring the
foreclosure action. But, as Judge Jerejian cogently explained:
The only material issues in a foreclosure proceeding are
the validity of the mortgage, the amount of
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indebtedness, and the right of the mortgagee to
foreclose on the mortgaged property. Great Falls Bank
v. Pardo, 263 N.J. Super. 388, 394 (Ch. Div. 1993).
With regard to standing, generally a party seeking to
foreclose a mortgage must "own or control" the
underlying debt. Wells Fargo Bank[,] N.A. v. Ford,
418 N.J. Super. 592, 597 (App. Div. 2011). In the
absence of such a showing, the plaintiff lacks standing
to bring the foreclosure. [Ibid.] Possession of the note
at the filing of the foreclosure complaint provides the
plaintiff with standing to foreclose. Deutsche Bank
Trust Co. Americas v. Angeles, 428 N.J. Super. 315,
319-20 (App. Div. 2012). Furthermore, a mortgagee
can establish ownership or control of the mortgage by
presenting an authenticated assignment indicating that
the mortgagee was assigned the mortgage before it filed
the original complaint. N.J.S.A. 46:9-9; Deutsche
Bank Nat'l Trust Co. v. Mitchell, 422 N.J. Super. 214,
225 (App. Div. 2011).
Applying these well-established principles to the case at hand, Judge
Jerejian rejected defendant's lack of standing argument, and stated:
Here, [p]laintiff claims it was in possession of the
original [n]ote before filing the [c]omplaint.
Notwithstanding [p]laintiff's certification, [p]laintiff
provides . . . valid assignments of mortgage dated June
16, 2009[,] and May 22, 2014. Plaintiff filed the
[c]omplaint commencing this action on August 17,
2015. Therefore, based on the assignment alone,
[p]laintiff had the right to bring this foreclosure action
at the time it filed the [c]omplaint.
In finding that plaintiff clearly had standing to file the complaint for
foreclosure, Judge Jerejian also found that defendant lacked standing to assert
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that the assignment of the note and mortgage to plaintiff was invalid. As the
judge explained, only the parties or third-party beneficiaries to a contract may
enforce its terms. Bank of N.Y. v. Raftogianis, 418 N.J. Super. 323, 350 (Ch.
Div. 2010) ("[L]itigants generally have no standing to assert the rights of third
parties."); See also Giles v. Phelan, Hallinan & Schmieg, L.L.P., 901 F. Supp.
2d 509, 532 (D.N.J. 2012) (finding that the plaintiffs could not challenge the
validity of assignments transferring their mortgage from one holder to another);
Correia v. Deutsche Bank Nat'l Tr. Co., 452 B.R. 319, 324-25 (B.A.P. 1st Cir.
2011) (holding that debtors lacked standing to argue that assignment of their
mortgage violated a pooling and servicing agreement because they were not
parties to the agreement, nor third-party beneficiaries thereof).
Following the denial of defendant's motion to vacate the default, the court
entered a final judgment of foreclosure on September 21, 2017. Defendant does
not challenge this order on appeal.
Instead, defendant thereafter filed a motion for reconsideration of the
court's September 1, 2017 order, raising the same arguments she had
unsuccessfully presented in her original motion. Judge Jerejian denied
defendant's motion for reconsideration on November 17, 2017. Thereafter,
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defendant filed a final motion seeking to stay the foreclosure pending appeal,
which the judge denied on January 26, 2018. This appeal followed.
On appeal, defendant again argues that plaintiff did not properly serve her
with the summons and complaint and, even if this were the case, it lacked
standing to bring a foreclosure action against her. Defendant also asserts that
the judge erred by denying her motions for reconsideration and for a stay of the
foreclosure.
We have considered defendant's contentions in light of the record and
applicable legal principles and conclude that they are without sufficient merit to
warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We are satisfied
that Judge Jerejian properly denied defendant's motions to vacate the default,
for reconsideration of that order, and for a stay for the reasons expressed in his
three written opinions. We add the following brief comments.
As Judge Jerejian correctly found in his detailed September 1, 2017
decision, plaintiff properly served the complaint upon defendant pursuant to
Rule 4:4-4(a)(1). In addition, defendant failed to demonstrate that she had a
meritorious defense to the foreclosure complaint. Plaintiff obviously had
standing to bring the complaint because the assignments it produced
demonstrated that it possessed the note and mortgage before it sought
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foreclosure. Angeles, 428 N.J. Super. at 319-20. Therefore, we discern no basis
for disturbing the judge's decision denying defendant's motion to vacate the
default.
Turning to the November 17, 2017 order, we review the denial of a motion
for reconsideration to determine whether the trial court abused its discretion.
Cummings v. Bahr, 295 N.J. Super. 374, 389 (App. Div. 1996).
"Reconsideration cannot be used to expand the record and reargue a motion."
Capital Fin. Co. of Del. Valley, Inc. v. Asterbadi, 398 N.J. Super. 299, 310 (App.
Div. 2008). A motion for reconsideration is meant to "seek review of an order
based on the evidence before the court on the initial motion . . . not to serve as
a vehicle to introduce new evidence in order to cure an inadequacy in the motion
record." Ibid. (citation omitted).
For these reasons, reconsideration should only be granted in "those cases
which fall into that narrow corridor in which either 1) the [c]ourt has expressed
its decision based upon a palpably incorrect or irrational basis, or 2) it is obvious
that the [c]ourt either did not consider, or failed to appreciate the significance
of probative, competent evidence." Cummings, 295 N.J. Super. at 384 (internal
quotation marks omitted) (quoting D’Atria v. D’Atria, 242 N.J. Super. 392, 401-
02 (Ch. Div. 1990)). Therefore, we have held that "the magnitude of the error
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cited must be a game-changer for reconsideration to be appropriate." Palombi
v. Palombi, 414 N.J. Super. 274, 289 (App. Div. 2010).
Applying these principles, we are satisfied that Judge Jerejian properly
exercised his discretion by denying defendant's motion for reconsideration. As
the judge explained in his written decision, defendant raised no new arguments
in support of her motion and her "[d]isagreement" with the September 1, 2017
order was "not a valid ground for a [reconsideration] motion."
Finally, there was no basis for staying the September 1, or November 17
orders pending appeal. As Judge Jerejian aptly explained in his January 26,
2018 opinion, defendant had not even filed a notice of appeal at that point, 1 and
never posted the bond or cash deposit required by Rule 2:9-5.
In addition, defendant failed to demonstrate a substantial likelihood of
success on the merits of any proposed appeal, and did not address any of the
other factors that must be considered before a stay pending appeal can issued.
See Crowe v. De Gioia, 90 N.J. 126, 132-34 (1982). Therefore, we also reject
defendant's contention on this point.
Affirmed.
1
Defendant would not file her notice of appeal until March 1, 2018.
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