CAPITOL ONE BANK, N.A. VS. BROOKE MURPHY (F-029849-12, SUSSEX 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NOT FOR PUBLICATION WITHOUT THE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-2749-15T3

CAPITAL ONE BANK, N.A.,

Plaintiff-Respondent,

v.

BROOKE MURPHY,

Defendant-Appellant.

Argued telephonically November 29, 2017 –
Decided June 7, 2018

Before Judges Simonelli and Haas.

On appeal from Superior Court of New Jersey,
Chancery Division, Sussex County, Docket No.
F-029849-12.

Brooke Murphy, appellant, argued the cause pro
se.

Danielle Weslock argued the cause for
respondent (McCarter & English, LLP,
attorneys; Sheila E. Calello, of counsel and
on the brief; Danielle Weslock, on the brief).

PER CURIAM

In this foreclosure matter, defendant Brooke Murphy appeals

from the March 19, 2014 Chancery Part order entering default, and
the February 29, 2016 order denying his motion to vacate the final

judgment entered on March 18, 2015. We affirm.

We derive the following facts from the record. On June 5,

2002, defendant executed an adjustable rate note to Chevy Chase

Bank, F.S.B. (CCB) in the amount of $230,000. To secure payment

of the note, defendant executed a mortgage to Mortgage Electronic

Registration Systems, Inc. (MERS), as nominee for CCB, on his

property located in Green Township (the property). The mortgage

was recorded with the Sussex County Clerk's Office on June 14,

2002.

On October 5, 2005, defendant notified CCB that he would no

longer pay the mortgage, and has made no payment since then. He

also invited CCB to institute a foreclosure action against him.

As of February 1, 2006, he was in default under the note. He also

defaulted under the terms of the mortgage by failing to pay his

real estate taxes on the property, which plaintiff subsequently

paid in the amount of $151,206.31. Defendant does not deny any

of the above facts.

On October 10, 2006, MERS, as nominee for CCB, filed a

foreclosure complaint against defendant after serving him with a

notice of intent to foreclose (NOI). After several unsuccessful

attempts to personally serve defendant at the property, and after

various inquiries and searches confirmed he still resided there,

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on November 16, 2006, MERS mailed a copy of the complaint and

notice of absent defendant to defendant by regular mail at the

property and his post office box in Little Falls (POB). On

November 22, 2006, defendant was served by publication and

certified and regular mail pursuant to Rule 4:4-5(c).

Defendant did not file an answer or otherwise defend. On

February 5, 2007, the court entered default against him. On

February 20, 2007, MERS mailed a copy of the notice of default to

him at the property and by certified and regular mail. Defendant

acknowledged receipt of the documents in correspondence to MERS's

attorney, but did not move to vacate the default. On July 30,

2007, the court entered final judgment.

Defendant eventually filed a motion to vacate the final

judgment, which the court granted on February 20, 2009, finding

the NOI was non-compliant. The court dismissed the complaint

without prejudice and permitted MERS to file a new complaint.

Thereafter, on April 16, 2009, MERS executed an assignment of

mortgage to CCB, which was recorded with the Sussex County Clerk

on April 17, 2009. Defendant does not challenge the validity of

the assignment.

CCB served a NOI on defendant and subsequently filed a

foreclosure complaint on April 27, 2009. After several

unsuccessful attempts to personally serve defendant at the

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property, and after various inquiries and searches confirmed he

still resided there, on August 10, 2009, defendant was served by

publication. Prior thereto, in July 2009, CCB merged into

plaintiff, making plaintiff the holder of the note and mortgage

by operation of law. On April 20, 2012, CCB voluntarily dismissed

the complaint without prejudice.

On July 20, 2012, plaintiff served a NOI on defendant at the

property and at the POB by certified and regular mail. The

certified mail was delivered on August 16, 2012, and the regular

mail was not returned.

On December 14, 2012, plaintiff filed a foreclosure

complaint. Plaintiff's attorney subsequently filed a

certification of inquiry and substituted service. The attorney

certified there were several unsuccessful attempts to personally

serve defendant at the property, and an inquiry with the United

States Postal Service and skip trace and internet searches

confirmed defendant resided at the property. The attorney also

certified that copies of the summons and complaint were mailed to

defendant at the property by certified and regular mail on April

4, 2013, and the certified mail was returned unclaimed, but the

regular mail was not returned.

Plaintiff also submitted the process server's certification

of attempted service and diligent inquiry. The process server

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certified that he made three unsuccessful attempts to personally

serve defendant at the property, and he observed lights and

furniture inside the home, and heard movement inside, but no one

answered.

Plaintiff's attorney also filed a certification of inquiry

and mailing notice and complaint to absent defendant and

publication, certifying that defendant could not be served in New

Jersey; a notice to absent defendant was published on July 25,

2013; and the notice and complaint were mailed to defendant at the

property on July 25, 2013 by regular mail.

