NOT FOR PUBLICATION WITHOUT THE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-1776-18T1
DEUTSCHE BANK NATIONAL
TRUST COMPANY, AS TRUSTEE
FOR MORGAN STANLEY
MORTGAGE LOAN TRUST
2005-5AR MORTGAGE PASS-
THROUGH CERTIFICATES,
SERIES 2005-5AR,
Plaintiff-Respondent,
v.
JUDITH J. SULLIVAN, a/k/a
JUDITH SULLIVAN and
MR. JUDITH J. SULLIVAN,
her husband,
Defendant-Appellant,
and
BANK OF AMERICA, NA,
RAMAPO RIVER RESERVE
HOMEOWNERS ASSOCIATION,
INC., UNITED STATES OF
AMERICA, CAPASSO PLUMBING
& HEATING, STATE OF NEW
JERSEY, DISCOVER BANK,
and TOBIN & COLLINS, PA,
Defendants.
_____________________________
Submitted January 8, 2020 – Decided January 23, 2020
Before Judges Mayer and Enright.
On appeal from the Superior Court of New Jersey,
Chancery Division, Bergen County, Docket No.
F-023053-16.
Judith J. Sullivan, appellant pro se.
Sandelands Eyet LLP, attorneys for respondent
(Suzanne Q. Chamberlin, of counsel and on the brief).
PER CURIAM
In this residential foreclosure action, defendant Judith J. Sullivan appeals
from a November 30, 2018 order denying her motion to vacate final judgment.
Defendant contends the trial court erred in permitting judgment to be entered
prematurely in favor of plaintiff Deutsche Bank National Trust Company , as
Trustee for Morgan Stanley Mortgage Loan Trust 2005-5AR Mortgage Pass-
Through Certificates, Series 2005-5AR (Deutsche Bank), without conducting an
evidentiary hearing regarding the amount due. Defendant also claims the trial
A-1776-18T1
2
judge ignored a prior loan modification she had executed in 2008. 1 We find
these claims lacking in merit and affirm.
In April 2005, defendant borrowed $1,095,000 from Countrywide Home
Loans, Inc. and signed a mortgage and note evidencing the debt. The note and
mortgage ultimately were assigned to Deutsche Bank in 2016. In the interim,
defendant's loan was modified by agreement in April 2008. Despite the
negotiated modification, defendant defaulted on the loan in August 2008.
Deutsche Bank asserts defendant has made no payment on her loan since August
2008.
Deutsche Bank filed a foreclosure complaint in 2016 and moved for
summary judgment in 2017. In response to the summary judgment motion,
defendant cross-moved to compel discovery. The trial court granted summary
judgment and struck defendant's answer by order of June 23, 2017. The trial
court explained Deutsche Bank’s predecessor-in-interest had obtained summary
judgment in a prior foreclosure action, so defendant was not permitted to re-
litigate issues previously decided. Moreover, the trial judge found defendant
defaulted on her loan on August 1, 2008 and remained in default. Accordingly,
1
Defendant has asserted she received an additional modification in 2010 but
does not cite to any part of the record in support of that claim.
A-1776-18T1
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Deutsche Bank was allowed to proceed on an uncontested basis before the Clerk
of the Superior Court, Office of Foreclosure. Defendant moved for
reconsideration of this order and requested that plaintiff be compelled to
participate in mediation. Both requests were denied.
Next, Deutsche Bank filed a motion to permit entry of final judgment,
notwithstanding that the 2008 loan modification was not referenced in the
complaint. Defendant objected, arguing plaintiff's complaint made no reference
to the loan modification, but Deutsche Bank countered that her default had
occurred after that modification. Deutsche Bank's motion was granted in
November 2017, and the trial judge observed, "no prejudice will result to
defendant as plaintiff, at the time it seeks final judgment, will need to provide a
schedule of the amount due, demonstrating a proper accounting of the principal
balance, interest charges, and all other expenses owed on the property." The
judge also noted defendant could contest the amount due by making a "specific
challenge."
In November 2017, based on the age of the case, the Office of Foreclosure
held a mediation session, following which defendant was ordered to provide
Deutsche Bank with an itemized list of the specific charges she challenged.
After two unsuccessful sessions, mediation was suspended to allow the parties
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to file motions to resolve the disputed amount due plaintiff and to address other
factual issues.
In May 2018, plaintiff served defendant with a notice to cure her default.
There is no indication in the record that defendant responded to this notice.
Accordingly, Deutsche Bank moved for final judgment, advising defendant she
had ten days within which to file any opposition or objection. No timely
objection was received and on June 14, 2018, final judgment was entered in
plaintiff's favor in the sum of $1,962,729.75. No appeal was taken from this
order.
