U.S. BANK, N.A., ETC. VS. JOSE DIAZ (F-017959-08, 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NOT FOR PUBLICATION WITHOUT THE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-4754-17T2

U.S. BANK, N.A., AS SUCCESSOR
TRUSTEE TO BANK OF AMERICA,
N.A., AS SUCCESSOR BY MERGER
TO LASALLE BANK, N.A., AS
TRUSTEE FOR THE CERTIFICATION
HOLDERS OF THE MLMI TRUST,
MORTGAGE LOAN ASSET-BACKED
CERTIFICATES, SERIES 2007-SD1,

Plaintiff-Respondent,

v.

JOSE DIAZ,

Defendant-Appellant,

and

MARIA DIAZ, MORTGAGE
ELECTRONIC REGISTRATION
SYSTEMS, INC., AS NOMINEE FOR
WILSHIRE CREDIT CORP., CARIDAD
CLAUDIO, LUIS CLAUDIO, ESSEX
COUNTY DEPARTMENT OF CITIZEN
SERVICES f/k/a ESSEX COUNTY
BOARD OF SOCIAL SERVICES,
MEDICAL IMAGING OF ESSEX, and
STATE OF NEW JERSEY,
 Defendants.
________________________

Submitted January 30, 2019 – Decided February 15, 2019

Before Judges Koblitz and Ostrer.

On appeal from Superior Court of New Jersey,
Chancery Division, Essex County, Docket No. F-
017959-08.

Jose Diaz, appellant pro se.

Sandelands Eyet LLP, attorneys for respondent (Ashley
L. Rose, on the brief).

PER CURIAM

Defendant Jose Diaz appeals from the June 5, 2018 order denying his motion

to vacate final judgment in this residential foreclosure matter. We affirm.

The initial May 8, 2008 foreclosure complaint alleges that on November

30, 2006, defendant and his wife executed a note in the amount of $252,720 with

an 8.5% annual interest rate and executed a mortgage on their home to secure

the note. They failed to make the payment due on December 1, 2007 or

thereafter. An amended complaint was filed on June 6, 2008. Although served,

defendant did not answer. Default was entered November 5, 2008 and an

uncontested final judgment was entered on September 8, 2009. The judge who

denied defendant's motion to vacate final judgment found that "[p]laintiff . . .

A-4754-17T2
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provided true copies of the [n]ote, [m]ortgage and [a]ssignment of [m]ortgage

in its application for [f]inal [j]udgment." After an uncontested motion to

increase the amount of the judgment, an amended final judgment for

$347,569.84 was entered on July 13, 2016.

A sheriff's sale was originally scheduled for February 17, 2017, but after

numerous adjournments by defendant, including a bankruptcy filing, it was

finally conducted on March 13, 2018. The property was sold to plaintiff. Two

weeks later, defendant filed a motion to vacate, arguing that plaintiff did not

have standing to foreclose. He did not assert a meritorious defense or excusable

neglect for failing to answer the complaint. Both are required to vacate final

judgment. See US Bank Nat. Ass'n v. Guillaume, 209 N.J. 449, 469 (2012).

We have held that "either possession of the note or an assignment of the

mortgage that predate[s] the original complaint confer[s] standing." Deutsche

Bank Trust Co. Ams. v. Angeles, 428 N.J. Super. 315, 318 (App. Div. 2012). In

the context of a foreclosure case, our Supreme Court has stated that relief from

default judgment, pursuant to 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.'" Mancini v. EDS, 132
N.J. 330, 334 (1993) (quoting Baumann v. Marinaro, 95
N.J. 380, 392 (1984)).

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 The trial court's determination under the rule warrants
substantial deference, and should not be reversed unless
it results in a clear abuse of discretion. The Court finds
an abuse of discretion when a decision is "'made
without a rational explanation, inexplicably departed
from established policies, or rested on an impermissible
basis.'" Iliadis v. Wal—Iliadis, 191 N.J. 88, 123 (2007)
(quoting Flagg v. Essex Cnty. Prosecutor, 171 N.J. 561,
571 (2002)).

[Guillaume, 209 N.J. 467-68 (2012)(citations deleted).]

The Chancery Division did not abuse its discretion in denying defendant's

motion to vacate final judgment.

Affirmed.

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