Defendant failed to file an answer or otherwise defend. On

January 16, 2014, plaintiff filed a request to enter default and

certification of default. Because the motion did not include the

full language required by Rule 4:64-9, the Office of Foreclosure

could not recommend entry of default at that time and directed

plaintiff to refile the motion. Thereafter, the court entered an

order of default on March 19, 2014, which noted the Office of

Foreclosure had recommended the order.

On April 2, 2014, plaintiff mailed a copy of the default

documents to defendant at the property. That same day, plaintiff

mailed a notice of intent to apply for final judgment to defendant

at the property by certified and regular mail. On February 18,

2015, plaintiff filed a motion for final judgment and served it

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on defendant at the property. Defendant did not respond to the

motion. On March 18, 2015, the court entered final judgment. On

December 16, 2015, the Sussex County Sheriff served defendant at

the property with a notice of sale. Defendant admitted he received

the notice of sale.

On January 7, 2016, defendant filed a motion to vacate the

entry of default and final judgment pursuant to Rule 4:50-1. He

argued that plaintiff failed to correct the deficiency in the

motion for entry of default, and violated the New Jersey Fair

Foreclosure Act (FFA), N.J.S.A. 2A:50-53 to -73, by not serving

him with a NOI.1 Defendant also argued plaintiff failed to

personally serve him with the summons and complaint, and the

complaint was time barred by the six-year statute of limitations

in N.J.S.A. 2A:14-1, N.J.S.A. 2A:50-56.1(a), and N.J.S.A. 12A:3-

118(a). Defendant also challenged the validity of plaintiff's

proofs in opposition to his motion.

In a February 29, 2016 written opinion, the motion judge

found plaintiff properly served defendant with the summons and

complaint pursuant to Rule 4:4-3(a) by certified and regular mail

after unsuccessful attempts at personal service at the property.

The judge also found plaintiff filed a certification of diligent

1
Defendant did not argue the NOI was non-complaint.

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inquiry and substituted service after unsuccessful efforts to

personally serve defendant at the property.

The judge found defendant failed to show excusable neglect

or meritorious defenses. The judge noted that defendant did not

deny the validity of the note and mortgage, his default, and

plaintiff's right to foreclose, and admitted making no payments

since 2005.

The judge determined the complaint was timely under the

twenty-year statute of limitations for foreclosure actions,

N.J.S.A. 2A:50-56.1(c). The judge found plaintiff complied with

the FFA by mailing the NOI to defendant on July 12, 2012, the NOI

conformed with N.J.S.A. 2A:50-56(b), and it was delivered to

defendant. The judge concluded defendant failed to provide

competent proof supporting his challenge to the mailing of the

NOI. The judge also rejected defendant's argument that plaintiff

failed to correct the deficiency in the motion for entry of

default, finding plaintiff cured the deficiency and its proofs

were sufficient to warrant the approval and recommendation of the

Office of Foreclosure to enter default. Lastly, the judge found

defendant presented no evidence he was capable of curing the

default. This appeal followed.

On appeal, defendant reiterates that plaintiff failed to

serve him with a NOI, the complaint was barred by the six-year

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statute of limitations, and plaintiff failed to properly serve him

with the summons and complaint. He adds that the motion judge

erred in relying on plaintiff's proofs with respect to service of

the NOI, summons and complaint, and motions and orders.

We review the trial court's decision on a motion to vacate a

default judgment for abuse of discretion. Deutsche Bank Nat'l Tr.

Co. v. Russo, 429 N.J. Super. 91, 98 (App. Div. 2012). "'The

trial court's determination under [Rule 4:50-1] warrants

substantial deference,' and the abuse of discretion must be clear

to warrant reversal." Ibid. (alteration in original) (quoting US

Bank Nat'l Ass'n v. Guillaume, 209 N.J. 449, 467 (2012)). An

abuse of discretion exists when the decision of the lower court

"is 'made without a rational explanation, inexplicably departed

from established policies, or rested on an impermissible basis.'"

Guillaume, 209 N.J. at 467 (citation omitted). The court should

not grant the motion unless the defendant's failure to answer or

appear was excusable and the defendant has a meritorious defense.

Russo, 429 N.J. Super. at 98. "'Excusable neglect' may be found

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

compatible with due diligence or reasonable prudence.'" Ibid.

(quoting Guillaume, 209 N.J. at 468).

We have considered defendant's arguments in light of the

record and applicable legal principles and conclude they are

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without sufficient merit to warrant discussion in a written

opinion. R. 2:11-3(e)(1)(E). We discern no abuse of discretion

by the motion judge, and affirm substantially for the reasons set

forth in his written opinion. However, we make the following

brief comments.

Defendant was indisputably aware of the foreclosure

proceedings against him and, in fact, invited a foreclosure action

in October 2005, when he refused to make any further payments on

the note. He was in default and had made no payment for almost

ten years when the court entered final judgment. He presented no

evidence whatsoever that he was willing to cure or capable of

curing the default. We are satisfied that plaintiff properly

served the NOI on defendant, properly served him with the summons

and complaint by substituted service, and properly served him with

the motion to enter default and motion for entry of final judgment

by default.

Affirmed.

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