On June 26, 2018, defendant belatedly filed an objection with the Office
of Foreclosure, challenging the amount due plaintiff. Nearly one month later,
she filed a motion to vacate judgment. Relying on Rules 4:50-1 and 4:64-1,
defendant claimed plaintiff proceeded in bad faith, that plaintiff was not the
holder of the loan, and the principal amount and interest due under the loan was
calculated incorrectly. She also contested the additional fees imposed and
asserted the affidavit of the amount due was "inadmissible hearsay." Moreover,
she certified she was "confused" by the myriad of corrections, refilings and
withdrawals of pleadings at the end of the litigation, stating, "[w]hether the court
A-1776-18T1
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calls it excusable neglect, mistake or inadvertence, I demonstrate I was unsure
about what was happening."
The trial court heard oral argument on defendant's motion to vacate.
Notwithstanding the many opportunities afforded to her throughout the case, the
trial court permitted defendant to further discuss the calculation of the amount
due to Deutsche Bank. Plaintiff maintained its calculations were correct, with
the possible exception of one "line item." On that item, however, plaintiff
acknowledged it would not expend additional time and expense to prove
defendant owed about $44,000 in contested fees.
Ultimately, defendant did not outline any specific objections to the
remainder of what plaintiff claimed she owed Deutsche Bank. Instead, her
attorney conceded he did not have "full proofs" to demonstrate certain figures
provided by plaintiff were wrong. The trial court interjected that "today is the
day for proofs."
After defendant's attorney admitted his proofs were insufficient, he
discussed the general difficulties facing property owners when banks mistakenly
calculate the amount owed on a loan. Defendant's attorney suggested the remedy
for the banking industry's "symptomatic [ ] cloud on the entire [foreclosure]
process was to vacate [Deutsche Bank's] final judgment." The motion judge
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rejected this suggestion. The judge found plaintiff provided the requested
supplemental accounting for the amount owed on the mortgage, whereas
defendant offered no proofs in opposition to Deutsche Bank's calculations and
did not object to the amount due when plaintiff applied for final judgment.
Accordingly, the judge denied defendant's motion to vacate, triggering the
instant appeal.
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." U.S. Bank Nat'l
Ass'n v. Guillaume, 209 N.J. 449, 467 (2012) (quoting Mancini v. EDS, 132 N.J.
330, 334 (1993)). A decision to vacate a judgment lies within the sound
discretion of the trial judge, guided by principles of equity. Housing Auth. of
Town of Morristown v. Little, 135 N.J. 274, 283 (1994).
Motions to vacate a judgment under Rule 4:50-1 are granted sparingly and
reviewed by appellate courts under an abuse of discretion standard. Guillaume,
209 N.J. at 467. A trial court abuses its discretion if a decision lacks "rational
explanation," "represents an inexplicable departure from established policies,"
or rests on "an impermissible basis." Ibid.
A-1776-18T1
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Here, we perceive no basis to disturb the trial judge's denial of defendant's
motion to vacate, particularly since she did not advance any meritorious
defenses to the foreclosure action. The trial judge properly found defendant
failed to demonstrate mistake, inadvertence, surprise, or excusable neglect under
Rule 4:50-1(a). We note "excusable neglect" does not include confusion over
communications regarding a loan modification, especially when there have been
repeated notices regarding an ongoing foreclosure action. Guillaume, 209 N.J.
at 468-69. The trial judge also properly found defendant did not establish any
other basis for relief under Rule 4:50-1, including the existence of exceptional
circumstances. R. 4:50-1(f). Even defendant's renewed hearsay objection, much
like the hearsay objection addressed in the June 23, 2017 order, does not provide
a foundation for a finding of "exceptional circumstances" under Rule 4:50-1(f).
Guillaume, 209 N.J. at 468.
Defendant also asserts she was entitled to relief because she received
insufficient notice before the court entered final judgment. This argument lacks
merit. Rule 4:64-1(d)(4) requires ten days' notice before a court may enter final
judgment if there are no other encumbrancers and thirty days' notice if there are
other encumbrancers. Defendant maintains she received only ten days' notice
A-1776-18T1
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but was entitled to thirty days' notice due to the existence of other
encumbrancers. However, she provided no proof of other encumbrancers.
Defendant further contends the trial court erred when it did not afford her
an evidentiary hearing on her motion to vacate. We are not persuaded. The
need for such a hearing arises when a defendant timely objects to the entry of
final judgment. The record confirms defendant did not timely object to the entry
of final judgment, although she had enough time before final judgment was
entered to specifically challenge Deutsche Bank's calculation of the amount due.
Again, the trial court made clear in the June 23, 2017 summary judgment ruling
that defendant would not be prejudiced by the decision because she still could
raise specific challenges to the bank's calculations. However, defendant did not
advance any specific challenges to Deutsche Bank's calculations and her
attorney conceded during argument on the motion to vacate that defendant's
proofs were insufficient. Under these circumstances, no evidentiary hearing was
required.
The remainder of defendant's arguments are without sufficient merit to
warrant discussion in a written opinion. R. 2:11-3(e)(1)E.
Affirmed.
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