NOT FOR PUBLICATION WITHOUT THE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.
6 A-2749-15T3
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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